HEKRUJAM DHANANJOY SINGH Vs. STATE OF MANIPUR

JUDGEMENT

(1.) In BAPS FIR/Case No. 14(1) 94 U/S 21 NDPS Act, for short "the Act", the police arrested accused Heikrujam Dhananjoy Singh on 20.1.94. The prosecution case is that at 10.30 a.m. of 20.1.94 the police of BAPS detected and seized one paper packet of No. 4 heroin from his poossession. The weight together with the weight of paper packet was 500 mgs. The case was registered on 20.1.94. The sample had been sent for chemical examination. According to IO's report dated 26.2.94, investigation is complete and there are materials against the accused ; but report from chemical examiner was awaited for filing the charge sheet. A petition was moved for bail; as the Adl. P.P. objected, the Judge, Special Court No. II, Manipur, refused the bail on 2.3.94. Hence this petition before this court U/S/ 439 CrPC, hereinafter "the Code", for bail.

(2.) Mr. Lalitkumar submitted that even on the showing of prosecution the investigation is over and the I/O was only, waiting for the report from chemical examiner-for filing the charge sheet. The accused is a local man and serving as Rifle Man in Manipur Rifles. Relying on my order dated 24.9.1993 in CRIL. MISC. (BAIL) APPLICATION NO. 36/93 (Mrs Kheirun Bibi-versus- State of Manipur) the learned counsel submitted that the accused by now has deserved to get the bail.

(3.) Mr. Jagatchandra, the learned P.P. opposed the petition, submitting that in view of the decision in Narcotics Control Buruea V. Kishan Lal, AIR 1991 SC 558, no bail can be granted to the accused as the I/O has obtained materials to prosecute him U/S 21 of the Act. In that case bail for two accused was paryed before the High Court of Delhi on the ground that the accused were entitled to be released on bail as required U/S 167(2) of the Code, as the charge sheet was filed at a belated stage, and secondly on the ground of illness. The High Court granted bail, on holding that limitation placed on the Special Court U/S 37(2) of the Ac cannot be read as fetters on the High Court in exercise of the popwer U/S 439 of the Code. But the Supreme Court (in AIR 1991 SC 558) reversed this view and held that the powers of the: High Court to grant bail under section 439 are subject to the limitations contained in the amended section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. But the Supreme Court, however, did not cancel the bail of the two accused respondents as they have been on bail for a long; time, pursuant to the order of the Delhi High Court. The relevant part of section 37 of the Act is sub-section (1) (b) which provides as follows :