Intelligence Officer, Narcotics Control Bureau Vs. Sambhu Sonkar and Another
EmailAppeal: Criminal Appeal No. 137 of 2001
(Arising out of Special Leave Petition (Criminal) No. 3768 of 2000)
(From the Judgment and Order dated 7.3.2000 of the Calcutta High Court in Crl.M.No. 456 of 2000)
(Arising out of Special Leave Petition (Criminal) No. 3768 of 2000)
(From the Judgment and Order dated 7.3.2000 of the Calcutta High Court in Crl.M.No. 456 of 2000)
Petitioner: Intelligence Officer, Narcotics Control Bureau
Respondent: Sambhu Sonkar and Another
Apeal: Criminal Appeal No. 137 of 2001
(Arising out of Special Leave Petition (Criminal) No. 3768 of 2000)
(From the Judgment and Order dated 7.3.2000 of the Calcutta High Court in Crl.M.No. 456 of 2000)
(Arising out of Special Leave Petition (Criminal) No. 3768 of 2000)
(From the Judgment and Order dated 7.3.2000 of the Calcutta High Court in Crl.M.No. 456 of 2000)
Judges: M.B. SHAH & S.N. VARIAVA, JJ.
Date of Judgment: Feb 02, 2001
Appearances:
Mr. Mukul Rohtagi, Additional Solicitor General, Mr. Tapash Ray, Senior Advocate, Ms. Sushma Suri, Ms. Binu Tamta, Ms. Deepti Chowdhury, Mr. Dilip Kr. Das, Mr. Anup Chakraborty, Mr. Ajay Singh, Mrs. Sarla Chandra and Mr. Tara Chandra Sharma, Advocates with them for the appearing parties.
Head Note:
CRIMINAL LAW
NDPS Act, 1985
Sections 37, 20(b)(i) – Recovery of ganja – If restrictions under Section 37, not applicable, as punishment is only upto 5 years imprisonment – Interpretation. Held that Section 37 applies to case punishable under Section 20(b)(i).
Held:
The first condition is that prosecution must be given an opportunity to oppose the applica-tion and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satis-fied, the ban for granting bail operates. Plain reading of the abovesaid Clause makes it clear that in case where the person is accused of an offence punishable for a term of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20 (b) (i), maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs. 50,000/-. There is no justi-fiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i). (Para 5)
Cases Reffered:
1. Maktool Singh v. State of Punjab (JT 1999 (2) SC 176) (Para 8)
JUDGEMENT:
Shah, J.
1. Leave granted.
2. Limited question involved in this appeal is whether the re-strictions imposed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) would be applicable in a case where offence is punish-able under Section 20 (b) (i) for possessing ganja?
3. It is the prosecution version that acting on intelligence report a batch of Narcotic Control Bureau officers searched the premises of respondent no.1, Shambhu Sonkar, at G.T. Road, P.S. Golabari, District Howrah on 22.11.1999 and recovered 18.7 Kgs. of ganja and a sum of Rs.4,370/- . On the same date a confes-sional statement of the respondent was also recorded. The re-spondent filed a bail application before the Additional District Judge, Howrah, which was rejected by order dated 2nd February, 2000. Thereafter, the respondent approached the High Court of Calcutta and the High Court by its order dated 7th March, 2000 allowed the said bail application by holding that restrictions imposed by Section 37 of the N.D.P.S. Act, 1985 (hereinafter referred to as ‘NDPS Act’) would not be applicable as the maximum imprisonment provided for the offence under Section 20(b)(i) is 5 years. That order is challenged by filing the present petition under Article 136 of the Constitution.
