SATPAL SINGH versus THE STATE OF PUNJAB on 27 March 2018

[2018] 3 S.C.R. 739

SATPAL SINGH

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 462 of 2018 etc.)

MARCH 27, 2018

[KURIAN JOSEPH, MOHAN M. SHANTANAGOUDARAND NAVIN SINHA, JJ.]

Bail:

Application seeking anticipatory bail – By appellant-accusedin FIR u/s. 22 and 29 of NDPS Act – On the ground of parity as thetwo co-accused were granted anticipatory bail by a co-ordinateBench – High Court by an interim order directed the accused tosurrender before Police to join investigation – Pursuant to interimorder the accused (including the petitioner) surrendered beforeSessions Court and were released on regular bail – High Court byfinal order rejecting the plea of parity and taking note of limitationsu/s. 37 of NDPS Act, dismissed the application of anticipatory bail– On appeal, Supreme Court noticing that orders granting bail tothe co-accused were without taking into notice s. 37 of NDPS Actwas apparently wrong, directed the State to verify as to whetherany step was being taken against that order – State challenged theorder granting anticipatory bail to the co-accused – Held: HighCourt rightly rejected the application seeking anticipatory bail ofappellant-accused – The order granting bail to the co-accused waswithout reference to s. 37 of NDPS Act and hence not correct –Sessions Court was also not correct in granting regular bail to theaccused on the basis of interim order passed by the High Court andwithout noticing the final order passed in respect of anticipatorybail – 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: Thesatisfaction 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. (regularbail) – Merely because an accused was under protection ofanticipatory bail does not entitle him automatically to regular bail– Code of Criminal Procedure, 1973 – ss. 438 and 439.

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ANarcotic Drugs and Psychotropic Substances Act, 1985:

s. 37 – Limitations under – For grant of bail – Held: Thestringent limitations on the discretion of Court to grant bail havebeen consciously put in view of the seriousness of offences – Theselimitations are in addition to those prescribed under Cr.P.C. or anyBother law in force on the grant of bail – Bail.

Dismissing the appeal of the accused and allowing that ofthe State, the Court HELD : 1. High Court is perfectly right in its approach andin declining the protection under Section 438 of the Code ofCCriminal Procedure, 1973. Under Section 37 of Narcotic Drugsand Psychotropic Substances Act, when a person is accused of anoffence punishable under Section 19 or 24 or 27A and also foroffences involving commercial quantity, he shall not be releasedon bail unless the Public Prosecutor has been given anDopportunity to oppose the application for such release, and incase a Public Prosecutor opposes the application, the court mustbe satisfied that there are reasonable grounds for believing thatthe person is not guilty of the alleged offence and that he is notlikely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to beEexamined to enter such a satisfaction. These limitations are inaddition to those prescribed under the Cr.P.C or any other law inforce on the grant of bail. In view of the seriousness of the offence,the law makers have consciously put such stringent restrictionson the discretion available to the court while consideringFapplication 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, theaccused persons had surrendered before the Sessions Court andthey were released on regular bail by order dated 31.10.2017.GThe Sessions Judge took note of the interim order passed by theHigh Court. It did not take note of the final order passed by theHigh Court. The Court should have enquired as to whether thematter had been finally disposed of, particularly after noticingthe interim order. The casual approach adopted by the SessionsJudge has apparently led to the accused being released on regularHbail, on the basis of the interim order passed by the High Court.

When the application for anticipatory bail was the subject matterbefore the High Court, the accused had no business to go andsurrender before the Sessions Court and seek regular bail onthe 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 theaccused only till the court summons the accused based on thecharge sheet (report under Section 173(2) Cr.P.C.). On suchappearance, the accused has to seek regular bail under Section439 Cr.P.C. and that application has to be considered by the courton its own merits. Merely because an accused was under theprotection of anticipatory bail granted under Section 438 Cr.P.C.that does not mean that he is automatically entitled to regularbail under Section 439 Cr.P.C. The satisfaction of the court forgranting protection under Section 438 Cr.P.C., is different fromthe 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 thatthere is any reference to Section 37 of the NDPS Act. The quantityof the contraband is reportedly commercial. In the facts andcircumstances of the case, the High Court could not have andshould not have passed the order under Sections 438 or 439Cr.P.C. without reference to Section 37 of the NDPS Act andwithout entering a finding on the required level of satisfaction incase the Court was otherwise inclined to grant the bail. [Para 15][749-B-C]

5. Consequently, the order dated 31.10.2017 passed by theSessions Court is also set aside. All the three accused in boththese appeals are directed to surrender before the trial court.However, it is made clear that they are free to apply for regularbail, in which case, the Sessions Court will consider the matteron the merits of the application. [Para 16] [749-D]

6. Even in the inquiry conducted pursuant to the orderspassed by this Court, there was no reference to the regular bailgranted to the co-accused and that too, on production of an interimorder passed by the High Court. Had the same been noticed,the State would have certainly taken steps much earlier. This isonce again to remind the police and the prosecutor that they need A

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Ato show due diligence and vigilance while dealing with the casesunder the NDPS Act. [Para 16] [749-E]

Vinod Kumar v. State of Punjab (2013) 1 RCR(Criminal) 428 – referred to.

