TERU MAJHI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have read the well-versed lucid judgment of My Lord the Hon'ble Mr. Justice Debangsu Basak. His Lordship not only dealt with each and every aspect that the learned Counsel appearing for the parties as well as the Amicus Curiae highlighted but also dealt with all the precedents relevant on the subject and ultimately answered the query that in my view, is accurate and would deserve no disagreement on any score. At the risk of repetition, may I add a few lines.

(2.) The precedents cited at the bar already dealt with an identical issue while considering the provisions of Section 12AC of the Essential Communities Act 1955 as amended by the Essential Commodities (Special Provisions) Act 1981. The said provision is Para- materia with Section 36 of the NDPS Act. The precedent (Pijush Kanti Dey ) would answer the identical query and hold, power under Section 438 could be exercised by the Special Court constituted under the said Act of 1955.Section 37(1) of NDPS Act 1985 was Para material, however, distinction is sought to be raised as Section 37(1) although made a restriction on certain offences under said Act of 1985 outside the scope of release of the accused on bail unless the requirement under sub-section b (i) and b (ii) are complied with. Sub-Section 2 of 37 would make it clear, the limitation on granting bail under sub-section 1 are in addition to the limitations already provided under the Code of Criminal Procedure. Section 36(c) of the said Act of 1985 would provide, "save as otherwise provided in this Act" in Criminal Procedure Code including provisions as to bail and bonds would apply. On a combined reading of Sections 36 (c) and 37 it is sought to be suggested, since anticipatory bail was not included the Section 438 would have no application. We fail to reason. If we closely read Section 37 that would provide limitation on grant of bail it did not speak of the power of the Court to grant anticipatory bail.36 (c) would make the Code of Criminal Procedure applicable except the area that would be in conflict with the provisions of the said Act of 1985.

(3.) My Lord has elaborately dealt with personal liberty guaranteed to the citizens of the country under Article 21 of the constitution.