AGNELO JOHN DSOUZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ISSUES of utmost importance and considerable significance in the context of power of the High Court and for that matter even of the Special Court, to grant bail to the accused arrested under the provisions of Narcotic Drug and Psychotropic Substances, Act, 1985 (in short NDPS Act) pending trial have been raised in this group of applications. The issues raised have compounded their resolution in view of particular views already taken by the Single Benches of this Court. The learned Public Prosecutor appearing for the State has made a strong plea for reference to the Division Bench, pleading and urging that the issues were not presented before the Court, who have disposed to adopt particular view, in their proper perspective. In as much as, it is asserted that the vital and relevant statutory provisions were not at all considered and argued before the Court in those decided matters. It is also contended that the judicial trend as reflected in the decisions of the Apex Court as also the larger Benches of other High Courts in this country, directly having bearing on the issues agitated, were not highlighted, and pointed out when previous matters were argued. In as much as, it is submitted that adopting the particular way of view in the matter of grant of bail in respect of offences registered under NDPS Act, as done in these decided cases, go directly counter to the main thrush and object of the NDPS Act and would frustrate the very aim and object it is meant to achieve.

(2.) THE point of issue is as under. The applicants in this group of application have been arrested under various provisions of NDPS Act. It will be noticed from the title of this Judgment that in all these applications, in every case, the number of accused are more than one. In each case the prosecution has filed a single report before the Special NDPS Court as required under section 173 of the Criminal Procedure Code, although the report in each case mentions searches and seizures effected under NDPS Act at different places and at different times as also different places of apprehensions of each accused. (Emphasis supplied.) It is this factor which has been the centre of controversy at issue. In as much as, on behalf of the applicants, it is submitted with all seriousness that such course of filing one common charge-sheet by the prosecution in respect of separate and distinct searches and seizures, in each case herein, amounts to "misjoinder of charges. " (again emphasis supplied) and that statute mandates viz. section 218 of the Code of Criminal Procedure that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. This having not been done, there is breach and non-compliance of statutory mandate, fatal to the prosecution and prejudicial to the accused/applicants.

(3.) THE applicants counsel refer to and place reliance upon the decisions rendered earlier each sitting singly by my brother Judges I. G. Shah, M. F. Saldhana and of mine (i. e. Rane, J. ,) in the cases where facts and circumstances, as far as joinder of different offences in the common report filed in each case under section 173 of the Criminal Procedure Code before the Special NDPS Court, were the same, and wherein order of the release of the accused involved in the respective cases were passed. It is however relevant to note that Saldhana, J. , and myself granted bails in those cases, following ratio of Shah, J. , without considering the merits in the context of section 37 of the NDPS Act.