Case Law Reference

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(2013) 1 RCR (Criminal) 428referred to Para 9

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 462 of 2018.

From the Judgment and Order dated 04.10.2017 of the High CourtCof Punjab & Haryana at Chandigarh in CRM-M-37140 of 2017

WITH

Criminal Appeal No. 463 of 2018.

H. P. S. Ghuman, Devesh Kumar Tripathi, Advs. for the Appellant.

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Ms. Jaspreet Gogia, Adv. for the Respondent.

The Judgment of the Court was delivered by KURIAN, J. 1. Leave granted.

2. The appellant – Satpal Singh (in Crl. Appeal. No. 462 of 2018)Eis before this Court, challenging the order dated 04.10.2017 passed bythe High Court of Punjab and Haryana at Chandigarh in CRM-M-37140of 2017 rejecting his application for anticipatory bail. The High Courttook note of the fact that the appellant was an accused in FIR No. 0053,dated 11.06.2017 under Sections 22 and 29 of the Narcotic Drugs andFPsychotropic Substances Act, 1985 (in short, “the NDPS Act”), registeredat Police Station Bhadson, District Patiala. Though it was argued that acoordinate Bench of the High Court had granted anticipatory bail to theco-accused, namely, Beant Singh and Gurwinder Singh, who are brothersof the appellant, as per order dated 21.09.2017, the learned Judge wasnot inclined to accept the contention since there was no question ofGparity as far as the bail is concerned and in view of the fact that theCoordinate Bench had not taken note of the limitations under Section 37of the NDPS Act. In our view, the learned Judge is perfectly right in hisapproach and in declining the protection under Section 438 of the Codeof Criminal Procedure, 1973 (in short “Cr.P.C.”)

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3. Section 37 of the NDPS Act reads as follows :- “Offences to be cognizable and non-bailable – (1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974) - (a) every offence punishable under this Act shall becognizable; (b) no person accused of an offence punishable for [offencesunder section 19 or section 24 or section 27A and also foroffences involving commercial quantity] shall be released onbail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, thecourt is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that he isnot 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 theCode of Criminal Procedure, 1973 (2 of 1974) or any otherlaw for the time being in force, on granting ofbail.]” (Emphasis supplied)

4. Under Section 37 of the NDPS Act, when a person is accusedof an offence punishable under Section 19 or 24 or 27A and also foroffences involving commercial quantity, he shall not be released on bailunless the Public Prosecutor has been given an opportunity to opposethe application for such release, and in case a Public Prosecutor opposesthe application, the court must be satisfied that there are reasonablegrounds for believing that the person is not guilty of the alleged offenceand that he is not likely to commit any offence while on bail. Materialson record are to be seen and the antecedents of the accused is to beexamined to enter such a satisfaction. These limitations are in additionto those prescribed under the Cr.P.C or any other law in force on thegrant of bail. In view of the seriousness of the offence, the law makershave consciously put such stringent restrictions on the discretion availableto the court while considering application for release of a person on bail.It is unfortunate that the provision has not been noticed by the HighCourt. And it is more unfortunate that the same has not been brought tothe notice of the Court.

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A5. Having thus noticed that apparently a wrong order has beenpassed by the coordinate Bench of the High Court, this Court, by orderdated 22.11.2017, directed the State to verify whether any steps havebeen taken for challenging the orders granting anticipatory bail to theco-accused.

B6. The matter was adjourned to 15.12.2017 and thereafter to17.01.2018, and noticing that still no steps had been taken by the State ofPunjab for challenging the apparently wrong order passed by the HighCourt in respect of Beant Singh and Gurwinder Singh, this Court passedthe following order on 18.01.2018 :- C“Seeking, among other things, parity the petitioner has soughtfor anticipatory bail. Noticing the anticipatory bail grantedin an NDPS case to the co-accused, this Court by order dated22.11.2017, while issuing notice passed the following order:- “Issue notice, returnable in three weeks.

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In the meantime, the respondent-State is directed to clarifyas to whether any steps have been taken for challengingthe orders granting anticipatory bail to the co-accused inthe same case.”

