STATE OF ORISSA Vs. AINUL HAQUE

JUDGEMENT

(1.) THIS Court having known that the learned Sessions Judge, Sundargarh, had released the opposite party, an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (shortly called 'the Act') on bail without considering the mandatory requirements of Section 37 thereof on the ground that there was violation of some of the provisions of the Act as a result of which the detention became illegal placing reliance on the judgment of this Court in Bidyadhar Dolai v. State, (199 2) 5OCR 31, in paragraph 15 of which it was stated that the detention order was being quashed with the aid of Section 482 of the Code of Criminal Procedure (hereinafter 'the Code'), which power is not available to a Court of Session, took suo motu cognizance being prima facie satisfied about the illegality of the order inasmuch as paragraph 15 of the aforesaid judgment had made it clear that the release was not in exercise of the power conferred by Section 439 of the Code, which power had been invoked by the Sessions Judge to order for release on bail. On notice being issued, the opposite party appeared and filed his show cause stating, inter alia, that the learned Sessions Judge had not only considered the violation of some of the provisions of the Act but also the ailment and health condition of the opposite party and as no case for cancellation of the bail has been made out, the order may not be set aside.

(2.) THE case was heard on merits on 9 -4 -1993 and 16 -4 -1993 when Shri Ray addressed on behalf of the opposite party and Shri Misra, learned Additional Standing Counsel, on behalf of the State.

(3.) ANOTHER submission advanced is that no case for cancellation has been made out, because bail once granted can be cancelled on circumstances like misuse of liberty, interference with the course of investigation, attempt to tamper with evidence, threatening to witnesses, likelihood o1 fleeing, attempt to make himself scarce by going underground or making himself beyond the reach of his surety, which have been mentioned in paragraph 11 of Aslam Babulal Desai v. State of Maharashtra, AIR 1993 SC 1, the order cannot really be set aside. This submission is misconceived inasmuch as this Court has not invoked its power Under Section 439(2) of the Code to cancel the bail, but its general power of revision conferred by Section 397 which is available to set right illegal orders, so also its inherent power Under Section 482 of the Code which springs into action when according to this Court some action is required to prevent abuse of the process of any Court subordinate to it or otherwise to secure the ends of justice. Of course, the result of the setting aside of the order -the illegality in which had put the Court in motion, if that be the conclusion of the Court, would be that the bail granted in favour of the Court, opposite party shall stand cancelled, but that would be the consequeence. That is not the primary aim of the Court; its concern is the illegality in the order. The consequence(s) to follow cannot put fetter on its power. So the ground on which bail can be cancelled need not be present in the case at hand before the order of the Sessions Judge can be set aside.