Bail:
Application seeking anticipatory bail – By appellant-accused in FIR u/s. 22 and 29 of NDPS Act – On the ground of parity as the two co-accused were granted anticipatory bail by a co-ordinate Bench – High Court by an interim order directed the accused to surrender before Police to join investigation – Pursuant to interim order the accused (including the petitioner) surrendered before Sessions Court and were released on regular bail – High Court by final order rejecting the plea of parity and taking note of limitations u/s. 37 of NDPS Act, dismissed the application of anticipatory bail – On appeal, Supreme Court noticing that orders granting bail to the co-accused were without taking into notice s. 37 of NDPS Act was apparently wrong, directed the State to verify as to whether any step was being taken against that order – State challenged the order granting anticipatory bail to the co-accused – Held: High Court rightly rejected the application seeking anticipatory bail of appellant-accused – The order granting bail to the co-accused was without reference to s. 37 of NDPS Act and hence not correct – Sessions Court was also not correct in granting regular bail to the accused on the basis of interim order passed by the High Court and without noticing the final order passed in respect of anticipatory bail – Code of Criminal Procedure, 1973 – ss. 438 and 439 – Narcotic Drugs and Psychotropic Substances Act, 1985 – s. 37. Anticipatory bail vis-a-vis regular bail – Held: The satisfaction of the Court for granting protection u/s. 438 Cr.P.C. (anticipatory bail) is different from the one u/s. 439 Cr.P.C. (regular bail) – Merely because an accused was under protection of anticipatory bail does not entitle him automatically to regular bail – Code of Criminal Procedure, 1973 – ss. 438 and 439. Narcotic Drugs and Psychotropic Substances Act, 1985:
s. 37 – Limitations under – For grant of bail – Held: The stringent limitations on the discretion of Court to grant bail have been consciously put in view of the seriousness of offences – These limitations are in addition to those prescribed under Cr.P.C. or any other law in force on the grant of bail – Bail. Dismissing the appeal of the accused and allowing that of the State, the Court
HELD : 1. High Court is perfectly right in its approach and in declining the protection under Section 438 of the Code of Criminal Procedure, 1973. Under Section 37 of Narcotic Drugs and Psychotropic Substances Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. [Paras 2, 3 and 4] [742-G-H; 743-E-G]
2. Pursuant to the order passed by the High Court, the accused persons had surrendered before the Sessions Court and they were released on regular bail by order dated 31.10.2017. The Sessions Judge took note of the interim order passed by the High Court. It did not take note of the final order passed by the High Court. The Court should have enquired as to whether the matter had been finally disposed of, particularly after noticing the interim order. The casual approach adopted by the Sessions Judge has apparently led to the accused being released on regular bail, on the basis of the interim order passed by the High Court. When the application for anticipatory bail was the subject matter before the High Court, the accused had no business to go and surrender before the Sessions Court and seek regular bail on the basis of an interim order. [Paras 10, 11 and 13] [746-C; 748-E-F]
3. Protection under Section 438 Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2) Cr.P.C.). On such appearance, the accused has to seek regular bail under Section
439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C., is different from the one under Section 439 Cr.P.C., while considering regular bail. [Para 14] [748-G-H; 749-A]
4. The order passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity of the contraband is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. [Para 15] [749-B-C]
5. Consequently, the order dated 31.10.2017 passed by the Sessions Court is also set aside. All the three accused in both these appeals are directed to surrender before the trial court. However, it is made clear that they are free to apply for regular bail, in which case, the Sessions Court will consider the matter on the merits of the application. [Para 16] [749-D]
6. Even in the inquiry conducted pursuant to the orders passed by this Court, there was no reference to the regular bail granted to the co-accused and that too, on production of an interim order passed by the High Court. Had the same been noticed, the State would have certainly taken steps much earlier. This is once again to remind the police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act. [Para 16] [749-E]
Vinod Kumar v. State of Punjab (2013) 1 RCR
(Criminal) 428 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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