4. Learned Additional Solicitor General submitted that order passed by the High Court is on the face of it against the statu-tory mandate provided under Section 37. As against this, learned Counsel appearing for the respondents submitted that the inter-pretation given by the High Court is justified, particularly because it affects personal liberty of a citizen who is yet to be tried. For appreciating the rival contentions we would refer to Sections 20 and 37 of the said Act which read thus: –
“20. Punishment for contravention in relation to cannabis plant and cannabis. – Whoever, in contravention of any provision of this Act or any Rule or order made or condition of licence grant-ed thereunder-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, trans-ports, imports inter-State, exports inter-State or uses cannabis,
shall be punishable-
(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;
(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees;
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
Section 37. Offence to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Proce-dure, 1973 (2 of 1974),–
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be re-leased 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 believ-ing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
5. The scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which com-mences with non-obstante clause. The operative part of the said Section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the applica-tion and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satis-fied, the ban for granting bail operates. As per the mandate of Section 37, no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in Sub-clauses (i) and (ii) of Clause (b) are satisfied. Pre-condition for application of Clause (b) would be that offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the abovesaid Clause makes it clear that in case where the person is accused of an offence punishable for a term of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20 (b) (i), maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs. 50,000/-. There is no justi-fiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
6. Further, even if we consider the legislative intent in context of other provisions which provide for punishment it would be clear that Section 37 would cover in its fold the offence punish-able under Section 20(b)(i). Provisions empowering the Court to impose punishment can be divided into four parts, namely, (i) less than five years, (ii) upto five years (iii) more than five years and (iv) providing death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which may be less than five years. Section 25(a) provides that the imprisonment may extend upto ten years. Other Sections, namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that punishment shall not be ‘for a term less than ten years’. Except Section 20(b)(i), there is no provision which prescribes that imprison-ment may extend to five years. For the offence punishable under said Section, in appropriate cases, Court may impose maximum punishment of five years. Therefore, there is no reason to exclude the said Clause from the operation of Section 37.
7. The aforesaid interpretation is also in consonance with the legislative object. The Act has provided stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances and matters connected there-with. For granting of bail, in the Statement of Objects and Reasons for introducing Bill 125 of 1988 (Act 2 of 1989), the following passage has been stated: –
“Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt.”
8. Further, in Maktool Singh v. State of Punjab (JT 1999 (2) SC 176 = (1999) 3 SCC 321) this Court while interpreting Section 32A which provides that no sentence awarded under the Act other than Section
27 shall be suspended or remitted or commuted, considered Section 37 along with the scheme of the Act and held thus:-
“The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable upto a maximum imprison-ment for three years and the latter upto a maximum imprisonment for one year. For all other offences, the court’s power to release an accused on bail during the period before conviction has been thus drastically curtailed by providing that if the Public Prosecutor opposes the bail application, no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.”
9. In view of the foregoing discussion, it would be difficult to accept the contention of the learned Counsel for the respondent that the liberal interpretation given by the High Court to Sec-tion 37 is justified as it affects personal liberty of a citizen who is yet to be tried. In our view, considering the legislative intent of curbing the practice of giving bail on technical ground in a crime which adversely affects the entire society including lives of number of persons and the object of making stringent provisions for control of illicit traffic in narcotic drugs and psychotropic substances, there is no reason to accept the con-struction of the Section which its language can hardly bear.
10. In the result, the appeal is allowed, the impugned order passed by the High Court releasing the respondent on bail is set aside. Bail bonds of the accused stand cancelled and he is directed to be taken into custody. The trial court is directed to expedite the trial.
1. Leave granted.
2. Limited question involved in this appeal is whether the re-strictions imposed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) would be applicable in a case where offence is punish-able under Section 20 (b) (i) for possessing ganja?
3. It is the prosecution version that acting on intelligence report a batch of Narcotic Control Bureau officers searched the premises of respondent no.1, Shambhu Sonkar, at G.T. Road, P.S. Golabari, District Howrah on 22.11.1999 and recovered 18.7 Kgs. of ganja and a sum of Rs.4,370/- . On the same date a confes-sional statement of the respondent was also recorded. The re-spondent filed a bail application before the Additional District Judge, Howrah, which was rejected by order dated 2nd February, 2000. Thereafter, the respondent approached the High Court of Calcutta and the High Court by its order dated 7th March, 2000 allowed the said bail application by holding that restrictions imposed by Section 37 of the N.D.P.S. Act, 1985 (hereinafter referred to as ‘NDPS Act’) would not be applicable as the maximum imprisonment provided for the offence under Section 20(b)(i) is 5 years. That order is challenged by filing the present petition under Article 136 of the Constitution.
