National Judicial Academynja.nic.in/NDPS Section 37_SC_21 Paras Nath.pdf · National Judicial Academy ... regard to the section 37 of the NDPS Act, 1985 Submitted by ... of Section

National Judicial Academy

Research Report on

study and analysis of the cases of the Supreme Court and various High Court with regard to the section 37 of the NDPS Act, 1985

Submitted by

Paras Nath Singh B.A.LL.B (Hons.) Final Year

AMU Malappuram Centre, Kerala

Supervised by

PROF. ( DR) GEETA OBEROI (DIREC TOR, NATIONAL JUDICIAL ACADEMY, BHOPAL)

Paras Nath Singh B.A.LL.B (Hons.) Final Year

Room No. 16, Boys’ Hostel, Aligarh Muslim University Malappuram Centre,

Cherukara (P.O), Malappuram (Dt.), Kerala- 679340 Email: [email protected]

________________________________________________________________

PREFACE

At the very outset, I record my profound thankfulness to Prof. (Dr) Geeta Oberoi,

Director-In Charge, National Judicial Academy for giving me this cherished opportunity to

carry out study and analysis of the cases of the Supreme Court and various High Court

with regard to the section 37 of the NDPS Act, 1985

My profound thanks are due to all those who helped and cooperated with me in any

way in the performance and completion of this task. I place on record my especial thanks to

Prof. S. P. Srivastava and Ms. Shruti Jane Eusebius for their esteemed guidance and

consistence motivation throughout the course of my internship at NJA.

The stupendous task of preparing this report was assigned to me by Director, NJA, and I

owned the discharge of this responsibility in the best possible way to the Director and other

staff of the NJA. I hope that this report will be helpful for both.

(Paras Nath Singh) Intern, NJA

Date: 23.08.2015

Place: Bhopal

TABLE OF CONTENT

LEVEL I ANALYSIS: Supreme Court____________________________________________________________________4

Allahabad High Court______________________________________________________________18

Andhra Pradesh High Court_________________________________________________________35

Bombay High Court_______________________________________________________________43

Calcutta High Court_______________________________________________________________65

Chattisgarh High Court____________________________________________________________71

Delhi High Court_________________________________________________________________72

Guwahati High Court______________________________________________________________87

Gujarat High Court________________________________________________________________89

Himachal Pradesh High Court_______________________________________________________93

Jammu and Kashmir High Court_____________________________________________________98

Karnataka High Court_____________________________________________________________99

Kerala High Court________________________________________________________________104

Madhya Pradesh High Court________________________________________________________110

Madras High Court_______________________________________________________________117

Orissa High Court________________________________________________________________124

Patna High Court_________________________________________________________________137

Punjab and Haryana High Court_____________________________________________________140

Rajasthan high court______________________________________________________________149

Uttarakhand High Court___________________________________________________________150

LEVEL II ANALYSIS:_________________________________________________________157 Appendix____________________________________________________________________158

SUPREME COURT OF INDIA

S. No

Name Of The Case Issue Before The Supreme Court

Decision Of The Supreme Court

Remark

1 Union of India Vs.

Thamisharasi and Ors.

(1995)4SCC190

Decided on : 01.05.1995

Coram: Justice J.S. Verma

Justice S.V. Manohar

Counsels: K.T.S. Tulsi

Ram Jethmalani, B. Kumar and K.K.

Mani.

Whether the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 can be invoked by an accused arrested for commission of an offence under the NDPS Act to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of the respondents who were arrested for the commission of offences under the Narcotic Drugs & Psychotropic Substances act in default of filing the complaint within that period. Hence these appeals by special leave. High Court gave answered to above question in affirmative and directed the release of the accused.

In our opinion, such a construction of Clause (b) of Sub-section (1) of Section 37 is not permissible. The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the NDPS act is in the nature of a condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P.C, it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 Narcotic Drugs & Psychotropic Substances act, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the Narcotic Drugs & Psychotropic Substances act more stringent. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the CrPC supersedes the corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the CrPC as expressly provided in Sub-section (2) of Section 37. These limitations on

Appeal dismissed. Bail upheld.

granting of bail specified in Sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the CrPC and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to Sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation.

2 Dr. Bipin Shantilal

Panchal

Vs. State of Gujarat

AIR1996SC2897

Decided On: 08.01.1996

Coram:

Justice A.M. Ahmadi, Justice B.P. Jeevan

Reddy Justice N.P. Singh,

Counsels

Meenakshi Arora, Adv H. Wahi, Adv.

Instant appeal was filed against an order dated 19.4.1994 passed by the High Court, rejecting the prayer of the bail, made on behalf of the appellant, who is an accused for offences under the N.D.P.S. Act.

The Supreme Court placing reliance upon the decision of the Constitution bench in Sanjay Dutt v. State through C.B.I. Bombay (II) MANU/SC/0554/1994 held if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contended that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge sheet is filed, But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra MANU/SC/0001/1993

Bail denied. Decision of the High Court rejecting bail application upheld.


Merajuddin (1999)6SCC43


Coram: Dr. A.S. Anand, C.J.

Justice M. Jagannadha Rao

Justice N. Santosh Hegde,

The respondent was accused of an offence under the NDPS Act. He was granted bail by the High Court without consideration the requirements as laid down in section 37 of the said Act.

The Supreme Court found the decision of the High Court grating bail to the respondent as improper and cancelled the bail as the High Court did not follow the procedure prescribed in section 37 of the NDPS Act

Bail cancelled.


The issue which came up for consideration in this

The Supreme Court after examining the matter at

Bail cancelled. The SC held the impugned

Ram Samujh and Another

(1999)9SCC429

Decided On:30.08.1999

Coram:

Justice K.T. Thomas

Justice M.B. Shah

Counsels:

Anoop Chaudhary, A.S. Rawat

K.B. Hina,

case was whether the order passed by the High Court of Judicature at Allahabad, Lucknow Bench, granting bail to respondent No. 1 Ram Samujh Yadav required to be set aside on the ground that the High Court ignored the provisions of Section 37 NDPS Act as well as the law laid down by this Court.

length held that The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The Court set-aside the order of the High Court granting bail to the respondent and directed him to surrender.

decision as cryptic. It is to be borne in mind that requirements of section 37 are legislative mandate required to be adhered and followed.


Ikram Khan and Ors.

(2000)9SCC221


Coram:

Justice G.B. Patnaik Justice U.C. Banerjee

This appeal by the Union of India was filed against the order of the High Court granting bail to the accused against whom a proceeding under the NDPS is pending. As the trial has not begun for four years, the High Court appears to have re-fused to exercise its power to cancel the bail.

The Supreme Court held that while considering the bail application arises out of proceedings under NDPS Act the High Court was not borne in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature and the Court must bear in mind the said provisions before deciding an application of bail in case an accused is facing a trial under the provisions of the NDPS Act.

Bail cancelled. It was stressed by the Court that provisions of Section 37 of the NDPS Act are mandatory in nature and the Court must bear in mind the said provisions before deciding an application of bail


Aharwa Deen

(2000)9SCC382


Coram:

Justice G.B. Patnaik Justice U.C. Banerjee.

This appeal was filed by the Union of India against the decision of the of the learned single Judge of the Allahabad High Court, Lucknow Bench, Lucknow, granting bail to the respondent in case under Sections 8/18, NDPS Act. Respondent sought an adjournment to file Counter-affidavit.

The Supreme Court found no reason to get counter affidavit, since on the face of the impugned order of the High Court granting bail cannot be sustained as the High Court has not looked into the provisions of Section 37 of the Narcotic Drugs & Psychotropic Substances Act. The impugned judgment was set-aside as being delivered overlooking the mandatory requirements of section 37 of the NDPS Act.

Bail Cancelled. The High Court was totally in error in granting bail without even focusing its attention to the mandatory provision of Section 37 of the NDPS Act.

7 Superintendent, Narcotics Central

Bureau Vs.

R. Paulsamy

(2000)9SCC549


Respondent and his wife were facing a prosecution for offences under Sections 8C, 21, 27A, 28 and 29 of the NDPS Act 1985 and 193 and 1208 (120-B) Indian Penal Code. The case against them is that 2 k.g. heroin had been recovered from a room

The Supreme Court held that it has has laid down the parameters to be followed while considering the application for bail moved by accused involved in offences under NDPS Act vide Union of India v. Ram Samujh MANU/SC/0530/1999 It is unnecessary for us to repeat

Bail cancelled. Requirements prescribed in section 37 of NDPS Act are sin qua non for granting bail to an accused involved in the offence under the Act.

Coram: Justice K.T. Thomas,

Justice D.P. Mohapatra,

which was in the possession of the respondent. A learned single Judge of the High Court of Madras passed an order releasing him on bail on executing a bond in a sum of Rs. 10,000/- with two solvent sureties. Hence this petition before the Court seeking cancellation of bail.

those parameters over again. We have no doubt that learned single Judge has not followed the aforesaid parameters in this case.

8 Babua @ Tazmul Hossain

Vs. State of Orissa


Coram:

Justice S. Rajendra Babu,

Justice K.G. Balakrishnan.

Counsels:

Abhishek M. Singhvi,

Vijay HansariaKirti and Renu Mishra

The petitioners were charged that on or about 27.07.1998 at Kilapokhari of Balasore Town abetted the commission of the offence by (i) Azad Parvez, (ii) Batu @ Jahid Parvej, and (iii) Allauddin Saha @ Sk. Allauddin or was party with them to a criminal conspiracy to commit an offence of possession and/or sale cannabis ganja and manufactured drugs punishable under Chapter IV of NDPS Act and thereby committed an under Section 20(b) and Section 21 read with Section 29 of the Act within the cognizance of the Special Judge at Balasore.

The Supreme Court held that unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail under section 37 (1) of NDPS Act.

The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society.

Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.

Bail denied.

9 Intelligence Officer, Narcotics C. Bureau

vs. Sambhu Sonkar and Anr.

[2001]1SCR821


Coram:

Justice M.B. Shah. Justice S.N. Variava.

Counsels

Mukul Rohtagi ,

Tapash Ray,

Question came for consideration in this case before the Court was whether the restrictions imposed under Section 37 of the NDPS Act would be applicable in a case where offence is punishable under Section 20(b)(i) for possessing Ganja? Petitioner sought to cancellation of bail granted to the respondent by the High Court .

The Supreme Court held that 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 commences with non-obstante clause.

The operative part of the said section is in negative in prescribing the enlargement of bail of any person accused

Bail cancelled. Order of the High Court granting bail set-aside.

Ms. Sushma Suri

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 application 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 satisfied, 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.

10 Bipin Shantilal Panchal Vs.

State of Gujarat and Anr.

AIR2001SC1158


Coram: Justice K.T. Thomas,

Justice R.P. Sethi, Justice B.N. Agrawal.

A consignment at the Air Warehouse, Mumbai, which was meant for export to Nairobi was intercepted. The consignment, when opened, was found containing a very huge quantity of Mandrex tablets (Methaqualone). Respondent (Dr. Bipin S. Panchal) was arrested on 8.11.1993 in connection with the aforesaid seizure of narcotic or psychotropic substance. It led to the unearthing of a further huge quantity of Mandrex tablets which, added with the earlier interception, is quantified at about 2000 kgs. The Directorate, of Revenue Intelligence, Ahmedabad filed a complaint against certain persons including respondent Bipin S. Panchal, for various offences under the Narcotic Drugs and Psychotropic Substance (NDPS) Act. The said case was being tried before the Court of Additional City Sessions Judge, Ahmedabad.

Supreme Court held that for disposal of the present application we may state that there is no point in our granting further time to the trial Court to complete the trial. It is for the trial Court to complete it as early as possible. But we would not do anything to deprive the accused in custody of his right to move for bail on account of the delay thus far occasioned. The bail application would be disposed of by the Court concerned on its own merits

Bail denied.

Respondent was detained in prison as he was not bailed out during the trial proceedings despite repeated motions made by him. Once in 1994, when respondent approached for bail, Supreme Court directed the trial Court to expedite the trial. Though the evidence taking started on 4.9.96, the case is still lingering on as the trial persisted thereafter for years.

11 State of Madhya Pradesh vs.

Kajad Decided On: 06.09.2001

AIR2001SC3317 Coram:

Justice M.B. Shah, Justice R.P. Sethi.

Counsels Ume Nath Singh

C.L. Sahu

Acting upon definite information received by the Police Station Jawad, District Neemuch, Madhya Pradesh, force was deployed and the respondent-accused apprehended on the night of 24th March, 2000. After compliance of the mandatory provisions of Section 50 of the NDPS Act(hereinafter called "the Act"), opium weighing 7 kgs. was seized from the accused which he had kept in his bag. After completing necessary procedural formalities and getting the samples tested, a charge-sheet was submitted against the accused in the competent court. Application for bail moved by the accused was rejected by the trial court. Dissatisfied with the rejection of his bail application, the respondent-accused moved an application in the High Court which was registered as Miscellaneous Criminal Case No. 2050 of 2000. The said application was rejected by the High Court vide order dated 5.6.2000. Without mentioning any change in the circumstances, the respondent-accused moved another application in the High Court in the month of August, 2000 which was adjourned from time to

Supreme Court noted that the learned Single Judge of the High Court has granted the bail on his own sense of observation regarding the course of conduct adopted by the accused at the time of his interception and arrest. Merely because the accused was found to be continuing to hold bag containing opium during the period, the raiding party searched him in accordance with the provisions of the Act, the learned Judge was not justified to conclude "it is by itself unnatural". How the learned Judge concluded that the conduct of the accused or raiding party were unnatural is not discernible from the impugned order. A person, apprehended by a raiding party, who is sought to be searched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or advised to throw the container in which the offending substance is contained. Section 37 of the Act has been referred in the impugned order not for the purposes of showing of its compliance but to justify the passing of an apparently wrong order. If, besides referring to Section 37 of the Act, the learned Judge would have referred to its provisions, he would not have fallen a prey to the ulterior designs of the

Bail Cancelled. Order of the High Court granting bail set-aside.

time and ultimately allowed vide the order impugned in this appeal.

respondent-accused.

The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail.


Ashok Kumar Jaiswal (2007)15SCC569

Decided On: 19.07.2002 Coram:

Justice Y.K. Sabharwal Justice H.K. Sema,

Counsels: Soli J.Sorabji, Binu Tamta, Sushma Suri

The respondent is charged for offence under Sections 8 and 21 of the NDPS Act

The High Court granted the bail to the respondent without following the requirements of section 37 of NDPS Act.

Hence present appeal seeking cancellation of bail

Supreme Court held that Under the mandatory conditions provided in Section 37 before granting bail the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of offence and that he is not likely to commit offences under the Act while on bail. This Court in various judgments while quashing the orders granting bail to accused of offence under the Act have cautioned the courts about the mandatory requirements of Section 37.


13 Narcotics Control Bureau

Vs. Karma Phuntsok and

Ors.

(2005)12SCC480 Decided On: 22.08.2005

Coram:

H.K. Sema and B.N. Srikrishna, JJ.

The Respondents were convicted under Section 29 read with Section 20(b)(ii)(c) of NDPS Act and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,000.

High Court vide its order dated 11.9.2003 and 25.9.2003 suspended the conviction during the pendency of the appeal.

Hence present appeal seeking undo of the suspension of the sentence.

The Supreme Court held that there is not even a whisper about the condition contained in Section 37 of the N.D.P.S. Act with regard to enlarging of the accused on bail. Mr. Jaspal Singh, learned senior counsel appearing for the Respondents contended that the learned Public Prosecutor did not oppose the bail as contained in Section 37(1)(b)(ii) of the N.D.P.S. Act. According to him, unless the Public Prosecutor opposes the bail application, Section 37 will not apply. Mr. Singh seriously contended that inasmuch as the Appellants have not put on record that the Public Prosecutor had opposed the granting of bail, it must be presumed that this is an order covered under Section 37(3) read with Section 439, Code of Criminal Procedure To say the least, the argument


appears to be baseless. We cannot accept the contention that in a matter involving seizure of commercial quantity of a substance prohibited by the N.D.P.S. Act when the Public Prosecutor appears on notice of the bail application he would be standing there as a mute spectator not opposing the bail application unless he was at the back of the accused. We find no substance in this argument.

14 State of Uttaranchal Vs.

Rajesh Kumar Gupta

2007(1)ACR1093(SC)


Coram: Justice S.B. Sinha.

Justice P.P. Naolekar, Counsels

Amarendra Sharan K.T.S. Tulsi

Respondent was an Ayurvedacharya. Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the Banks of Ganges and by application thereof patients suffering from epilepsy can be cured. The State, however, on the allegation that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the said clinics. 70 kgs. pure phenobarbitone were recovered. Respondent was arrested on 13.8.2004 and since then he was in jail custody. Charges were framed against him under Section 8 read with Section 22 of the NDPS Act Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954.

Bail application was dismissed by the Special Judge.

High Court allowed the bail application holding that ordinarily applications for bail are required to be considered having regard to Section 37 of the NDPS Act. It, however, opined that the drugs in question

The Supreme Court held that Section 37 of the 1985 Act would prima facie has no application in view of the exception contained in Section 8 thereof read with the Rules. Respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses out morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody for a period of more than two years now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India.

Bail upheld.

Once drugs are said to be used for medicinal purposes, they are acknowledge to be drugs coming within the purview of expression "medicinal purposes" and would be covered by the exception provided in Section 8 of the NDPS Act.

not being listed in the 1st Schedule appended to NDPS Act. The respondent cannot be said to have committed any offence under Section 8 read with Section 22 of 1985 Act.


Shri Shiv Shanker Kesari

[2007]10SCR964


Coram: Justice Dr. Arijit Pasayat

Justice D.K. Jain, Counsels:

Vikas Singh Indra Sawhney

Respondent was charged for alleged commission of offence punishable under Sections 8, 15, 27A and 29 of the NDPS Act. Allegation was that he was found to be in possession of huge quantity of poppy straw. It is the case of the prosecution that the raiding party seized nearly 400 Kg. of poppy straw from the possession of the accused-respondent.

Bail application made by the respondent was rejected by learned Special Judge (NDPS Act), Varanasi.

High Court allowed the bail application. Hence present appeal seeking cancellation of bail.

The Supreme Court held that Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

No person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.


16 Sayed Abul Ala Vs.

Union of India and Ors.

[2007]10SCR631


Coram: Justice S.B. Sinha, Justice H.S. Bedi,

Counsel

Harjinder Singh Sanjay R. Hegde,

Amit Kumar Chawla

Appellant was detained under the Illicit Traffic in NDPS Act by an order dated 15th February, 2000. The period of detention is over. He, however, questioned the validity of the said order of detention before the High Court of Delhi inter alia on the premise that unless the order of detention is set aside, a proceeding may be initiated against him under Chapter VA of Narcotic Drugs and Psychotropic

Supreme Court held that an application for bail is required to be filed and considered by the appropriate Court in terms of Section 439 of the Code of Criminal Procedure but in cases involving the provisions of the NDPS Act, the detaining authority was required to take into consideration the restrictions imposed on the power of the court to grant bail having regard to the provisions of Section 37 thereof. The statute, thus, puts limitation on the

Bail allowed. Before passing detention Order detaining authority must reach the subjective satisfaction that detenu if released will indulge in similar activity.

Substances Act, 1985.

Appellant filed an application before the special judge that he may not be transferred to Delhi. The said plea was not accepted. The order of detention was placed before the Advisory Board for confirmation. The Advisory Board was to hold its meeting on 22nd April, 2000. According to the appellant on the aforementioned date neither he nor his advocate Shri S.C. Puri could appear before the Advisory Board as he was being taken to Delhi from Bengal, and his advocate received the said communication from the Advisory Board only on 25th April, 2000. It is also not in dispute that upon recommendations of the Advisory Board, the order of detention was confirmed on 12.5.2000. Appellant made two representations praying for revocation of the order of detention. The first representation was made on 14th March, 2000 raising all legal questions. The said representation was rejected. He, however, filed another representation on 26th May, 2000 inter alia on the premise that his Constitutional right to appear before the Advisory Board having been denied to him, he was entitled to revocation of the order of detention dated 15th February, 2000. The said representation was also rejected. Aggrieved, he filed a writ petition before the High Court.

jurisdiction of the court in the ratter of grant of bail. They cannot be ignored by any Court of law. Several decisions of this Court and of High Court operate in the field.

Refraction from confession by the detenu although may be one of the grounds for arriving at the conclusion with regard to the subjective satisfaction of the detaining authority, in our opinion, the detaining authority should have also informed himself about the implication of Section 37 of the Act. If the detenu was involved in a large number of cases and the prosecution was aware of the same, it would invariably be brought to the notice of the court dealing with the application of bail filed by the detenu by the public prosecutor. Further more, the order of the Court granting bail would be passed only when the court dealing therewith forms an opinion that there are reasonable grounds for believing that he is not guilty of such offences that there was no likelihood to commit any offence while on bail.

17 Sanjay Kumar Kedia Vs.

Narcotics Control Bureau and Anr.

On 1.2.2007 officers of the Narcotics Control Bureau (NCB) conducted a search at the residence and office premises of the appellant

Supreme Court held that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37

Bail denied. Appeal dismissed. It was held "Court shall not release accused on bail, unless reasonable

(2008)2SCC294


Coram: Justice S.B. Sinha, Justice H.S. Bedi,

Counels: K.T.S. Tulsi ,

Uday Umesh Lalit, Vikash Singh

but found nothing incriminating. He was also called upon to appear before the NCB on a number of occasions pursuant to a notice issued to him under Section 67 of the NDPS Act and was ultimately arrested and the bank accounts and premises of the two companies were also seized or sealed. On 13.3.2007 the appellant filed an application for bail in the High Court which was dismissed on the ground that a prima facie case under Sections 24 and 29 of the Act had been made out and that the investigation was yet not complete. The appellant thereafter moved a second bail application before the High Court on 16.4.2007 which too was dismissed with the observations that the enquiry was at a critical stage and that the department should be afforded sufficient time to conduct its enquiry and to bring it to its logical conclusion as the alleged offences had widespread ramifications for society. It appears that a bail application was thereafter filed by the appellant before the Special Judge which too was rejected on 28.5.2007 with the observations that the investigation was still in progress. Aggrieved thereby, the appellant preferred yet another application for bail before the High Court on 4.6.2007 which too was dismissed on 7.6.2007.

of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted.

ground is established."

18 Sami Ullaha Vs.

Superintendent, Narcotic Central Bureau

AIR2009SC1357 Decided On: 07.11.2008

Coram: Justice S.B. Sinha,

Justice Cyriac Joseph

The luggage of two persons, viz., Abdul Munaf and Zahid Hussain, who were travelling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statement was made by the

Supreme Court while set-aside the impugned order cancelling the bail held that there exists a difference of opinion insofar as the Central Revenue Control Laboratory, New Delhi, has since opined that the sample contained 2.6% heroin. The effect of

Bail granted. "Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening

Counsels: Sushil Kumar Jain,

Puneet Jain

said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the NDPS Act. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail. The prosecution, however, sent another sample to the Central Revenue Control Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the sample under reference was tested positive for Diacetyl-morphine (Heroin), which according to the said report was found to be 2.6% of the sample tested. An application for

said contradictory report must be gone into only at trial. A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured.

circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

cancellation of bail was filed on 4.02.2005. By an order dated 15.03.2005, the bail granted to the appellant was cancelled relying on or on the basis of the second report obtained by the respondent from the Central Revenue Control Laboratory, New Delhi

19 Ratan Kumar Vishwas

Vs. State of U.P. and Anr.

AIR2009SC581 Decided On: 07.11.2008

Coram: Justice Dr. Arijit

Pasayat, Justice C.K. Thakker ,

Justice D.K. Jain,

Challenge in this appeal was to the Judgment of a learned Single Judge of the Allahabad High Court dismissing the application filed by the appellant for suspension of sentence and grant of bail. Appellant-Ratan Kumar Vishwas has filed an Appeal No. 6636 of 2006 questioning his conviction the offence punishable under Sections 27A and 29 of the NDPS Act. He was sentenced to undergo rigorous imprisonment for 14 years and to pay a fine of rupees two lacs with default stipulation. Learned Additional Sessions Judge, Fast Track Court No. 1, Kanpur Nagar has found the appellant guilty and convicted and sentenced him as aforesaid.

Supreme Court while dismissing the appeal held that a sentence awarded under the Act can be suspended by the Appellate Court only and strictly subject to the conditions as spelt out in Section 37 of the Act. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such office and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted. Section 37 of the Act.

Bail denied. Person accused of offence under the NDPS Act should not be released on bail unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such office and that he is not likely to commit any offence while on bail are satisfied.


Rattan Mallik @ Habul (2009)2SCC624


Justice D.K. Jain, Justice R.M. Lodha.

Counsel:

A. Sharan, Sunita Sharma

Respondent was involved in financing and trading in 14.900 kilograms of heroin, recovered from a specially made cavity above the cabin of a truck. Upon consideration of the evidence adduced, the Trial Court came to the conclusion that the prosecution had successfully proved the charges against the respondent and three others. On conviction, the Trial Court sentenced the respondent to undergo rigorous imprisonment for ten years and to pay a fine

Supreme Court called upon to decide whether the High Court, while accepting the prayer for grant of bail, had kept in view the parameters of Section 37 of the NDPS Act, Supreme Court set-aside Impugned order of the High Court and held that satisfaction contemplated regarding accused being not guilty, has to be based on "reasonable grounds" Expression "reasonable grounds" implies something more than prima facie ground. Mandatory requirements


"Recording of satisfaction that Accused is not guilty of offence and that he is not likely to commit any offence while on bail is sine qua non for granting of bail under the NDPS Act."

of Rs.1 lac under Section 27A of the NDPS Act and undergo rigorous imprisonment for ten years and a fine of Rs.1 lac under Section 29 of the NDPS Act, with default stipulation. High Court suspended the sentence awarded by the trial Court to the respondent for having committed offences under Sections 8/27A and 8/29 of NDPS Act and granting him bail.

under section 37 of the NDPC Act cannot be ignored. Circumstances that, (i) nothing has been found from possession of accused, (ii) he is in jail for last 3 years and (iii) there is no chance of appeal being heard in near future cannot waive the requirement of section 37 of NDPC Act.

21 Thana Singh Vs.

Central Bureau of Narcotics

(2013)2SCC590 Decided On: 23.01.2013

Coram: Justice D.K. Jain,

Justice J.S. Khehar. Cousel:

P.P. Malhotra A. Mariarputham

The Appellant- accused, who had been languishing in prison for more than twelve years, awaiting the commencement of his trial for an offence under the NDPS Act was consistently denied bail, even by the High Court. Significantly, the maximum punishment for the offence the accused was incarcerated for is twenty years; hence, the undertrial had remained in detention for a period exceeding one-half of the maximum period of imprisonment. Grant of bail to the respondent by a learned Single Judge of Bombay High Court is questioned by the Narcotics Control Bureau as granting of bail being done overlooking the requirements of section 37 of NDPS Act.

Supreme Court laid down the directions and guidelines specified hereinafter for due observance by all concerned as the law declared by this Court under Article 141 of the Constitution of India. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of fundamental rights, especially the cluster of fundamental rights incorporated under Article 21, which stand flagrantly violated due to the state of affairs of trials under the NDPS Act. We would like to clarify that these directions are restricted only to the proceedings under the NDPS Act.

Bail Granted.

"Under trial Accused shall be released on bail if he has been in jail for not less than five years and furnishes bail in sum of rupees one lakh with two sureties."

THE ALLAHABAD HIGH COURT

S. No.

Name of the case Issue before the Court Decision of the High Court Remark

1 Raj Bahadur Vs.

The State of U.P.

MANU/UP/0339/1990


Coram:

G.D. Dube, J.

Counsels Anup Ghosh,

ASG

Bail application was filed in the High Court. It has been argued that the search was not in accordance with Section 51 of the Act. It was also urged that public witnesses were not summoned to witness the search and recovery. Lastly, it was urged that Section 37 of the Act is not applicable to the High Court. Therefore, the High Court can look into the matter from its own angle.

Court directed that the applicant be released on bail on his furnishing two adequate sureties and a personal bond each in the like amount to the satisfaction of the C.J.M. Agra in Crime No. 406 of 1990, Under Section 17/18 of N.D.P.S. Act.

Bail Granted.

2 Sewa Ram and Ors. Vs.

State

MANU/UP/0204/1992


Coram:

I.S. Mathur, J.

Two bail applications were filed in the High Court. Applicant Sewaram was arrested on 26-8-1991 for the alleged offence under Section 20(b) of the N.D.P.S. Act for allegedly being in possession of one Kilogram ganja and two and a half Tolas opium for the purposes of selling. Second applicant was arrested on 10-9-1991 for an offence under Section 20(b) of the N.D.P.S. Act and about four kilograms Ganja in 'pudia' and one kilogram opium was recovered from a gunny bag in his possession. Court clubbed both of these cases and decided by common order.

Court held It is true that the provisions of the N.D.P.S. Act are in the nature of social legislation and it is in the interest of the community that the real culprits must be apprehended and severely punished but at the same time care has to be taken that the innocent persons are not unnecessarily harassed and for that purpose the mandatory procedural safeguards are complied with. The social need lends special responsibility on the investigating prosecuting authorities as also on the public prosecutors. The public prosecutor has a vital role to play in the whole process of reaching the required satisfaction by the Court in regard to the culpability of the accused. The Investigating Officer the Public Prosecutor and the concerned authorities can, by placing and pointing out the relevant material, collected against the accused, effectively and meaningfully oppose the application for bail by showing that mandatory provision has been followed and no reasonable grounds exist for believing that the applicant is not guilty of the offences charged.

Bail granted.

Bail granted to both appellants.

3 Nathooni Singh and etc. Vs.

State of U.P. MANU/UP/0193/1993


Coram: Shashi Kant Agarwal,

J.

All these bail applications relate to offences under the NDPS and are being disposed of by this common order because similar questions of law have been raised in these cases.

With due respect to the learned Judges of this Court deciding Dadan Singh's case Sewa Ram's case MANU/UP/0204/1992and Dasarath Lal's case, it may be stated that in those decisions the Supreme Court decision in Narcotic Control Bureau v. Kisanlal MANU/SC/0152/1991was not noticed. The decision of the Supreme Court is binding on all Courts under Article 141 of the Constitution of India. Hence it is evident that the provisions of Section 37 of the NDPS Act which are intended to restrict the powers to grant bail have to be taken into account in spite of the fact that the procedure followed during search and seizure was illegal and provisions of Sections 42 and 50 of NDPS Act were not complied with. It is noteworthy that Section 37 of the NDPS Act makes no exception, hence even if the procedure prescribed under Sections 42 and 50 of NDPS Act has not been followed, while considering bail, the provisions of Section 37 of the NDPS Act have to be borne in mind.

Bail granted in three applications and in two were denied.

4 Bal Mukund Jaiswal Vs.

Narcotic Control Bureau

MANU/UP/0208/1993 Decided On: 26.03.1993

Coram: V.N. Mehrotra, J.

