N NAGESWAR RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) Robert Bruce had become successful after several attempts. The petitioner possibly being inspired by Robert Bruce has filed this petition for bail after similar applications had been rejected on several occasions in the High Court. Last such order was passed on 23-2-1996. The present petitionhas been filed even before the ink has dried on the earlier order.

(2.) The petitioner is facing trial before the 2nd Addl. Sessions Judge, Cuttack in 2(c) CC No. 335 of 1994 along with co-accused Dhoina Das. Charge has been framed under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N. D. P. S. Act'). Some witnesses have been examined.The petitioner has been charged under Section 20(b)(i) of the N.D.P.S. Act which is punishable with imprisonment for a term which may extend to five years. Learned counsel for the petitioner submits that since the offence is punishable for a term of imprisonment which may extend to five years, the embargo under Section 37(1)(b) of the N. D. P. S. Act is inapplicable. Section 37(1)(b) of the N. D. P. S. Act reads as follows -37. (1) xx xx xx(a) xx xx xx(b) No person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless -(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and(ii) where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.It is the submission of the learned counsel for the petitioner that the embargo under Section 37 of the N. D. P. S. Act is applicable where a person is accused of having committed an offence punishable for a term of imprisonment of five years or more. According to his submission since an offence under Section 20(b)(i) of the N. D. P. S. Act is punishable for a term which may extend to five years. Section 37 of the Act should not stand as a hurdle in the matter of consideration of bail. He submits that N. D. P. S. Act being a penal status and Section 37 being a restrictive provision, should be interpreted strictly. He submits that, more often than not the usual punishment imposed in an offence under Section 20(b)(i) of the Act is less than five years and as such it would be unjust to keep such accused persons, who are charged with offences punishable for a term which may extend to five years, under indefinite custody. He has relied upon a decision of the Karnataka High Court reported in 1993 Cri LJ 94, A. V. Dharmasingh v. The State of Karnataka, which has been subsequently followed by a Division Bench of Patna High Court reported in 1994 (3) Crimes 671 Kamalesh Kumar v. State of Bihar. It is further brought to my notice that while interpreting Section 167(2), proviso of the Code of Criminal Procedure it has been held by Orissa High Court in a decision reported in (1993) 6 OCR 714 Bijoy Kumar Rout v. State of Orissa, that the expression to the effect "... ... offence punishable with ... . imprisonment for a term not less than ten years cannot be equated with the expression "offence punishable with imprisonment for a period upto ten years." He submits that the expression "... ...offence punishable for a term of imprisonment of five years or more" means an offence where the minimum sentence is five years or more and should not be equated with offences where the punishment may extend to a term of five years. The aforesaid submissions of the learned counsel for the petitioner though attractive on the face of it cannot be considered, in view of the direct decision of Orissa High Court arising under the N. D. P. S. Act reported in 1992 (1) Crimes 79, Rajendra Panda v. State of Orissa, which is binding on me. In the said decision it has been held that bar under Section 37 is also applicable to an offence punishable with imprisonment for a term which may extend to five years.In view of the aforesaid, I proceed on the footing that the bar under Section 37 is applicable. As required under Section 37(1)(b)(ii), the Court is to consider whether there is reasonable ground for believing that the accused is not guilty of such offence and secondly, the accused is not likely to commit any offence while on bail.

(3.) The latter question can be answered only in a hypothatical manner, as no Court can predicate if an accused if released on bail is not likely to commit any offence while on bail, ordinarily though the Courts come to a conclusion that the accused is not likely to commit an offence in future, keeping in view the past conduct of the accused. If there is no allegation of involvement in any previous offence, it can be reasonably assumed that the accused person is not likely to commit an offence in future while on bail. It is said that every saint has a past and every sinner has a future. So far as the N. D. P. S. Act is concerned, it can be assumed that an alleged sinner (the accused) if he does not have a past can be said to have a future. Judged against the aforesaid assumption, it appears that in the present case there is no definite allegation that the petitioner was involved in any particular crime in the past, though itis suspected that he indulges in trafficking of illicit drugs. For the purpose of this case, I, therefore, proceed on the assumption that the petitioner if released on bail is not likely to commit an offence in future in the absence of any definite material about his past involvement.