RAM DAYAL KOLI Vs. STATE

JUDGEMENT

(1.) BY this petition under Section 439, Criminal Procedure, Code, the Petitioner, who was arrested on 8 -8 -1991 for an offence under Section 8/18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, the 'NDPS Act'), as 5 kg. 100 gm. of opium was seized from his possession, has prayed for his release on bail. Shri R. R. Sharma, counsel for the Petitioner, placing reliance on a decision of this Court in Mari Appa v. State of M. P. : 1991 JLJ 415, contended that because of non -compliance of Section 50 of the NDPS Act, the Petitioner is entitled for bail, as there are reasonable grounds for believing that the accused is not guilty of the offence charged. On a careful consideration, I am not satisfied that the ground is available to the Petitioner. On going through the statement of the Petitioner and the seizure memo, it is clear that the Petitioner did not exercise the option of requiring the duly authorised officer to take him for search and arrest without unnecessary delay to the nearest Gazetted Officer of the Departments mentioned in Section 42 or to the nearest Magistrate.

(2.) IT was next contended that the Petitioner under proviso (a) to Section 167(2), Cr. P. C., has acquired statutory right to be released on bail on default of the prosecution in not filing the charge -sheet within the prescribed period, and that right being absolute as it is a legislative command and not Court's discretion, the Petitioner is entitled for bail. Reliance was placed on two decisions of the apex Court in Raghuvir Singh v. State of Bihar : (1986) 4 SCC 481 and Rajnikant's : (1989) 3 SCC 532 case. A decision of this Court in case of Bhavarsingh v. State of M. P. : 1990 JLJ 193, was also pressed into service, wherein this Court has taken the view that where in relation to offences falling within the description given in Section 37 of the NDPS Act, the prosecution does not oppose the application for bail, the Court by virtue of Section 4(2) of Cr. P. C., is free to deal with the matter under relevant provision of the Code, applying the general principles governing the matter of bail. However, where the prayer for bail is opposed, S. 37 of the NDPS Act makes it obligatory on the Court to ensure that the conditions laid down therein are fulfilled. Shri N. P. Mittal, Counsel appearing for the Narcotics Central Bureau, contended that bail under the NDPS Act can be granted only on the grounds mentioned in S. 37, Sub -section (1), subject to such limitations as may have been provided under the Cr. P. C., or any other law for the time being in force on granting of bail. The proviso (a) to S. 167(2) is not a limitation for the purpose of grant of bail, but the non -compliance of which enables the accused to be released on bail. Counsel took this Court through the preamble and Sections 32 -A, 33, 36, 36 -A, 37, 51, 52, 57, of the NDPS Act and, placing reliance on a recent decision of the apex Court in case of Kishan Lal , AIR 1991 SCW 339, submitted that it is clear that by virtue of S. 4(2) of Cr. P. C., offences under the NDPS Act are investigated, inquired into, tried and otherwise dealt with in accordance with the provisions contained in Cr. P. C., but the powers under Cr. P. C. are subject to the NDPS Act, which is a special enactment; hence, the Petitioner, as of right, is not entitled to bail in default of not filing the charge -sheet within 90 days. In Kishanlal's case (supra) bail was sought on the grounds that the accused is entitled to be released on bail under Section 167(2), as the charge -sheet was filed at a belated stage, and that the accused was ill. A learned Single Judge referred the matter to a Division Bench of Delhi High Court, the Division Bench while granting bail, held that the limitations placed on the special Court under Section 37(2) cannot be read as fetters on the High Court in exercise of powers under Section 439, Cr. P. C. for granting bail. On appeal, the Supreme Court after considering the preamble and the various provisions of the NDPS Act observed in para 6:

(3.) SECTION 37 as amended starts with a non -obstante Clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr P. C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439, Cr. P. C., are not subject to the limitation mentioned under Section 37 of NDPS Act. The non -obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr. P. C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4, Cr. P. C. may be noted which reads thus: Trial of offences under the Indian Penal Code and other laws. -(1) All offences under the Indian Penal Code (45 of 1860), shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.