This application for bail has been moved by the applicant in a case under Section 8/22 of NDPS Act

Court rejected the bail application. The present case is not such a case in which some small quantity of psycho-tropic substance might have been planted on the person or the premises of the applicant. As mentioned earlier, more than 60,000 tablets of psychotropic substance were allegedly recovered from the premises of the applicant. Court was for this reason unable to hold, at this stage, that there are reasonable grounds for believing that the applicant is not guilty of the offence under the Act. Further, the officer concerned has in the recovery memo recorded the

Bail denied. It should not be forgotten that the offences under the NDPS Act are very serious and grave and people indulging in such offences are causing havoc to the health of the inhabitants of this world. The Legislature has thought to prescribe very deterrent punishment for

alleged confessional statement made by the applicant regarding his dealing with the narcotic substance in the past. Considering these facts. Court was also not satisfied that the applicant is not likely to commit any offence under the Act while he is on bail.

committing the offences under this Act. The offences which have such serious effect on the health of the people are always to be dealt with a heavy hand. A person found committing such offences, normally does not deserve to be released on bail.

5 Gyasuddin Vs.



Coram: S.R. Singh, J.

This application for bail under Section 439, Code of Criminal Procedure arises out of Case Crime No. 129 of 1996 under Section 8/20 of the NDPS Act .Recovery memo shows that the applicant was standing near 'SIDHIWALA PUL' with a bag at railway platform No. 1, G.R.P., Gorakhpur on 23.5.1996 at 9.30 p.m. He was apprehended and, on search, found in possession of 10.500 Kg. of charas contained in the bag but failed to produce any valid authority for possession thereof.

Court held that that the search in the instant case has not been made in violation of Section 50 of the Act. The option available to the suspect is to choose between the officer concerned and a Gazetted Officer or Magistrate for the purpose of search and seizure. The suspect has no right, under Section 50 of the Act, to make a choice between the Gazetted Officer and the Magistrate. That right appears to be with the officer apprehending the suspect as is evident from the expression "take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act or to the nearest Magistrate" used in Section 50. The search made in presence of the Gazetted Officer of any of the departments mentioned in Section 42 of the Act would not be vitiated merely because it was not made before a Magistrate as desired by the suspect/accused for no such right is conferred upon the suspect/accused under Section 50 of the Act. Bail application rejected.

Bail denied.

6 Sati Prasad Verma Vs.


This application for bail arises out of Case Crime No. 396 of 1996 under Section 8/20/23 of the

Court held that embargo placed on the power of the court to grant ball by Section 37(1)(b)(ii) of the Act would

Bail granted.



NDPS Act police station Dumariaganj, district Sidharthnagar. According to the prosecution case the applicant was found in possession of 6 kg. of ganja for which he could not produce any licence.

come into play only in case of an offence punishable under the Act for a term of imprisonment of five years or more. Section 20 of the Act makes it abundantly clear that where the possession of contraband is found in contravention of any of the provisions of the Act in relation to ganja, the accused shall be punished "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." The expression "imprisonment for a term which may extend to five years" does not mean "imprisonment of five years" within the meaning of Clause (b) of Sub-section (1) of Section 37 of the Act. In my opinion, the bar of Section 37 would not apply to a case where the offence is punishable under the Act with imprisonment which may extend to five years. In other words, if the maximum sentence which could be imposed for an offence under the Act is not less than five years then the embargo placed on the power of the Court to grant bail by Section 37 of the Act would apply. I am in respectful agreement with the view taken by Patna High Court and Karnataka High Court in the cases relied on by the learned Counsel for the applicant. Bail in the instant case will have to be considered having regard to the provisions contained in Section 437/439, Code of Criminal Procedure. Bail application allowed.

7 Devendra Kumar Misra

Vs. State of U.P.

MANU/UP/0819/1997

Decided On:

This application for bail has its genesis in case crime No. 139 of 1996 and 140 of 1996 under Section 8/20(2), 23 of the N.D.P.S. Act registered at P.S. Shoharatgarh Distt. Sidharthnagar.

Court found no principle to subscribe to the submission that the Sessions Judge while taking cognizance of that offence under Section 36D of the N.D.P.S. cannot remand the accused to custody until the conclusion of the trial under Section

Bail denied.

15.04.1997


309, Cr.P.C. The power to adjourn the case from date to date is regulated by the section and therefore, there would be no peril of the trial being lingered for indefinite period to the prejudice of the accused. Limitation to remand the accused until the conclusion of the trial has been placed by the Ist proviso to Section 309(2), Cr.P.C. on the power of the Magistrate and not on the powers of the Sessions Court. It may be recalled that Magistrate while committing a case to the Court of Sessions under Section 209, Cr.P.C. can remand the accused until the conclusion of the trial. In principal I find no oddity if the Sessions Judge after taking cognizance under Section 36D of the N.D.P.S. Act remands the accused under Section 309, Cr.P.C. until the conclusion of the trial. In my opinion, Raghvendra Singh (1983 All LJ 611) () has not been correctly decided in its perspective and I would have referred the question to a larger Bench but for the reason that the said decision does not apply to the facts of the present case.


Darshan Kumar

MANU/UP/1607/1997


Coram: G.P. Mathur, J.

The Respondent was granted bail in Special Case No. 36 of 1996 under Section 21/8, N.D.P.S. Act, P.S. Vijay Nagar, District Ghaziabad by Sri S.K. Malaviya IInd Addl. Sessions Judge on 16.10.1996.

Court held that in its opinion, distinction has to be made in cases where the Legislature has made a provision different from Section 439, Code of Criminal Procedure In view of Section 37 of the Act, two conditions have to be satisfied before a person accused of an offence punishable for a term of imprisonment for five years or more can be granted bail and they are (1) there are reasonable grounds for believing that he is not guilty of such an offence and (2) that he is not likely to commit any offence while on bail. If these conditions are not satisfied, the order granting bail would be contrary to Section 37 of the

Bail Cancelled. Order of special court granting bail set-aside.

Act. If an order of bail is passed which is not in accordance with Section 37 of the Act, it would be illegal and in such circumstances, it is the duty of the superior court to set aside such an order. The authorities cited by the learned Counsel do not relate to such offences where the grant of bail was conditioned by some special statutory provision governing the case but were governed by the provisions of the Code of Criminal Procedure. Therefore, they are clearly distinguishable.


Devi Saran

MANU/UP/1673/1997


Coram:

Dr. Maithali Saran, J.

Petitioner filed the instant application under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the accused opposite party Devi Saran on 10.1.1994 by the Ist Additional Sessions Judge, Barabanki for the offence under Section 8/21 of the NDPS Act.

Court held that accused cannot be released on bail under the Act unless and until the conditions and limitations imposed under Section 37 of the Act are satisfied. Looking to the impugned order passed by the learned Additional Sessions Judge it is but clear that he has not only disregarded these mandatory provisions, but has even observed that.

Bail cancelled. Decision of the lower court granting bail was set-aside.

10 Arun Kumar Vs.

State of Punjab

MANU/UP/1223/1998


Coram:

M.L. Singhal, J.

According to the prosecution, 70 grams of chakras was recovered from the possession of the Petitioner on 3.3.1998.

Bail granted without going into the merits of the submissions.

Bail denied.

11 Dharmendra Gupta Vs.

State of U.P.

MANU/UP/1127/1998


Coram:

M.L. Singhal, J

The applicant Dharmendra Gupta has applied for bail in Case Crime No. 99 of 1997, under Section 20/21 of NDPS Act.

Bail application rejected. It was held powers of the Court to grant bail under the N.D.P.S. Act is subject to the provisions of Section 37 of N.D.P.S. Act, which clearly lays down that notwithstanding anything contained in the Code of Criminal Procedure, a person accused of an offence punishable for a term of imprisonment of five years

Bail denied.

or more (the accused-applicant in the instant case is punishable for imprisonment of more than five years), shall not be released on bail, where the Public Prosecutor opposes the application and the Court is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. In the present case, 260 gms. brown sugar has been recovered from the possession of the accused-applicant, the valuation of which in the F.I.R. itself has been put by the prosecution as Rs. 26,00,000 which is not controverted on behalf of the accused-applicant. In view of recovery of the brown sugar of such a huge amount, there are no chances of plantation of the said recovery with the accused. Having regard to the quantity of the brown sugar recovered from the possession of the accused-applicant in the presence of the Circle Officer, a Gazetted Officer, the applicant has not been able to lift the bar placed on the powers of the Court to grant bail by Section 37 of the N.D.P.S. Act.

12 Prem Narain Sharma and Anr.

Vs. Union of India (UOI)

MANU/UP/1218/2000


Coram:

Jagdish Chandra Gupta, J.

This is second application for bail moved on behalf of Appellants Prem Narain Sharma and Atul Kumar Sharma who had been convicted and sentenced to rigorous imprisonment for 10 years and imposed fine of rupees one lac each of the Appellants by the trial court.

Court held that the Apex Court further observed that a sentence awarded under the Act can be suspended by the appellate court only but strictly subject to the conditions spelt out under Section 37 of the Act. Therefore, though the appellate court has power to suspend sentence in relation to convicts of the offences punishable under N.D.P.S. Act, yet that power is to be exercised subject to conditions spelt out under Section 37 of the Act. Court did not incline to grant bail pending appeal.

Bail denied.

13 Faraim alias Dangar Petitioner filed present Considering the facts and Bail granted

Vs. State of U.P.

MANU/UP/1118/2001


Coram:

B.K. Rathi, J.

application seeking bail. He was charged under the various provisions of the NDPS Act.

circumstances of the case, the High Court granted bail to the applicant.

14 Aman alias Pappu Vs.

State of U.P.

MANU/UP/2578/2005


Coram:

Ravindra Singh, J.

This application is filed by the applicant with a prayer that he may be released on bail in Case Crime No. 71 of 2004, under Section 20, N.D.P.S. Act, P.S. Raipura district Chitrakut.

Court held that the recovery of huge quantity of the smack, submissions made by the learned Counsel for the applicant, learned A.G.A., it will not be proper to express any opinion on the merits of the case, the pleas including the plea of 'joint offer' taken by the learned Counsel for the applicant shall be considered by the trial court when the evidence will be adduced, but the rulings cited by the learned Counsel for the applicant are not applicable in the instant case, because the facts of the instant case are entirely different from the above mentioned cited cases. Therefore, the applicant is not entitled for bail at this stage. Bail application rejected.

Bail denied.

15 Moti Lal Sahu Vs.

State of U.P.

MANU/UP/2582/2005


Coram:

Ravindra Singh, J.

This application is filed by the applicant Moti Lal Sahu with a prayer that he may be released on bail in Case Crime No. 352 of 2002, under Section 18/20, N.D.P.S. Act, P.S. Rail Bazar, district Kanpur Nagar.

Court denied the bail Considering the facts and circumstances of the case and submissions made by the learned Counsel for the applicant and learned A.G.A. and without expressing any opinion on the merits of the case.

Bail denied.

16 Pappu alias Jitendra Vs.

State of U.P.

MANU/UP/2577/2005


Coram:

Ravindra Singh, J.

The applicant disclosed that he was having opium in his bag. The applicant was given an offer by the police to give a search before any Gazetted Officer or a Magistrate, but he replied that he was having faith on arresting officer and refused to give his search before any Gazetted Officer or any Magistrate. The search was

Court held that the morphine and opium are separate contrabands and have been defined separately. Though, the report of Chemical Analyst has not been filed by the applicant, but its result that sample was having 2% morphine has not been denied by the learned A.G.A. and according to this report no opium was found in the

Bail Granted.

taken by the police and about 5 Kg. opium was recovered from the bag on the applicant. The recovered contraband was identified as opium by its smell. The recovered contraband was having the weight of about 5 Kg. Thereafter, 70 grams opium was taken from recovered quantity for the purposes of sample and the same was sealed. The motorcycle No. UP-25E-8670 Yamaha was also seized. The applicant disclosed the name of co-accused as Brajnandan. It has been confessed by the applicant that he was involved in the business of sale and purchase of opium and smack. He further stated that co-accused Brajnandan was having smack.

said sample and if the calculation is made on the basis of percentage of the morphine present in the sample, the quantity will be 100 grams which is less than commercial quantity and without expressing any opinion on the merits of the case the applicant is entitled for bail. Bail granted.

17 Jagdish Vs.

State of U.P.

MANU/UP/2496/2006


Coram:

Ganga Prasad Srivastava, J.

30 small packs of smack were recovered from the possession of the applicant-Jagdish on 24.12.2005. The recovered article was never weighed. It was neither weighed by the arresting officer nor by the S.H.O. concern nor by the Magistrate who granted the first remand to the accused, even the learned Sessions Judge who disposed of the bail application of the applicant did not care to get the recovered article weighed. After the amendment of 2003 of N.D.P.S. Act, 1985, the weight of recovered article goes to the root of the jurisdiction because only the weight of recovered article determines the jurisdiction.

Court granted the bail as it appeared to court that recovered article is below the commercial quantity.

Bail granted.

18 Anil Sonkar Vs.

State of U.P.

MANU/UP/2491/2006


Coram:

Ganga Prasad

This is second bail application. The first bail application was rejected by this Court on merit vide order dated 3.5.05. Learned Counsel for the applicant has argued that the fresh ground is that during investigation the Investigating Officer recorded the statement of

Court held that it is very clear from the prosecution case itself that the recovery was made from the bag held in the hand of the applicant and not from his personal search. Section 50, N.D.P.S. Act is applicable only in the personal search and not in a search of bags and bag held by the accused. Therefore the

Bail denied.

Srivastava, J. the eye-witnesses who were member of the police party they stated that the police party did not say to the applicant that under N.D.P.S. Act, he has a right to be searched before the Magistrate or Gazetted Officer. In this connection he has placed reliance C. Ali v. State of Kerala MANU/SC/1225/1999 : 2000 (1) ACR 347 (SC): 2000 ACC 485 (SC), wherein it was held that the settled position of law is that the person to be searched under the N.D.P.S. Act, 1985, is required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised.

provision of Section 50, N.D.P.S. Act is not applicable in the instant case. The applicant has not been able to make out a case for bail. The bail application is rejected.

19 Yogender Pal Singh Vs.

State of U.P.

MANU/UP/2406/2006


Coram:

Saroj Bala, J.

This is an application for bail moved on behalf of the applicant Yogender Pal Singh indicted in Case Crime No. 36 of 2005 under Section 18/22 of the N.D.P.S. Act. P.S. Loni, district Ghaziabad. The recovery of two packets of heroin each weighing 1/2 kg. was made from the personal search of the applicant. The applicant and co-accused were made aware of their right to be searched in the presence of Magistrate or Gazetted Officer. There is no specified form prescribed or intended for conveying the information required to be given under Section 50 of the N.D.P.S. Act. The applicant and co-accused though consented for search by the Police Inspector incharge but by way of abundant caution, the Deputy Superintendent of Police (C.O. III) was contacted on R.T. set and search of the applicant and co-accused was taken on his arrival at the spot. The search of the applicant

The recovery of heroin involving commercial quantity having been made from the possession of the applicant, the provisions of Section 37 of N.D.P.S. Act are attracted to the present case. The applicant having been found in possession of heroine weighing one kg., it cannot be held that applicant is not likely to commit any offence while on bail. The decision in the case of Ansar Ahmad and Ors. () having been challenged by filing special leave petitions before the Apex Court it has not attained finality. The decision of Apex Court in the case of Ouseph () relates to the applicability of Section 27 of the N.D.P.S. Act and recovery was of 110 ampoules of Buprenorphine (Tidigesic). In the backdrop of these facts, I am not inclined to grant bail to the applicant. Bail application rejected.

Bail denied.

having been taken in the presence of Deputy Superintendent of Police there was sufficient compliance of provisions of Section 50 of the N.D.P.S. Act. The percentage of diacetylmorphine found in the samples and calculation of total quantity of heroin on that basis is not contemplated under the provisions of N.D.P.S. Act.

20 Janrail Singh Vs.

State of U. P.

MANU/UP/1845/2008


Coram:

Vinod Prasad, J.

Applicant Janrail Singh, who is incarcerated in jail, in connection with Crime No. 255 of 2007, for the offences under Section 8/21, N.D.P.S. Act, P.S. Kotwali, district Varanasi, has sought his release on bail, through the instant criminal miscellaneous bail application. The three apprehended accused informed the raiding party that they are in possession of narcotic heroin, which they had brought from Rajasthan through an agent. They further disclosed that they wanted to carry the heroin to Sasaram in Bihar, where businessmen contact them for business. The apprehended accused persons further informed that an agent from Rajasthan gives them contraband in advance and after sale, his share of sale proceeds is given to him. Three apprehended accused persons were informed about their rights under Section 50 of N.D.P.S. Act, but they refused the exercise of their such a right and allowed the raiding party to search them. Searching party before searching accused, searched each of them to rule out the possibility of planting narcotics and thereafter a fard was prepared for compliance of Section 50 of

Court found that the categorisation of quantity of contraband narcotics by the Legislators is for the purpose of the punishment only. Categorisation has nothing to do with making out the offences. The Legislature, in its wisdom, has catalogued those persons, who are indulging into heavy dealing in narcotic drug who cannot be equated with petty offenders under the N.D.P.S. Act. The Legislature, it seems, was also of the view that the person should be punished only for the possession of actual quantity of narcotic and his sentence should be commensurate with such quantity. This aspect of the matter has been dealt with in detail by the Apex Court in the decision of E. Micheal Rai (), which has been relied upon by the learned Counsel for the applicant himself. The said judgment of the Apex Court may have a bearing on the sentence which is to be implanted on a guilty under trial but, at the initial stage, when the bail is being considered at a pre-conviction stage, the said decision is of no help to the applicant. I would hasten to add here that the aforesaid decision of the Apex Court was rendered in an appeal after conviction and not at a pre-trial stage. Bail application rejected.

Bail denied. Decision of trial court denying bail upheld.

N.D.P.S. Act. Meanwhile, Sanjai Kumar Tiwari, an officer of Narcotic Control Bureau, also arrived at the spot. The apprehended accused persons, thereafter, were searched and from the possession of the applicant 4.820 grams heroin, which was weighed on physical balance, was recovered. From the other accused persons also heroin were recovered. The recovered narcotic were sealed in phials after taking samples. The accused persons were arrested for the charge under Section 8/21 of N.D.P.S. Act. Search, seizure and arrest memo were prepared and the copy of same were given to the three apprehended accused persons. On the basis of the said search seizure and arrest memo. F.I.R. Annexure-1 was registered at P. S. Kotwali, district Varanasi on the same day 19.9.2007, at 4.45 p.m. by the S.H.O., he being the informant.

21 Abdul Jabbar Vs.

State of U.P.

MANU/UP/1413/2009


Coram:

Ashok Srivastava, J.

This bail application has been moved on behalf of the applicant Abdul Zabbar who is involved in Case Crime No. 59 of 2008, under Section 8/22 of the N.D.P.S. Act, Police Station Kotwali, district Ghaziabad. The complainant of this case is Raj Mani Pandey, Station House Officer of Police Station, Kotwali, Ghaziabad. On 21.1.2008, he was patrolling in his area alongwith other police personnel. An informer met him and informed that a car, which was coming from the side of Ghaziabad and going towards Delhi was being occupied by 3 persons who were carrying with them certain amount of narcotic substance. Believing the information given by the informer, the complainant intercepted the vehicle

Court held that in the instant case we are not here at the stage of trial. This Court is merely disposing of the bail application. Therefore, it cannot be presumed that the arresting officer will not say before the trial court that the accused was not informed of his right under Section 50(1) of the Act. In the instant case 500 gms. of illicit heroin is allegedly recovered from the possession of the applicant. This amount is commercial quantity. Bail rejected.

Bail denied.

(Indica Car No. DL 3/C/W-567).

22 Praveen Kumar Maurya @ Praveen

Maurya Vs.

State of U.P.

MANU/UP/1184/2010


Coram:

Shri Kant Tripathi, J.

This is a revision against the Judgment and order dated 18.6.2010 passed by the Sessions Judge, Basti in Criminal (Juvenile) Appeal No. 75 of 2010 Praveen Kumar Maurya v. State of U.P. confirming the order dated 24.5.2010 passed by the Juvenile Justice Board, Basti in Case No. 37/2010 State v. Praveen Kumar Maurya, arising out of Crime No. 135 of 2010, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (in short 'the NDPS Act'), Police Station Motipur, District Bahraich. In view of the fact that the revisionist is a juvenile, his bail prayer is liable to be considered in accordance with Section 12 of the Juvenile Justice (Care and Protection of children) Act 2000

Court held that Section 12 of the Juvenile Act is fully attracted in this case, therefore, it would be just and expedient to enlarge the revisionist Praveen Kumar Maurya @ Praveen Maurya on bail. The revisionist was admittedly a juvenile on the date of occurrence, therefore, his bail matter was liable to be governed by Section 12 of the Juvenile Act and the provisions of Section 37 of the NDPS Act was not applicable, specially when Section 12 of the Juvenile Act overrides the provisions of Section 37 of the NDPS Act in the case of a person who is a juvenile. Revision application allowed.

Bail Granted.

23 Zuber Vs.

Union of India

MANU/UP/3372/2010


Coram:

B.K. Narayana, J.

Appellant Zuber who has been convicted for offences under Section 21C read with Sections 29 and 25 of N.D.P.S. Act and sentenced to undergo rigorous imprisonment of 12 years R.I. and 10 years R.I. on both counts with a fine of (`) 1,00,000 (One lac) on each counts and in default of payment of fine further undergo three years' rigorous imprisonment on each counts by the judgment and order dated 27.5.2007, passed by the Additional District and Sessions Judge, Court No. 14, Varanasi is seeking enlargement on bail during the pendency of the appeal.

Court held that he Apex Court in the case of Union of India v. Rattan Mallik alias Habal has clearly laid down that the delay in disposal of the appeal may be a ground for bail in an appeal against the conviction for the offence punishable under the provisions of I.P.C. but the same cannot by itself be a ground for enlarging a person on bail in an appeal filed against the conviction under the provisions of N.D.P.S. Act involving commercial quantity unless the conditions specified in the Section 37 of N.D.P.S. Act are fulfilled. There are no reasonable grounds for believing that the appellants are not guilty of the offences for which they have been convicted. Bail applications rejected.

Bail denied.

24 Shiv Lal Verma Vs.

The Appellant has been convicted and sentenced

Keeping in view the facts and circumstances of the

Bail Granted.

Government of India thru' Inspector N.C.B.

MANU/UP/0547/2011


Coram:


under Section 8/18 of Narcotic Drugs and Psychotropic Substances. Act, 1985 vide the judgment and order dated 05.05.2010 rendered in Criminal Case No. 118 of 2006, Government of India State v. Shiv Lal Verma by Additional Sessions Judge, Court No. 2, Varanasi and the maximum sentence imposed on him is of 7 years' R.I. Mr. Sameer Jain submitted that the Appellant was on bail during the trial and never abused the same. He is presently in jail from 05.05.2010 and there is no prospect of the appeal being heard in near future due to heavy dockets. It was further submitted that conditions provided in Section 37(b) of NDPS are not attracted in this case. The conviction has been recorded under Section 18(c) of the aforesaid Act. It was further submitted that the sentence imposed on the Appellant is of 7 years' R.I. only. It was next submitted that the land in which plantation had taken place does not belong to the Appellant nor he had any concern therewith.

case and submissions of the learned Counsel for the Appellant and the learned A.G.A, the Appellant Shiv lal Verma is bailed out during the pendency of the appeal in Criminal Case No. 118 of 2006, Government of India State v. Shiv Lal Verma, under Section 8/18 of NDPS Act, P.S. B.N.C.B., District Varanasi on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

(a) The Appellant shall attend the court according to the conditions of the bond executed by him;

(b) The Appellant shall not commit an offence similar to the offence of which he is accused;

(c) The Appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

25 Praveen Kumar Vs.

State of U.P.

MANU/UP/1999/2011


Coram:


The Appellant has been convicted and sentenced under Section 21-B and 22-B of NDPS Act vide the judgment and order dated 03.12.2010 rendered in Sessions Trial No. 433 of 2005, State v. Praveen Kumar, arising out of case crime No. 1778/2005, by Additional Sessions Judge, Court No. 13, Moradabad and the maximum sentence imposed on The Appellant is of 7 years' R.I. Learned Counsel for The Appellant submitted that the 60 grams of Smack and

Court Keeping in view the facts and circumstances of the case and submissions of the learned Counsel for The Appellant and the learned A.G.A, The Appellant Praveen Kumar is bailed out during the pendency of the appeal in the aforesaid Sessions Trial on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

a. The Appellant shall attend the court according to the

Bail granted.

1.400 KG of opium were recovered from the possession of The Appellant Praveen Kumar, which were less than the commercial quantity, therefore, the provisions of Section 37(b) of N.D.P.S. Act are not attracted in this case. It was next submitted that The Appellant was on bail during the trial and never abused the same and is presently in jail from 03.12.2010 and no public witness was examined in support of the recovery nor was called at time of the recovery. It was further submitted that The Appellant has been falsely implicated due to enmity. There is no prospect of the appeal being heard in near future due to heavy dockets. The provisions of Sections 50 and 57 of the N.D.P.S. Act were also not followed. It was also submitted that The Appellant Omkar Singh, having similar role, has already been enlarged on bail vide the order dated 31.3.2011 passed in Criminal Appeal No. 7820/2010.

conditions of the bond executed by him;

b. The Appellant shall not commit an offence similar to the offence of which he is accused;

c. The Appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

26 Iliyas Vs.

State of U.P.

MANU/UP/2000/2011


Coram:


The Appellant has been convicted and sentenced under Section 21-B and 22-B of NDPS Act vide the judgment and order dated 03.12.2010 rendered in Sessions Trial No. 434 of 2005, State v. Iliyas, arising out of case crime No. 1781/2005, by Additional Sessions Judge, Court No. 13, Moradabad and the maximum sentence imposed on The Appellant is of 7 years' R.I. Learned Counsel for The Appellant submitted that the 60 grams of Smack and 1.150 KG of opium were recovered from the possession of The Appellant Iliyas, which were less than the commercial quantity, therefore, the provisions of

Keeping in view the facts and circumstances of the case and submissions of the learned Counsel for The Appellant and the learned A.G.A, The Appellant Iliyas is bailed out during the pendency of the appeal in the aforesaid Sessions Trial on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

a. The Appellant shall attend the court according to the conditions of the bond executed by him;

b. The Appellant shall not commit an offence similar to the offence of which he is

Bail Granted.

Section 37(b) of N.D.P.S. Act are not attracted in this case. It was next submitted that The Appellant was on bail during the trial and never abused the same and is presently in jail from 03.12.2010 and no public witness was examined in support of the recovery nor was called at time of the recovery. It was further submitted that The Appellant has been falsely implicated due to enmity. There is no prospect of the appeal being heard in near future due to heavy dockets. The provisions of Sections 50 and 57 of the N.D.P.S. Act were also not followed. It was also submitted that The Appellant Omkar Singh, having similar role, has already been enlarged on bail vide the order dated 31.3.2011 passed in Criminal Appeal No. 7820/2010.

accused;

c. The Appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

27 Shushant Gupta Vs.

Union of India

MANU/UP/1949/2014


Coram:

Anil Kumar Sharma, J.

Applicant-Sushant Gupta seeks bail in Case Crime No. 57 of 2013 under Section 8/20/25/29 of N.D.P.S. Act, P.S. Custom Department, District Bareilly.

In the opinion of the court, the twin conditions as enumerated in Section 37(1)(b)(ii) of the Act, for grant of bail to the applicant for the offences under N.D.P.S. Act are not satisfied, therefore, he cannot be released on bail and the bail application is accordingly dismissed.

Bail denied.

28 Manoj Ram Vs.

State of U. P.

MANU/UP/1375/2014


Coram:

Anil Kumar Sharma, J.

Applicant Manoj Ram seeks bail in case crime no. 633 of 2013 u/s. 8/21 NDPS Act 1985 P.S. Mardah, District-Ghazipur. The recovery memo was prepared at the spot and the accused were arrested. After analysis of 490.40 grams suspected heroine, the FSL, Ram Nagar, Varanasi vide report dated 4.12.2013 found it to be heroine. Lastly it has been submitted that the cost of the recovered heroin in international market is about forty five lac rupees.

In the opinion of the Court, the twin conditions as enumerated in section 37(1)(b)(ii) of the Act, for grant of bail to the applicant for the offences under NDPS Act are not satisfied, therefore, he cannot be released on bail and the bail application is accordingly dismissed.

Bail denied.

This application for bail has been filed under Section 439 Cr.P.C., however, section 37 of the Act being a special enactment, general provisions of S. 439 of the Code will be required to be read subject to the limitations provided in S. 37 in view of Section 4 of Code of Criminal Procedure and sub-section (2) of Section 37 of the Act.

THE ANDHRA PRADESH HIGH COURT

S. No.

Name of Case Issue before the Court Decision of the High Court

Remark

1 Gopu Ilaiah and Ors. Vs.

The State of A.P. rep. by Public Prosecutor

MANU/AP/1212/2001


Coram:

T. Ch. Surya Rao, J.

Petitioners who are accused of the offences enumerated in the NDPS Act seek bail in these petitions. Since common questions of law are involved, all these petitions can be disposed of together. Needless to consider the factual matrix, inasmuch as the provisions of Section 37 of the Act and Section 437 of CrPC have fallen for interpretation in these batch petitions. The Act is a self-contained Code and has clearly envisaged the provision for granting bails. Section 37 of the Act is very much germane for consideration in the context From a glance at the above provision it is obvious that every offence punishable under the Act is cognizable offence. It is further clear that no person who is accused of an offence punishable for a term of imprisonment for five years or m ore shall be released on bail unless the limitations contained in clauses (i) and (ii) of clause (b) of sub-section (1) are satisfied. The first limitation is that notice to the Public Prosecutor shall be issued to give an opportunity to oppose the bail application. The real limitations are contained in clause (ii). In the event of such opposition by the Public Prosecutor, the Court should satisfy about the existence of reasonable grounds for believing that the accused is not guilty of such offence. The Court should further satisfy that the accused is not likely to commit any offence while on bail. These two are two important limitations which the Court shall take into consideration to grant bail. Sub-section (2) of Section 37 reads that the limitations

Court held that first proviso to sub-section(1) of Section 437 of the Code can be invoked in fit cases, but care shall be taken to see the letter and spirit of Section 437 is borne in mind while invoking that provision in extraordinary circumstances.

CRL.P.4247 of 2001:

Petitioner who is aged 60 years is accused of for raising Ganja plants in his field. From the facts there appears no reasonable ground to conclude that he is the owner of the field inspected by the authorities. Even otherwise, he being aged 60 years, his request for bail may be considered.

