FAKIRA RAMDAS CHAUDHARY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application for bail pending the hearing and final disposal of an appeal filed by the State seeking to impugn an order of acquittal passed for offences punishable under Ss. 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. At the trial five accused were prosecuted and by judgment and order passed on the 8th of April, 1993 the learned Additional Sessions Judge, Malegaon acquitted all the accused. Benig aggrieved by the aforesaid order of acquittal, the State has preferred the instant appeal. By an order passed on the 4th of October, 1993 the aforesaid appeal was admitted and action under S. 390 of the Code of Criminal Procedure was ordered. Accordingly, warrants of arrest of the accused were issued and accused No. 5 was taken in custody by the trial Court. The accused No. 5, thereafter, preferred an application for bail. By an order passed on the 17th of December, 1993 the learned Additional Sessions Judge was pleased to reject the application for bail. According to the learned Judge, only accused No. 5 has been arrested after the issue of warrants whereas the other accused are reported absconding. He has further noted that during the pendency of the trial all the accused including accused No. 5 were under-trial prisoners and they were denied bail under the provision of S. 37 of the Act. After the order of acquittal was passed, the State has preferred an appeal. The High Court has admitted the appeal which necessarily means that, according to the High Court, ex-facie, the acquittal is improper. The Court has further proceeded to hold that the provisions of S. 390 Criminal Procedure Code do not apply to offences punishable under the Act. S. 17 is a special provision in the Act which governs the bail and hence the general provisions of S. 390, Criminal Procedure Code cannot be resorted to. The accused No. 5 has, thereafter preferred the present application for bail.

(2.) SHRI Kotwal, the learned Advocate, who has appeared in support of the application for bail, has contended that the provisions of S. 390 of the Code would apply in the instant case and S. 37 of the Act will not oust the application of S. 390 of the Code of Criminal Procedure. In support of his contention, he has relied on a decision of a Division Bench of this Court in the case of "kuldeepsingh Keshersingh Pabla v. State of Maharashtra", (1993 Mah LJ 1742), wherein this Court has held that S. 167 (2) of the Code would apply to prosecution under the Act, despite the provisions contained in S. 37 of the Act and the non-obstante clause in S. 37 will not bar the mandate contained in S. 167 (2) of the Code. The Bench has made a reference to S. 36a (1), 36c and 33 of the Act and has found that whenever certain provisions of the Criminal Procedure Code are excluded from the operation of the Act, the same has been specifically mentioned in the said Sections. It has further found that the mandate of S. 167 is clear. It has further observed as follows :

(3.) NOW, it is true that as far as the provisions of S. 167 (2) are concerned they do contain a mandate that the accused shall be entitled to be released on bail in the event of a chargesheet not being filed within the stipulated period. It is further true that as far as the provisions of S. 390 of the Code are concerned, they do not contain a mandate of the nature contained in S. 167 (2) of the Code. S. 390 of the Code confers a discretion on the Court in the matter of grant or refusal to grant bail. The provisions of S. 37 of the Act no doubt contains a mandate "notwithstanding anything contained in the Code of Criminal Procedure. . . . . . . . . . . . no person accused of an offence. . . . . . . . shall be released on bail. . . . . . . . . . unless there are reasonable grounds of believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. " It has been held in the above decision of this Court, that the provisions of S. 37 of the Act are applicable to the general power of grant of bail under Chapter XXXIII of the Code and the same will not apply to S. 167 appearing in Chapter XII of the Code. Similarly, we are inclined to hold that the said provisions of S. 37 of the Act are not applicable to S. 390 occurring in Chapter XXIX of the Code. Once, this finding is arrived at, the bar of the jurisdiction contained in S. 37 for grant of bail will cease to apply and the discretion conferred under S. 390 of the Code Criminal Procedure will come into operation. Hence, disagreeing with the view expressed by the learned Judge of the trial Court we hold that the bar contained in S. 37 of the Act will not operate in the matter of the exercise of discretion for grant or refusal of bail under S. 390 of the Code.