UNION OF INDIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 482 read with Section 439(2) of the Code of Criminal Procedure for setting aside the order dated 29-6-1993 passed by the Sections Judge West Champaran in O. C. Case No. 3/93 through which opposite party No. 2 Noor Mohammad Nian was granted bail.

(2.) The facts in short giving rise to this application are that the Custom Officials got a confidential information that opposite party No. 2 is a professional smuggler and has stored huge quantity of charas in the house of Nathuni Darji in village Barnatt Sena and as such the house of Nathuni Darji was searched on 17-3-1993 in presence of several witnesses and 70 kgs of Nepali charas valued at Rs. 28 lakhs were recovered and on enquiry it was gathered that the huge quantity of Nepali charas has been smuggled from Nepal by opposite party No. 2 and kept in the house of this Nathuni Darji. The son of this opposite-party No. 2 namely Mojahid was also apprehended and he too confessed that this huge quantity of charas actually belonged to his father opposite party No. 2 and stored in the house of Nathuni Darji and as such a case bearing O. C. No. 3/93 was instituted as against opposite party No. 2, his son Mojahid and Nathuni Darji. Subsequently on 13-6-1993 this very opposite party No. 2 Noor Mohammad Mian was apprehended and on search from his possession 40 gms. of charas were recovered and for that a separate case bearing O. C. No. 5/93 was instituted as against opposite party No. 2. It was submitted that though the opposite party No. 2 is smuggler and several cases were instituted against him and there was ample material and there was allegation of keeping Nepali charas worth Rs. 28 lakhs still the learned District and Sessions Judge released the petitioner on bail vide order dated 29-6-1993 and so this amounts to an abuse of the process of the court causing miscarriage of justice and the learned Sessions Judge has no power to enlarge this opposite party No. 2 on bail in view of Section 37 of the Narcotic Drugs and Psychotropic. Substances Act, 1985.

(3.) Opposite party No. 2 was directed to appear and file show cause as to why his bail should not be cancelled and in pursuance of that he entered appearance through an Advocete and filed show-cause alleging therein that he has falsely been implicated in both the cases by the Excise Department and actually charas worth Rs. 23 lakhs had not been recovered from the possession of this opposite party No. 2 and has as rightly been granted bail by learned Sessions Judge. Moreover, there is nothing on the record to show that the opposite party is misusing the privilege of bail or tampering with the evidence or the investigation and the prayer for cancellation of bail at belated stage is not maintainable.