4. Learned Additional Solicitor General submitted that order passed by the High Court is on the face of it against the statu-tory mandate provided under Section 37. As against this, learned Counsel appearing for the respondents submitted that the inter-pretation given by the High Court is justified, particularly because it affects personal liberty of a citizen who is yet to be tried. For appreciating the rival contentions we would refer to Sections 20 and 37 of the said Act which read thus: –
“20. Punishment for contravention in relation to cannabis plant and cannabis. – Whoever, in contravention of any provision of this Act or any Rule or order made or condition of licence grant-ed thereunder-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, trans-ports, imports inter-State, exports inter-State or uses cannabis,
shall be punishable-
(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;
(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees;
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
Section 37. Offence to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Proce-dure, 1973 (2 of 1974),–
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be re-leased 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 believ-ing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
5. The scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which com-mences with non-obstante clause. The operative part of the said Section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the applica-tion and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satis-fied, the ban for granting bail operates. As per the mandate of Section 37, no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in Sub-clauses (i) and (ii) of Clause (b) are satisfied. Pre-condition for application of Clause (b) would be that offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the abovesaid Clause makes it clear that in case where the person is accused of an offence punishable for a term of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20 (b) (i), maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs. 50,000/-. There is no justi-fiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
6. Further, even if we consider the legislative intent in context of other provisions which provide for punishment it would be clear that Section 37 would cover in its fold the offence punish-able under Section 20(b)(i). Provisions empowering the Court to impose punishment can be divided into four parts, namely, (i) less than five years, (ii) upto five years (iii) more than five years and (iv) providing death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which may be less than five years. Section 25(a) provides that the imprisonment may extend upto ten years. Other Sections, namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that punishment shall not be ‘for a term less than ten years’. Except Section 20(b)(i), there is no provision which prescribes that imprison-ment may extend to five years. For the offence punishable under said Section, in appropriate cases, Court may impose maximum punishment of five years. Therefore, there is no reason to exclude the said Clause from the operation of Section 37.
7. The aforesaid interpretation is also in consonance with the legislative object. The Act has provided stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances and matters connected there-with. For granting of bail, in the Statement of Objects and Reasons for introducing Bill 125 of 1988 (Act 2 of 1989), the following passage has been stated: –
“Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt.”
8. Further, in Maktool Singh v. State of Punjab (JT 1999 (2) SC 176 = (1999) 3 SCC 321) this Court while interpreting Section 32A which provides that no sentence awarded under the Act other than Section
27 shall be suspended or remitted or commuted, considered Section 37 along with the scheme of the Act and held thus:-
“The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable upto a maximum imprison-ment for three years and the latter upto a maximum imprisonment for one year. For all other offences, the court’s power to release an accused on bail during the period before conviction has been thus drastically curtailed by providing that if the Public Prosecutor opposes the bail application, no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.”
9. In view of the foregoing discussion, it would be difficult to accept the contention of the learned Counsel for the respondent that the liberal interpretation given by the High Court to Sec-tion 37 is justified as it affects personal liberty of a citizen who is yet to be tried. In our view, considering the legislative intent of curbing the practice of giving bail on technical ground in a crime which adversely affects the entire society including lives of number of persons and the object of making stringent provisions for control of illicit traffic in narcotic drugs and psychotropic substances, there is no reason to accept the con-struction of the Section which its language can hardly bear.
10. In the result, the appeal is allowed, the impugned order passed by the High Court releasing the respondent on bail is set aside. Bail bonds of the accused stand cancelled and he is directed to be taken into custody. The trial court is directed to expedite the trial.