The petitioner shall be enlarged on bail on his executing a bond for Rs.5000/- (Rupees five thousand) with two sureties for a like sum each to the satisfaction of the Special Judicial Magistrate of First Class,

Bail Granted.

contained in sub-section (1) are in addition to the limitations enjoined under the Code or any other law for the time being in force on the point of granting of bail. From a perusal of sub-section (2) it is obvious that the limitations contained in clause (b) of sub-section (1) are in addition to the limitations contained in the Code or elsewhere and certainly not in derogation to the limitations contained in other provisions. Therefore, the limitations contained elsewhere shall have to be read along with limitations in clause (b) of sub-section (1) of Section 37 of the Act, so long as they are not inconsistent with the later. The apex Court in NARCOTIC CONTROL BUREAU v. KISHAN LAL1 has made it clear that the provisions of Section 37 of the Act have overriding effect over the provisions of Section 439 of the Code in the case of any inconsistency between them. Although Section 439 does not contain any limitations on the power conferred upon the Sessions Court or High Court as the case may be to grant bail in any manner, but limitations contained in clause (b) of sub-section (1) of Section 37 would still operate on such power of the Sessions Court or High Court as the case may be.

Prohibition and Excise Cases, Warangal.

CRL.P.No.4340 of 2001:

Petitioner is accused of having grown 22 Ganja plants in an extent of Ac.1-05 guntas. He is aged about 30 years. There is no evidence to conclude that he is the owner of the land where the Ganja plants are found. However, the other condition that if he is let off, he is not likely to commit any offence will not also come in the way when once it is considered that there are reasonable grounds to see that he is not guilty of the offence. Having regard to these circumstances the request of the petitioner for bail may be considered.

The petitioner shall be enlarged on bail on his executing a bond for Rs.5000/- (Rupees five thousand) with two sureties for a like sum each to the satisfaction of the Special Judicial Magistrate of First Class, Prohibition and Excise Cases,

Warangal.

CRL.P.4341 of 2001:

The petitioner is alleged to have grown 23 ganja plants in his field admeasuring Ac.2-00 gts. There are no reasonable grounds to conclude that he is the owner of the said field and he has grown in that extent of land 23 ganja plants. Hence his request for bail may be considered.

The petitioner shall be enlarged on bail on his executing a bond for Rs.5000/- (Rupees five thousand) with two sureties for a like sum each to the satisfaction of the Special Judicial Magistrate of First Class, Prohibition and Excise Cases, Warangal.

CRL.P.No.4343 of 2001:

Petitioner is alleged to have grown 52 ganja plants in an extent of Ac.2.00 gets. There are no reasonable grounds to conclude that he is the owner of the said land. Therefore his request for bail may be considered.


CRL.P.No.4398 of 2001:

Petitioner is alleged to have grown 280 ganja plants in the cotton field. There are no reasonable grounds to conclude that he is the owner of the said land since the investigating agency failed to gather any evidence in that regard. Therefore his request for bail may be considered.


CRL.P.No.4399

of 2001:

The petitioner is accused of raising 320 ganja plants in an extent of Ac.1.05 gets. But there is no evidence gathered by the investigating officer connecting the petitioner to the land. Therefore his request for bail may be considered.


CRL.P.No.4400 of 2001:

The petitioner is accused of raising 513 ganja plants in an extent of Ac.1.17 gts. But there is no evidence gathered by the investigating officer connecting the petitioner to the land. Therefore his request for bail may be considered.

The petitioner shall be enlarged on bail on his executing a bond

for Rs.5000/- (Rupees five thousand) with two sureties for a like sum each to the satisfaction of the Special Judicial Magistrate of First Class, Prohibition and Excise Cases, Warangal.

CRL.P.No.4446 of 2001:

The petitioner is accused of raising ganja plants in his field. But no evidence has been gathered to connect the land to the petitioner. Therefore his request for bail may be considered.

The petitioner shall be enlarged on bail on his executing a bond for Rs.5000/- (Rupees five thousand) with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Bodhan, Nizamabad District.

2 S. Nagaraj

Vs. State and Anr.

MANU/AP/0587/2005


Coram:

T. Gopala Krishna, J.

The petitioner, who is the Managing Partner in M/s. Raj Biotech Pharma, Hyderabad, and was issued summons under Section 67 of the NDPS Act apprehending arrest at any time by the Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, C-3A, II Floor, Rajaji Bhavan, Besant Nagar, Chennaiah,

Court held that it is settled proposition of law that without there being a crime registered, the Courts shall hot grant blanket orders. In the normal course, this Court would

Bail Granted.

filed this petition seeking anticipatory bail. The facts are that the petitioner is the licenced manufacturer of drugs and carrying on a pharmaceuticals business in the name and style of M/s. Raj Biotech Pharma, at Uppal, Hyderabad. Basing on the seizure of a stock 67.160 Kgs of Ephedrine on 9-12-2004 from the godown of Andhra Pradesh Express Services Private Limited, Kalba Devi Road, Mumbai, and also basing on the statement of one K.V. Satyanarayana, who booked the said consignment at the instance of one Hitesh Dhirajlal Mojoria of Secunderabad on 8-2-2005 from the petitioner, the officers of Narcotics Control Bureau visited the petitioner's premises on 10-2-2005. Though the officers could not find any illegality insofar as his business is concerned, they found the records relating to statutory returns from 1-4-2004 alone, but they could not find the records prior to 1-4-2004. As the said non-submission of statutory returns amounts to violation, the said authorities were constrained to issue the said summons under Section 67 of the NDPS Act directing the petitioner to appear before the Intelligence Officer for giving evidence and/ or producing documents in respect of an enquiry being made by him in connection with the alleged trafficking and seizure of about 67.160 Kgs of Ephedrine by Mumbai, NOs., on 9-12-2004.

have dismissed this application on the sole ground that no crime is registered and only summons were issued. But. in the instant case, the said summons were issued directing the petitioner not only to appear but also not to leave the premises without permission. In my considered view, there is no necessity for the authorities to insert the word 'the petitioner shall not leave the premises without permission' if it is mere summons for appearance. The said insertion of words in summons that the petitioner shall not leave the premises without permission definitely leads to a reasonable apprehension of being arrested as and when the petitioner appears before the Officer. Apart from that, as the alleged offence is only non-submission of statutory returns prior to 1-4-2004, I feel that it is a fit case to grant anticipatory bail.

3 Kanneboina Ramesh and Anr.

Vs. The State of A.P.

through SHO represented by Public

Prosecutor

The case of the prosecution is that on 17.2.2007, on credible information, the Sub-Inspector of Police along with his men went to Lambadipalli near Narapu Chettu, Hamlet of Korlakunta Village and conducted vehicle checking

Court did not grant bail. However put the petitioner at liberty to move appropriate bail application before the lower court.

Bail denied.

MANU/AP/0222/2007


Coram:

P.S. Narayana, J.

and at about 12.25 hours, they found silver colour Maruti Car bearing Registration No. AP-5-C-2232, under suspicious circumstances. On searching in the car, four persons were found including the driver and another female. The police basing on the cover of panchanama registered a case in Crime No. 15 of 2007 under Section 8(c) read with Section 20(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" for the purpose of convenience). It is stated in the application that the petitioners are innocent persons and had not committed any offence and they had been falsely implicated. It is also stated that for no fault of them, they have been languishing in District Jail, Karimnagar from 8.2.2007 and the police have already completed their investigation and only charge sheet has to be filed. It is also stated that the petitioner moved Criminal M.P. No. 104 of 2007 before the Court of the I Additional Sessions Judge, Karimnagar praying for grant of bail and the learned Judge was pleased to dismiss the said application on 13.3.2007.

Bail was granted to one of the petitioner on the conditions specified in the judgment.

4 Intelligence Officer, Narcotics Control

Bureau Vs.

Shivakumar

MANU/AP/1733/2014


Coram:

Dr. B. Siva Sankara Rao, J.

The Complainant-Intelligence Officer of Narcotics Control Bureau, Hyderabad, Sub Zone filed the petition originally under Section 439(2) of Cr.P.C. read with 37 of the NDPS Act amended by Act 9 of 2001 with a prayer to cancel the bail order granted to the respondent/A.1 in Case No. NCB F.No. 48/1/2/2013/NCB/Sub Zone, Hyderabad and to set aside the order granting bail passed by the learned in charge Metropolitan Judge, Ranga Reddy district at L.B. Nagar in Crl. M.P. No. 1091 of 2014, dated 20.05.2014, in the interest of justice and order for remanding the respondent/A.1 to judicial custody.

Court set-aside the impugned order of the trial court grating bail to the respondent as it was in contravention to section 37 of NDPS Act.


THE BOMBAY HIGH COURT

S. No.

Name of the case Issue before the Court Decision of the Court Remark

1 Aravind Mehram Patel and another

Vs. The Intelligence

Officer, Narcotics Control Bureau,

Bombay

MANU/MH/0026/1989


Coram:

G.H. Guttal, J.

The petitioners, herein, are the accused Nos. 4 and 5 in N.D.P.S. Special Sessions R.A. No. 311/89 and 398/89, cases registered under the NDPS Act. They have sought bail.

Court granted the bail to the accused and held the tendency to detain suspects for "questioning" and manipulate the record to show later arrest is a reprehensible practice of recent origin. In cases under the N.D.P.S. and Customs Act, the prosecution is no doubt entitled to rely upon the statements of the Accused, which unlike the statements made to the police during investigation, are admissible in evidence. But, what the prosecution does in such cases is to procure statements by threats, assault and illegal detention and then present them as "evidence". That is not what the law permits them to do. They can rely upon the statements made by the Accused voluntarily and on the basis of such statements secure conviction. But this is different from saying that the statements may be procured by any means and the accused be convicted on such statements.

Bail granted. Decision of the lower court rejecting bail was set-aside.

2 Prajesh Shantilal Vaghani

Vs. The Intelligence

Officer, Narcotics Control Bureau and

another Bombay

MANU/MH/0048/1989


The applicants herein were respectively accused Nos. 5 and 4 in a case under the NDPS Act, hereinafter referred to as the N.D.P.S. Act. The learned Additional Sessions Judge before whom the Applicants applied for bail in N.D.P.S. Special

Court granted the bail to the appellants holding that In the present cases, the Applicants are Indian nationals. There is no evidence of physical possession of the narcotics seized by the Respondent No. 1. The evidence consists of the

Bail Granted. Decision of lower court rejecting the bail application was set-aside.

Coram:

G.H. Guttal, J.

Remand Application No. 360 of 1989, rejected the application of the Applicants as also those of the remaining three accused. The Applicants have preferred this application under section 439 of the Code of Criminal Procedure. Between 23rd July, 1989 and 23rd August, 1989, three packets containing 8 Kgs. of Heroin, four parcels containing 21.100 Kgs. of Methaqualene powder and four parcels containing 23 Kgs. of Mandrex tablets were seized. Some more parcels addressed to people in different countries were also seized.

statements of the Applicants in which they "confessed" that they have committed the offences. The narcotics were not found in the possession of the Applicants, but they are sought to be connected with these drugs circumstantially through their statements. There is nothing on the record to connect the Applicants with the specific drugs seized in this case. These circumstances together with the probability that the confessional statements by the Applicants were secured by physical assault do not inspire confidence in the prosecution's version. There is no allegation that the Applicants Indian nationals, are likely to abscond. The question of tampering with evidence does not arise. For these reasons, the continued detention of the Applicants appears punitive. It will not be proper to deny bail to the Applicants.

3 Prahlad S/o Sheshrao Rekhe

Vs. State of Maharashtra

MANU/MH/0109/1990


Coram:

A.A. Desai, J.

Question was posed in this application pertains to applicability of proviso to sub-s. (2) of S. 167 of the Code of Criminal Procedure (the Code) in the matter of grant of bail u/S. 37 of NDPS Act

Court rejected the bail application and held Bearing in mind the specific object of the Act i.e. to make the law more stringent, also to prevent release of the drug offender on bail on technical ground and the Scheme as codified under the Act, I am definite in my conclusion that privilege under Section 167(2) proviso (a) of the

Bail denied. These provisions under Section 167 do not however carve out any condition, limitation or restriction in the matter of grant of bail. S. 167 which is a part of Chapter XII of the Code deals with the investigation. S. 167(2) proviso

Code cannot ipso facto be extended in the matter of grant of bail under Section 37 of the Act. Section 37 opens with non obstante clause which does not permit the applicability of Code, to the matters enumerated therein. Cl. (b) of sub-s. (1) of S. 37 unequivocally denies the grant of bail for certain offences unless conditions laid down in sub-cls. (i) and (ii) are fulfilled. Sub-s. (2) proclaims that these limitations are in addition to those others provided under the Code and in any other law. Chapter XXXIII of the Code deals with the grant of bail. It imposes several conditions for such grant, such as executing bond, refusing to release on failure to comply with the condition laid down, refusing to grant bail if previous convict for offence punishable with death, recording of special reason by the Court, arrest of person who is released on bail etc. etc. Such conditions as laid down by the Code are within the contemplation of the term "limitation" as envisaged by sub-s. (2) of S. 37 of the Act.

(a) has issued, as observed by the Supreme Court a Legislative command to the Court to release the accused on bail in the eventuality of default to complete the investigation within a specified period. The section intends to minimise the harassment to the accused in custody in the case of prolonged investigation. The Section instead of putting limitation in the matter of grant of bail, virtually confers a privilege on accused to claim release on bail in case of default as envisaged. Sub-s. (2) of S. 37 of the Act while adopting limitation in the matter of grant of bail under the Code, even by any implication, does not endeavour to embarrass, proviso to S. 167(2). These provisions since not being a limitation in the matter of release on bail cannot be adopted through the media of sub-sec. (2) of S. 37 of the Act. Any attempt to

extend the applicability of S. 167(2) proviso, to the matter of grant of bail under Section 37 would nullify the overriding effect provided by the non obstante clause over the Code. The applicant, therefore, cannot claim a benefit of being released on bail for the offence punishable under Section 20 of the Act of 1985 by taking resort to these provisions as contained in S. 167 of the Code since the prosecution failed to complete the investigation and file charge-sheet within a period of 60 days.

4 Rajkumar Aggarwal Vs.

B.S. Rawat, Asstt. Collector of Customs

MANU/MH/0411/1990


Coram:

K.N. Patil, J.

This is an application for bail. The Petitioner is prosecuted under Sections 8, 21, 23, 25, 28 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and under Section 135(1) of the Customs Act.

Court granted the bail to the appellant and held that he Petitioner has been working as a travel agent and has roots in Bombay. He is not likely to commit similar offence while on bail. Since there are some circumstances compatible with the Petitioner's innocence and it is unlikely that he would abscond, in my view, he may be granted bail. I am sure, the trial Court will not be influenced by the observations made by me in this Order, and decide the case on independent assessment of the evidence and

Bail granted.

according to law. 5 Shankar s/o Vithoba

Bahare Vs.

State of Maharashtra

MANU/MH/0713/1991


Coram:

M.S. Vaidya, J.

400 Grams of Ganja is said to have been attached from the custody of the petitioner in the market place at village Karmad. The police papers show that the F.I.R. for the offence was lodged on 20-5-1991 and a panchanama of even date was produced at the police station. Statements of three policemen also appear to have been recorded on the same day. Since then, no further investigations appear to have been made. The sample of the attached medical article also doesn't appear to have been sent to Chemical Analser, as yet. The learned Advocate for the petitioner contended that the quantity of 400 grams was a small quantity as per the Government S.O. No. : 827(E) dated 14th November, 1985 published in the Government of India Gazette, Part II, dated November, 1985. He prayed that the petitioner be released on bail in view of the small quantity.

Court granted the bail to the appellant and held that Normally, in cases of offences punishable under the NDPS Act liberal view could hardly be taken in the matter of bail in view of the disastrous effect that the narcotics have played in the society at large. At the same time, however, care in necessary to be taken by the courts to infer that the provisions of the said Act are not misused or are light heartedly used by the police Deptt. In the present case, one of the main grievance urged on behalf of the petitioner was that copy of the F.I.R. was endorsed to the Magistrate under outward No: 564/91 dated 25-5-1991 and the same had reached the Court only on 30th of May, 1991. If the F.I.R. was lodged on 25th May, 1991 at the Police Station, there was no reason for the delay in sending the copy thereof even to the Court of the Magistrate. The police papers which were shown to me by the learned A.P.P., did not even show that the information of the offence in question was reduced to writing or that a copy thereof was sent to the Superior Officer as required by section 42 of the Narcotic Drugs and Psychotropic Substances Act. The report of the arrest and seizure as

Bail granted.

required under section 57 also does not appear to have been sent to the superior officers. The panchanama also appears to have been made in the presence of private citizen and not in the presence of any Gazetted Officer as required by section 50 of the Act. It is high time that the investigating machinery should diligently resort to the observance of the formalities as prescribed under the Act. If that is not done, the liberty of the person who is alleged to have committed the offence can not be allowed to be curtailed by rejecting the application for bail. Therefore, this appears to be a fit case in which a bail should be granted to the petitioner.

6 Bharat @ Mamul s/o Vithaldas Thakkar and

Anr. Vs.


MANU/MH/0666/1991


Coram:

M.F. Saldanha, J.

Should persons accused of dealing in dangerous drugs be enlarged on bail merely because of alleged breaches of procedural requirements in the course of investigation. This issue, in relation to the stringent provisions of the NDPS Act 1985 (as amended), has arisen recurrently in recent times and requires deep reconsidered by the courts, with many divergent views having been expressed, most of them in favour of the grant of bail. For the reasons enumerated in this judgment, it is essential that the point be very seriously examined and set at rest. Two of my brother

Court held that It is necessary to re-emphasise that section 37 of the N.D.P.S. Act, which limits situations in which bail may be granted, specifies that the Court can grant bail if it 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". What needs to be specially noted is that from the material before the Court if it appears that a particularly accused is not guilty of any offence under the Act and is wrongly being prosecuted, bail ought

Bail denied. as per Section 37 Court may grant bail on satisfaction of two conditions - firstly reasonable ground of believing accused not guilty of offence - secondly offence unlikely to be repeated - Act does not contemplate situation for grant of bail for non-compliance of procedure.

Judges have recently expressed the view that a breach of certain procedural provisions of the Act would result in fatal consequences to the prosecution, thereby necessitating the release of the accused on bail. This benefit to the accused, which would not have otherwise arisen and which accrues by default, proceeds on the assumption that such a breach is incurable and , consequently, that the retention in custody of the accused when a certain acquittal at the trial stars one in the face is virtually impermissible. It also presupposes the position that the procedures prescribed by the Act are all mandatory and any breach thereof is incurable and would affect the prosecution in its totality.

to be granted. As an example, one could cite the familiar situation where a seizure of drugs is made and the prosecuting authority arrests an accused person on the ground that he is connected with that material, but it appears to the Court that the nexus is non-exists or insufficient. Section 37 of N.D.P.S. Act does not contemplate a situation which would entitle a Court to conclude that non-compliance with the procedure, regardless of other evidence which is conclusive or convincing would still entitle the accused to an acquittal. The short question, therefore, is whether non-compliance vitiates a prosecution, and this question can only be conclusively answered in most cases, at the trial. Offences under the N.D.P.S. Act are universally considered to be among the ones which are categorised as being the most detrimental to all sections of the community. Having regard to the disastrous effects of drug trafficking, particularly to the children and youth of the community where the results are shattering, different countries have prescribed punishments of a high order including in some parts of the World capital punishment for such

involvement. An accused facing a drug's charge is a person on par with any other criminal who is accused of a high degree of violence to society. It is also common knowledge that there are no conceivable means of curtailing the repetition and further involvement in these offences and, therefore, to my mind, the legislature itself in this country has prescribed for good reason, that in this class of cases bail should be the exception and not the rule or rather that bail shall be a special exception and will be available in the rarest of cases. This position cannot, therefore be upset by a situation whereby on technical or hypothetical pleas persons who otherwise would not qualify for bail succeed in circumventing the other provisions of the Act which specifically prohibit the grant of bail.

7 Sham Ramchandra Sonawane


MANU/MH/0563/1991


Coram:

S.M. Daud, J.

This is an application for bail by a person who is alleged to have committed offences punishable under sections 8(c) read with 21 and 29 of the NDPS Act.

Court denied the bail and held that While a Court may not be exactly powerless to appraise and analyse material said to appear against the suspect when considering an application for bail of a person accused of an offence under the NDPS Act, the limitations imposed by section 37 of the NDPS Act should not be lost sight of. First, section 37 keeps intact limitations on

Bail denied. Breach of any provisions of the NDPS act does not infer that accused is innocent.

granting of bail appearing in the Code or any other law for the time being in force. Next, unlike the Code the Legislature in enacting section 37 has advisedly used different words. In section 437 of the Code the Court is enjoined not to release a person on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". This limitation is trifling compared to the limitation imposed by section 37 of the NDPS Act which fetters the Court from grant of bail unless "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". Under the Code the suspect is not to be released on bail if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life. Section 37 of the NDPS Act lays down the converse by prescribing that the person accused of an offence punishable for a term of imprisonment for five years or more under the NDPS Act, can be released only if 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. The words "any offence" appearing in the second part have of course to be read to mean an offence under the NDPS Act, and, possibly one, which prescribes punishment for a term of imprisonment of five years or more. In the face of section 37 it would not be enough to say that there has been an infraction of some requirement of section 50 of the Act to entitle the suspect to be released on bail. As observed earlier this Court has more than once held that the provisions of section 50 are not mandatory, except the requirement that the suspect prior to his search be informed that the search is for the purpose of recovery of drugs. Even if this duty be not performed, the result would not be a vitiation of the entire search.

8 Asstt. Collector of Customs (P)

Vs. Ayabe Atanda Ciadipe

Orisan

MANU/MH/0369/1991


Coram:

M.F. Saldanha, J.

Accused is a Nigerian lady, who is alleged to have been arrested as long back as on 12-5-1987 by the Customs Officers while attempting to smuggle out of India narcotics valued Rs. 2,00,000/-. The Accused was placed under arrest on charges punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. The record indicates that on 9-6-1987, the learned Additional Chief Metropolitan Magistrate, before whom the Accused was produced, ordered her

Court allowed the application and rejected the bail of the respondent and held that Coming to the facts of the present case, a strong plea has been advanced that the Accused is a young woman, and that she has been in custody for well over four years upto this point of time. Mr. Maniyar submits that this Court must adopt a humanitarian approach and must take into account the fact that the Accused is a foreign national


release on bail in the sum of Rs. 1,50,000/- with one surety in the like amount along with certain conditions. The Accused could not avail of the bail and continued to be in custody, though the Court record indicated that there was an order for her release on bail or rather that the original bail order dated 9-6-1987 was still valid.

and a woman and he reinforces his plea with the submission that the conditions in the jail are so difficult that the health of the Accused is in a precarious condition. These factors, undoubtedly, do require some consideration, but the legal difficulty in the way of Mr. Maniyar is that they are not factors which could override the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. On merits, therefore, I am unable to accede to the plea that both the orders should be upheld, but it is still permissible to this Court, one the special facts of this case, to direct the learned Additional Sessions Judge before whom the trial is pending, particularly since this is an incident relating to the year 1987, to take up the matter for hearing at the very earliest and to dispose of the same, in any event, within an outer limit of 3 (three) months.

9 Dr. Rohit Desai Vs.

The State of Maharashtra

MANU/MH/0125/1992


Coram:

M.L. Dudhat, J.

This criminal application is filed by the present petitioner against the order dated 15th June, 1992 passed by the Judge, N.D.P.S. Special Court, (Court No. 24), Greater Bombay, in Bail Application No. 260 of 1992 and Bail Application No. 254 of 1992 in Remand Application No. 72 of 1992 (arising out of Narcotic Cell, K. Division, C.R. No. 17

Court denied the bail to the appellant and held that there are sufficient evidences to prove the involvement of the accused in the offenses under the NDPS Act.

Bail denied Decision of the trial court rejected bail was upheld.

of 1992). By the aforesaid judgment and order, the trial Court rejected the application for bail preferred by the present petitioner who is original accused No. 3. The only question which I have to decide is as to whether the present petitioner is entitled for the grant of bail under Section 37 of the N.D.P.S. Act of 1985

10 Kuldeepsingh S/o Kesharsingh Pabla and

Ors. Vs.

The State of Maharashtra, through Police Station Officer

and Anr.

MANU/MH/0691/1993


Coram:

G.D. Kamat and M.B. Ghodeswar, JJ.

This Criminal Writ Petition prays for a declaration that the detention of the petitioners after expiry of 90 days from the date of their arrest is unconstitutional, illegal and unauthorised and further seeks an appropriate writ order or direction to release the petitioners on bail or grant them interim bail if the situation so justifies.

First petitioner, it appears, helps his relative Kulvindersingh in carrying on a business of hotel (Dhaba). Petitioners 2, 3 and 4 are the employees at the said Dhaba. Karanja (Ghadge) Police Station in Crime No. 219/92 arrested all the petitioners on 25-12-1992 for being involved in offences under sections 17 and 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, NDPS Act). They are also said to have committed an offence under section 66(i)(b) of the Bombay Prohibition Act. The story of the matter is

Court did not interfere in the matter and held From the averments made in the petition and from the order dated 8-4-1993, it is clear that the petitioners did not seek their release on bail on merits under section 37 of the N.D.P.S. Act. The application was restricted to section 167(2) of Criminal P.C. The petitioners are at liberty to move the Special Court for their release on merits under section 37 of N.D.P.S. Act, if so advised.

Bail denied. Decision of trial court rejecting bail application upheld.

that Karanja Police are said to have found 400 gms. of opium from outside the premises of Dhaba and a few bottles of country liquor.

No charge sheet was filed until an application for release on bail was filed on 3-4-1993 purported to be under proviso (a) to sub-section (2) of section 167 of Cr.P.C.

11 Fakira Ramdas Chaudhary


MANU/MH/0113/1994


Coram:

A.C. Agarwal and I.G. Shah, JJ.

This is an application for bail pending the hearing and final disposal of an appeal filed by the State seeking to impugn an order of acquittal passed for offences punishable under Ss. 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. At the trial five accused were prosecuted and by judgment and order passed on the 8th of April, 1993 the learned Additional Sessions Judge, Malgaon acquitted all the accused. Being aggrieved by the aforesaid order of acquittal, the State has preferred the instant appeal. By an order passed on the 4th of October, 1993 the aforesaid appeal was admitted and action under S. 390 of the Code of Criminal Procedure as ordered. Accordingly, warrants of arrest of the accused were issued and accused No. 5 was taken in custody by the trial Court. The accused No. 5, thereafter, preferred an application for bail. By an order passed on the 17th of

Court allowed the bail application and held In the instant case, the accused No. 5, as also the others, have been acquitted. Hence, the presumption of innocence has been further fortified by an order of acquittal passed by the trial Court. It is true that this Court has admitted an appeal filed against the order of acquittal. The only question which, deserves to be examined is, whether the accused will be made available to suffer the sentence in the event of the order of acquittal being set aside and order of conviction being imposed upon the accused. The further question which requires to be considered is whether the accused is likely to commit further offences while on bail. Shri Lambay, the learned Public Prosecutor, on taking instructions, has stated before us, that there are no antecedents against the present accused.

Bail granted.

December, 1993 the learned Additional Sessions Judge was pleased to reject the application for bail. According to the learned Judge, only accused No. 5 has been arrested after the issue of warrants whereas the other accused are reported absconding. He has further noted that during the pendency of the trial all the accused, including accused No. 5, were under-trial prisoners and they were denied bail under the provisions of S. 37 of the Act. After the order of acquittal was passed, the State has preferred as appeal. The High Court has admitted the appeal which necessarily means that, according to the High Court, ex-facie, the acquittal is improper. The Court has further proceeded to hold that the provisions of S. 390, Criminal Procedure Code do not apply to offences punishable under the Act. S. 37 is a special provision in the Act which governs the bail and hence the general provisions of S. 390, Criminal Procedure Code cannot be resorted to. The accused No. 5 has, thereafter, preferred the present application for bail.

Having regard to all the facts and circumstances of the case, we find that the present accused is entitled to be enlarged on bail pending the hearing and final disposal of the appeal. In order to ensure that he is made available to face imprisonment in the event of the appeal being allowed and that he does not indulge in offences while on bail, we are inclined to impose certain conditions, which are as follows : The petitioner be released on bail in a sum of Rs. 5,000/- with one or two sureties to make up the like amount. On release, he shall report at the City Police Station, Dhule once in fortnight for a period of six months and, thereafter, once in a month, till the disposal of the appeal.

12 Chhotu S/o Sk. Roshan Vs.


MANU/MH/0106/1994


Decided On:

This is an application for grant of bail. The accused/applicant is facing a prosecution for an offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").

Court granted the bail to the appellant and held that requirements of section 41, 42 & 50 have been thrown to winds in this case.

Bail granted. Decision of the lower courts rejected bail was set-aside.

01.08.1994

Coram: V.S. Sirpurkar, J.

13 Bakul N. Shah Vs.

The State of Maharashtra, N.C.P.

and Ans

MANU/MH/0670/1994


Coram: M.S. Rane, J.

The petitioner is one of the accused in the offence registered under the provisions of Narcotic Drugs & Psychotropic Substances Act in NDPS Case No. 33 of 1993 pending on the file of the Special Judge, Grater Bombay. My brother Judge Shah by his order dated 22-2-1994 in Criminal Application No. 446 made by the present petitioner seeking his release on bail has directed the Special Judge to hear and dispose of the said case expeditiously within a period of six months from the date of his order and after passing of such order the request for bail was not granted.

Court rejected the bail application and held This Court in the circumstances is compelled to take notice of the situation as obtained in this case and having so noted, thinks it proper to issue directions to the Government of this State who shall take immediate steps to ensure prompt and regular production and movements of the undertrials before the Court to face trial whenever required by the concerned courts. The Court also makes it clear that failure to do so would compel the Court to view such lapses or inactions as hindrance and interference with the judicial process warranting stern actions against those responsible for such lapses or failures. Concerned authorities of the State will do well to realise such grim situation. Large number of undertrials are languishing in prisons awaiting their turn for judicial trial, who cannot be so detained for indefinite period. Courts cannot proceed with the trials if the accused are not produced before them. Such non-production also causes sheer waste of judicial time, which is precious one.

Bail denied. Decision of the special judge rejecting bail application upheld.

14 The Intelligence Officer, Narcotics Control Bureau

Vs. Mr. Naushad Ali Abdul

Aziz Master @ Firoz

The petitioner herein is an Intelligence Officer in Narcotic Control Bureau working under the provisions of Narcotic Drugs &

Court allowed the petition and denied the bail to the respondent and held the Court while exercising power

Bail Cancelled. Decision of the lower court granting bail to the respondent set-aside.

Karim Merchant and Anr.

MANU/MH/0609/1995


Coram:

M.S. Rane, J.

