ROBUL SAIKH Vs. STATE OF KERALA

JUDGEMENT

(1.) The present request of the petitioner is to extend the benefit under the first proviso to Sec. 436(1) Cr.P.C. to him by treating him as an indigent person for the purpose of the proviso. The petitioner is the accused in Crime No. 36 of 2015 of the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, registered for the offence under Sec. 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. As he was found in possession of a small quantity of ganja, the petitioner was placed under arrest on 06.12.2015. Still, he is undergoing detention.

(2.) The crux of the matter is whether the offence under Sec. 20(b)(ii)(A) is a bailable offence or not? Going by the caption of Sec. 37 of the N.D.P.S. Act, at the first blush, it may appear that all the offences under the N.D.P.S. Act are non bailable and cognizable. At the same time, Sec. 37(1)(a) says that every offence punishable under that Act shall be cognizable. There, the legislature has not incorporated the term 'non bailable' also. The caption of the Sec. should precisely be one representing the contents of the Section. When the detailed provision contained under Sec. 37 of the Act do not show that every offence under the Act are non bailable, especially when it has been clarified in the Sec. that every offence punishable under that Act is cognizable, it has to be noted that the legislature has never thought of making every offence under the Act as non bailable. Therefore, it should go by the general law as per the Code of Criminal Procedure, to decide as to whether an offence under the N.D.P.S. Act is bailable or not. When the offence under Sec. 20(b)(ii)(A) of the N.D.P.S. Act is punishable with rigorous imprisonment for a term which may extend to one year, or with fine or with both only, it has to be noted that the said offence is necessarily a bailable one.

(3.) The aforesaid position was clarified in the decision in Shaji v/s. Kerala State, : 2004 (3) KLT 270(DB) which was subsequently followed in the decision in Mathew v/s. State of Kerala, : 2008 (1) KLT 915. When there is an ambiguity in the caption of a particular Sec. in an enactment with the contents of that particular Section, the contents of the Sec. have to be followed and one should not go by the caption alone to arrive at the correct meaning of the provision in the enactment.