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2022 (11) TMI 1511
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....arded in the said truck including the driver. On seeing the police, all the three persons took to their heels but the police staff could apprehend all the three. On verification, the said truck was found to have some jerry bags and bundles in the gap between two tarpaulins covering dullah in a concealed manner from which the pungent smell of Ganja was emitting. On being asked, the occupants of the vehicle could not able to produce any authority for possessing the contraband Ganja but the S.I. and staff ascertained the names and address of all the three occupants which includes the petitioner Rabi Prakash and they also seized the contraband Ganja which on weighment came to 246 Kgs. 800 grams and after observing all formalities, the petitioner and others were forwarded to the Court and the case was investigated into by S.I. Bhagaban Mishra who on finding prima facie case submitted charge sheet against the petitioner and others for commission of offence U/Ss. 20(b)(ii)(C) of the N.D.P.S. Act 4. In the course of hearing of the bail application, Mr.A.N.Pattanayak, learned counsel for the petitioner submits the following points/grounds for consideration of the bail application of the pe....
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....he petitioner prays to direct release of the petitioner on bail. 6. In repelling the submissions of the petitioner, learned counsel for the State, however, vehemently opposes the bail application of the petitioner by inter alia submitting that the contraband Ganja recovered and seized in this case being commercial quantity, Section 37(1)(b)(ii) of the N.D.P.S. Act creates an embargo for release of the petitioner on bail unless the twin conditions enumerated therein are fully satisfied by the petitioner for grant of bail to him but the petitioner has failed to satisfy the Court about the conditions as mandated in the aforesaid section. It is also submitted that merely because the trial has not concluded, the detention of the petitioner in this case being for a small period of two years or three years, it cannot be taken as a ground for release of the petitioner on bail. Learned counsel for the State further submits that the principle of parity cannot be extended to the petitioner in view of the fact that the order granting bail to co-accused persons was passed without reference to Section 37 of N.D.P.S. Act and the law laid down by Apex Court in Satpal Singh Vrs. State of Punjab; (....
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....ovisions of Sub-Section(2) of Section 37 of N.D.P.S. Act, it is evident that the limitations for granting bail as specified in Clause-b of Sub-Section(1) are in addition to the limitations under the Criminal Procedure Code or any other law for time being in force. Further, it is clear beyond doubt that Section 37 of the N.D.P.S. Act starts with a non-obstante clause incorporated in Sub-Section(1), besides the mandatory conditions imposed in Sub-Section(2), that there are certain restrictions on the power of the Court while granting bail to a person accused of offence involving commercial quantity, besides offences punishable U/Ss. 19 or 24 or 27- A of the N.D.P.S. Act but such restrictions on the power of the Court are not absolute and such person accused of an offence involving commercial quantity or offences U/Ss. 19 or 24 or 27-A of the N.D.P.S. Act can be released on bail or on his own bond provided the public prosecutor has been given an opportunity to oppose the bail application for such release and where the public prosecutor opposes the bail application, the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offen....
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.... Act has not been considered while granting bail to coaccused person or the co-accused has been granted bail by taking into consideration of his implication solely on the basis of confession of coaccused. It is never in dispute that grant of bail to accused is not a mechanical act but it involves the process of evaluation of accusations by balancing the same with different parameters such as prima facie case, severity of punishment for offences alleged against the accused, nature of supporting evidence collected, apprehension of tampering the witnesses by the accused, nature and gravity of the offence, apprehension of accused absconding, criminal antecedents of the accused etc. The above lists are not exhaustive but indicative only. 11. Besides, a Court is not bound to exercise its discretion to grant bail to an accused on the ground of parity when the order granting bail to a similarly placed co-accused is devoid of any reason or the same has been secured in violation of statutory provision of law and there the Court can ignore such order granting bail to co-accused without following the mandatory provisions. Law never advocates/compels any Court to exercise discretion in violati....
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....s not consideration that can be treated as persuasive grounds for granting relief to the respondent U/S. 37 of the N.D.P.S. Act." 14. In Union of India Vrs. Ratan Mallik @ Habul;(2009) OCR(SC) 697, the Apex Court while dealing a matter under N.D.P.S. Act in paragraph-11 has held as under;- "However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such application." 14.1. In Babua Vrs. State of Orissa; (2001) 2 SCC 566, the Apex Court at Para-3 has held thus:- "3. The reason given by the petitioner for claiming grant of bail become insignificant if one bears in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen was whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, one cannot say that the accused is not guilty of the offence if the allegations are made in the charge sheet are established. Moreover, the evidence having no....
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.... State of Maharashtra and Umarmia @ Mamumia Vrs. State of Gujurat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh condition for bail in such special enactments, has thus being primarily justified on the touch stone of speedy trials to ensure the protection of innocent civilians. " 17. It is also not in dispute that speedy trial is not specifically enumerated as a fundamental right but it is implicit in the broad swift and content of Article 21 as interpreted by Apex Court in Manaka Gandhi Vrs. Union of India;(1978) 2 SCR 621, which was reiterated in Hussainara Khatoon(supra) wherein after taking into consideration the plight of under trial prisoners charged for minor offences languishing in custody for 5-10 years without initiation of trial, the Apex Court had held that speedy trial is the essence of criminal justice and delay in trial by itself constitutes denial of justice. Right of speedy trial is undeniably a right of the accused guaranteed under Article 21 of our Constitution, but each and every day delay does not necessarily amount to long delay causin....
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....whisper about the provision of Section 37 of the Act. In this case the provision of Section 37 of the Act has been completely given a go bye by the High Court." 19. In Supreme Court Legal Aid Committee(Representing under trial prisoners) Vrs. Union of India; (1994) 6 SCC 731, the Apex Court after noticing the Right of accused to speedy trial and stringent provision for grant of bail under N.D.P.S. Act has directed inter alia at paragraph-15(iii) that:- "where the under trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for the like amount." On reverting back, it is not the case of the petitioner that he has already suffered incarceration for a period of five years and it cannot be forgotten that the petitioner has been implicated in this case for offences punishable with minimum imprisonment of ten years and a fine of Rupees one lakh. 20. For grant of bail to the petitioner, learned counsel for the petitioner h....