Psychotropic Substances Act, (hereinafter referred to as the said NDPS Act for brevity sake). Respondent No. 1 is one of the accused in a case being NDPS Special Case No. 284 of 1992 on the file of Special Judge, Greater Bombay for the various offences registered under the provisions of the said NDPS Act, Customs Act and Indian Penal Code.

either under section 437 or 439 of Criminal Procedure Code shall do so subject to the limitation contained in the amended section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section cannot be ignored at the interim stage of bail for the reasons or on the grounds as sought to be made out in the case in hand.

15 Mohd. Ismail and etc. Vs.

State of Maharashtra and Anr.

MANU/MH/0778/1997


Coram:

M.B. Ghodeswar and S.P. Kulkarni, JJ.

A question that has been posed is as to whether the High Court, while entertaining an appeal against the conviction under the NDPS Act has the same power available to it under Section 389, Cr. P.C. to allow suspension of a sentence during the pendency of such appeal and to release the appellant/accused on bail. As a further corollary of this main issue, we have been required to record our observations as to on what occasions power of suspending sentence awarded under that Act would be available to the Appellate Court viz. the High Court.

Court refused to suspend the sentence served upon the petitioner and held A reference to Section 37 of the NDPS Act reveals that remedy of bail was intended to be made more stringent. Section 37 of the Act also starts with a non-obstante clause stating that irrespective of whatever that has been provided under the Code of Criminal Procedure, no person accused of an offence punishable with imprisonment of five years or more shall be released on bail unless certain conditions are fulfilled before the Court. The first such condition is that a Public Prosecutor is to be given an opportunity to oppose and where he opposes, the Court is to be further satisfied before releasing a person on bail, that there existed reasonable grounds for believing that such person is not guilty of the offences. It is with this higher

Bail denied. Application for bail during pendency of appeal and for suspension of sentence dismissed - Further, Petition praying for for grant of furlough also dismissed.

standard, that prima facie, there should be a telling circumstance which must exist, to satisfy the Court that the accused must not be guilty of an offence before he is considered eligible for bail. The next feature of Section 37 seems to be that the Court is also to be satisfied that during the period of his release on bail, he is not likely to commit any offence. All this, which is said in Sub-section 1 of Section 37, is further sought to be clarified by introducing Sub-section (2) to that Section. Sub-section 2 provides that the limitations on the power to grant bail, are in addition to the limitations mentioned under the Code or 'any other law on the subject of granting bail. Convict under Section 21 of the NDPS Act was not entitled to suspension in view of Section 32-A of the Act read with Section 389 of Cr.P.C.

16 Intelligence Officer, D.R.I., Mumbai

Vs. Holia Mohammed Nisar C/o Suleman

Holia & others

MANU/MH/0663/1998


Coram:

A.B. Palkar, J.

This Revision Application is filed under section 482 Cr.P.C. by the Intelligence Officer of Directorate of Revenue Intelligence in N.D.P.S. Spl. Case No. 221 of 1997 pertaining to Bail Application No. 148 of 1997, for quashing and setting aside the order granting bail to respondent No. 1/Org. Accused Holia Mohammed Nisar in the aforesaid N.D.P.S. Spl. case and for further

The learned Judge has also not considered section 35 of the N.D.P.S. Act which shifts the onus of proof on the accused to prove that inspite of the aforesaid circumstances, he is not guilty, as the presumption is against him as per the said provision. In the result, the application succeeds and the order passed

Bail cancelled. Decision of the special judge granting bail to the respondent was set-aside.

direction for taking him in custody as after the impugned order, he has been released on bail. Issue before the Court was whether the learned single judge did not look into the requirements of section 37 of NDPS Act while granting the bail to the respondent.

by the learned Special Judge in N.D.P.S. Case No. 221 of 1997 directing release of respondent No. 1 on bail of Rs. 50,000/-, dated 26-6-1997 in Bail Application No. 148 of 1997 is hereby quashed and set aside.

17 M.D. Kale Vs.

Intelligence Officer, N.C.B. Bombay

MANU/MH/0394/1999


Coram:

S.S. Nijjar, J.

The case debated on whether the High Court had the power to cancel the bail- The grant of bail was challenged on the ground that bail could not be granted on a personal bond in a serious case under the NDPS Act, 1985. The case debated on whether the Court could hold the mini trial to decide on the nature of the statement and compliance of the provisions under Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 in a case of grant of bail on personal bond –

It was held that the revision might not be competent against interlocutory order - However the High Court's powers to prevent abuse of process are not affected by the same It was held that the non-compliance with the provisions of the Act could be examined at the trial stage but the Court could have considered the fact that accused had made a confessional statement under Section 67 of the Act, even if it was retracted later - Thus the Court could not hold the mini trial It was held that the fact, whether the statement was voluntary or not, could be decided only after recording the evidence in the trial - Thus the session judge had erred in granting the bail without recording sound reasons in terms of Section 37(1)(b) of the Act

Bail Cancelled. Decision of the trail court granting bail was set-aside by the High Court.

18 Smt. Shakuntala Bhagwat


MANU/MH/1360/1998

Decided On:

Whether, provisions of Section 37(1)(b) of Act would be applicable with regard to grant of bail in respect of offence alleged to have been committed under

It was held that a plain reading of Section 37 made it clear that there was not at all any occasion or necessity to imply that this

Bail denied. Decision of rejecting the bail by the lower court affirmed. It was held that "Courts shall

06.05.1998

Coram: M.B. Shah, C.J. and

A.Y. Sakhare, J.

Section 20(b)(i) of Act – Additional Sessions Judge, by his order rejected bail Application filed by Petitioner - Hence, this Application

Section could be applied for an offence punishable for a minimum term of imprisonment of five years - Thus, as prosecution launched case against Petitioner was under Section 20(b)(i) of Act, therefore provisions of Section 37(1)(b) of Act would be applicable - Consequently, Petitioner would not be entitled for bail as there was sufficient material on record to indicate that she was guilty of an offence punishable under Section 20(b)(i) of Act - Hence, Petitioner's bail application deserved to be rejected.

consider intention of legislature while interpreting a statute."

19 Raju @ Mohd. Hussain s/o Ahmad Ali


MANU/MH/0553/2002


Coram:

R.S. Mohite, J.

This is an application made by the accused in Crime No. 6027 of 2002 registered by the Crime Branch, Nagpur City, Nagpur. The alleged offence is under Section 20 of the N.D.P.S. Act. The allegation is that 2 kgs. of Ganja was found in the house in the occupation of the present applicant. The quantity of Ganja found is below the commercial quantity, which is 20 kgs. in the case of Ganja. The provisions of Section 37(1)(b) of the N.D.P.S. Act, are, therefore, not attracted.

Court held that The offence is punishable with Rigorous Imprisonment for a term which may extend to ten years. It is not punishable for life imprisonment. In the circumstances, I am inclined to grant bail to the applicant on the P.R. Bond of Rs. 25,000/- with one surety of like amount, subject to the condition that the applicant will report to the Investigating Officer, Crime Branch, Nagpur, every fortnight till the conclusion of his trial.

Bail granted.

20 Rafael Palafox Garcia Vs.

The Union of India and Anr.

MANU/MH/0890/2008


Coram:

The applicant is seeking bail in NDPS Special Case No. 6 of 2008 of NCB pending before the Special Judge for NDPS cases, Thane. The said case is under Section 29 r/w. 9A and 25A of the Narcotic Drugs and Psychotropic

Court held that Concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances. Concept of commercial quantity does not apply to

Bail granted. Court set-aside the decision of the special judge rejecting the bail. For being in possession of controlled substance, rigors

V.K. Tahilramani, J.

Substances Act, 1985.

controlled substance in view of the provisions relating to commercial quantity specially Section 2(viia) and Section 2(viid) of the Act and the notification issued by the Government specifying the small quantities and commercial quantities also shows that this concept is peculiar to Narcotic Drugs and Psychotropic Substances

of Section 37 of NDPS Act would not be attracted and bail can be granted.

21 Stefan Mueller, (German Citizen) Bearing Passport


through Senior Inspector of Police

MANU/MH/0600/2010


Coram:

J.H. Bhatia, J.

Accused charged with offences under NDPS Act moved Application for grant of bail. The special judge put certain condition with the grant of bail and the same have been challenged in this Court.

It was held Offences under Section 20(b)(ii)(A) and Section 27 of NDPS Act are not offences mentioned under Section 37 of NDPS Act and therefore, conditions or limitations put in Section 37(1)(b) are not applicable to them. Further, they are bailable offences under Cr.PC also and therefore, no conditions can be imposed while granting bail except about appearance before a Court at a particular place or on a particular date.

Bail granted. Impugned order of the special judge putting conditions with bail was set-aside.

22 Union of India (UOI) Vs.

Ravindran Krarapaya @ Ravi and Ors.

MANU/MH/1783/2010


Coram:

J.H. Bhatia, J.

These two applications were filed by the petitioner for the cancellation of bail granted to the respondents by the special judge. Prosecution has challenged the grant of bail by the Special Judge on the ground that the Methamphetamine is a psychotropic substance as defined in Section 2(xxiii) as it is shown at Serial No. 19 in the Schedule under Clause (xxiii) of Section 2 of the NDPS Act.

Held, in the present case, huge quantity of 7 kg. Methamphetamine was recovered from flat which was, prima facie, in possession of accused persons - It was not case of accused that they had any license, permit or authorisation either to manufacture or possess or store said psychotropic substance - Therefore, none of authorities or Rules comes to support of accused

Bail Cancelled. Court set-aside the order of the special judge granting bail to the accused.

23 Union of India Through Inspector of

Customs Vs.

Ambalal Srilalji Ahir

MANU/MH/1640/2011


Coram:

J.H. Bhatia, J.

Union of India had preferred present application for cancellation of bail granted to Respondent nos.1 and 2 - Whether order granting bail was valid -

Court held that In the present case, offence pertains to the possession and transportation of 14.500 kg of opium, which is the commercial quantity and is punishable under Section 17(c) with rigorous imprisonment which shall not be less than 10 years but which may extend to 20 years and also with fine which shall not be less than one lakh but which may extend to 2 lakh rupees. The offence is non-bailable. Section 37(1)(b) NDPS Act provides that no person accused of an offence punishable for offences under Section 19 or section 24 or section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and where the application is opposed, unless the Court is satisfied that (a) there are reasonable grounds for believing that he is not guilty of such offence and (b) he is not likely to commit offence while on bail. Taking into consideration the facts and circumstances of the case, I do not find any ground to believe that accused are not guilty of the offence nor it can be held that they are not likely to commit such offence if granted bail. These

Bail Cancelled. Decision of the special judge granting bail to accused was set-aside.

are the stringent conditions in respect of grant of bail in respect of commercial quantity of the narcotic drugs or psychotropic substance. The trial Court granted the bail holding that it was not commercial quantity of opium because the morphine contained in the total substance was 1537 gm. The trial Court committed serious error in equating quantity of morphine with the quantity of opium and then gave go bye to the stringent provisions of section 37 of the NDPS Act. Therefore, it is clear that in the present case, bail could not have been granted under the law and hence, the order passed by the trial Court granting bail is per-se illegal and against the spirit of law, which seeks to prevent the offences relating to narcotic drugs or psychotropic substance. Taking into consideration the nature and gravity of the offence, severity of punishment, the specific provisions prohibiting granting of bail, in view of the law laid down in Anil Kumar and Puran Vs Rambilas this Court can certainly interfere in the order of bail passed by the Special Judge.

THE CALCUTTA HIGH COURT

S. No.

Name of the Case Issue before the Court

Decision of the High Court

Remarks.

1 Mabia Bibi and Ors. Vs.

State of West Bengal

MANU/WB/0302/1991


M.G. Mukerjee and G.R. Bhattacharjee, JJ.

Petitioner filed bail application before the Court. The petitioners were accused under the various provisions of NDPS Act.

Bail application was rejected by the Court and it was held that NDPS Act being a special enactment and having been enacted with a view to making stringent provisions for the control and regulation of operation relating to Narcotic Drugs and Psychotropic Substances, and the provision of Section 37 being in negative terms limiting the scope of the applicability of the provisions of 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 Narcotic Drugs and Psychotropic Substances, Act, 1985. 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., and in case of any inconsistency between Section 439 Cr. P. C. and Section 37 of NDPS Act, Section 37

Bail denied.

prevails. The provisions of Section 4 Cr. P. C. also make it clear that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.

2 In Re: Smt. B. Ramannamma

MANU/WB/0191/1993


Coram: S.K. Sen and A.K. Bhattacharya, JJ.

The only question involved in this case is whether bail can be granted in view of the specific provisions of Section 37 of the NDPS Act.

Court granted the bail and held that there are reasonable grounds for belief on the basis of the documents and records produced before us that the petitioner may not be found to be guilty of the offence charged at the trial. However, this opinion is not final and it will be open to the trial Court to proceed in accordance with the law and take evidence and come to a decision on the basis of the evidence that may be adduced by both the prosecution and the accused. We are accordingly of the opinion that the petitioner should be released on bail.

Bail Granted Conditional bail.

3 Md. Farid Ali Vs.

State and Union of India

MANU/WB/0548/1993


Coram: S.P. Rajkhowa and R.N.

Bhattacharya, J.

By an order dt. 22.4.1993 the learned Judge in Charge, Special Court, Alipore has rejected the petitioner Md. Farid Ali's application for bail in N.C.B.F. No. 104/N.C.B/Cal/92 dt. 25.8.1992 under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Hence the petitioner has filed this application under section 439 of the Code of Criminal Procedure. 1973 for bail. By the Judgment and order dt. 15th June 1993 the learned Additional Sessions Judge. 9th Court, Alipore in case No. S.T. 4 91) 93 convicted the petitioner - appellant Lalit Halder under Section 21 of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh, in default to suffer rigorous imprisonment for a period of 5 years.

Bail applications were rejected.

Bail denied.

4 In Re: Dipak Jain

MANU/WB/0410/1996


Coram: N.A. Chowdhury and D.P.

Sircar, JJ.

The Petitioner arrested in connection with a case of taking delivery of brown sugar from other two persons on the basis of an information recorded under

Court rejected the bail application and held that Circle Inspector present at the time of search was himself a gazetted officer and as such there was no requirement of

Bail denied in view of section 37 of NDPS Act.

G.D. Entry with Chanchal P.S. case. According to G.D. Entry of P.S., Sub-Inspector of Police accompanied by Officer-in-Charge de facto complainant under supervision of Circle Inspector with two private persons for bearing witness reached Chanchal bus stand to arrest the persons named by the sources of information. As soon as private car stopped there, came from Maldah side to Chanchal bus stand, the accused and another person were taking delivery of two polythene packets containing brown sugar. On seeing the above supervising persons tried to conceal those packets. They having not any valid paper produced above packets to de facto complainant. Seizing the same, maintaining required formalities, arrested related persons including Petitioner.

bringing any other gazetted officer at the time of search and seizure. The provision implicitly made it obligatory on the authorised officer to inform the person to be searched of his right. Though the search may be illegal but the evidence collected, that is Panchnama etc., nonetheless would be admissible at the trial. That even if Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 was not complied with it would be an illegality to discharge the accused Petitioner on that ground, and, that the trial must take a normal course and the accused person must face trial.

5 Smt. Bhola Debi Saroj alias Bhulia

Vs. State

The appellant prays for bail pending disposal of the appeal

Court rejected the bail and held even if Section 32A NDPS Act had

Bail denied.

MANU/WB/0317/1998


Coram:

G.R. Bhattacharjee and Sujit Barman Roy, JJ.

preferred by her against the conviction and sentence awarded by the trial Court. The trial Court has by its order dt. 26-2-97, sentenced the appellant to rigorous imprisonment for ten years and also to a fine of Rs. 1,00,000/~, in default to R.I. for two years more for her conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned Additional Public Prosecutor however submits inter alia that in view of Section 32A of the NDPS Act the sentence imposed upon the appellant cannot be suspended and therefore she cannot be enlarged on bail now. This proposition is however opposed by the learned Advocate for the appellant.

not been there in the statute-Book, yet it would not be a fit case to enlarge the appellant on bail now in view of the stringent provisions of Section 37, NDPS Act and the prima facie evidence leading to the conviction of the appellant under Section 21, NDPS Act whatever may be the outcome of the appeal on merits after threadbare consideration which remains reserved to be done at the time of hearing the appeal. According the prayer for bail is rejected.

6 Assistant Director, Narcotic Control Bureau, Eastern Zonal

Unit Vs.

Md. Safikul Islam

MANU/WB/0611/2007


Coram: Amit Talukdar and S.P. Mitra,

JJ.

In this application the bail granted by the learned Judge (Special Court) in NDPS Case No. 30/06 by his order No. 5 dated 17.10.2006 has been sought to be cancelled.

Court allowed the petition and held that since the amount involved was below the commercial quantity, the rigors of Section 37 would not apply in this case. That way there cannot be any dispute and as also rightly shown by Shri Bagchi, the order passed by the learned Judge (Special

Bail cancelled. Decision of the special court granted bail set-aside. Bail stood rejected.

Court) cannot be said to be an illegal order to that extent. However, notwithstanding the said position we do not see eye to eye with regard to the finding of the learned Judge (Special Court) that "Investigation has proceeded lot" and apart from any other aspect of the matter could have thought of enlarging the accused on bail in spite of the backdrop of the offence alleged against him in view of the materials we find before us which has been produced on behalf of the Union of India. It appears that in the meantime the petition of complaint has already been filed before the learned Trial Court on 27.11.2006 on behalf of the Union of India. The accused was arrested only on 30.8.2006 and on 17.10.2006 the stage when he was granted bail by the learned Trial Court, in our view, was absolutely in appropriate.

THE CHATTISGARH HIGH COURT

S. No.

Name of the Case Issue before the Court

Decision of the High Court

Remarks.

1 Chandan Sharma Vs.

State of Chhattisgarh

MANU/CG/0438/2011


Coram: Hon'ble Mr. Prashant Kumar

Mishra, J.

Applicant's sought for released on bail on ground that maximum sentence for being found in possession of psychotropic substance up to small quantity was 6 months and they were in jail since last about 3 months or more - Hence, this Application - Whether offences under Act carrying punishment up to three years would still he cognizable by Special Court or by any other Court.

Bail application allowed since offence under NDPS Act was cognizable and non-bailable under Section 37 of Act, third part of classification dealing with offence under other laws carrying punishment with imprisonment for less than 3 years and where offence was non-cognizable and bailable was not attracted

Bail granted as the quantity of drugs found was small.

THE DELHI HIGH COURT

S. No.

Name Of The Case Issue Before The Court Decision Of The High Court

Remark.

1 Anil Kumar Gandhi Vs.

Narcotic Control Bureau and Ors.

MANU/DE/0878/1991


Coram: V.B. Bansal, J.

The case dealt with an application under Section 439 of the Criminal Procedure Code, 1973, for grant of bail to the accused on the ground of delay in trial of the applicant - The applicant was accused under Section 21, 23, 29 of the Narcotic Drugs and Psychotropic Substances, 1985 - The delay in prosecution was due to inadequacy of number of judicial officers to deal with such cases -

Court rejected the bail application. However court held that It appears that nothing substantial has been done and the number of the Additional Sessions Judges had rather gone down while the number of session cases with accused in custody has increased to a large number after the amendment of Sec. 37 of the Act.

Bail denied.

2 Gurbux Bhiryani Vs.

J.K. Handa

MANU/DE/0882/1991


Coram: R.L. Gupta, J.

The case debated on whether the delay in trial of the accused attracted principles contained in Article 21 of the Constitution of India - In the instant case, the accused was facing trial under Section 21 and 29 of the Narcotics Drugs and Psychotropic Substance Act - There was delay in trial despite of the directions by the High Court The delay was not in any way related to prosecution

Court rejected the bail application and held that By that time the concept was that the High Court under Section 439 of the Code of Criminal Procedure had the power to grant bail inspire of the rigour of Section 37 of the Act. This was the view of a Division Bench of this Court which was reversed by the Supreme Court in the case of Kishan Lal (Supra). Moreover another fact which weighed with this Court at the time of grant of bail to Jasbir Singh was that the other co-accused except Sukhdev Singh were on bail. They were actually on interim bail and not on regular bail. Therefore, the scenario having changed after the case of Kishan Lal, and further in view of the fact that there is no violation of the protection available to the petitioners under Article 21 of the Constitution in the present case, the petitioners are not entitled to the grant of bail. In fact, it is doubtful whether such co-accused who are enjoying

Bail denied.

bail now, are entitled to so remain after the decision in Kishan Lal's case.

3 Babu Khan Vs.

State (Delhi Administration)

MANU/DE/0709/1997


Coram:

J.K. Mehra, J.

In this case, 8 kgs. of poppy straw was seized. Notice under Section 50 was duly given veracity whereof is disputed by amices Curiae. The only question which the petitioner has pressed before me is that before taking search of the accused, the raiding party officials did not offer themselves to be searched by the accused to eliminate the possibility of any narcotic being planted. This is a very important safeguard which was enunciated by the Hon'ble Supreme Court in the case of State of Bihar v. Kapil Singh, reported as Air 1969 Sc 58.

Court granted the bail and held that on account of noncompliance with the provisions of Section 50, NDPS Act, bar of Section 37 would not be attracted in this case.

Bail application allowed.

4 Amarpal Singh and Others

Vs. Narcotics Control

Bureau

MANU/DE/0535/2000


Coram: J.B. Goel, J.

Two bail applications, one by Amarpal Singh and the other by Ved Prakash Manchanda who are being prosecuted for offence under Sections 21 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act. 1985

Court rejected the bail application and held that offence under Sections 21 readwith Section 29 of the Act. Section 37 of that Act mandates that a person accused of such an offence is not entitled to bail unless "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". In view of the facts and the circumstances and the material on record it is not possible to come to such conclusion at this stage.

Bail denied.

5 Dhammo Vs.

State

MANU/DE/1173/1998


Coram: J.B. Goel, J.

The petitioner is facing trial for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short the Act). The prosecution case in brief is that Insp. B.S. Ahelawat of Operation Cell (South West Distt), New Delhi had received secret information on 19.12.1996 at about 7.00 a.m. that the accused-applicant was selling Smack in front of her house. On the basis of this information, a raiding party was arranged.

Court granted the bail to the petitioner and held that it is seen that the public witness has not supported the prosecution case which may create doubts in the case. And thus it is a for case to grant bail.


Lady Const. Urmila Devi and one public witness Prem Singh besides other police officials were joined. Option was given under Section 50 of the Act. ACP of the same Cell was called and in the search made in his presence; 51 pudias containing 40 gms. of Smack was recovered from the possession of the accused.

6 Islamuddin @ Chottey Vs.

State of Delhi

MANU/DE/0619/1999


Coram: Cyriac Joseph, J.

This is a petition filed under Section 439 of the Code of Criminal Procedure red with Section 37 of the NDPS Act 1985 (for short 'the NDPS Act') for interim bail for a period of two months. The petitioner is the accused in FIR No.17/98 registered at Police Station, Narcotic Branch, Kamla Nagar, Delhi under Sections 21/61/85 of the NDPS Act. The case against the petitioner is at the trial stage. The petitioner had earlier filed an application for regular bail but it was dismissed by this Court on 20th May, 1999 holding that it was not possible to say that this Court was satisfied that there were reasonable grounds for believing that the petitioner was not guilty of the offences under Section 21 of the NDPS Act or that he was not likely to commit any offence while on bail. While dismissing the petitioner's application for bail this Court had pointed out that the petitioner was involved in as many as 21 other cases under the Excise Act, the NDPS Act, the Arms Act and the Gambling Act. It was also pointed out that the petitioner was a Bad Character (B.C.) of Police Station Chandni Mahal.

Court rejected the bail application and held that courts are bound by the provisions of section 37 of NDPS Act.

Bail denied.

7 Sharifa Yusupeva Sayeda Zimova

Vs. Poonam Puri, Air Customs Officer

MANU/DE/1957/2001


The instant case that dealt with the issue regarding grant of bail under Section 439 and 482 of the Criminal Procedure Code, 1973, to a foreign national. In the instant case, the petitioner was detained by

Court granted the bail to the petitioners and held that he substance recovered from the petitioner does not fall within the Schedule to the Act and, Therefore, no offence under the Act has been committed. Section 37 of the Act cannot be


Coram:

R.S. Sodhi, J.

the customs authorities for having committed offence under Narcotic Drugs and Psychotrophic Substances Act, 1985, (NDPS) for possessing ‘Diazepam(5mg)’ - It was contended by the petitioner that ‘Diazepam’ was a prescribed drug available in the open market -

pressed into service.

8 Pawan Mehta Vs.

State

MANU/DE/1527/2001


Coram: Surinder Kumar

Aggarwal, J.

The appellants were held guilty under Sections 18 and 25 of the NDPS Act in the case FIR No. 137/89, P.S. Karol Bagh, and sentenced to imprisonment for ten years and fine of Rs. 1 lac, in default, further imprisonment for one year each, by the judgment and order dated 9th November, 2000, passed by the Court of Additional Sessions Judge, Delhi. Appeals against the said judgment and order have already been admitted. This order will dispose of their applications under Section 389, Cr.P.C. for suspension of sentence during pendency of the appeal and for being released on bail.

Court denied dismissed the application seeking suspension of sentence till pendency of the appeal and held that Nothing was brought to my notice either from the prosecution evidence or documents wherefrom it can be inferred that the appellant could not have had the knowledge. On the basis of above material, at this stage, it is not possible to hold that appellant has proved that the car in question was used for carrying the narcotic drugs without his knowledge. Detailed reference to the judgments relied upon be learned Counsel for the appellant is not necessary, in view of the authoritative pronouncement by the Supreme Court in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat

Bail denied.

9 Chander Mohan Sharma Vs.

N.C.B. Delhi Zone Unit

MANU/DE/1682/2002


Coram: Mahmood Ali Khan, J.

The petitioner has filed this petition under Section 439 Cr.P.C. for grant of bail. The petitioner was found in possession of 1 kg. of heroin.

Bail denied to the petitioner and court held that As such the question whether the provision of Section 50 of the Act was or was not complied with could be raised by the petitioner before the trial court after the evidence has been recorded. The contention raised in this bail petition by the petitioner is premature. No other point was urged on behalf of the petitioner. Restriction imposed on granting bail in such cases by Section 37 of the Act shall apply.

Bail denied. Drugs found were of commercial quantity.

10 Hegedus Lahel Csaba Vs.

Union of India (UOI) and Ors.

This application for suspension of sentence during the pendency of the appeal has been moved on

Court dismissed the application for suspension and held that For the purpose of Section 37 of

Bail denied.

MANU/DE/2028/2002


Coram:

Ramesh Chandra Chopra, J.

behalf of the appellant who stands convicted under Section 20(B)(ii) and Section 23 read with Section 28 of the NDPS Act (hereinafter referred to as "the Act" only). The appellant was sentenced by the Trial Court to undergo RI for 10 years and pay a fine of Rs. 1 lakh, in default of which he was ordered to undergo further RI for six months. The appellant who is a foreign national was a transit passenger from Nepal to Amsterdam. On the intervening night of 26th and 27th June, 1997, he was searched at IGI Airport New Delhi and was found to be in possession of 13.476 kgs. Charas. The appellant was put to trial. Learned Trial Judge after considering the prosecution evidence and the defense of the appellant convicted and sentenced him as aforesaid. His appeal against conviction and sentence is pending disposal before this Court.

the Act an accused may ask the Court to record its satisfaction on the basis of preponderance of probability regarding his innocence. The difficulty, however, in the present case is that the appellant-petitioner has been found to be guilty on the basis of evidence led by the prosecution before the Trial Court. The plea that the bag from which the contraband was recovered was in an open condition appears to be of no help to the appellant for the reason that a large quantity of contraband was found in his bag which admittedly belonged to him. If some small quantity Had been recovered the Court could have entertained a suspicion that the said contraband was put into his open bag without his knowledge and could have reasonably entertained a doubt in regard to his complicity. Therefore, by preponderance of probability, at this stage the Court is not in a position to record its satisfaction that there are grounds for believing that the appellant is not guilty of offence for which he has been convicted.

11 Manoj Kumar Gupta Vs.

State N.C.T. of Delhi

MANU/DE/2030/2002


Coram: Ramesh Chandra

Chopra, J.

This petition under Section 439 of the Code of Criminal Procedure is for grant of bail to the petitioner, who was arrested in case FIR No. 14/01 under Section 29 of the NDPS Act

Court granted the bail application and held that Prima facie there appears to be no believable evidence against the petitioner to hold him guilty of the offence under Sections 21/29 of the Act. The Courts are not expected to accept every word of the prosecution as gospel truth and invoke the bar of Section 37 against an accused even if the evidence against him appears to be ridiculous and unbelievable.


12 Vijay Vs.

By this petition under Section 439, Cr.P.C. read

Court granted the bail to the petitioner and held that

Bail application

State (NCT)

MANU/DE/1374/2003



Aggarwal, J.

with Section 37, NDPS Act, petitioner is seeking bail in case FIR No. 119/2003 under Sections 15/61/85, NDPS Act, P.S. Vasant Kunj. Prosecution allegations, in brief, are that petitioner was found standing near Contessa car bearing registration No. DLICF 6343 Along with his co-brother Ruppi. Ruppi had opened the dicky of the car from where 170 kgs. of poppy straw was recovered. Learned APP for the State, strongly opposing the bail application, contended that Ruppi is the co-brother of the petitioner; his disclosure statement reveals that they had jointly brought the poppy straw.

there is nothing on record to indicate that petitioner was ever in possession of the poppy straw or that he knew or had reason to believe that poppy straw was being carried in the dicky of the car, in the peculiar facts and circumstances of the case

allowed.

13 Mangna Vs.

State

MANU/DE/1293/2003



Aggarwal, J.

By this petition under Section 439, Cr.P.C. read with Section 37 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') petitioner is seeking bail in case FIR No. 831/99, under Sections 21/61/85 NDPS Act, P.S. Mangolpuri. Petitioner's first application for bail was dismissed by Hon'ble Mr. Justice J.D. Kapoor vide order dated 13.11.2002 passed in Crl. M. (M) No. 3691/2002.

Court granted the bail to the petitioner and held that the requisites for grant of bail, as envisaged by Section 37 of the Act, are fully satisfied. Furthermore, petitioner is a lady; she was granted interim bail earlier and there is nothing to show that she committed any offence while on interim bail.

Bail allowed. Court. Substance allegedly found in possession of petitioner less than small quantity

14 Rajni Devi Vs.

The State

MANU/DE/0816/2005


Coram: Badar Durrez Ahmed, J.

Present application has been filed seeking interim bail on ground of marriage of petitioner's son and engagement ceremony. Petitioner is accused under section 21 and 29 of NDPS Act.

Court granted the bail to the petitioner and held that Parliament had provided that the person accused of an offence under the NDPS Act should not be released on bail during trial unless mandatory conditions provided under Section 37 of the said Act are complied with. This is what has been held by the Supreme Court in the decision cited hereinabove in paragraph 8 thereof. It clearly implies that unless the mandatory conditions are satisfied, where the bar of Section 37 is attracted, the accused should not be released on bail. This, however, does not mean that the accused cannot be


released on bail under any situation. If the mandatory conditions are satisfied then the court can release a person on bail even under the NDPS Act. In the facts of the present case, particularly, because on earlier four occasions, the Additional Sessions Judge as well as this court were satisfied that clear grounds were made for grant of interim bail and the same had not been misused, I feel that there is no reason why this application should not be allowed.