It is also relevant to note that in the impugned order dated4.10.2017 the learned Judge has noted that the coordinateBench which granted anticipatory bail to the co-accused hasomitted to take note of Section 37 of NDPS Act, 1985.

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Thereafter, the matter was posted on 15.12.2017 and thecounsel sought three weeks’ time to file counter affidavit,Fwhich was granted.

Today, learned counsel for the respondent/State submits thatthe counter affidavit is ready and the same may be permittedto be filed during the course of the week.

Permission is granted.G

At paragraph 6 of the counter affidavit it is stated “... nodecision for challenging the order dated 21.09.2017, wherebyanticipatory bail was granted to co-accused, namely, BeantSingh and Gurwinder Singh has been taken by theGovernment”.

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Learned counsel for the respondent/State submits that theprocess takes some time, since the file has to pass throughmany hands.

We direct the Secretary (Law) or the Secretary concerned inthe Government dealing with the matters regarding sanctionto be present before this Court with the records pertaining tothe sanction for cancellation of the bail granted to the co-accused by order dated 21.09.2017, on the next date ofhearing.

Post on 07.02.2018.”

7. Thereafter, the matter was adjourned to 07.02.2018.Incorporating the order dated 18.01.2018, this Court passed a furtherorder, which reads as follows :- “Today, Mr. N.S. Kalsi, Additional Chief Secretary, HomeAffairs and Justice, along with Superintendent of Police,Patiala and the other police officers concerned are presentin Court.

It is reported that the matter came to the notice of theAdditional Chief Secretary, Home Affairs and Justice, onlyon 25.01.2018 and within a week steps have been taken tofile a special leave petition and the same has been filed.

We direct the Additional Chief Secretary, Home Affairs andJustice, to conduct an appropriate inquiry as to who are theofficials/officers involved in taking such a lackadaisicalattitude despite the High Court in the impugned order pointingout that the order granting bail to the co-accused was notproper.

Needless to say that the Report shall contain names of theofficers who, despite three postings before this Court, werenot vigilant in not bringing up the matter before theGovernment. The Report, as above, shall be filed within fourweeks from today.

Post after four weeks.

The presence of the officers is dispensed with until furtherorders.”

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8. Thereafter, it appears the State became alert and steps havebeen taken to challenge the anticipatory bail granted to Beant Singh andGurwinder Singh and that is the subject matter of Crl. Appeal No. 463 of2018.

9. The State has referred to in detail, the decision of the PunjabBand Haryana High Court in Vinod Kumar vs. State of Punjab, reportedin (2013) 1 RCR (Criminal) 428 regarding drug addiction and its ill effects

in society. Thus, it is not as if the State was not aware of the gravesituation in the State of Punjab. Yet, it is disturbing to note that theprosecution has been lackadaisical in their approach in not taking vigilantmeasures.C

10. The learned counsel appearing for the accused submits thatpursuant to the order passed by the High Court, they had surrenderedbefore the Sessions Court and they were released on regular bail. Theorder dated 31.10.2017 passed by the Sessions Court has been madeavailable for the perusal of the Court. The order reads as follows :-D

“Challan presented today. It be checked and registered.Copies of documents supplied to accused Gurwinder Singhand Beant Singh who have come present free of costs. Theyalso moved application for accepting and attesting the suretybonds as per orders of the Hon’ble High Court datedE14.7.2017. The copy of the order passed by Hon’ble HighCourt is also enclosed herewith. The said order has beenverified from the site of the Hon’ble High Court throughInternet. In view of the orders passed by Hon’ble High Court,both the accused are directed to furnish the bail bonds in theFsum of Rs. One Lac with one surety in the like amount each.Bonds furnished which have been accepted and attested.Amrik Singh is lodged in Central Jail, Patiala in this case.Let his production warrants be issued for 7.11.2017.”

11. It may be seen that what is noted by the learned SessionsGJudge is the interim order passed by the High Court dated 14.07.2017,which reads as follows :- “Learned counsel for the petitioners submits that as per thepolice version, recovery of contraband was effected from thebag carried by Amrik Singh father of petitioners andpetitioner-Gurwinder Singh was alleged to be driver of the H

motor cycle. The question as to whether the petitioners werein conscious possession of contraband, in possession of theirfather, is to be seen by the Investigating Agency beforepresenting the challan.

Notice of motion for 21.09.2017.

In the meanwhile, the petitioners are directed to surrenderbefore the police and join investigation within a week. In theevent of their arrest being required, they shall be released oninterim bail till the next date, subject to their furnishing bondsto the satisfaction of Arresting Officer. However, they shallabide by the terms and conditions as envisaged under Section438(2)(i) to (iv) Cr.P.C. failing which they shall loose thebenefit of interim bail allowed to them.”

