RADHAKRISHNAN Vs. STATE

JUDGEMENT

(1.) THE application in Crl. O. P. No. 5235 of 2004 is filed by the A-I and Crl. O. P. No. 779 of 2005 is filed by A-2, seeking bail for the alleged offences under Section 8 (c) nw 21 (a) of NDPS Act 1985 and S. 174, Cr. P. C. in Crime No. 238/2004, on the file of the respondent police.

(2.) THE learned counsel would contend that even though the petitioners are implicated for the alleged offences and the quantity of the contraband is a Commercial quantity, they pray for the grant of bail by virtue of powers under Section 167 (2), Cr. P. C nw 36-A (4) of N. D. P. S. Act, 1985. In this connection, the learned counsel for the petitioners would contend that even though an application was filed on 29. 10. 2004 for grant of bail after the lapse of statutory period of 180 days, the Special Court rejected the said application, which is contrary to law. According to him, when an application was filed on 29. 10. 2004 for grant of statutory bail, the respondent police has not chosen to file any application seeking extension of time as contemplated under Section 36 (A) (4) of NDPS Act. However, the respondents have filed the application only on 1. 11. 2004 and the same was also considered along with the application for grant of bail on the same day, viz. , on 23. 11. 2004. Even though the Special Courts orders were passed in respect of both the applications, the reasons cited by the Special Court in rejecting the application for grant of bail proceeds on the footing that on the date of filing the application, the petitioners were admittedly in custody and the period of custody was extended till 3. 11. 2004 and as such the respondent is entitled to maintain an application seeking extension of time and rejected the application for grant of bail. The learned counsel would further add that orders passed by the Special Court in granting further time on the application of the prosecution, is without any basis and not in accordance with law, inasmuch as the proviso relating to Section 36 (A) (4) specifically emphasise the independent application of mind on the part of the Public Prosecutor, who shall submit his report specifying the reasons for the detention of the accused beyond the said period of 180 days. Admittedly, in the present case, no application has been filed by the prosecution as envisaged, seeking time and therefore, there is flaw in the order of the Special Court, and as such it is contended that the petitioners are entitled for the grant of bail.

(3.) PER contra, the learned Government Advocate would contend that while dealing with the application for bail in a case where the quantity possessed by the petitioner is of a commercial quantity, the statutory rule as envisaged under Section 167 (2), Cr. P. C. should not be followed, since Section 37 of the NDPS Act has been enacted by the legislature to eradicate drug traffic and psychotropic substance. According to the learned Government Advocate, the Apex Court held that while considering the bail under the special enactment, the legislature has specifically thought it fit that the accused should not be released on bail as in other cases, inasmuch as Section 37 (1) (b) specifically puts an embargo upon the Court while considering the grant of bail.