15 Sartori Livio Vs.

The State (Delhi Admin)

MANU/DE/0217/2005


Coram:

Badar Durrez Ahmed, J.

Petitioner submits that the alleged recovery from the petitioner is of 20 gms of charas and 20 gms of smack, both of which are far below the commercial quantity. He further submits that this is the second application for bail. Earlier, the application for bail was rejected by this court on 04.11.2004 He says that since then, four more witnesses have been examined and there are several contradictions in their statements with regard to the recovery and the manner in which the samples have been sent to the FSL for testing. He also submits that insofar as 20 gms of charas are concerned, the punishment would be of six months only and that period has already been undergone by the petitioner, who is in judicial custody since 6.06.2004 The learned counsel for the petitioner, Therefore, argued that as the bar of Section 37 of the NDPS Act would not be applicable, this is a fit case in which the petitioner, who is an Italian national, should be granted bail.

Court granted the bail to the petitioner and held that nationality cannot ground to deny the bail.

Bail application allowed. Court did not speak on the quantity of the drug.

16 Premwati Vs.

Narcotics Control Bureau

MANU/DE/0368/2005


Petitioner accompanied her husband while delivering heroin to other person. Court already rejected bail application twice on facts and circumstances of the case. Again she moved the present application for bail.

Court rejected the bail application and held that Considering all these facts, although on merits, I am not inclined to grant bail to the petitioner, particularly in view of the fact that this court had on two earlier

Bail denied. Commercial quantity of drug involved.

Coram:


occasions rejected the bail applications, I direct that the trial court shall conclude the trial as expeditiously as possible preferably within a period of six months from the next date of hearing.

17 Mohd Sakeel Vs.

State (NCT of Delhi)

MANU/DE/0823/2005



Present petition filed by petitioner for grant of bail for offence under Section 20 of Act . It is the contention of the learned counsel for the petitioner that the petitioner has been falsely implicated in this case. According to the learned counsel for the petitioner, nothing was recovered from the petitioner nor was anything recovered pursuant to any disclosure statement on behalf of the petitioner. In fact, the learned counsel for the petitioner submitted that in the Section 67 of the NDPS Act statements purportedly made by the petitioner, he has nowhere admitted having knowledge of the contents of parcels which were recovered at the New Delhi Railway Station.

Court granted the bail to the accused and held that No criminal antecedent of the petitioner has been pointed out and, Therefore, it is clear that there is no likelihood of the petitioner committing any offence while on bail. In these circumstances, the petitioner is entitled to be released on bail and, accordingly, I direct that the petitioner be released on bail on furnishing a personal bond in the sum of Rs. 15,000/- with one surety of the like amount to the satisfaction of the concerned court.


18 Jai Singh Vs.

NCT of Delhi MANU/DE/0728/2005


Coram:


Petitioner submits that from the accused recovery of 16 kgs of poppy husk is alleged to have been made. He further submits that as per the prosecutions story a further recovery of 16 kgs has been made from the co-accused. The commercial quantity specified for poppy husk is 50 kgs. Even if the recovery of both the persons is taken together, then also it would be below the commercial quantity and, Therefore, according to the learned Counsel for the petitioner, Section 37 of NDPS Act would not be applicable. He further submits that there are no criminal antecedents of the present petitioner.

Court granted the bail to the petitioner and held quantity recovered was still a huge quantity, Section 37 of the NDPS Act was not attracted as also the fact that earlier, when Petitioner had been granted interim bail, he had not misused that facility, Petitioner be released on bail on furnishing a personal bond in the sum with one surety of the like amount to the satisfaction of the concerned Court

Bail application allowed. Quantity of drug evolved was huge.

19 Mohd Ramzan Petition for bail -- Alleged Court granted the bail to the Bail

Vs. State (NCT of Delhi)

MANU/DE/0662/2005


Coram:


recovery of 22 Kgs of Ganja i.e. Indian Hemp from the petitioner -- As per FIR, three samples of 600 gms each were taken but as per CSFL report, three samples contained 630 gms, 560 gms and 750 gms of Hemp respectively were received by it

accused and held that necessary requirements of Section 37 have been fulfilled and Therefore this is a fit casein which the petitioner is to be released on bail

application allowed. Commercial quantity was involved.

20 Shashi Kumar Saini Vs.

The State

MANU/DE/0652/2005



The present petitioner is admittedly a juvenile within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000. Though, there is some dispute as to whether the petitioner was 12 -+ years old or 14 years old. Be that as it may, the petitioner being a juvenile, the provisions of Section 12 of the Juvenile Justice Act, 2000 would be applicable. The case for the prosecution is that from the present petitioner an alleged recovery of 9 kilograms 100 grams of ganja is said to have been made. The learned counsel for the petitioner, firstly, submitted that the petitioner is entitled to bail in terms of Section 12 of the Juvenile Justice Act, 2000 and even otherwise the alleged recovery is less than half of the commercial quantity specified and accordingly the rigours of Section 37 of the NDPS Act would not be attracted.

Court granted the bail to the petitioner and held that the exception carved out for not releasing a juvenile on bail under Section 12 of the Juvenile Justice Act, 2000 is not made out in the present case. Therefore, the mandatory provision of Section 12 has to be followed and the petitioner is required to be released on bail. The learned counsel for the petitioner submits that the petitioner's parents are ready to undertake that they shall take full care and keep a strict vigil over the petitioner

Court allowed the bail application.

21 Wernli Mnonika Barbara

Vs. State

MANU/DE/0884/2005


Coram:


Application for bail by terminally ill under trial, who was also foreign national. Co-accused person pleaded guilty and took upon the entire blame

Court granted the bail to the petitioner and held that co-accused has pleaded guilty and taking upon the entire blame, there are reasonable grounds for believing that the petitioner is not guilty of the offence. There is also nothing to show that there is a likelihood of the petitioner committing such an offence while on bail. There are no criminal antecedents of the present petitioner. Therefore, in my view, the mandatory provisions of Section 37 of the NDPS Act for the grant

Bail application allowed. Drug involved was of commercial quantity.

of bail, have been satisfied. In addition to this, on humanitarian grounds also, the petitioner is entitled to bail.

22 Ram Narayan Vs.

State

MANU/DE/0837/2005



There is an alleged recovery from the petitioner of two packets weighing 1.5 kgs and 500 gms. Both the packets were alleged to contain Heroin. Samples were taken from both these packets and were sent to the Forensic Science Laboratory for analysis. Insofar as the sample from the packet weighing 500 gms was concerned, it did not test positive for diacetyl morphine (Heroin). So, we are only concerned with the packet weighing 1.5 kgs. The packets are alleged to have been recovered from the petitioner outside the DSOI Club at Dhaula Kuan while the petitioner was waiting to supply the same to some other person. Insofar as the sample taken from this 1.5 kg packet is concerned, the report of the Forensic Science Laboratory indicates that it contained 1.08% diacetyl morphine (Heroin).

Court granted the bail to the petitioner and held that the mandatory conditions for grant of bail under Section 37 of the NDPS Act (as observed in the case of Union of India v. Ram Samujh: 1999 (3) C.C. C (SC) 22) stand satisfied. Accordingly, I direct that the petitioner be released on bail on furnishing a personal bond in the sum of Rs.1 lakh with one surety of the like amount to the satisfaction of the concerned court. It, however, goes without saying that the findings recorded by this Court are only tentative in nature and the trial court is free to decide the case on the basis of evidence adduced at the trial without in any manner being prejudiced by any observations made in this order.

Bail application allowed. Drugs quantity involved was commercial.

23 Kapil Dev Vs.

The State

MANU/DE/0839/2005



Present application filed for bail after rejection of first bail application. It is a case for the prosecution that a recovery of 500 grams of heroin is said to have been made from the present petitioner. The learned counsel for the petitioner submitted that no such recovery was made at all and the petitioner has been framed in this case. He further submitted that the petitioner's father Shri Gulab Singh has, for several years prior to the date of incident, been writing letters and articles with regard to the spread of narcotic drugs and the fact that the people involved in narcotic drugs and psychotropic substances were not being apprehended. To substantiate this aspect

Court grated the bail to the accused and held that it is satisfied that there are reasonable grounds to believe that the petitioner may not be ultimately convicted of the offences in this case. There is nothing brought to my notice to indicate that the petitioner would be likely to commit an offence if granted bail. He has no criminal antecedents and that is a relevant factor in coming to the opinion that there is no likelihood of the petitioner committing an offence under the NDPS Act while on bail.

Bail application allowed. Drugs quantity involved was commercial.

the learned counsel for the petitioner submitted that the petitioner's father had written various letters including letters to the Prime Minister, copies of some of which are placed on record in the present petition.

24 Mansoor Ahmed Shah Vs.

State of Delhi

MANU/DE/0741/2005



The case for the prosecution is that the petitioner along with two other co-accused were each carrying bags on their left shoulders. From the bag which was carried by the petitioner, two kilograms of charas is said to have been recovered. Since the commercial quantity quantified for charas is one kilogram, Section 37 of the NDPS Act would be attracted.

Court rejected the bail and held that Accordingly, a case for grant of bail has not been made out. The learned counsel for the petitioner, however, submitted that since the trial is lingering on for quite some time and the petitioner has been in custody since 04.03.2002 and only six out of 16 witnesses have been examined, this Court may issue a direction for expediting the trial. The learned counsel for the State submitted that this is a fair request and submitted that looking at the situation of the case, the trial can be concluded within three months from the next date of hearing before the Trial Court.

Bail application dismissed. Commercial quantity involved.

25 Tomar Asulin Vs.

Customs

MANU/DE/1113/2005


Coram: Pradeep Nandrajog, J.

Petitioner, facing trial under sections 20/21/23/29 of NDPS Act 1985 seeks bail on the ground that he is in judicial custody since 2.4.2003 and that there is no evidence against him. He filed bail application.

Court allowed the bail and held that conditions prescribed under section 37 of NDPS Act satisfied.

Court allowed bail application. Commercial quantity was involved.

26 Ansar Ahmed Vs.

State (Govt. of NCT of Delhi)

MANU/DE/1088/2005


Coram:


Present applications filed for grant of bail in conviction under Section 21 and 29 of Act.

Court granted the bail and held that recovery of drugs from applicants would come to in a small quantity. Accordingly, rigours of Section 37 of Act would not apply

Bail application allowed. Small quantity was involved.

27 Manoj Kumar @ Goldy Vs.

Sh. S.K. Srivastava, Intelligence Officer

(DRI)

This is an application under Section 389 Cr.P.C. for suspension of sentence and grant of bail. The appellant-accused Manoj Kumar @ Goldy has been convicted for

Court rejected the bail application and held that In the present case the applicant has already been convicted and sentenced after trial, so a prima facie

Bail denied. Commercial quantity involved.

MANU/DE/2534/2005


Coram: J.P. Singh, J.

offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and has been awarded 10 years RI and fine of Rs. 1 lakh in default of payment of fine RI for 6 months.

finding about his not being guilty is not warranted under the law. Moreover the applicant while transporting 69.254 kilo graphs of heroin was either masquerading as a police official and if he was actually a police official and was indulging in such anti humanity activities, it is still more worst for him.

28 Vinod Kumar and Ors. Vs.

Sh. S.K. Srivastava, Intelligence Officer

(DRI)

MANU/DE/2789/2005


Coram: J.P. Singh, J.

This is an application under Section 389 Cr.P.C. for suspension of sentence and grant of bail. The appellant-accused persons namely Vinod Kumar and Jaspal Singh have been convicted for offence punishable under Section 29 of the NDPS Act and have been awarded 20 years RI and fine of Rs. 2 lacs each in default of payment of fine RI for 1 (one) year under Section 21(C) of the NDPS Act and 20 years of RI and fine of Rs. 2 lacs each and in default of payment of fine further RI for 1 (one) year under Section 23(C) of the NDPS Act and also RI for 10 years and fine of Rs. 1 (one) lakh each and in default of payment of fine further RI for 6 months under Section 29 of the NDPS Act.

Court held that In the present case the applicants have already been convicted and sentenced after trial, so a prima facie finding about their not being guilty is not warranted under the law. The applicants are engaged in anti-humanity activities. They deserve no leniency.

Bail application dismissed.

29 Mahesh Pal Singh Vs.

The State

MANU/DE/8764/2006



Petitioner found in possession of 500 grams of contraband good - Actual content of diacetylmorphine was found to be 25.5 grams - Petitioner was in custody for three and half years - Petitioner had no criminal antecedents - Filed petition for grant of bail - Petitioner contended that actual content of diacetylmorphine is taken into consideration for determining whether recovery is small quantity or a commercial quantity or intermediate quantity - Respondent contended that once substance is tested positive for heroin its percentage content in substance was irrelevant - Whether quantities would be

Court granted the bail to the petitioner and held that The petitioner has already been in custody for over three and half years, the actual quantity of heroin recovered from him is alleged to be about 25.5 grams. The maximum punishment that can be meted out to him for the intermediate quantity under Section 21(b) of the NDPS Act can be of 10 years with a fine which may extend up to Rs. 1 lakhs. The recovery is about 1/10th of the maximum quantity which falls within the range of intermediate quantities. Therefore, looking at the proportionality, I feel that the petitioner, even if it is

Bail application allowed. Intermediate quantities involved.

small or commercial only actual content by weight of diacetylmorphine is to be taken into consideration for question of the gravity of recovery even when it is of an intermediate quantity - Purity level indicates that whether person is involved in wholesale trade or is in retail trade - Purity level recovered from petitioner indicates that he was involved in retail trade.

assumed that he is to be convicted, would be entitled to be released on bail. Particularly, as he has not antecedent criminal history

30 Kashmir Singh Vs.

Narcotics Control Bureau

MANU/DE/9207/2006


Coram:


Petition filed for grant of bail under section 37 of the NDPS Act. The learned Counsel for the petitioner submitted that although an alleged recovery of 1 Kg. of heroin is said to have been made from the present petitioner and that the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would be attracted, yet this is a case in which the petitioner is entitled to bail because, according to him, there exist reasonable grounds that the petitioner would not be convicted and there is no likelihood of the petitioner committing such an offence if released on bail. His main plank of argument is that the two recovery witnesses namely Ravi and Charan Singh were stock witnesses used by the prosecution in several cases. He placed reliance on the order

Court granted the bail and held that on the materials on record there is a cloud with regard to the recovery itself. As regards the question of the likelihood of the petitioner committing such an offence if released on bail, I find that the prosecution did not dispute that the petitioner is not involved in any other case under the NDPS Act. In fact, the learned Counsel for the petitioner had stated that the petitioner is not involved in any other criminal case. Therefore, it does not appear that the petitioner is likely to commit any offence while on bail. The twin conditions of Section 37 of the NDPS Act having been satisfied, the petitioner is entitled to be released on bail.

Bail application allowed. Twin condition of section 37 satisfied. Commercial quantity involved.

31 Rahul Saini Vs.

The State

MANU/DE/9097/2006



Whether petitioner entitled to bail - petitioner had no criminal antecedents. In this case, there is an alleged recovery of 2 kg of contraband from co-accused Manish and a further recovery of 1.5 kg of contraband from one room at B-3A, New Govind Pura, Chander Nagar. This bail application concerns the second alleged recovery.

Court granted the bail to the accused and held that nothing to show petitioner had propensity to commit offence under NDPS Act - held petitioner entitled to be released on bail

Bail application allowed. Commercial quantity was involved.

32 Vishal Sharma Vs.

Shri Deepak Kumar

This is a bail application moved on behalf of the accused Vishal Sharma. The

Court rejected the bail application and held that there is an alleged recovery

Bail application dismissed.

Mangotra

MANU/DE/7510/2007



case for the prosecution is that on 09.09.2003, on the basis of intelligence received by the Department of Revenue Intelligence, one Maruti Zen Car bearing registration No. DL-6CB-6980 was intercepted near the crossing of Shyam Garments, Central Market, Lajpat Nagar, New Delhi at about 10.30 am. There were four persons in the car and they were Gurmeet Singh, who was allegedly the driver, Purshottam Lal, Vishal Sharma and Som Nath Sharma, who were alleged to be the owners of the car. As per the prosecution, since the place was not proper for carrying out of the search, the vehicle as well as the four persons were taken to the DRI office at I.P. Estate. Two panch witnesses namely, Manwar Singh and Sate Singh were called. It is alleged that on the search of the vehicle, 4.225 kg of contraband was recovered. The CRCL report of the sample taken indicated that the substance had a content of 89% of Diacetylmorphine. In other words, the alleged recovery was of a commercial quantity of high grade heroin.

of a substantial amount (4.225 Kg.) of high grade heroin. Clearly, the rigours of Section 37 of the NDPS Act would come into play. Having considered the facts and circumstances of the case, I am unable to persuade myself, at this stage, that there are reasonable grounds for believing that the petitioner is not guilty of the offence. That being the case, the limitations prescribed for the grant of bail under Section 37 of the NDPS Act are not satisfied and, Therefore, the petitioner would not be entitled to bail at this stage.

Commercial quantity was involved.

33 Sonu @ Kane Vs.

The State

MANU/DE/7547/2007


Coram: Reva Khetrapal, J.

Petitioner filed bail application under section 439 of CrPC. Non-commercial quantity. Recovery of 1700 gms of ganja--Custody for more than 8 months.

Court granted the bail to the petitioner and held that In the present case, the petitioner has already been in custody for over eight months. A little more than "small quantity" was recovered from the petitioner and the punishment for "small quantity" of ganja under Section 20(A) is rigorous imprisonment for a term which may extend to six months or with a fine which may extend up to Rs. 10,000/- or with both. The recovery is about 1/12th of the "commercial quantity", the "commercial quantity" being 20 kilograms and falls within the range of

Bail application allowed. A little more than a small quantity was involved.

"intermediate quantity". Even assuming that the petitioner is convicted, the "maximum punishment" which can be meted out to him under Section 20(B) may extend to 10 years with fine which may extend up to Rs. 1 lac. However, it has to be born in mind that the maximum punishment cannot be handed out to the petitioner in view of the fact that the quantity recovered from him was only a little more than "small quantity" for which the petitioner may be let off with a fine of Rs. 10,000/- or sentenced to six months imprisonment. Therefore, looking at the proportionality of the sentence which the petitioner is likely to be awarded even if convicted, and the fact that the petitioner has already undergone 8 1/2 months of incarceration, in my considered opinion, the petitioner deserves to be released on bail.

THE GUWATI HIGH COURT

S. No.

Name Of Case Issue Before The Court Decision Of The Court Remark

1 Sankar Singh Vs.

State of Assam and Anr.

MANU/GH/0066/199

3


Coram:

U.L. Bhat, C.J. and R.K. Manisana Singh,

J.

Applications for bail Under Section 37 of NDPS Act read with Section 439 of Code on ground that investigation was not completed within a period of 90 days from date of arrest.

Court rejected the bail application and held that until a Special Court was constituted Sessions Court was to discharge all functions and duties of Special Court - Therefore provisions in Clause (b) of Sub-section (1) of Section 37 of Act would apply to Sessions Court exercising jurisdiction under Act - Sessions Court was to try case even without a committal by Magistrate, since committal was foreign to scheme introduced by Act - Thus, Proviso (a) to Sub-section (2) of Section 167 of Code was inapplicable to persons arrested in connection with an offence under Act and Appellant was not entitled to bail under these provision - Application dismissed.

Bail denied.

2 Shri Takhelmayum Ibochou Singh

Vs. State of Manipur and

Anr.

MANU/GH/0069/1993


Coram:

S.K. Hom Choudhury, J.

Petitioner had approached under Section 438, Cr.P.C. for grant of anticipatory bail for which he was arrested in connection with FIR under Sections 20(b)(i) and Section 60(3) of NDPS. Whether, anticipatory bail could given to Petitioner - Held, interim order was passed because Petitioner was not named as Accused in FIR - Since, there was prima facie case of involvement of Petitioner in FIR under Sections 20(b)(i) and 60(3) of NDPS Act -

Court dismissed the anticipatory bail application and held that Since, there was prima facie case of involvement of Petitioner in FIR under Sections 20(b)(i) and 60(3) of NDPS Act - Powers of High Court to grant bail being subject to restriction contained in Section 37 of NDPS Act - There was no scope to grant of anticipatory bail to Petitioner in exercise of power under Section 438, Cr.P.C - Therefore, Petition for grant of anticipatory bail was rejected.

Bail denied. "Powers of Court under amended Section 37 of NDPS Act are applicable on High Court in matter of granting bail."

3 N.L. Angshung Anal Vs.

State of Manipur

MANU/GH/0064/1994


Coram:

Sujit Barman Roy, J.

Petitioner had been arrested for committing an offence under Section 21 of Act . He filed bail application. Whether the petitioner was entitled to bail

Court rejected the bail application and held that offence charged against Accused/Petitioner was punishable for 5 years or more as it involved possession of heroin. Therefore, Section 37 of Act was applicable in matter - Hence, unless conditions/limitations as contemplated under Section 37 of Act were fully satisfied, High Court had no jurisdiction/authority to grant bail to Accused.

Bail denied. "Unless conditions as contemplated by statutory provisions are fully satisfied, High Court has no jurisdiction

to grant bail to Accused."

4 Sahab Uddin (MD.) and Ors.

Vs. State of Assam

MANU/GH/0289/201

2


Coram:

C.R. Sarma, J.

Bail applications filed under Section 439 CrPC, read with Section 37 of the NDPS Act, the petitioners, namely, Md. Sahab Uddin and Shri Bishu Das (Bail Application No. 885/2012), who have been detained in custody, in connection with Golakganj P.S. Case No.63/2012, under Section 468/420 IPC, read with Sections 20(b)/22 of the NDPS Act. have prayed for releasing them on bail. Similarly, the petitioners, namely, Shri Bhupendar Singh and Shri Indrapal Singh (Bail Application No. 886/ 2012), who have been detained in custody, have prayed for releasing them on bail in connection with Golakganj P.S. Case No. 54/ 2012, under Sections 20(b)/22 of the NDPS Act.

Court rejected the bail applications and held that the facts and circumstances as discussed above, does not satisfy that there exists reasonable ground for believing that the petitioners are not guilty of the offence under the NDPS Act.

Bail denied.

THE GUJRAT HIGH COURT

S. No. Name Of Case Issue Before The Court Decision Of The Court

Remark.

1 Dahyabhai Gokalbhai Vs.

State of Gujarat

MANU/GJ/0205/1990


Coram:

T.U. Mehta, J.

The present petitioner was arrested for the offence punishable under Section 8 and Section 20(a)(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in pursuance of the C.R. No. 43 of 1990 of Savarkundla Town Police Station. He moved a bail application before the Court.

Court rejected the bail application and held that section 37 of the NDPS Act came into play and thus bail cannot be granted.

Bail denied.

2 Sardarsingh Nagsingh Rajput (Sisodia) and

Ors. Vs.

State of Gujarat

MANU/GJ/0280/1993


Coram:

K.J. Vaidya, J.

Whether for any alleged lapse or default committed by the Investigating Agency in not submitting Chargesheet within the prescribed time-limit of 90 days as warranted under Section 167(2)(a) of the Criminal Procedure Code, 1973, particularly in matter of the offences punishable under the NDPS Act, the accused are straightway entitled to be released on such default bail, altogether overlooking and ignoring the limitations imposed by the Legislature on Courts on exercise of such powers under Section 37 (amended) of the said Act? Whether any lapse or default committed by the learned Magistrate in contravening Section 36-A(1)(b) of the NDPS Act in not forwarding the accused to Special/ Session Court immediately on expiry of 15th day confers any legal right upon the accused to earn mechanical default-bail on the alleged ground

Court rejected the bail applications and held that In the matter of offences under NDPS Act so far the default-bail under Section 167(2)(a) of the Code as well as Section 36A(1)(b) of the said Act are concerned, they in view of firstly Section 37 (amended) and secondly, the Supreme Court decision in case of Narcotic Control Bureau v. Kishan Lal (supra) are out of question.

Bail denied.

that as his further continued detention in judicial custody on expiry of the said 15th day, have been rendered illegal and unauthorised, turning blind eyes to the gravity and seriousness of the offence and deaf-ears to the concern voiced by the Legislature in imposing limitations on granting bail under Section 37 (amended) of the said Act?

3 Jyotiben Ramlal Purohit and etc.

Vs. State of Gujarat and

Anr.

MANU/GJ/0217/1995


Coram:

B.C. Patel, M.S. Parikh and N.N. Mathur, JJ.

Present reference filed to a larger Bench for considering the matter whether the convict under NDPS Act could be released on parole or bail regarding security of Society -

Court dismissing the bail applications held that Court had to bear in mind the object, reasons and guidelines contained in Section 37 of Act.

Bail denied.

4 Ambalal Ranchhodji Thakor


MANU/GJ/0375/1996


oram:

S.M. Soni, J.

Present application filed under 439 of Cr.PC prayed for bail for offences Sections 27, 37 and 52 of NDPS Act.

Court rejected the bail application and held that accused was found prima facie to be in possession of contraband substance - There was nothing on record from which one can infer that same was for personal consumption - There was nothing on record to show that there were materials or equipments or instruments which may suggest personal consumption - Thus, when narcotic substance was found from possession of accused, it cannot be said that prosecution had failed to prove

Bail denied.

conscious possession till trial was over -

5 Bipin Shantilal Panchal (II) Vs.

State of Gujarat and Anr.

MANU/GJ/0012/2002


Coram:

C.K. Buch, J.

Trial Court rejected application of Petitioner for drop proceedings against him for offences under Sections 22, 24 and 29 of the NDPS Act read with Section 120B of I.P.C. Hence this appeal before the Court.

Court allowed the bail of the petitioner and held "Accused shall be entitled for bail in context of total period of long under gone trial."

Bail allowed.

6 Sohil Safi Mohammad Vohra


MANU/GJ/0052/2002


Coram:

H.K. Rathod, J.

Additional Sessions Judge dismissed Petitioner regular bail Application while exercising powers under Section 439 of Cr. P. C. - Hence, this Petition - Whether, order passed by Additional Sessions Judge dismissing bail Application of Petitioner was justified.

Court rejected the petition and held that "Before granting bail authority must considered that presence of Accused in Society does not adversely affected."

Bail denied.

7 Sohil Safi Mohammad Vohra


MANU/GJ/1009/2001


Coram:

H.K. Rathod, J.

In the present petition, the order passed by the Additional Sessions Judge, Nadiad dated 19th April, 2001 in Criminal Misc. Application No. 223 / 2001 is challenged by the present petitioner. The petitioner has filed regular bail application before the Additional Sessions Judge, Nadiad and that application has been rejected while exercising the powers under Section 439 of CrPC, 1973.

Court rejected the bail application and held that in such case powers under Section 439 of CrPC, 1973 cannot be granted in favour of the present petition and hence the present petition is rejected accordingly.

Bail denied.

8 Habibkhan Usmankhan Pathan


MANU/GJ/0215/2004


Coram:

H.K. Rathod, J.

Petitioner is accused under Sections 8-C, 20-B and 29 of NDPS Act. Bail application dismissed by Special Court - imprisonment was minimum 10 years for offence registered against petitioner

Court rejected the bail application and held that wherein the imprisonment is minimum 10 years and therefore, Section 37 squarely applied and it is not the case of the petitioner that Section 37 is not applicable.

Bail denied.

9 Syed Babar Chisty Son of Shri Hamid Chisty

The present application is filed under Section 37 of

Court dismissed the bail

Bail denied.


MANU/GJ/0932/2008


N.D.P.S. Act read with Section 439 of Criminal Procedure Code.

application and held that section 37 came into play in the matter.

THE HIMACHAL PRADESH HIGH COURT

S. No.

Name Of Case Issue Before The Court Decision Of The Court

Remark.

1 Hari Chand Vs.

State

MANU/HP/0116/1991


Coram: V.K. Mehrotra, A.C.J.

The present petition was filed praying bail. The petitioner was charged under the NDPS Act.

Court rejected the bail application and held that Since the entire evidence against the petitioner is to be adduced before the trial Court in the next month itself, and its effect is to be considered by that Court. I am not inclined to direct that the petitioner be enlarged on bail at this

Bail denied.

2 Manoj Kumar and etc. Vs.

State of H.P.

MANU/HP/0075/2002


Coram: K.C. Sood, J.

A case for offences punishable under Section 20 of Act and Section 34 of IPC was registered against petitioners - Hence, petitioners filed present petitions for grant of bail

Court allowed the bail application and held that Taking into consideration the entirety of the circumstances, the quantity of the contraband and the fact that both the petitioners are in custody since 4-5-2001, I allow these petitions and direct that petitioner Manoj Kumar be released on his furnishing bonds in the amount of Rs. Three lacs with two sureties each of the like amount, one of which should be local resident of Solan District and Shashi Kumar be released on his furnishing bonds in the amount of Rs. Two lacs with two sureties each of the like amount, one of which should be local resident of

Bail granted. Quantity of drugs involved was small.

Solan District to the satisfaction of learned Sessions Judge/Special Judge, Solan.

3 Mehar Chand Vs.

State of Himachal Pradesh

MANU/HP/0142/2001


Coram:

K.C. Sood, J

his petition for grant of bail under Section 439 of the Code of Criminal Procedure has been filed by applicant Mehar Chand, who was arrested in case FIR No. 74 of 2001 dated February 14, 2001 registered with the Police Station, Kullu, under Section 20 of the NDPS Act.

Court rejected the bail application and held that when accused stands charged for the offence punishable under the Act, it was difficult to say that accused was not guilty of the offence with which he was charged when evidence was yet to be led

Bail denied.

4 Nirmal Singh Vs.

State of Himachal Pradesh

MANU/HP/0104/2015

Coram:

Piar Singh Rana, J.

Present petition filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in connection with case FIR No. 82 of 2012 dated 27.10.2012 registered under Sections 15-61 of NDPS Act 1985 at Police Station Barotiwala District Solan H.P.

Court rejected the bail application and held that falls under commercial quantity and bail is prohibited qua commercial quantity as per Section 37 of N.D.P.S. Act 1985 is accepted for the reasons hereinafter mentioned. In view of rider imposed under Section 37 of N.D.P.S. Act 1985 qua commercial quantity Court is of the opinion that it is not expedient in the ends of justice to release the applicant on bail. Point No. 1 is answered in negative.

Bail denied. Commercial quantity was involved.

5 Rakesh Kumar alias Kukka

Vs. State of H.P.

MANU/HP/0038/2003


Coram:

A.K. Goel, J.

This application under Section 438, Cr.P.C. has been filed by the petitioner for admitting Him to bail for offence alleged against him under FIR No. 98 of 2003 of Police Station Una. This FIR was registered on 3-2-2003.

