RAFIQ MOHD Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioners who seek bail are alleged to have been in possession of 85 bags of poppy husk, each bag containing 35 kgs. The bail is asked for on the solitary ground that the police has not put up the challan within 90 days as required under Section 167(2) of the Code of Criminal Procedure. ' Reliance of the learned counsel is upon a decision rendered in Criminal Misc. No. 15789-M of 1993 (Ajit Singh v. State of Punjab) on 25th January, 1994 by this Court. It is argued that the Bench deciding the aforesaid matter relied upon Ponnell Nawa v. State, 1987 (1) Rec CR 35 : (1986 Cri LJ 2081), a Division Bench judgment of the Delhi High Court; Shivanna v. State, 1992 (3) All Ind Cri LR 204; Surinder Kumar v. State of Punjab, 1976 Pun LR 643 : (1977 Cri LJ 1266) (FB); Baldev Singh v. State of Punjab, 1975 Pun LR 534 : (1975 Cri LJ 1662) and Rajni Kant Jiwan Lal Patel v. Intelligence Officer N.C. Bureau, . The learned counsel also relies upon the ratio of the judgment in Immam and another v. C.B.I. New Delhi, 1993 (1) Cri LR 101.

(2.) MR . Masih, the learned Assistant Advocate General, Punjab Vehemently opposes' the prayer for bail and contends that the powers of the Court to grant bail under Section 439, Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Narcotic Drugs and Psychotropic Substances 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. For his aforesaid stand the learned Assistant Advocate General relies upon the recent decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal, , and a Full Bench decision of Madhya Pradesh High Court in Ram Dayal v. Central Narcotic Bureau Gwalior, 1993 Rec Cri R 264 : (1993 Cri LJ 1443).

(3.) THE Delhi High Court by a common order in two petitions filed under N.D.P.S. Act, 1985 held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended provisions of Section 37 of the NDPS Act were not applicable to the High Court. Narcotics Control Bureau challenged the aforesaid order of the High Court and the appeals filed by it were allowed by the Supreme Court in Narcotics Control Bureau v. Kishan Lal, (supra). The facts of the case reveal that petitioners therein were arrested under various sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report, the Magistrate concerned took cognizance and remanded them to judicial custody. They filed a writ as also criminal miscellaneous in the High Court seeking bail firstly on the ground that they were entitled to bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. The learned single Judge referred the matter to the Division Bench which held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under Section 439, Cr. P.C. for granting bail. It is in these circumstances that the only limited question to be decided by the Supreme Court was as to whether the view taken by the High Court was right or wrong. The Supreme Court, after noticing various provisions and, in particular, Section 37 of the NDPS Act and Section 439 of the Cr. P.C., came to the conclusion that "Section 37 as amended starts with a non obstante clause stating that notwithstanding anything contained in 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 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 the Cr. P.C. regarding bail, it cannot be said 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 the 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.