12. As a matter of fact, the main petition itself had been disposedof by order dated 21.09.2017. The order reads as follows :- “The present petition has been filed under Section 438 Codeof Criminal Procedure for grant of anticipatory bail to thepetitioners in case FIR No. 0053 dated 11.06.2017 registeredfor the offences punishable under Sections 22, 29 of NarcoticDrugs and Psychotropic Substances Act, 1985 at Police StationBhadson, District Patiala.

Heard.

Amrik Singh was arrested by the police with contraband whichincluded various drugs. The allegations against the petitionerNo. 2 Gurwinder Singh is that he had escaped from the spotafter leaving the motor cycle on which he was travelling withhis father-Amrik Singh.

The allegations against petitioner No.1-Beant Singh is thathe had been procuring contraband and giving the same tohis father and brother for sale.

Beant Singh was not even present at the spot when the recoverywas effected. Even after his joining the investigation nothinghas been recovered by the police regarding allegationscontained in secret information on the basis of which thisFIR was registered. Identity of Gurwinder Singh as a personwho allegedly ran away from the spot is a point which callfor proof during trial.

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Keeping in view the above fact but without expressing anyopinion on the merits of the case, this petition is allowed andthe order dated 14.07.2017 is made absolute till thepresentation of challan, subject to the following terms:-

(i) that the petitioners shall make themselves available forBinterrogation by the police as and when required;

(ii) that the petitioners shall not, directly or indirectly, makeany inducement, threat or promise to any person acquaintedwith the facts of the accusation against them so as to dissuadehim from disclosing such facts to the Court or to any policeofficer; C

(iii) that the petitioners shall not leave India without the priorpermission of the Court.

(iv) that the petitioners will seek regular bail on thepresentation of challan in Court, which the trial Court willDdecide on the basis of evidence collected duringinvestigation.”

13. It is unfortunate that the Sessions Court did not take note ofthe final order passed by the High Court. The Court should have enquiredas to whether the matter had been finally disposed of, particularly afterEnoticing the interim order. The casual approach adopted by the learnedSessions Judge has apparently led to the accused being released onregular bail, on the basis of the interim order passed by the High Court.When the application for anticipatory bail was the subject matter beforethe High Court, the accused had no business to go and surrender beforethe Sessions Court and seek regular bail on the basis of an interim order.FThe learned counsel for the accused submits that they had produced thefinal order passed by the High Court dated 21.09.2017 along with theapplication for regular bail.

14. In any case, the protection under Section 438, Cr.P.C. isavailable to the accused only till the court summons the accused basedGon the charge sheet (report under Section 173(2), Cr.P.C.). On suchappearance, the accused has to seek regular bail under Section 439Cr.P.C. and that application has to be considered by the court on its ownmerits. Merely because an accused was under the protection ofanticipatory bail granted under Section 438 Cr.P.C. that does not mean H

that he is automatically entitled to regular bail under Section 439 Cr.P.C.The satisfaction of the court for granting protection under Section 438Cr.P.C. is different from the one under Section 439 Cr.P.C. whileconsidering regular bail.

15. Be that as it may, the order dated 21.09.2017 passed by theHigh Court does not show that there is any reference to Section 37 ofthe NDPS Act. The quantity is reportedly commercial. In the facts andcircumstances of the case, the High Court could not have and should nothave passed the order under Sections 438 or 439 Cr.P.C. withoutreference to Section 37 of the NDPS Act and without entering a findingon the required level of satisfaction in case the Court was otherwiseinclined to grant the bail. Such a satisfaction having not being entered,the order dated 21.09.2017 is only to be set aside and we do so.

16. Consequently, the order dated 31.10.2017 passed by theSessions Court is also set aside. All the three accused in both theseappeals are directed to surrender before the trial court. However, wemake it 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.Before parting with the Judgment, we also painfully note that even in theinquiry conducted pursuant to the orders passed by this Court, there wasno reference to the regular bail granted to Beant Singh and GurwinderSingh and that too, on production of an interim order passed by the HighCourt. Had the same been noticed, the State would have certainly takensteps much earlier. This is once again to remind the police and theprosecutor that they need to show due diligence and vigilance whiledealing with the cases under the NDPS Act.

17. We make it clear that none of the observations made in thisjudgment shall have any bearing on the trial or consideration of anyapplication for bail at any stage since our order is only for the purpose ofthe appeals in the matter of grant of bail.

18. With the above observations and directions, the Crl. AppealNo. 462 of 2018 is dismissed and that of the State i.e. Crl. AppealNo. 463 of 2018 is allowed.

Kalpana K. Tripathy

Appeals disposed of.

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