Court rejected the bail and held that After having heard learned counsel for the parties and looking to the provisions of Section 37 of the N.D.P.S. Act, 1985, I am of the considered views

Bail denied.

that application under Section 438, Cr.P.C. would not lie for an offence under the said Act. Because when a reference is made to Section 37 of the N.D.P.S. Act, 1985, it starts with non obstante clause and under what circumstances bail can be granted have been enumerated in the Section itself.

6 Ranbir Singh Vs.

State of H.P.

MANU/HP/0138/2002


Coram: M.R. Verma, J.

Petition under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for grant of bail on the ground that the prosecution had failed to put up the charge sheet against the accused within a period of 90 days

Court rejected the bail application and held that the accused was apprehended on 12.12.2001 and is in custody thereafter. According to the prosecution, he was found in possession of 4 kgs. 900 grams of charas i.e. commercial quantity. It is also not in dispute that the charge sheet against him has now been presented on 16.3.2002, whereas the period of 180 days during which the pre trial detention of the accused in custody can be lawfully ordered by virtue of the provisions of Section 36A of the NDPS Act, has not expired as yet. The accused, therefore, is not entitled to be released on bail by virtue of the provisions of Section 167 of the Code.

Bail denied. Commercial quantity of drugs was involved.

7 State of H.P. Vs.

Munshi Ram

MANU/HP/0077/2002


Coram: Kamlesh Sharma, J.

This criminal revision at the instance of the State of Himachal Pradesh is directed against the judgment dated 9-4-2002 passed by the Additional Sessions Judge (II), Kangra at Dharamshala, whereby respondent was granted bail in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of any Judicial Magistrate at Dharamshala on the conditions set out therein.

Court while allowing the revision application and thus cancelling the bail held that the quantity 1 kg. involved in the present case is commercial quantity and the limitations as prescribed under Section 37(1)(b) are applicable. cancelled.

Bail cancelled. Commercial quantity was involved.

8 State of Himachal Pradesh

Vs. Deen Mohd.

MANU/HP/0167/1998


Coram:

D. Raju, C.J. and L.S. Panta, J.

Present application has been filed by the State under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 seeking to set aside the order dated 9.6.1998 of Sessions Judge, Chamba in B.A. No. 75 of 1998 where by the accused-Respondent was released on bail for offence punishable under Section 20 of NDPS Act.

Court cancelled the bail and held that After analysing the underlining principles of law governing the grant of bail or discharging the accused arrested under the NDPS Act, we are of the considered opinion that such an accused is not entitled to be enlarged on bail on the sole ground of an assumption, even at the pretrial stage that if the investigation of the case is carried out by the police officer who had seized and recovered the contraband and filed formal F.I.R. or complaint such investigation is unfair and against the basic tenets of criminal jurisprudence. The question has necessarily to be examined and decided by the Trial Court at appropriate stage if and when urged before it in the peculiar nature of provisions and

Bail cancelled.

powers of the officers under the Act and the effect of such investigation should not be considered a base for enlarging the accused on bail ignoring the provisions contained in Section 37 of NDPS Act.

THE JAMMU & KASHMIR HIGH COURT

S. No. Name of Case Issue before the Court Decision of the Court

Remark

1 Harbans Kour Vs.

The State

MANU/JK/0039/1993


Coram:

B.A. Khan, J.

Petitioner, Harbans Kour was arrested on July 9, 1993 on a charge of trading in opium. She was booked Under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 following seizure of 3 K.Gs of opium from her room and is standing trial before the Ld. Sessions Judge, Jammu. Her bail application has been rejected by the trial court and she has now come up to this Court for her release. Present petition was seeking bail.

Court rejected the bail application and held that nothing before me at this stage to form a prima facie belief whether she is not guilty of the offence or whether she is not likely to commit any offence while on bail. Therefore, it is difficult to allow this application for the present.

Bail denied.

THE KARNATAKA HIGH COURT

S. No. Name of Case Issue before the Court Decision of the Court

Remark

1 Dondusa Nemasa Baddi

Vs. State of Karnataka


MANU/KA/0232/1993

Coram:

D.P. Hiremath and K. Jagannatha Shetty, JJ.

The accused has challenged in this Appeal his conviction by the I Additional Sessions Judge, Dharwad, sitting at Hubli, under Section 34 of the Karnataka Excise Act, Sections 17, 18 and 20 of the NDPS Act. Section 5 of the Explosive Substances Act and Section 25 of the Indian Arms Act, and has applied under I.A.I, for bail. He has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/- for the offences under Sections 17/18 of the NDPS Act; R.I for 5 years and fine of Rs.25,000/- for the offence under Section 29 of the NDPS Act, R.I. for 10 years and a fine of Rs.1,00,000/- for the offence under Section 20 of the NDPS Act; R.I. for 5 years for the offence under Section 5 of the Explosive Substances Act and R.I. for 3 years with a fine of Rs.8,000/- for the offence under Section 25 of the Indian Arms Act.

Court rejected the bail application and held held At this stage keeping in view the seriousness of the offences found committed by the appellant including possession of arms and ammunition in large quantity unlawfully it would be rather hazardous to grant bail to the petitioner..

Bail denied.

2 Ilyas Vs.

State of Karnataka

MANU/KA/0326/1993


Coram:

M. Ramakrishna, J.

The petitioners have filed these Petitions to release them on bail pending disposal of their case. The petitioners found to be in possession of Brown Sugar which attracts restrictions under the NDPS Act. The case registered against the petitioners is punishable under Section 22 of the NDPS Act.

Court rejected their bail application and held that The Court should satisfy the conditions laid down under Clause (1)(ii) of Section 37 of the Act. Without a finding on this aspect, a person accused of an offence punishable under Section 22 of the Act is not entitled to be released on bail. It is difficult to hold that there are reasonable grounds for

Bail denied.

believing that the petitioners are not guilty and they are not likely to commit any offence while on bail.

3 The Intelligence Officer, Directorate of Revenue Intelligence,

Bangalore Vs.

Mohammed Abdul Rab alias Babloo and

Others

MANU/KA/0294/1998


Coram:

M.P. Chinnappa, J.

The petitioner has challeged the order dated 5-2-1997, passed by the District and Sessions Judge, Belgaum, in Special Case No. 10 of 1997 directing to release the petitioners on bail. The accused has been charged under the NDPS Act.

Court while cancelling the bail held that while granting the bail to the respondent, special judge overlooked the provisions of the section 37 of the NDPS.

Bail denied.

4 R. Veeraiyan Vs.

Intelligence Officer, Narcotics Control

Bureau, South Zone, Chennai

MANU/KA/0318/2001


Coram:

Mohammad Anwar, J.

The appellant-accused has been convicted for the offence punishable Under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He filed the present application praying suspension of the sentence till pendency of appeal.

Court dismissed the appeal and held that As re-stated by the Apex Court, a sentence awarded under the NDPS Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, It has to be presumed for the purpose of Section 37(1)(b)(ii) that the appellant-accused is prima facie guilty of the said offence.

Bail denied.

5 K.P. Sadath and Anr. Vs.

State by Virajapet Town Police Station,

Kodagu District

MANU/KA/0012/2002


Coram:

Mohammad Anwar, J.

Both these petitioners in Crime No. 109 of 2001 of the respondent-Police Station for the offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act'), have approached this Court with their petition under Section 439 of the Cr. P.C. when their similar application for bail was rejected by the learned Sessions Judge by his order dated 9-7-2001.

Court rejected the bail application and held that section 37 of the NDPS comes into play.

Bail denied.

6 Syed Abdul Ala Vs.

The petitioner who is accused 1 along with 5

Court granted the bail application and

Bail granted on medical

Narcotic Control Bureau, South Zone

MANU/KA/0711/2002


Coram:

K. Sreedhar Rao, J.

others charge-sheeted for committing offences punishable under Sections 80, 21, 25, 28 and 29 of the NDPS Act, by the Narcotic Control Bureau, South Zone, Chennai, in Special Case No. 24 of 2000 on the file of the Sessions Judge, for Narcotic Drugs and Psychotropic Substances, Bangalore City. The petitioner seeks bail on medical ground as well as on the ground of delay that trial is not concluded even after a lapse of 3 years. This petition is filed under Section 439 of the Cr. P.C., for grant of bail.

held that In the present case, the medical reports are produced. The petitioner is suffering from serious heart ailment and there is 90% blockage of his arteries, immediate bypass surgery is advised. Even after bypass surgery, the post-operative care and treatment is necessary. A patient undergoing bypass surgery cannot have brisk and risky movements. In that view, I find that the petitioner at the time of operation and after the operation for substantial time has to remain docile. It may not be probable that the petitioner would make any drastic physical efforts to abscond hazarding his life.

ground.

7 Thippeshappa Vs.

State by Channagiri Police

MANU/KA/0074/2005


Coram:

N.S. Veerabhadraiah, J.

This is an application under Section 389 of the Cr. P.C. by the appellant-accused for suspension of sentence and for bail in SPL. NDPS. No. 4 of 2002, dated 6-1-2005 passed by the learned District and Sessions Judge, Davanagere convicting the accused for the offence under Section 20(b)(i) of the NDPS Act, 1985 and sentencing him to under go R.I. for one year and to pay a fine of Rs. 5,000/-, in default to under go S.I. for 3 months.

Court allowed the bail application and held that The punishment prescribed is of 3 categories. The first category involving small quantity where the punishment is with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. The second category involving quantity lesser than commercial quantity but greater than small quantity where the punishment prescribed is with rigorous

Bail granted. Prosecution failed to make out exact quantity of drug.

imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees and the third category involving commercial quantity where the punishment prescribed is 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 but which may extend to two lakh rupees, provided the Court may for reasons to be recorded in the judgment, impose lesser sentence.

8 Rasheed Vs.

The State of Karnataka, through

Santhpur Police

MANU/KA/0756/2007


Petitioners are accused in Crime No. 62/2006 (FIR No. 21/06) of Santapur Police Station, Aurad Taluk, registered for the offences punishable under Sections 20(b)(ii)(c) of NDPS Act These petitioners were found transporting 224 KGs. of ganja contained in six gunny bags in a Scorpio car on 11.6.2006 at about 10.30 a.m. The police have seized the ganja as well as the aforesaid vehicle used for transportation. The petitioners are apprehended alongwith the drug after chasing for certain distance when they tried to escape. They have filed this petition praying for the relief of releasing them on bail.

Court rejected the bail application and held that If the prosecutor makes prayer for extension of time for keeping the detenues in the custody for one year prior to the release of detenues on bail, the Court if required in the interest of the investigation could reject the bail application.

Bail denied.

9 Inspector of Customs, HQRS

Vs. Betrand Tochukwu

Ikwuka

MANU/KA/1409/2010

Present petition was filed seeking cancellation of bail granted to the accused who is charged under Sections 21, 23, 27-A, 28 & 29 of the NDPS Act.

Court cancelled the bail and held that The learned Special Judge ignoring the relevant provisions of the Act and the documents by

Bail cancelled. Commercial quantity was involved.


Coram:

N. Ananda, J.

merely relying on the assertions made in memo filed on 17.09.2009 has accepted the so called indefeasible right accrued to accused No. 1 to release him on bail. The learned Special Judge has held that report filed on 16.06.2009 and complaint filed on 19.08.2009 did not take away right accrued to accused No. 1 on 15.06.2009. The approach of learned Special Judge is erroneous. Therefore, bail granted to accused No. 1 cannot be sustained.

THE KERALA HIGH COURT


Remark.

1 Kadukkakunnil Appachan and Anr.

Vs. Excise Circle Inspector

MANU/KE/0365/1990


Coram:

K.G. Balakrishnan, J.

The Petitioners are accused Nos. 7 and 8 in Crime No. 1 of 1990 of Excise Circle, Mananthavady range. The allegation against the Petitioners is that they along with accused 1 to 6 trespassed into Begur range reserve forest and cultivated ganja and the cultivation of the same is prohibited and made punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Petitioners were arrested and taken into custody on 16th June 1990. The Petitioners contend that they have not committed any offence and they are innocent and that they may be released on bail. Petitioners have also contended that they are entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure.

Court allowed the bail petition and held that Section 167 of the code is a general provision relating to investigation and enquiry of a case. Section 51 of the N.D.P.S. Act says that the provisions of the Code of Criminal Procedure are applicable for the purpose of investigation of the crime made punishable under the N.D.P.S. Act. It is true that in Section 37 of the N.D.P.S. Act is stated that the restriction imposed therein is notwithstanding anything contained in the code. But this provision has no overriding effect on Section 167 of the Code of Criminal Procedure. It could only be understood that the restriction imposed under Section 37 of the Act regarding granting of bail is notwithstanding any provisions contained in Chapter XXXXIII of the code. Section 167(2)

Bail granted.

Code of Criminal Procedure. has been introduced with a view to see that there is no unnecessary delay in the investigation and to protect the accused from unscrupulous police officers and the right of an accused to be released on bail after the stipulated period is absolute.

2 Jiju Haran Vs.

Narcotic Control Bureau

MANU/KE/0098/2004


Coram:

G. Sasidharan, J.

Petitioner is the second accused in O.R. No. 3 of 2003 of Narcotic Control Bureau, Regional Intelligence Unit, Thiruvananthapuram. Learned Special Public Prosecutor of Narcotic Control Bureau submits that crime was registered against the petitioner and the other accused under Sections 21(c), 22(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act. Petitioner was arrested on 01.07.2003 and he is in judicial custody. Investigation of the crime was completed and final report was filed in court on 18.12.2003 and the case is now pending as Sessions Case No. 1318 of 2003 in the Sessions Court Thiruvananthapuram. Allegation against the petitioner is that he conspired with the other accused for bringing Narcotic Drugs and Psychotropic Substances from Madurai and to take it to Mali. For that purpose first accused was sent to Madurai to bring those articles from there to Thiruvananthapuram. When the first accused reached Thiruvananthapuram Railway Station by train

Court allowed the bail application and held that Section 37 of the NDPS Act cannot be interpreted to the effect that if the Public Prosecutor opposes bail cannot be granted - The Court has discretion to grant bail in appropriate cases if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.

Bail granted. Commercial quantity was involved.

Officers of the Narcotic Control Bureau, who got prior information about that, intercepted him and made seizure of 88. capsules containing total quantity of 350 gms. of Heroin, 120 ampules of Buprenorphine, 12 needles and three plastic syringes.. According to the learned Public Prosecutor the quantity of heroin seized from the first accused is commercial quantity.

3 Siyad Vs.

State of Kerala

MANU/KE/0407/2005


Coram:

J.B. Koshy and K.R. Udayabhanu, JJ.

Sessions Court rejected bail application of Petitioner and held that he was in possession of commercial quantity of Morphine however there was no reasonable grounds for believing that he was not guilty of offence. Hence present bail application.

Court allowed the bail application and held that Court was of opinion that going by definition of 'psychotropic substance", entire weight of preparation could be taken into account and possession of 54 ampules was held to be not a small quantity - Therefore, preparation seized from Petitioner was not commercial quantity or small quantity under item 239 read with item 169 - However, offence proved, could not come as under Section 22(c) or 22(a) but only under Section 22(b) of the Act - Thus, first Accused who was found in possession of ampules seized were released on bail by Special Court - Hence, Petitioner could not interfere with attempt to influence witnesses or

Bail Granted.

threaten them or indulge in any activities which could be detrimental to interest of prosecution.

4 Muthu Kumar and Ors. Vs.

Station House Officer

MANU/KE/0632/2008


Coram:

J.B. Koshy and K. Hema, JJ.

This bail application was referred to the Division Bench, as the learned Single Judge disagreed with some of the observations contained in the judgment of a learned Single Judge of this Court reported in Jiju Maran v. Narcotic Control Bureau MANU/KE/0098/2004

Court allowed the bail application and held that he Public Prosecutor can oppose bail application on the ground mentioned in Section 37(i)(ii). He can also oppose bail application on grounds mentioned under Sub-section (2), that is, all grounds allowed under law. Even if the Public Prosecutor opposes, it is for the Court to consider whether such opposition is correct or not while granting bail. In Jiju Maran's case the Court observed if the reasons given for opposing granting of bail were not sustainable or no reasons were given for opposing the bail, the Court has the discretion to grant bail. Even if the Public Prosecutor is not opposing the application, the Court should be conscious and should consider whether the grounds are existing for granting bail. In effect what is decided in Jiju Maran's case is that finally it is for the Court to decide whether

Bail granted.

the conditions are satisfied or not. In Jiju Maran's case, it is hot stated that only on the two conditions mentioned under Section 37(1)(ii) bail can be opposed by the Public Prosecutor.

5 K.K. Ashraf Vs.

State of Kerala

MANU/KE/1166/2009


Coram:

K. Sankaran, J.

This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the second accused in O.R. No. 2 of 2009 of the Narcotic Control Bureau, Regional Intelligence Unit, Thiruvananthapuram. The petitioner was arrested on 28.7.2009 and he is in judicial custody.

Court allowed the bail application and held that Unless there are materials to indicate that commercial quantity is involved, the Court cannot apply Sub-section (4) of Section 36A of the Act simply because an allegation is made without any material that commercial quantity is involved-

Bail Granted.

6 Mohammed, T.A. and Anr. Vs.

State of Kerala

MANU/KE/2345/2010


Coram:

K. Sankaran, J.

The Bail Application was filed claiming default bail by invoking the proviso to Section 167(2) Code of Criminal Procedure. It was contended, relying on the decision of the Supreme Court that the accused was liable to be enlarged on bail, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in 36A(4) of the N.D.P.S. Act. The High Court found that, when the bail application was considered by the Sessions Court, it was brought to the notice of the Sessions Court that the High Court had granted bail to a co-accused. The Sessions Court however dismissed the bail application taking the view that the order of the High Court

Court allowed the bail application the learned Sessions Judge was not justified in ignoring the decision of the Supreme Court and in misinterpreting the order passed by the High Court in the manner in which it was done in paragraph 11 of the order passed by him. Astuteness in making an order is understandable. But, that does not enable a judicial officer to disregard the binding precedents. Even assuming that the order passed in B.A.No.872 of 2010 need not be

Bail Granted.

in the bail application was passed not taking into consideration Section 37(ii) of the N.D.P.S. Act. The High Court, found that the procedure adopted by the Sessions Judge, ignoring binding precedents was not proper. Allowing the bail application.

treated as a precedent, what about the decision of the Supreme Court referred to in the order passed by the High Court? Did the learned Sessions Judge refer to it? How could the learned Sessions Judge bypass the decision of the Honourable Supreme Court?

7 Vijayan Vs.

Sub Inspector of Police

MANU/KE/0185/2013


Coram:

P.S. Gopinathan, J.

The bail application was filed by the petitioner who is accused of committing an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act. The petitioner was arrested on 20-9-2012. His bail application was rejected by the Sessions Court on 21-1-2013 on the ground that the petitioner committed the offence in this case while he was on bail in other cases and that the release of the petitioner is barred under Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act. The petitioner contended that no final report was filed within the time stipulated under Section 167(2) of Cr.P.C. and that Section 37 of the Narcotic Drugs and Psychotropic Substances Act is not applicable since the petitioner was allegedly found in possession of 1.2 Kg. of ganja, which is not a commercial quantity.

Court allowed the bail application and held that Section 37--Section 37 of the NDPS Act would be applicable only in cases of offences under Sections 19, 24 and 27A and cases involving commercial quantity--When the investigating officer files the final report beyond the period prescribed under Section 167(2) Cr.P.C., the Magistrate cannot order the detention of the accused beyond the period prescribed under Section 167(2) Cr.P.C., even if the crime is committed while the accused is on bail in another case

Bail Granted. Small quantity was involved.

THE MADHYA PRADESH HIGH COURT


Remark.

1 Mari Appa Vs.

State of Madhya Pradesh

MANU/MP/0162/1990


Coram:

V.D. Gyani, J.

This and other connected petitions for bail, raise and involve a common question of law as regards the scope and amplitude of section 37 of the NDPS Act (as amended by Amendment Act No. 2 of 1989) for short hereinafter referred to as the. Act.

Court allowed the bail application and held that Court while considering an Application for bail with reference to Section 37 of the Act was not called upon to record a finding of not guilty - Thus, Section 37 of the Act was not to be equated with Section 248 of Criminal Procedure Code, which demanded acquittal on finding not guilty - Furthermore, Case Diary did not show compliance of Section 42(2) of the Act - Moreover, Applicant was admitted to interim bail for non-production of case diary despite repeated opportunities having been granted - Similarly, after being produced same, order of interim bail passed earlier was made absolute -

Bail Granted.

2 Chainsingh Dhoolsingh

Vs. State of Madhya

Pradesh

Present application filed seeking bail for the Offence committed punishable under Section 37 of the NDPS Act.

Court dismissed the bail application and held that evidences on record do not lead to Court's,

Bail denied.

MANU/MP/0257/1991


Coram:

K.K. Verma, J.

satisfaction that applicant was not guilty of offence as required in section 37(1)(b) of NDPS Act.

3 Ramchandra Jagdish Vijaywargiya

Vs. State of Madhya

Pradesh


MANU/MP/0177/1994

Coram:

J.G. Chitre, J.

Applicant, being charged for committing offences punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, prayed for bail - Hence, this Application

Court dismissed the bail application and held that Court at time of deciding bail application, did not conduct trial, but considered that prima facie case was made out against such Accused - However, long detention of Accused could not make Appellant entitled to earn bail on that count

Bail denied. Commercial quantity of drugs was involved.

4 Babulal and Ors. Vs.

Union of India (UOI)

MANU/MP/0410/1995


Coram:

J.G. Chitre, J.

Petitioner filed this bail application seeking his release on the ground of non compliance of section 50 of NDPS Act.

Court allowed the bail application and held that Such infirmity in the investigation will have to be given due weightage and that will have to be given due importance while assessing the entitlement of the applicant accused for the bail so far as present bail application is concerned.

Bail granted.

5 Jinat Bi (Smt.) Vs.

State of M.P.

MANU/MP/0795/1996


Coram:

J.G. Chitre, J.

Bail application - Section 437 of Code of Criminal Procedure, 1973(Cr.P.C) and Section 37 of the NDPS Act. Applicant was arrested by the raiding party and she has been put to face the prosecution - Hence, present bail application

Court allowed the bail application and held that the investigation done by the investigating agency itself allowed the Court to have a reasonable belief that accused was not 'guilty of any offence' punishable under provisions of NDPS Act It is to be noted that Section 37 provides for bail to accused - Had it

Bail Granted.

been the intention of legislature to deny the right of bail to accused, such provision would not have been made in the Act- It is not a case of the prosecution that if the applicant is released on bail, she would commit the offence punishable under NDPS Act or she would abscond or she is hardened criminal.

6 Jeenatbi w/o Mohd. Sabir Vs.


MANU/MP/0443/1996


Coram:

J.G. Chitre, J.

Issue in application was with regard to grant of bail. Petitioner filed this application 437 of CrPC and 37 of NDPS Act.

Court allowed the bail application and held that It is not a case of the prosecution that if the applicant is released on bail, she would commit the offence punishable under NDPS Act or she would abscond or she is hardened criminal. Thus, summing up all in the present case, I come to the conclusion that the applicant, who happens to be the wife of Sabir Ahmed, is entitled to get bail in view of provisions of Section 437, Criminal Procedure Code and Section 37, NDPS Act.

Bail granted.

7 Salim s/o Abdul Razzak and Anr.

Vs. Narcotics Control

Bureau

MANU/MP/0502/1996


Coram:

J.G. Chitre, J.

This petition filed seeking suspension of the sentence under section 389 of CrPC. The petitioner was sentenced under the NDPS Act.

Court allowed the application and held that Suffice it to say at this stage that this court finds that the prayer made by appellant Salim for suspension of sentence deserves to be considered in view of the quality and strength of prosecution

Bail Granted. Sentence suspended till pendency of appeal.

evidence which has been adduced tinted with criticism of "development".

8 Munnalal Tiwari and etc. Vs.

State of M.P.

MANU/MP/0340/1998


Coram:

S.K. Dubey and Rajeev Gupta, JJ.

The aforesaid applications under Section 439, Code of Criminal Procedure, 1973 for grant of bail to the accused persons who have been arraigned as aceused Under Section 20(b)(i) of NDPS Act.

Court rejected the bail application and held that limitation of Section 37(1)(b) of the NDPS Act are applicable while considering the application for grant of bail to a person who has been charged for an offence under Section 20(b)(i) of the NDPS Act.

Bail denied.

9 Sanjay Kumar Giri Vs.

State of M.P.

MANU/MP/0419/1999


Coram:

Dipak Misra, J.

Present petition filed seeking bail. The petitioner is accused of an offence under the NDPS Act.

Court dismissed the bail application and held that In the case at hand there is allegation that 115 grams of 'Ganja' was recovered from the custody of the petitioner. Keeping in view the material collected against him it cannot be held that there are reasonable grounds for believing that he is not guilty of such an offence. The contention relating to non-compliance of the mandatory provisions and other discrepancies are to be thrashed out during the trial.

Bail denied.

10 Central Bureau of Narcotics

Vs. Devisingh

MANU/MP/0146/2004


Coram:

S.L. Kochar, J.

Petitioner filed revision application against the grant of anticipatory bail to the respondent-Devisingh vide order dated 9-9-2003 by the learned Special Judge (under NDPS Act), Ratlam and another against grant of regular bail on 23-9-2003 by the same Court.

Court rejected the revision application and held that there is no possibility of repetition of the offence by the respondent (accused) in future and there are reasonable grounds for believing that he is not guilty of such offence. The

Bail upheld.

learned Trial Court, while granting bail to the applicant, has not strictly observed these ingredients in the order but on over all factual scenario of the present case, this Court is of the opinion that since the respondent/accused was granted a licence for cultivation of crop of opium and he was available during the course of enquiry and investigation and also gave his statement under Section 67 of the Act, merely because he cultivated the crop on some other land and that too of his own, he may not be debarred from getting benefit of bail and if bail is granted, now after lapse of long period and during this period there is no allegation for commission of breach of condition of order, no case exists for cancellation of his bail.

11 Chen Singh Vs.

Union of India

MANU/MP/0298/2010


Coram:

N.K. Mody, J.

This is a second bail application filed under Section 439, Code of Criminal Procedure for grant of bail for the offence alleged to have been committed under Section 8/18, 29 of NDPS Act in connection with Crime No. 1/2007 registered at P.S.C.B.N., Garoth, Distt. Mandsaur.

Court allowed the bail application and held that n the present case, the quantity of Opium which has been seized from the co-accused Narsingh is 6 kg. and as per FSL report morphine found to be 2.77%, thus the actual quantity of contraband article comes 120 grams which is more than

Bail granted. Small quantity of drug was involved.

small but less than commercial quantity. Petitioner is in jail w.e.f. 21-2-07. Co-accused Narsingh has already been bailed out. As per case of prosecution also nothing has been recovered from the Petitioner. Since the contraband article which was seized is less than commercial quantity, therefore, bar of Section 37 of the Act does not come in play as it applies only in those cases where the quantity of contraband article is in commercial quantity. Apart from this, there is nothing on record on the basis of which it can be said that the Petitioner is likely to repeat the offence while on bail.

12 Chand Khan Vs.


MANU/MP/0187/2010


Coram:

J.K. Maheshwari, J.

This is first bail petition under section 439 of Cr.P.C. The applicant is in custody with effect from 26-3-09 in connection with Crime No. 192/09, registered at Police Station, City Kotwali, Mandsaur for the offence punishable under section8/15 of the NDPS Act.

Court allowed the bail application held that prima facie it was of the opinion that by brushing aside the bar of section 37 of the NDPS Act the applicant deserves to be enlarged on bail.

Bail granted.

13 Prabhulal Vs.

C.B.N. Garoth

MANU/MP/0317/2011


Coram:

Mr. Justice I.S. Shrivastava

This order is for the disposal of the first bail application filed under Section 439 of Code of Criminal Procedure by the applicant Prabhulal. The applicant is involved in Crime No. 02/2010 of Police Station- CBN Garoth, District- Mandsaur registered under Sections 8/18(b) and 8/29 of the NDPS Act.

Court dismissed the bail application and held that dmissibility of the statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act is not to be considered at the time of consideration of

Bail denied. Commercial quantity of drug was also involved.

bail. Therefore, there are no grounds for the satisfaction of the Court under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act. Hence, the Appellant Prabhulal cannot be enlarged on bail. Accordingly, this bail application is dismissed.

THE MADRAS HIGH COURT


Remark.

1 Assistant Collector of Central Excise

Vs. Paul M.A. Anthony

MANU/TN/0243/1990


Coram:

M.S. Janarthanam, J.

The respondent, a Sri Lankan, was apprehended at Trichy airport where he was to board a flight for Colombo, and a search of his baggage produced 221 grams of brown sugar concealed in lamps. He was remanded to judicial custody, following which he filed a petition in the Sessions Court of Trichy for grant of bail. The II Additional Sessions Judge, on the sole ground that the respondent had been detained in prison for over a month, granted bail. The present petition is for cancellation of bail, of which the respondent had not been able to avail because he could not produce the requisite sureties as ordered.

Court cancelled the bail so granted and held that provisions for grant of bail for an offence under section 37 of the NDPS Act are stringent. The order granting bail did not take into consideration the gravity of the offence, nor the possibility of its being repeated by the accused when let out on bail, nor the ease with which the accused could have absconded. It was an improper exercise of judicial discretion to grant bail when prima facie there was enough material to indicate that the accused was guilty of a serious offence.

Bail cancelled.

2 Rukumani Devi Balasingam

Vs. Union of India

MANU/TN/0131/1991


Coram:

M.S. Janarthanam and P.K. Misra, JJ.

The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the

Court quashed the detention order and held that the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an

Detention order quashed. Petitioner set at liberty.

possession, transportation and concealment of Narcotic Drugs.

offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendible.

3 Intelligence Officer, Narcotic Control

Bureau Vs.

C. Govindasamy

MANU/TN/0643/1993


Coram:

N. Arumugam, J.

Petitioner filed present application seeking cancellation of bail granted to the respondent.

Court cancelled the bail and held that offences falling under various Sections of Act were of a special category to be dealt with stringent punishment and made with view to regulate trafficking of narcotic drugs which was continuing menace to entire civilized society of world and that was reason why stringent punishment was provided by legislature - Scope of Section 37 of Act curtails power

Bail cancelled.

of High Court under Section 439 of Cr PC - Respondents were clearly lander in rigour of Section 37 of Act and impugned Orders passed by Sessions Judge were clearly illegal and erroneous, vitiated with every impropriety and for said reasons.

4 State by Intelligence Officer, Narcotics

Control Bureau, South Zone, Madras

Vs. P. Raja Singh

MANU/TN/0650/1993


Coram:

N. Arumugam, J.

The Intelligence Officer, Narcotics Control Bureau, South Zone, Madras has preferred this petition under S.439 read with S.482 of the Code of Criminal Procedure for cancellation of the order passed by the learned Special Judge designated under the NDPS Act Madras and Chengalpattu made in Criminal M.P. No. 452 of 1993 dated 10.11.1993.

