N R MON Vs. NASIMUDDIN

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment of the learned single Judge of the Gauhati High Court, Imphal Bench, upholding the order passed by the learned Special Judge, NDPS, Manipur, Imphal, in Cri. Complaint case No. 32 of 2000, by which bail was granted to the respondent.

(2.) BACKGROUND facts in a nutshell are as follows : on 17-1-2000 the appellant received information in writing from a casual source that a Tata truck bearing registration No. MN-5113 carrying ganja would be proceeding from Imphal area towards Guwahati in the early hours of 18-1-2000. It was immediately reported by the appellant to its superior officer i. e. Superintendent, ncb, RU, Imphal, who issued order to the appellant to take necessary action. The appellant along with other members of staff of the NCB led by the Superintendent kept vigil along the Imphal-Ukhrul road and started checking of vehicles. Around 7. 00 a. m. on 18-1-2000 a Tata truck was seen approaching the road. The said vehicle was intercepted and stopped by the appellant. The vehicle was occupied by a driver (the respondent herein) and one Purna Bahadur handyman. The vehicle, the accused and the handyman were brought to the Revenue complex for a thorough checking. After following procedure laid down under Section 50 of the Narcotic Drugs and psychotropic Substances Act, 1985 (in short 'the Act'), the respondent and the driver were asked whether they would like to be taken before the magistrate or the Gazetted Officer. During search 6 packets of Ganja in pressed form, from a specially constructed chamber in the fuel tank were recovered. On weighing, the same was found to be 163 kgs. in total. The representative samples were taken and sent for analysis by the Chemical Examiner of the Government of Assam, at the State Forensic Science Laboratory in Guwahati. The voluntary statement of the respondent was recorded in the presence of the witnesses on 18-1-2000. The respondent was put on arrest under Section 43 (a) of the Act and case was registered for offence in relation to possession punishable under Sections 20, 29 and 60 of the Act. The Forensic science Laboratory report was to the effect that the sample was Ganja. On 4-3-2000 an application for bail was filed before the learned Special Judge, NDPS, Manipur, imphal, under Section 437 of the Code of Criminal Procedure, 1973 (in short 'cr. P. C. ')and Section 37 (b) (ii) of the said Act. But without taking note of Section 37 of the act, bail was granted. The same was challenged before the High Court. By the impugned order, the same was rejected. The High Court noted that attendance of the accused can be secured by means of bail bonds already signed. He may be allowed the respondent to remain on bail in order to enable him to have adequate consultation with the lawyer of his choice.

(3.) AS rightly contended by learned counsel for the appellant, the effect of Section 37 has not been noticed by either the trial Court or the High Court. The position relating to grant of bail in the background of Section 37 of the act has been considered by this Court in several cases.