STEFAN MUELLER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule made returnable forthwith. Heard the learned Counsel for the petitioner and the learned APP.

(2.) On 4.3.2007, Police Inspector Sanjay Pawar, attached to the Haweli Police Station, Pune, got information that 300 to 400 youngsters were enjoying a party called "Rave Party" on the land of one Chandrakant Hagawane, police raided that place and some persons were arrested. The present petitioner was accused No.4. A plastic bag containing Ganja and 15 grams of Charas were allegedly found with him. The weight of Ganja is not given. After investigation, charge-sheet was filed by the police under different provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") against 15 persons. The accused Nos. 8 to 15 were discharged by the Court. By order dated 4.10.2008, the learned Special Judge under NDPS Act, Pune,directed to frame different charges against different accused. The learned Judge directed to frame charge against accused Nos. 4 to 7 for the offence punishable under Section 20(b) (ii)(A) and Section 27 of the NDPS Act. The petitioner was granted bail by order dated 21.3.2007, when the police had levelled charges against the present petitioner under Section 20(b), 25,27, 18 of the NDPS Act and Section 14 of the Foreigners Act. By the said order, the learned Special Judge had directed the petitioner to deposit his passport in the Court and also that he shall not leave India without permission of the Court. On 27.8.2007, the petitioner made an application before the learned Special Judge seeking permission to go abroad and to return his passport to him on the ground that his mother was seriously ill and was hospitalised and therefore he wanted to meet her in Germany. The petitioner is a citizen and resident of Germany. That application was rejected by order dated 1.9.2009 by the learned Special Judge mainly on the ground that the petitioner is a foreigner and if he is released on bail, he may not come back and also observed that in view of the provisions of Section 37(2) of the NDPS Act, the limitations for grant of bail under the said Section are in addition to the limitations under the Code of Criminal Procedure. That order is challenged ini the present Writ Petition.

(3.) The learned Counsel for the petitioner vehemently contended that as per the order dated 4.10.2008, the learned Special Judge, had specifically directed that the present petitioner be charged for the offence punishable under section 20(b)(ii)(A) and Section 27. Each of the said offences is punishable with imprisonment which may extend to six months, or with fine, or with both. The learned Counsel contends that in view of the amendment in the NDPS Act in the year 2001, the stringent conditions of grant of bail as prescribed under Section 37(1)(b) are applicable only to the offences punishable under sections 19, 24 and 27-A and also to the offences involving commercial quantity. The said conditions are not applicable to any other offence. He also contended that section 37 does not declare in so many words that all the offences under the NDPS Act are nonbailable. He contends that whether an offence is bailable or non-bailable, will have to be considered in the light of the Part II of the Schedule to the Cr.P.C.He contends that as per Part II of the Schedule, the offences against other laws other than IPC, if punishable with imprisonment for less than three years or with fine only are non-cognizable, bailable and triable by Magistrate. The learned Counsel contends that even though the title of Section 37 is "Offences to be cognizable and non-bailable", in the body of Section, it is only declared that offences shall be cognizable, but it is not declared that all the offences shall be non-bailable. He contends that by virtue of Part II of the Schedule, depending on the sentence which can be awarded for particular offence under the NDPS Act, the particular offence will be bailable or non-bailable. and if it is non-bailable, stringent conditions provided by clause (b) of Section 37(1) will be applicable in addition to the conditions for bail which may be imposed under the Cr.P.C. as per the previsions of sub-section (2) of Section 37. The learned Counsel also contended that if the offence is bailable, no conditions can be imposed while granting bail under Section 436 Cr.PC. and therefore, the Court cannot cannot prohibit the accused from travelling abroad and also cannot put a condition that the accused shall not travel abroad without the permission of the Court. According to him, the passport cannot be directed to be deposited with the Court.