Court dismissed the application and upheld the bail so granted and held that Passing of impugned Order by Special Judge in granting bail to Respondent in compliance with conditions adumbrated in Section 37 of Act did not vitiate with any illegality

Bail upheld.

5 Abdul Nazeer Vs.

Respondent: State

MANU/TN/0117/1994


Coram:

N. Arumugam, J.

Petitioner found in possession of contraband goods. demanded release on bail as respondent failed to complete investigation and to lay final report within maximum period of 90 days as contemplated under Section 167(2) CrPC.

Court dismissed the bail application and held that it was not the fit case to grant bail.

Bail denied.

6 Arul and another Vs.

Inspector of Police and others

MANU/TN/0123/1994


Coram:

Thangamani, J.

The petitioners are charged under section 21(b) of NDPS Act for having been found in possession of 2 grams and 30 grams respectively of heroin powder. They seek bail under proviso (a)(i) to Section 167(2) of Cr.P.C. on the ground that no charge sheet has yet been filed even though they are in custody for more than 90 days. They also plead that the delay in sending the property to Court entitles them to be

Court dismissed the bail application and held that Act enacted with view to make stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances - when there is special enactment in force power under Code should be subject to such special

Bail denied.

released on bail. enactment - power to grant bail subject to conditions mentioned in Section 37 - no materials placed before Court to believe that petitioners were not guilty of offence or were not likely to commit offence - requirement of Section 37 not complied with.

7 Arul and Dominic Vs.

Inspector of Police, Madras

MANU/TN/0365/1994


Coram:

Thangamani, J.

The petitioners are charged under Section 21(b) of N.D.P.S. Act for having been found in possession of 2 grams and 30 grams respectively of heroin powder. They seek bail under proviso (a)(i) to Section 167(2) of Cr.P.C. on the ground that no charge-sheet has yet been filed even though they are in custody for more than 90 days. They also plead that the delay in sending the property to Court entitles them to be released on bail.

Court dismissed the bail application and held that conditions in Section 37 of the N.D.P.S. Act had to be complied with before releasing an Accused on bail even after expiry of 90 days - However, there was no materials had been placed before Court to satisfied that there were reasonable grounds for believing that Petitioners were not guilty of offences alleged against them and Petitioners were not likely to commit any offence while on bail and hence requirements of Section 37(1)(b)(ii) of the N.D.P.S. Act were not complied with.

Bail denied.

8 P.T. Joseph Vs.

State

MANU/TN/0667/1999


Petition filed seeking bail. Respondent conducted investigation and arrested Petitioner and others for offence of taken of consignment of leather jackets through Flight which contained 382.043 Kgs. of Mandrax

Court dismissed the bail application and held that investigation was over and charge-sheet had been filed - Further, mere fact that

Bail denied.

Coram: B. Akbar Basha Kadiri,

J.

tablets which was psychotropic substance and 14.618 Kgs. of white powder - Hence, this Petition - Whether, Petitioners was entitled for bail

Respondent had filed final report by itself would not cloth Petitioners with right to seek bail - However, Petitioners had been served with charge-sheet would indicate prima facie case against Petitioners - Moreover, statements made by Petitioners under Section 67 of the N.D.P.S. Act, 1985 showed that each one was very much involved in offence - Thus, on basis of statements, according to Respondent, prima facie a suspicion had arisen against Accused to frame charges against them .

9 M.S.M. Uwize Vs.

State

MANU/TN/9060/2006


Coram:

T.V. Masilamani, J.

The petitioner is the accused in C.C. No. 191 of 2002 on the file of the Principal Special Judge, Special Court under N.D.P.S. Act, Chennai and he was charged for the offences under Section 8(c) r/w Sections 21, 23 and 29 of NDPS Act in crime F. No. 48/1/7/2001 on the file of the respondent for the alleged possession of 308 grams of Heroin. Since he was arrested on 15.12.2001 for the said offences, he came forward with the petition for bail earlier in Crl. O.P. No. 13 503 of 2005 and the same was dismissed by this Court on 27.6.2005. This petition is filed by him for bail on the ground of change in the circumstances as narrated in the petition.

Court dismissed the bail application and held that ontraband seized from Petitioner contained diacetyl morphine - Thus, total quantity 308.5 grams was whole - Hence, absence of percentage of quantity of heroin contained in seized drug was not necessary so as to render finding in Application for bail - Thus, absence of quantity analysis in Chemical Examiner's report and conversely presence of diacetyl morphine (Heroin) was


sufficient to serve purpose in so far as bail Application was concerned.

10 Paramananthan Yoganatham

Vs. Intelligence Officer,

MANU/TN/2081/2008


Coram:

Muttaci jeyapaul, J.

The petition is filed seeking suspension of sentence and also grant of bail. The petitioner was convicted and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default to undergo six months rigorous imprisonment for officer's punishable under sections 29, 8(c) read with 21(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Court dismissed the petition and held that Petitioner could not demonstrate that there was no material available on record to find him guilty - In fact, trial Court had meticulously analysed materials on record and had returned a finding that Petitioner committed an offence punishable under Sections 29, 8(c) read with 21(c) and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 - Reason that Petitioner had been in custody for past five years and ten months cannot be a ground for suspending sentence and granting bail.

Bail denied.

11 Palani Vs.

State rep. by The Inspector of Police

MANU/TN/1043/2008


Coram:

D. Murugesan and Meenakshi Sundaram Sathyanarayanan, JJ.

Petitioner was accused of offences under Section 8(c) r/w. 20(b)(ii)(C) and Section 25 of Narcotics Drug and Psychotropic Substance Act, 1985 - Petition filed for seeking bail.

Court dismissed the bail application an held that according to facts petitioner is prima facie guilty of offences under aforesaid Sections of Act - Further he failed to satisfy Court that he would not commit crime while on bail.

Bail denied.

12 Tharmarasa Satheesan Vs.

Intelligence Officer, Narcotic Control

Bureau

MANU/TN/4982/2011

The petitioner, who has been arrayed as A-3 out of four accused including one juvenile accused, has been convicted by the learned Principal Special Judge under EC &

Court allowed the petition. It is seen that the appeal is related only to the year 2011 and as such, it is not likely to be taken

Sentence suspended. Released on bail.


Coram:

K.N. Basha, J.

N.D.P.S. Act. Chennai by the judgment dated 27.12.2010 made in C.C.No. 119 of 2005 for the offence under Sections 8(c) read with 29, 21(c), 28 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act') and sentenced to undergo rigorous imprisonment for 10 years with a fine of? I lakh for each learned Senior Counsel that the learned Trial Judge by placing reliance on the confession, Exhibit P-40, said to have been recorded from A-3, erroneously held offence and in default to undergo rigorous imprisonment for 6 months for each offence, has come forward with this petition, seeking for the relief of suspension of sentence.

up for final hearing in the near future. Under such circumstance, this Court is of the considered view that the petitioner is entitled to the relief of suspension of sentence.

THE ORISSA HIGH COURT


Remark.

1 State Vs.

Surendranath Mohanty

MANU/OR/0313/1990


Coram: Dr. Arijit Pasayat, J.

The State has prayed for cancellation of bail granted to the opposite party on the ground that bail was granted on mistaken statement made by the counsel for the State. This case is a classic example as to how unsavory circumstances are created on account of submissions made by the State's counsel without proper application of mind and/or without proper instructions.

Court cancelled the bail granted to the respondent and held that unless Court is satisfied that there are reasonable grounds that accused is not guilty of offence-bail cannot be granted.

Bail cancelled.

2 Kokila Bagha Vs.

State

MANU/OR/0281/1990


Coram: S.C. Mohapatra, J.

This is an application for bail under Section 439 of the Code of Criminal Procedure. Offence committed punishable under Sections 18, 20 and 22 of the NDPS Act.

Court allowed the bail application and held that Two of the exceptions of Section 37 to grant bail are satisfied. Under Section 437, Code of Criminal Procedure she is to be normally granted bail. State of satisfaction that there are reasonable grounds for believing that she is not guilty of the offences has not yet come since investigation is in progress. Husband is absconding. In such circumstances, though bail is not to be granted, I am inclined to hold that Petitioner should be released on bail for two months only so that she can make arrangements for defending herself

Bail Granted.

if charge-sheet is filed.

3 Soodha Somana and Anr. Vs.

State

MANU/OR/0213/1990



The petitioners assail the order for cancellation of bail passed by the learned Sessions Judge, Koraput, Jaypore. Bail had been granted by the learned Sub-divisional Judicial Magistrate, Jaypore.

Court dismissed the revision application and held that grant of bail by Sub-divisional judicial Magistrate was improper. He did not look into section 37 of the NDPS Act.

Bail denied.

4 Sanatan Sahu Vs.

State of Orissa

MANU/OR/0399/1991



Petitioner assails the order dated 16-1-1991 passed by the learned Sessions Judge, Koraput, Jeypore, cancelling the bail granted by the learned Sub-divisional Judicial Magistrate, Jeypore. Petition filed under proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973

Court rejected the revision application and held that there was nothing wrong in the consideration of merits of case vis-a-vis Section 37 of Act while dealing with a case for cancellation of bail - Merely because an accused after release on bail had not misused his liberty cannot confer any right on him to continue on bail

Bail denied

5 Rajendra Panda and Anr. etc. Vs.

State of Orissa

MANU/OR/0400/1991



Applications for bail - Application filed under 20(b)(i) and 37(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985.

Court rejected the bail application and held that Court found that courts below had considered facts involved in their proper perspective, and had refused bail - There was no scope for interference with orders passed.

Bail denied.

6 Satyabrata @ Sarat Mallia and Anr.

Vs. State

MANU/OR/0244/1991


Coram:

K.C. Jagadeb Roy, J.

These two petitioners have preferred this application for bail Under Section 439 Cr.P.C. The petitioners were alleged to commit offence under section 18 and 21 of NDPS Act. Lower Court rejected their bail application.

Court allowed the bail application and held that n the present case, the State has not produced any material excepting the statement of the petitioners before the police, that they indulged in transaction of

Bail granted.

selling drugs which statement itself is not an admissible evidence in the case upon which the prosecution can succeed without other materials. In view of violation of the statutory safeguards contained in Sec, 50(1) of the Act and in the absence of any other independent material to show that these petitioners were in conscious possession of the incriminating substance since the scooter which they were using was a borrowed one and belonged to someone else which is born out from the Registration Book of the vehicle, the xerox copy of which is submitted to the Court and in view of the fact that the Magistrate to whom they were referred, has kept the petitioners in custody for more than 15 days in contravention of Section 36-A(1)(b) of the Act and there is no material before me to hold that they may likely to cause any such offence while on bail, I allow each of the petitioners to be released on bail.

7 Bidyadhar Dolai Vs.

Both these Criminal Miscellaneous Cases raise the same question

Court allowed the petitions and held that Non-

Bail granted.

The State

AND

Appellants: Ghanashyam Behera

Vs. Respondent: State of

Orissa

MANU/OR/0321/1991


Coram:

Lingaraj Rath, J.

of law as to whether non-compliance with the provisions of NDPS Act relating to search and arrest ipso facto entitles the accused to be enlarged on bail, and hence are disposed of by this common judgment.

compliance with the procedure in effecting the arrest or continuing the detention is concerned, the question is not one of bail but of the invalidity of the arrest and the detention and hence the person being set free and his liberty restored on the incorporation being declared void - A petition would lie to this Court either under Section 482 Cr.P.C. invoking the inherent powers of the Court to quash the arrest and detention because of perpetration of obvious injustice or under Article 226 of the Constitution of India to issue a writ nullifying the same - Court while considering the application for bail under the Act is not called upon to record a finding of not guilty with reference to the accused - Court is called upon to see if there is reasonable ground for believing him not guilty of the offence to record its satisfaction about the same and that under the Section the Court is only to develop a belief and is not to make a finding of not guilty.

8 Antaryami Patra Vs.

State of Orissa

Question of law has been urged in this case by Mr. Dhal appearing for the petitioner

Court rejected the bail application and held that Petitioner was

Bail denied.

MANU/OR/0177/1993


Coram: G.B. Patnaik, J.

invoking the inherent jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure against the order of the Special Judge, Keonjhar, who has refused the petitioner's prayer for bail, as he is involved in a case under the NDPS Act. The said question is whether in view of Section 18 of the Juvenile Justice Act, 1986, a "juvenile" as defined in Section 2(h) of the Act is entitled to be released on bail even if he is accused of committing an offence under the N. D. P. S. Act notwithstanding the provisions of Section 37 of the said Act.

involved in a case under N. D. P. S. Act. Therefore, provisions of Section 37 of NDPS Act must be complied with even in case of a juvenile delinquent accused of an offence under NDPS Act - Further, release of an accused involved in commission of an offence under the NDPS Act would defeat ends of justice and drug traffickers would pursue their objective of drug trafficking through such juvenile delinquents

9 State of Orissa Vs.

Ainul Haque

MANU/OR/0198/1993


Coram: B.L. Hansaria, C.J.

Petition filed challenging the bail granted to the respondent who is accused of crime committed under the NDPS Act.

Court cancelled the bail and held that allegation against Accused was that, more than 15 grams of brown sugar was found with Accused - Thus, quantity itself spoke about enormity of offence.

Bail cancelled.

10 Hadiani Dei Vs.

State of Orissa and Ors.

MANU/OR/0260/1993


Coram: B.L. Hansaria, C.J. and

R.K. Patra, J.

whether a person who is accused of an offence under the Narcotic Drugs and Psychotropic Substances Act, hereinafter "the Act", and has been released on bail during the state of investigation is required to be remanded to jail custody on cognizance of the offence being taken by the Sessions Judge because of non-fulfilment of the requirements mentioned in Section 37(b)(ii) of the Act, namely, reasonable ground for believing that the person

Court allowed the bail application and held that Clause (b)(ii) of Section 37 of Act could be applicable when question of release on bail was being considered - Moreover, normal criminal law could spring into action and bail could be open to be cancelled only on grounds on which bail could be otherwise cancelled -

Bail granted.

concerned is no, guilty of the offence and he is not likely to commit any offence while on bail.

Therefore, order of Sessions Judge was quashed - Thus, Petitioner would continue on her previous bail unless same was cancelled on any of grounds or any ground akin to them.

11 Dukhishyam Sahu Vs.

State of Orissa

MANU/OR/0119/1993



Whether a person accused of having made infraction of the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 who had been released on bail during stage of investigation was required to be remanded to jail custody on cognizance of the offence being taken by Seamed Sessions Judge, because the requirements under Section 37(b)(ii) of the Act were not kept in view while bail was granted.

Court allowed the petition and held that order of lower Court directing cancellation under similar circumstances was vacated and it was directed that Petitioner would continue on previous bail unless the same was cancelled on any of the grounds indicated in the case

Bail granted.

12 Jayakrishna Bag and Ors. Vs.

State of Orissa

MANU/OR/0158/1996


Coram: D.M. Patnaik, J.

Petitioner filed Petition for grant of bail for alleged offences under NDPS Act - Hence, this Petition - Whether, Petitioner was entitled for grant of bail

Court dismissed the bail petition and held that it might be clear that Section 37 of Act did not prevent person from being released on bail if he could show at any stage either during investigation or trial that he was not guilty - However, it was because of stringent provision and peculiar provision with regard to discharging onus of proving 'not guilty' during investigation, it would be improper for Courts to grant bail by resorting to exercise of judicial discretion

Bail denied.

as was done in case of offences under IPC or other Act - Further, even assuming this argument was accepted, then also because of very serious nature of offence, Court should have not exercise discretion way it was so done while dealing with matters of bail under Section 439, CrPC - Therefore, Section 37 of Act would be applicable to given case at all stages of proceeding including stage of investigation as well as during pendency of case for trial

13 Umakanta Patel Vs.

State of Orissa

MANU/OR/0301/1996


Coram: Ratnakar Dash, J.

The petitioner, accused of an offence punishable under Section 20(b) of the NDPS Act for his allegedly being in possession of Ganja weighing 650 grams, has approached this Court under Section 439, Cr. P. C. for his release, his application having been rejected by the Special Judge, Bhawani-patna.

Court allowed the bail application and held that Person accused of offence under Act, could approach Court for bail either during investigation or after filing of charge-sheet - Such right could not be curtailed/ abridged by any statute - Further, it was observed that certain provisions including Section 50 of Act were mandatory and non-observance thereof vitiates trial - Section 37 of Act was dealt with some limitation - And these limitations were inconsistent with corresponding provisions of Cr.P.C. - Thus,

Bail granted. Decision of special judge denying bail set-aside.

due to infraction of requirements of Section 50 of Act, Accused was entitled to be released on bail.

14 Ghanashyam Palai and Pathani Mal

Vs. State of Orissa

MANU/OR/0205/1996


Coram: P.K. Misra, J.

In these two applications for bail, common question of law relating to applicability of Section 37 of the NDPS Act arises and as such both the matters have been heard one after the other and the learned Standing Counsel has also been heard in both the cases.

Court allowed the bail application and held that In the present cases, the sentence which has been imposed in each case is less than 5 years. While applying the provision of Section 37 of the Act the appellate Court has to consider the punishment which has already been imposed and not "punishment which could have been imposed". In other words, while applying the provision of Section 37 of the Act, the expression, no person accused of an offence punishable with a term of imprisonment for 5 years or more, should necessarily be interpreted to mean, no person convicted of an offence and sentenced to a term of imprisonment for 5 years or more. Therefore, in all such case where the actual punishment inflicted by the trial Court in imprisonment for a term less than 5 years, the embargo imposed under Section 37 of the Act would be inapplicable. If

Bail granted.

such an interpretation is not given, startling results may follow. Experience shows that in many cases keeping in view the nature of the offence and the quantum of contraband articles seized, the actual punishment inflicted is for a term much less than 5 years and the rigours of Section 37 of the Act are to be applied to such cases, in majority of the cases, the period of imprisonment inflicted by the trial Court would be over by the time the appeals are taken up for hearing, considering the alarming back-log of cases pending in the High Court.

15 Balbir Singh Vs.

State of Orissa

MANU/OR/0309/1996



This was an application under Section 439 of the Code of Criminal Procedure for releasing the petitioner on bail. The petitioner is accused of having committed offences under Section 20(b) of the NDPS Act and Section 47(a) of the Bihar & Orissa Excise Act.

Court allowed the bail application and held that there was no material produced indicating that Petitioner was earlier involved in any offence in which case it could have been assumed that he was likely to commit any offence in future if released on bail - It was no doubt true that Petitioner allegedly escaped while being intercepted by police and was apprehended after lapse of about four months or so - However, from

Bail granted.

aforesaid facts - Petitioner was likely to commit any offence while on bail, as there was no record of any criminal conduct on part of Petitioner on any earlier occasion.

16 Prasanjeet Basu Mallick Vs.

State of Orissa

MANU/OR/0331/1996



The petitioner is in jail custody since 7-5-1992 on the allegation that he has committed offence Under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "N.D.P.S. Act"). It is alleged that the petitioner along with another accused person was found in possession of brown sugar. This is an application under Section 459 of the Code of Criminal Procedure.

Court allowed the bail application and held that in peculiar circumstances of this case, as indicated hereunder, this Court was inclined to release Petitioner on bail - Petitioner was a young man and as per prosecution case he had become a drug-addict - It was reasonable to assume that during this period of more than four years in jail, he must have kicked his bad habit - It was submitted that he was sole bread earner of his family - Though charge sheet had not been filed in stipulated period, Petitioner could not avail of said right, possibly because there was a lot of doubt regarding applicability of provision of Section 167(2), Proviso, of the Cr. P.C. to accused persons alleged to have committed offences under the N.D.P.S. Act - Thereafter, by time Petitioner thought of availing said right, subsequent

Bail Granted.

decision of Supreme Court was in field - Co-accused person was released on bail by applying provision of Section 167(2), proviso, of the Cr. P.C obviously because he had availed of opportunity and filed application at proper time - Keeping in view aforesaid special circumstances and liberal spirit of decision, this Court directed that Petitioner may be released on bail.

17 Madan Mohan Bhanja Deo Vs.

Union of India (UOI)

MANU/OR/0329/1998


Coram: P.K. Tripathy, J.

This relates to an application for hail prayed under Section 439 of the Code of Criminal Procedure, 1973. Keeping in view the fact that petitioner is involved for an offence under Section 20(b)(i) and Section 21 of the NDPS Act the bail application has to be read as an application under Section 439 of the Code read with Section 37(1) of the Act.

Court rejected the bail application and held that According to Section 37, every offence punishable under the Act are cognizable offences and no person, accused of an offence, punishable for a term of imprisonment for five years or more shall be released on bail or on his own bond if there exists a prima facie case and unless the Court is satisfied that if released on bail the offender/accused shall not repeat commission of same type of offences. This restriction is notwithstanding anything contained in the Code, relating to bail. The provision of law being so stringent

Bail denied.

the matter relating to bail cannot and should not be dealt with lightly and casually. Since a prima facie case is made out against the petitioner prayer for bail is rejected.

18 Srikanta Dash Vs.

State of Orissa

MANU/OR/0005/2002


Coram: M. Papanna, J.

The learned Judge, Special Court, Dhenkanal having refused the petitioner's prayer for bail in Special Case No. 4 of 2001 arising out of Hindol P.S. Case No. 36 of 2001 under Section 20(a) of the Narcotic Drugs and Psychotropic substances Act, 1985 (in short N.D.P.S. Act), he has approached this Court under Section 439 Cr.P.C. seeking his release on bail.

Court rejected the bail application and held that -For pre-trial release of the accused from jail custody cannot be considered Under Section 439 of Cr. P.C. ignoring the mandatory provisions of Section 37 of NDPS Act.

Bail granted.

19 Binod Kumar Gupta Vs.

State of Orissa

MANU/OR/0012/2002



his is an application under Section 439 Cr.P.C. filed by the petitioner seeking pretrial bail in Plant Site Rourkela P. S. Case No. 30/2001 corresponding to G. R. Case No.121/2001 now sub-judice before the learned Addl. Sessions Judge, Rourkela.

Court dismissed the bail application and held that bar in releasing Petitioner on bail even if he had incarcerated for about year before being found guilty of offence with which he had been charged by ignoring mandatory requirements of Section 37 of the Act and condition governing grant of bail under Criminal Procedure Code.

Bail denied.

20 Surendra Patra Vs.

State of Orissa

MANU/OR/0584/2002



The petitioner approached this Court under Section 439 of the Code of Criminal Procedure seeking pre-trial bail in connection with Badbazar P.S. Case No. 34/ 2000 corresponding to G.R. Case No. 16/ 2000 now sub-judice before the learned Sessions Judge-

Court dismissed the bail application and held that in view of Section 37(1)(a)(b) of the N.D.P.S. Act and also in the light of the present position of law is discussed above. I hold that there is

Bail denied.

cum-Special Judge, Berhampur, his prayer for bail having been refused by the aforesaid Court.

no reasonable ground for believing that the accused is not guilty of the alleged offence under Section 18/20(b) of the N.D.P.S. Act, 1985, and for that reason, I cannot also hold that the petitioner will not commit any offence in future if released on bail for which the prayer for bail made by the petitioner being not entertainable is hereby refused but, however, the learned trial Judge is hereby directed to hear the proceeding expeditiously so as to dispose of the same on its own merit on the basis of legal evidence within six months from the date of communication of the order without being influenced by any observation made in this order.

THE PATNA HIGH COURT


Remark.

1 Tribhuwan Kharwar Vs.

State of Bihar

MANU/BH/0166/1993


Coram: S.K. Chattopadhyay , J.

Question in this case is to be decided as to whether the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act, are applicable to the High Court while exercising its power under Section 439 of the CrPC.

Court dismissed the bail application and held that infraction of section 50 and 42(1) is not material while considering the bail application.

Bail denied.

2 Union of India (UOI) Vs.

State of Bihar and Anr.

MANU/BH/0212/1994


Coram: Loknath Prasad , J.

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 Sessions Judge, West Chumparan in O.C. Case No. 3/93 through which opp. party No. 2 Noor Mohammad Mian was granted bail.

Court allowed the petition seeking cancellation of bail and held that present case was under Narcotic Drugs and Psychotropic Substances Act and opp. party No. 2 appeared to be professional smuggler - Court has no power to grant bail in arbitrary manner in view of Section 37 of the said Act - If there was delay of about three months in preferring petition for cancellation, then also it could not be said that present petition was not maintainable due to lapse of time when admittedly entire order granting bail to opp. party No. 2 was arbitrary and illegal exercise of jurisdiction - Impugned order set aside.

Bail cancelled. Order of the session judge granting bail set-aside.

3 Kamlesh Kumar and Ors. Vs.

State of Bihar

MANU/BH/0148/1994

These two criminal miscellaneous applications have been referred to Division Bench for consideration. The questions that arises consideration are as to

Court allowed the bail application and held that If two possible and reasonable interpretation can be put upon a penal

Bail granted.


Coram: R.N. Sahay and P.K.

Deb , JJ.

whether in spite of the limitation imposed under Section 37(1)(b) of the NDPS Act with regard to grant of bail an accused who is booked under Section 20 of the Act is entitled to bail if the stringent measures and formalities incorporated in the Act for arrest and seizure is not literally complied.

provision, the Court must lean towards that construction which exempts the subject from penalty rather than which imposes penalty. It is not competent for the court to stretch the meaning of art expression used by Legislature in order to carry out the intention of the Legislature: Tolaram v. State of Bombay A.I.R. 1954 SC 96.

4 Bilas Singh Vs.

State of Bihar

MANU/BH/0137/1994


Coram: S.K. Chattopadhyay , J.

Petitioner filed bail application under section 439 of the CrpC for the offence committed by under section 16 of the NDPS Act.

Court dismissed the bail application and held that as we have notice that the police had gone for investigation in connection with a case relating to offence under the Indian Penal Code and during such investigation when they reached the house of the petitioner they found that 1 Kg. Ganja was kept in his house. In such view of the matter, in my opinion, it cannot be said that the police had prior information before the investigation that ganja was kept in the house of the petitioner. On these facts the search and seizure cannot be held to be illegal in view of the decisions of the Supreme Court in State of Punjab v. Balbir Singh.

Bail denied.

5 Satyendra Sah @ Churabhu Sah

Vs. State of Bihar

MANU/BH/0121/1996


Petition filed for bail at the pre trial stage. The petitioner was booked under 22, 27 and 32 of NDPS Act.

Court allowed bail application and held In the instant case, the petitioner is a petty businessman. There is no material on the record to suggest his association with the

Bail Granted.

Coram: N.K. Sinha , J.

persons who have the reputation of indulging an activity which constitutes offence under the NDPS Act. There is nothing to suggest that prior to his arrest in the case in question, he had been ever suspended or made an accused for committing any offence under the Act. Since the recovery was made in contravention of mandatory provisions of Section 50, the petitioner cannot be, prima facie, held responsible for unlawful possession of the heroin and in such a case, this Court has no hesitation in recording the satisfaction that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.

6 Dipak Kumar Singh @ Dipak Kumar

Vs. The State of Bihar

MANU/BH/0238/2007


Coram:

Dharnidhar Jha , J.

The petitioner was found in possession of 1 pond of heroin as per the first information report as also the seizure memo. The allegation is that police, having learnt that some persons were likely to deal in heroin in Gandhi Maidan, had put itself on wait and then the seizure was made from the petitioner and another accused Amit Kumar. Hence this bail application.

Court rejected the bail application and held that Power of Court to release an accused under Section 37 is dependent on a finding to be recorded by it that accused had not committed such offence and that there was no likelihood that he will not commit such offence while on bail-These two findings are sine qua non for exercising jurisdiction under Section 37.

Bail denied.

THE PUNJAB & HARYANA HIGH COURT

S. No. Name Of Case Issue Before The Court

Decision Of The Court Remark.

1 Ram Sarup alias Sarup Chand

Vs. State of Haryana

MANU/PH/0658/1992


Coram:

A.S. Nehra, J.

This is a petition filed by the petitioner under Section 439, Code of Criminal Procedure, for grant of bail during the pendency of the trial on First Information Report No. 130 dated 15-4-1992 registered at Police Station, Samalkha, under Section 17 of NDPS Act.

Court dismissed the bail application and held that powers of High Court to grant bail under Section 439 of Cr.PC are subject to limitations contained in amended Section 37 of Act and restrictions placed on power of Court under said section are applicable to High Court also in matter of granting bail - In this bail application, there is no reasonable ground for believing that petitioner is not guilty of offence under Section 17 of Act - There is also no reasonable ground for believing that petitioner is not likely to commit such offence while on bail .

Bail denied.

2 Rafiq Mohd. and Anr. Vs.

State of Punjab

MANU/PH/0686/1994


Coram: V.K. Bali, J.

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.

Court dismissed the bail application and held that provisions contained in Section 37 of Act, which are in negative terms, straight way limit the scope of applicability of provisions of Cr.P.C. regarding bail - Thus, it cannot be held that High Court has power to grant bail under Section 439 of Cr.P.C. - Such powers are, of course, available but same are subject to limitations prescribed under Section 37 of Act - Mere fact that challan has not been put in within statutory period as envisaged under provisions of Cr.P.C., no right accrues to petitioner to ask for bail as matter of fact.

Bail denied.

3 Natha Singh Vs.

State of Punjab

MANU/PH/0714/1994


Coram: Sarojeni Seksena, J.

Offence committed punishable under Section 15/61 of NDPS Act. Petitioner filed application for bail.

Court rejected the bail application and held that t is evident that the provisions of Section 167(2) proviso, Cr.P.C. do not override the provisions of Section 37 of the Act. The State has opposed the bail application and it has shown that there is a prima facie case under Section 18 of the Act against

Bail denied.

the accused-petitioner.

4 Mukhtiar Singh Vs.

State of Punjab

MANU/PH/0871/1995


Coram: Sarojeni Seksena, J.

Petitioner filed bail application. He was accused for offence punishable under the NDPS Act.

Court dismissed the bail application and held that If the intention of the legislature would have been that this provision should be followed even when a vehicle is to be searched, which is alleged to be in possession of the accused, then the phraseology of this section would have been more comprehensive, inclusive of vehicle, conveyance etc. In my considered view, if the accused is in possession of a contraband article, may be on his body, may be in anything which he is carrying on his body, then the provisions of Section 50 are required to be followed, but if the contraband is found in a vehicle which is being driven by an accused or wherein the accused persons are sitting, then the provisions of Section 50 of the Act are not to be adhered to. Further, it is a case of chance recovery. On both these counts, I find that if the provisions of section are not adhered to, that will not entitle the petitioner to be enlarged on bail.

Bail denied.

5 Balwinder Singh Vs.

State of Punjab

MANU/PH/0935/1997


Coram: R.L. Anand, J.

Present bail application filed under Section 439 of Cr.PC for granting bail against registrerd case under Section 22 and 37 of Act

Court dismissed the bail application and held that ground of bail not be made out in view of stringent provisions of Section 37 of Act - Therefore, bail application is declined

Bail denied.

6 Gopi Ram Vs.

State of Haryana

MANU/PH/1008/1998


Coram: M.L. Singhal, J.

Offence under Section 20 of N.D.P.S. Act--Recovery of 1 Kg. 600 gms. Of charas--Allegations of non-compliance with Section 50. Application for bail.

Court dismissed the bail application and held that Section 37 of NDPS Act, 1985, stands like a rock against the accused so far as grant of bail is concerned. Court can allow bail only if it has reasonable feeling that the accused may not have committed the offence and further if the accused is allowed bail, he will not commit such offence.

Bail denied.

7 Sukha Singh Vs.

State of Punjab

MANU/PH/1012/1998



Petitioner prayed for bail. He was found in possession of 30 kilograms of poppy husk was recovered from the possession of the Petitioner on July 12. 1998.

Court allowed the bail application and held Recovery not witnessed by any independent witness--Nor by Gazetted Officer or Magistrate--Non- compliance with Section 50.

Bail granted.

8 Mohinder Singh Vs.

State of Punjab

MANU/PH/0147/2001


Present petition filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) for seeking bail. Offence committed punishable under Sections 22, 61 and 85 of the NDPS Act.

Court allowed the bail application.

Bail granted.

9 Sukhbir Pal Singh Vs.

State of Punjab

MANU/PH/0119/2001


Coram: S.S. Nijjar, J.

Offence committed punishable under Sections 21, 65 and 85 of the NDPS Act. Present petition filed seeking bail.

Court allowed the bail petition and held that tt was not disputed that the Investigating Officer was also the first informant. Petitioner was earlier involved in the offence - Panchayat of the village in which the Petitioner resides, had passed a resolution - Resolution was stated that the Petitioner had been taken away by the police - Thus, prima facie, it appears that the whole case has been concocted against the Petitioner.

Bail granted.

10 Gurmeet Singh Vs.

State of Punjab

MANU/PH/0128/2001


Coram: K.S. Grewal, J.

Offence committed punishable under Sections 18 and 37 of the NDPS Act. Present petition filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) for seeking bail

Court allowed the bail petition and held that Petitioner was entitled to bail. It was directed that the Petitioner be released on bail on furnishing two sureties to the satisfaction of Magistrate - Hence, petition allowed.

Bail granted.

11 Amarjit Singh alias Pamma

Vs. State of Punjab

MANU/PH/0175/2001


Coram:

S.S. Nijjar, J.

Offence committed punishable under Section 50 of the NDPS Act 1985. Petition filed for bail.

Court allowed the bail petition and held that there was nothing placed on the record that the Petitioner was earlier involved in the offence under the NDPS Act

Bail Granted.

12 Babbar Singh Vs.

State of Punjab

Offence committed punishable under Section 67(c) of NDPS Act. Present petition filed for

Court dismissed the bail application and held that s the Petitioner was found in possession of 320 kilograms

Bail denied.

MANU/PH/0282/2001


Coram: Amar Dutt, J.

bail.

(grams ?) of opium and there being no circumstances available on the record on the basis of which a satisfaction can be recorded at the stage that the Petitioner had not committed the offence or that, if released on bail, he was not likely to commit any such offence, no ground for bail was made out.

13 Mohinder Singh Vs.

State of Punjab

MANU/PH/1402/2001



Petitioner was in custody at Central Jail under Section 18 of the NDPS Act. Present application filed for bail.

Court dismissed the bail petition and held that there was no reason to allow bail to Petitioners because of the bar created by Section 37 of the NDPS Act - So far as the merits of the case were concerned, they can be appreciated only at the trial.

Bail denied.

14 Natho Vs.

State of Punjab

MANU/PH/1225/2001


Coram: K.C. Gupta, J.

Offence committed punishable under Section 20 of NDPS Act. Petition filed seeking bail under section 439 of the CrPC.

Court allowed the bail application and held that Petitioner was not given any offer to get herself searched in the presence of a Magistrate or a Gazetted Officer but she was given the offer whether she wanted to get herself searched before the Inspector or not - There was a non- compliance of the provisions of Section 50 of NDPS Act.

Bail granted.

15 Karnail Singh @ Jattu Vs.

State of Haryana

MANU/PH/1399/2001


Coram: Nirmal Singh, J.

Recovery of 25 kilogram of poppy husk from the petitioner. Filed bail petition under section 439 of CrPC.

Court allowed the bail application and held that n view of the submissions made by the Petitioner, it was held that the Petitioner can be admitted to bail to the satisfaction of the Chief Judicial Magistrate.

Bail Granted.

16 Balkar Singh Vs.

State of Haryana

MANU/PH/1416/2001



Petition filed a bail application. He was charged for offence committed under the NDPS Act.

Court allowed the bail application and held that The authorised officer was obliged to inform the Accused of this right to afford him a proper opportunity. Its non-compliance would affect the prosecution case seriously and vitiate the trial. It was submitted that some times an officer was not a Magistrate by virtue of his designation. He was only vested with the powers of a Magistrate. He does not become clothed with the designation of a

Bail granted.

Magistrate to all intents and purposes. He should be known to the people that he was a Magistrate. A Naib Tehsildar was not viewed by the people as Magistrate. He was viewed by them as Tehsildar. Intention of the Parliament while using the word Magistrate in Section 50 of NDPS act was that he should be a gazetted officer also.

17 Chinda Singh Vs.

State of Punjab

MANU/PH/1776/2001



Offence committed punishable under section 37 of the NDPS Act. Petition filed seeking bail.

Court allowed the bail petition and held that Looking to all the facts and circumstances of the case, I think bail should be allowed to the petitioner. So, bail to him to the satisfaction of Chief Judicial Magistrate.

Bail granted.

18 Kuldeep @ Kala Vs.

State of Haryana

MANU/PH/1404/2001


Coram: K.S. Grewal, J.

Petitioner was alleged to have been found in possession of 15 Kilograms of poppy husk. He filed present application praying for bail under section 439 of CrPC.

Court allowed the bail application to the satisfaction of Chief Judicial/Duty Magistrate, Panipat.

Bail granted.

19 Tehal Singh alias Tehlu Vs.

State of Punjab

MANU/PH/1400/2001


Coram: Nirmal Singh, J.

Recovery of 25 kilogram of poppy husk from the petitioner. He filed this application seeking bail under section 439 of CrPC.

Court allowed the bail application to the satisfaction of CJM, Patiala.

Bail Granted.

20 Sikander Singh Vs.

Respondent: State of Haryana

MANU/PH/1417/2001


Coram:

K.C. Gupta, J.

Offence committed punishable under Section 15 of NDPS Act. Recovery not effected in presence of Magistrate.. Hence this petition seeking bail under section 439 of CrPC.

Court allowed the bail application and held that Keeping in view the facts and circumstances of the case and without commenting on the merits of the case, let the petitioner be admitted to bail to the satisfaction of C.J.M./Duty Magistrate, Panipat.

Bail granted.

21 Puran Singh Vs.

Respondent: State of Haryana

MANU/PH/1771/2001

Offence committed punishable under Section 18 of the NDPS Act. Petition filed under section 439 of the CrPC.

Court allowed the bail application and held that If the suspect requires to be searched in the presence of Gazetted Officer or Magistrate, he shall be searched only in that manner.

Bail Granted.



In the present case, the petitioner had given option to get himself searched in the presence of Magistrate but he was not searched in the presence of Magistrate but was searched in the presence of a Gazetted Officer, so, his search was not proper and the same is illegal and, thus, prima facie, according to the learned counsel, no case was made out. The case and without commenting on the merits of the case, let the petitioner be admitted to bail to the satisfaction lower Court.

22 Amar Chand Vs.

State of Haryana

MANU/PH/1770/2001



Offence committed punishable under Section 20 of the NDPS Act. Petition found in possession 500 gms of Charas without any permit. Hence present application for bail.

Court allowed the bail application and held that keeping in view the facts and circumstances of the case, let the petitioner be admitted to bail to the satisfaction of CJ.M. Panipat.

Bail granted.

23 Brij Lal Vs.

State of Haryana

MANU/PH/2405/2001



According to the prosecution, 30 Kgs of poppy husk was recovered from the possession of the petitioner on 14.6.2001. He was charged under the NDPS Act. Hence filed this application seeking bail.

Court allowed the bail application and held that Looking to these facts and circumstances of the case, I think bail should be allowed to the petitioner. So bail to him to the satisfaction of Chief Judicial Magistrate, Fatehabad.

Bail granted.

24 Bohar Singh Vs.

State of Punjab

MANU/PH/0468/2003


Coram: Jasbir Singh, J.

Recovery of 50 bags of Poppy Husk from the petitioner. He was charged under Sections 15/61/85 of the N.D.P.S Act and under Section 120B of the Indian Penal Code. Hence this bail application under section 439 of the CrPC.

Court allowed the bail application and held that Under these circumstances, even though the quantity of contraband allegedly recovered from the petitioner is very heavy i.e. 50 bags of poppyhusk, yet this Court feels that the petitioner is entitled to bail. The petitioner will file a specific undertaking before the Courts below that during the period of his bail, he shall not indulge himself in any other criminal activity and he will behave like a disciplined citizen. Bail is granted to the satisfaction of trial Court against heavy sureties.

Bail granted.

25 Shiv Kumar Nagpal Vs.

State of Haryana

Petitioner sought grant of regular bail in case under Sections 409/483/218 of

Court allowed the bail application and held that Object of the legislature,

Bail granted.

MANU/PH/0543/2004


Coram:

Rajive Bhalla, J.

the Indian Penal Code, 1860 (IPC) and Section 29 of the Narcotics and Psychotropic Substances Act, 1985.

while enacting the stringent provisions of Section 37 of the NDPS Act, was to prevent offenders from being granted bail easily - But the said intent expressed in Section 37 of the NDPS Act could not be construed to take away the power of Court to grant bail - "Reasonable grounds" would vary from case to case and from one accused to another - "Reasonable grounds" to hold that the Petitioner was not guilty of the offence charged - Petitioner, who was a ballistic expert, had retired from service - Petitioner was handicapped, as he had lost his fingers in a simulated explosion - Petitioner was not likely to commit another offence, while on bail - Counsel for the State had not expressed any apprehension that the Petitioner would, interfere with the trial or subvert the course of justice.

26 Balbir Singh alias Bira Vs.

State of Punjab

MANU/PH/1480/2005


Coram: Virender Singh, J.

Whether the recovery of 36 kgs of poppy husk from the petitioner pursuant to the disclosure statement made by him on 3.8.2004 would be added to the earlier recovery of 38 kgs of poppy husk allegedly shown to have been recovered from the petitioner on 17.7.2004. Petitioner filed this bail application.

Court allowed the bail application and held that I am also conscious of the embargo contained in Section 37 of the Act but keeping in view the peculiar facts of the case in which there is a gap of one month in both the recoveries, the contention raised by Mr.Sidhu as to whether it would really fall under the head 'non-commercial quantity' becomes a point for consideration, which at least entitles the petitioner for the relief of regular bail.

Bail granted.

27 Harjinder Singh @ Jinda Vs.

State of Punjab

MANU/PH/3979/2010


Coram: Ram Chand Gupta, J.

The present petition filed under Section 439 Code of Criminal Procedure is for grant of regular bail to the Petitioner in case FIR No. 36, dated 12.4.2010, under Section 22 NDPS Act.

Court dismissed the bail petition and held that In view of the aforementioned facts and in view of heavy recovery of narcotic substance from the possession of the Petitioner accused, satisfaction of this Court cannot be recorded that there are reasonable grounds for believing that Petitioner is not guilty of offence under the NDPS Act and that he is not likely to commit any

Bail denied. Commercial quantity involved.

offence while on bail as provided under Section 37 of the NDPS Act.

28 Balwinder Singh @ Bindar

Vs. State of Punjab

MANU/PH/0623/2011


Coram:

Rajan Gupta, J.

This is a petition under Section 439 Code of Criminal Procedure seeking regular bail in a case registered against the Petitioner under Sections 15/25/61/85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 at Police Station Sadar, Patiala, District Patiala, vide FIR No. 173 dated 24th March, 2010.

Court dismissed the bail application and held that In view of the commercial nature of recovery effected, Section 37 of the Act would be attracted to the present case. The Petitioner is, thus, not entitled to the concession of bail.


29 Jaswinder Singh alias Jassi Vs.

State of Punjab

MANU/PH/1405/2011


Coram: Rajan Gupta, J.

This is a petition under Section 439 Code of Criminal Procedure seeking regular bail in a case registered against the Petitioner under Sections 21, 22, 25, 29/61/85 of NDPS Act at Police Station Basti Bawa Khel, Jalandhar, vide FIR No. 42 dated 12th June, 2010.

Court dismissed the bail application and held that In view of the commercial quantity of the contraband recovered from the Petitioner, I am of the considered view that Section 37 of the NDPS Act would be attracted to the instant case. Thus, the Petitioner is not entitled to the concession of bail. The petition is hereby dismissed. It is, however, directed that the trial court shall endeavour to conclude the trial expeditiously.


30 Krishna Shah Vs.

State of Punjab

MANU/PH/3070/2011


Coram: Rakesh Kumar Jain, J.

This is a petition for regular bail in a case registered vide FIR No. 168 dated 23.6.2010, under Section 20/61/85 of the NDPS Act.

Court allowed the bail application and held that After hearing the learned counsel for the parties and taking into consideration the facts and circumstances of the case but without making any observations on the merit, the present petition is allowed and the petitioner is directed to be released on bail on his furnishing bail bonds to the satisfaction of the learned trial Court.

Bail granted.

31 Gurinder Singh Vs.

State of Punjab

MANU/PH/3215/2011



Applications filed under Section 439 of CrPC seeking bail. Accused were charged under the NDPS Act.

Court dismissed the all three bail applications and held that provisions of section 37 of NDPS Act would attract in the matter.


32 Jagjit Singh @ Jagga Vs.

State of Punjab

The petitioner has applied for bail in a case registered vide FIR No. 50 dated 10.3.2011. under

Court dismissed the bail application and held that In view of the aforesaid discussion, I do not find any

Bail denied. Commercial

MANU/PH/3632/2011



Sections 15/61/ 85 of the NDPS Act.

merit in the present bail application as the recovery is of 120 Kgs. of poppy husk (commercial quantity) from the petitioner at the spot, therefore, he is not entitled to bail in terms of Section 37 of the NDPS Act.

quantity was involved.

THE RAJASTHAN HIGH COURT

S. No. Name Of Case Issue Before the Court Decision Of The Court Remark.

1 Angrej Singh Vs.

State of Rajasthan

MANU/RH/0265/1992


Coram: Mohini Kapoor, J.

Petitioner filed this bail application. He was found in possession of Narcotic substances and charged under the NDPS Act.

Court dismissed the bail application and held that The petitioner was asked whether he wanted to go to the nearest Gazetted Officer or Magistrate but he did not so desire. The quantity recovered is excessive On the basis of the other pleas at this stage it is not easy to say that there are no reasons for believing him to be not guilty of any offence. The circumstances do not permit the release of the petitioner on bail.

Bail denied.

2 Bhanwarsingh Vs.

The State of Rajasthan

MANU/RH/0161/1996


Coram: P.C. Jain, J.

The petitioner was convicted under Section 8 read with Section 18 of the NDPS Act. He filed this appeal seeking suspension of the sentence.

Court dismissed the appeal and held that High Court to bear in mind limitations in Section 37 while suspending sentence or enlarging accused on bail.

Bail denied.

3 Daud Ali Vs.


MANU/RH/0341/1993


Coram: N.L. Tibrewal, J.

Petitioner filed this second application for his bail Under Section 439, Cr.P.C. He was charged under the various section of NDPS Act.

Court dismissed the bail application and held that In the instant case, if the FSL report is not received as yet, the trial Court shall make efforts to get the same from the Department. Then, the charge shall be framed, if the same is made out, after hearing the learned Counsel for the accused and the trial court shall expedite the trial in the case. The trial Court shall make efforts to complete the trial within six months, after the charge/s is/are framed. A copy of this order be also sent to the concerned trial Court.

Bail denied.

4 Devki Nandan and Ors. Vs.

State of Rajasthan and Anr.

MANU/RH/0509/1995

Present bail application filed under section 439 of the CrPC. The petitioners were charged under Sections 8/19 and 8/29 of the NDPS Act.

Court dismissed the bail application and held that no reasonable grounds to believe that accused not guilty made out. Hence the appeal lacks merit and dismissed accordingly.

Bail denied.


Coram: R.R. Yadav, J.

5 Dharam Chand Vs.

State of Rajasthan

MANU/RH/0375/1995


Coram: R.P. Saxena, J.

Petitioner filed bail application under section 439 of the CrPC. He was a accused of the Cultivation of Bhang without, licence is punishable under the Rajasthan Excise Act and not under the NDPS Act. Besides this, the I.O. has not collected any evidence to show that the petitioner is engaged in cultivating and selling the Ganja.

Court allowed the bail application and held that Petitioner is aged about 73 years and the investigation as also the trial of this case are also likely to take considerable time. It has also not been alleged that the petitioner is previous convict under the NDPS Act. Hence it was fit case to grant bail.

Bail granted.

6 Gena Ram Vs.

State of Rajasthan

MANU/RH/0193/1993



Present application filed under section 439 of the CrPC seeking bail. Petitioner is charged under section Sections 8, 20 and 37 of the NDPS Act.

Court dismissed the bail application and held that the limitations specified in Section 37(1)(b) of the Act are fully applicable for an offence relating to ganja which is punishable under Section 20(b)(i) of the Act.

Bail denied.

7 Gurumail Singh Vs.

State

MANU/RH/0211/2005


Coram: Harbans Lal, J.

Petitioner convicted for the offence made under Section 8/15 of the NDPS Act. He filed this bail application under section 439 of the CrPC on the ground that there was no violation of the provisions of Section 42(1) of the NDPS Act.

Court dismissed the bail application and held that Section 43 of the Narcotic Drugs Psychotropic Substances Act, 1985 makes provision of power of seizure and arrest in public place as in this case whereas Section 42 of the Act provides for power of entry, search, seizure and arrest without warrant or authorisation, in any building, conveyance or place. Enormous quantity of contraband article allegedly recovered from the truck which wide spread unwholesome adverse effect on the health of the society at large.

Bail denied.

8 Gyan Chand Vs.


MANU/RH/0164/1992


Coram: B.R. Arora, J.

Petitioner filed this application seeking suspension of the sentence till the pendency of the appeal against the conviction. He was convicted under section 18 of the NDPS Act.

Court dismissed the petition and held that powers of High Court in suspending sentence during pendency of appeal had not been taken away by Section 32A of Act but they had been preserved by Section 36B of Act and High Court could exercise its powers of suspending sentence during pendency of appeal subject to conditions

Bail denied.

and limitations mentioned in Section 37 of Act.

9 Harendra alias Hari Singh

Vs. State of Rajasthan

MANU/RH/0188/1993


Coram:

N.K. Jain, J.

Present bail application filed under Section 439 of Cr.PC for grant of bail with regard to offence punishable under provision of NDPS Act.

Court dismissed the bail application and held that it is true that under proviso (a) to Section 167(2) of Cr.PC, order for release on bail is order on default and if investigating agency fails to file charge sheet before expiry of 90/60 days as case may be accused in custody should be released on bail but at that stage merits of case are not to be examined as it is legislative command and not court's discretion - It is also undisputed that for offence other than Act, accused is entitled to bail if 90 days period expired, which begins from date of order of remand and not from date of arrest - But at same time if accused has not made application for his release on bail after expiry of period prescribed by proviso (a) to Section 167(2) of Cr.PC and before filing of charge sheet, he cannot be released solely on ground that charge sheet was not submitted within prescribed period and where prayer for bail is to be considered after submission of charge sheet question of granting bail does not arise - Admittedly, Petitioner did not move for bail after expiry of period of 90 days and prior to filing of challan and, therefore, accused/Petitioner cannot take advantage of default on part of investigating agency.

Bail denied.

10 Himmat Singh Vs.


MANU/RH/0253/1994


Coram: B.R. Arora, J.

Present bail application filed against order whereby dismissed application for grant of bail by holding that at this stage it cannot be said that Petitioner was not guilty for offence and therefore he cannot be released on bail in view of provisions of Section 37 of Act.

Court dismissed the bail application and held that in view of provisions of Section 37 of Act, bail can be granted to accused if Court satisfied that he is not guilty of such offence and that he is not likely to commit any such offence while on bail - Ten litres of acetic Anhydride was recovered on information supplied and at instance of Petitioner - This acetic Anhydride is used for manufacture of brown sugar -

Bail denied.

At this stage from evidence available on record, it cannot be said that there were no reasonable grounds for believing that Petitioner was not guilty of offences under Act - Material which Petitioner was going to supply to other persons was used for manufacture of brown sugar.

11 Jarin Khan Vs.

State of Rajasthan

MANU/RH/0417/1992


Coram: N.K. Jain, J.

This misc bail application under Section 439 Cr.P.C. is directed against the orders of the learned Sessions Judge, Pratapgarh whereby they have declined to issue a direction for bail Under Section 167(2) Cr.P.C. in the matter arising out of F.I.R. No. 7/92 for the offences Under Section 8/18 and 8/21 of the NDPS Act.

Court dismissed the bail application and held that n accused person cannot be released on bail on the ground of Section 167(2) Cr.P.C. without satisfying the conditions of Section 37 of the NDPS Act.

Bail denied.

12 Kamal Raju and Anr. Vs.

State of Rajasthan

MANU/RH/0477/1994



Present petition filed under section 439 of the CrPC seeking bail. Petitioner was charged under NDPS Act.

Court allowed the bail application and held that No evidence collected to show prima facie that petitioners were involved in trading or smuggling brown sugar--No reasonable ground to believe that petitioners committed offence under Act or is likely to commit such offence in future.

Bail granted.

13 Manjee Vs.

State of Rajasthan

MANU/RH/0443/1996


Coram: R.R. Yadav, J.

This was second bail application. First bail application was rejected on 13.11.95 as not pressed for the reason that challan and F.S.L. report were not available to the accused applicant at that stage. Petitioner was charged under 8/20 of the NDPS Act.

Court allowed the bail application and held that keeping in view, all the facts and circumstances of the present case as also the provisions of Section 37 of the N.D.P.S. Act, I feel that it will be just and proper to enlarge accused applicant Manjee son of Shri Hemaji on bail provided he furnishes a personal bond in the sum of Rs. 10,000/- (Rupees ten thousand only) and two sureties of the like amount, to the satisfaction of the learned District and Sessions Judge, Udaipur empowered to exercise powers under the N.D.P.S. Act for his .personal attendance before that court on each and every date of hearing till completion of trial.

Bail granted.

14 Ramdeo and Anr. Vs.

State of Rajasthan

MANU/RH/0478/1994



Petitioner filed present bail application under section 439 of the CrPC. Petitioner was charged under the NPDS Act.

Court allowed the bail application and held that no evidence collected to show that petitioner was owner of Tea stall or that he purchased and sold opium through coaccused--No reasonable ground to believe that he committed offence under Act or is likely to commit such offence in future--Held, he deserves to be enlarged on bail.

Bail granted.

15 Ramesh Chandra Vs.

State of Rajasthan

MANU/RH/0150/2001


Coram: V.G. Palshikar, J.

Petitioner sought an order from this Court, directing his release from detention, under the provisions of Sec. 439 of the Code of CrPC, as he is in custody for being suspected of having committed an offence under the NDPS Act.

Court allowed the bail application and held that Looking to the facts of the present case, it can be said that the accused was carrying doda post at the behest of a person who had a licence to deal in doda post. It cannot be said that the accused was in any manner connected with the offence for which he has been detained. I deem it just and proper to release that accused on bail.

Bail granted.

16 Rashid Khan alias Rashid and Ors.

Vs. The State

MANU/RH/0178/1993


Coram:

N.L. Tibrewal, J.

In all the three bail applications the accused persons were arrested under Section 8/18 and 8/19 NDPS Act but Cognizance by the Special Judge was taken after 90 days of their arrest. Now they have filed present bail applications under section 439 of the CrPC.

Court dismissed the bail applications and held that I fully agree with the aforesaid view taken by the Full Bench of the M.P. High Court. It is, therefore, held that the provisions of Section 37 of NDPS Act override Section 167(2), Cr.P.C., and bail cannot be granted in cases registered under the Act, unless conditions contained in clauses (i) and (ii) of Section 37(1)(b) are satisfied.

Bail denied.

17 Shakil Ahmed Vs.

State of Raj.

MANU/RH/0181/2002


Coram: Arun Madan, J.

Third petition seeking for suspension of the impugned sentence. Petitioner was sentenced under the NDPS Act.

Court dismissed the petition and held that Limitations in granting of Bail are specified in Clause (b) of Sub-section (1) of Section 37 of the Act, which provides that no person accused of an offence punishable for a term of imprisonment of five years or more under the NDPS Act shall be released on bail or on his own bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. Applying the principle of law laid down in [1999 (66) ECC 335 (SC)], there is no merit or reasonable ground to

Bail denied.

suspense the impugned sentence as provided under Section 37 of the NDPS Act. Accordingly this third application No. 481/2001 is dismissed.

18 Shaffi Mohammed and Ors. Vs.

State of Rajasthan

MANU/RH/0027/2005


Coram: N.K. Jain, J.

Applications for bail Under Section 439 Criminal Procedure Code, 1973 - Offence Under Section 8/20, 8/20 and 8/18 respectively of the NDPS Act.

Court allowed the bail application and held that Except Sections 19, 24 and 27A and offences involving commercial quantity under the Act of 1985 are concerned, it is not necessary to take into consideration the limitation imposed under Clause (b) of Sub-section (1) of Section 37 to the effect that Court must be 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 but, those cases are required to be considered on the basis of facts and circumstances of those cases. The limitation of Section 37 relating to bail has been relaxed by amendment so far as case of small and less than commercial quantity of contraband is concerned. after amendment made in Section 37 of the Act the limitation or restriction imposed by Sub-section (1)(b)(ii) of Section 37 applies only in respect of offence Under Sections. 19, 24 and 27-A and for offences involving commercial quantity and so far as other offences under the Act are concerned, the said restriction/limitation is not applicable.

Bail granted.

19 Sami Ullaha S/o Mustkin Khan and Anr.

Vs. Narcotic Central Bureau

MANU/RH/0041/2008


Coram:

N.K. Jain, J.

Offence committed punishable under Sections 8/21 and 8/29 of the NDPS Act. Petitioner filed this application praying for bail.

Court dismissed the appeal and held that in present case, it was observed that the contraband weighing two kilogram Heroin was recovered - Trial Court was fully justified in passing the impugned order

Bail denied.

20 Shantilal Vs.

Petition filed seeking bail. Petitioner is charged

Court allowed the bail application and held that

Bail granted.

State of Rajasthan

MANU/RH/0347/1995



under Sections 8/20, 27 and 37 of the NDPS Act

Under Section 27 of the Act, such an offence is punishable for a period six months only and, therefor, provisions of Section 37 of the Act cannot be pressed into service in this case. The possession of Bhang without licence is not punishable under the NDPS Act, but punishable under the Rajasthan Excise Act.

THE UTTARAKHAND HIGH COURT

S. No. Name Of Case Issue Before the Court Decision Of The Court Remark.

1 Nanhey Vs.

State of Uttaranchal

MANU/UC/0062/2002


Coram: Hon'ble Irshad Hussain,

J.

It is a case of recovery of 6 kg. of poppy husk from the possession of the applicant accused. Petitioner filed application for bail.

Court allowed the bail application and held that Considering the quantity of contraband and facts that no criminal history with the applicant bail granted.

Bail Granted.

2 Rajesh Kumar Gupta Vs.

State of Uttaranchal

MANU/UC/0194/2005


Coram: Prafulla C. Pant, J.

Present petition filed seeking bail. Petitioner was charged under Section 8/22 of N.D.P.S. Act and under Sections 147, 224, 323, 504, 506, 353, 420 and 427 of Indian Penal Code.

Court allowed the bail application and held that this Court is of the view that the applicant has made out a case for bail. Learned Additional Advocate General relied and referred the case of Collector of Customs v. Ahamadalieva Nodira 2004 SCC 834, and argued that the expression "reasonable grounds" mentioned in Section 37 means something more than prima facie grounds. I have gone through said case law. In said case accused was intercepted at airport with the banned drugs and she was not a medical practitioner.

Bail granted.

3 Smt. Sonia (In Jail) Vs.

State of Uttarakhand

MANU/UC/1805/2010


Coram: Hon'ble Dharam Veer, J.

Present application filed seeking bail. The prosecution case is that on 30.6.2010 at about 8 P.M. from the possession of the present applicant and co-accused, 134.800 kilograms of Ganja was said to be recovered.

Court dismissed the bail application and held that the recovered quantity of Ganja is much more than the commercial quantity therefore is not a fit case where the applicant is entitled for bail

Bail denied.

ANALYSIS II LEVEL

S. No. Name of Court No. of Bail

Application

allowed

No. of Bail

Application

denied.

No. of Bail

cancelled.

1 Supreme Court 4 6 11

2 Allahabad High Court 11 15 2

3 Andhra Pradesh High Court 2 1 1

4 Bombay High Court 9 8 6

5 Calcutta High Court 1 4 1

6 Chattisgarh High Court 1 - -

7 Delhi High Court 21 12 -

8 Gawhati High Court - 4 -

9 Gujrat High Court 1 8 -

10 Himachal Pradesh high Court 1 5 2

11 Jammu & Kashmir High Court - 1 -

12 Jharkhand High Court - - -

13 Karnataka High Court 2 6 1

14 Kerala High Court 7 - -

15 Madhya Pradesh High Court 13 5 -

16 Madras High Court 2 8 2

17 Manipur High Court - - -

18 Meghalaya High Court - - -

19 Orissa High Court 10 8 2

20 Patna High Court 2 3 1

21 Punjab & Haryana High Court 19 13 -

22 Rajasthan High Court 7 13 -

23 Sikkim High Court - - -

24 Tripura High Court - - -

25 Uttarakhand High Court 2 1 -

Note:

1) The study of the aforesaid cases is based on the judgments/orders of Supreme Court &

various High Courts available on the manupatra. 2) No case with regard to section 37 of NDPS Act has been found in Jharkhand, Manipur,

Meghalaya, Sikkim, Tripura High Court.

APPENDIX

Section 37 of the NDPS Act 1985 is reproduced hereinbelow-

[37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 2[ offences under section 19 or section 24 or section 27 A

and also for offences involving commercial quantity] 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.

(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.]

Documents

National Judicial Academynja.nic.in/NDPS Section 37_SC_21 Paras Nath.pdf · National Judicial Academy ... regard to the section 37 of the NDPS Act, 1985 Submitted by ... of Section