BAIL APPLN./2/2006 of Karma Bhutia and ors Vs State of Sikkim on 28 September 2006

ORDER

A.P.Subba,J.

This is a petition filed by the Petitioners u/Ss. 439 and482 of the Cr. P. C., r/w Article 227 of the Constitut:ion, for grant ofba i I .

The Petitioner No.1 who is a government contractor, thePetitioner No.2 who is a driver and the Petitioner No.3 who is a _, EE

government servant are facing trial in S.T.Case No.8 of 2006 in theCourt of ld. Special Judge (NDPS), Sikkim at Gangtok. According tothe prosecution, the Petitioners were arrested on 18.7.2006 atSingtam by Singtam police in connection with Singtam PS Case No.24of 2006 u/S. 22 and 27 of NDPS Act. After the hearing on charge,charges U/Ss. 22(a) and 27(b) of NDPS Act have been framedagainst each of the three Petitioners, and the trial is in progress. Thetwo bail applications, moved before the Special Judge, NDPS Acthaving been rejected, they are languishing in judicial custody forthe last two months now. Hence, this bail application.

3. Mr. N. a. Khatiwada, learned Senior Counsel assisted byMr. D. R. Thapa, Mr. N. Rai and Ms. Jyoti Kharka, learned Counsel forthe Petitioners and Mr. J. a. Pradhan and Mr. Karma Thinlay, learnedPublic Prosecutors for the State -Respondent were heard.

4. Even though number of grounds including non-compliance of the mandatory provision of Section 41 to 58 of theNDPS Act had been raised in the petition, the main ground urged bythe learned Sr. Counsel for the Petitioners is that the offences withwhich the Petitioners stand charged are bailable, and, as such, theyare entitled to bail U/S. 436 Cr.P.C. The learned Pubic Prosecutor,on the other hand, contended that the NDPS Act does not classifythe offences with which the Petitioners have been charged as bailableones, and, as such the question of releasing the Petitioners on baildoes not arise.

5. The question that falls for consideration is whether thepresent offences which fall under Section 22(a) and 27(b) of the NDPS Act are bailable and if so whether the Petitionersareentitled to be released on bail.

6. It is not disputed that the amount of contraband seized isa small quantity as per the charge sheet filed in the case. Theoffences, therefore, fall under Sec.22 (a) and 27(b) of the NDPS Actand accordingly the learned Special Judge has framed charges underthese Sections. While Sec. 22(a) provides for punishment forrigorous imprisonment for a term which may extend to six monthswith fine which may extend to ten thousand rupees or with both, Sec.27(b) provides for punishment for imprisonment for a term whichmay extend to six months or with fine which may extend to tenthousand rupees, or with both. Thus, the extent of punishment interms of imprisonment in case of both the offences extends to sixmonths and not more.

7. Before proceeding to ascertain whether these offencescan be categorized as bailable offences, it is pertinent to notice theprovisions under the Act which deal with bail. A perusal of thedifferent provisions of the Act would show that question of bail hasbeen dealt with in Section 37 of the Act. This Section has beensubstantially amended along with other provisions by the AmendingAct 9 of 2001. It is relevant to notice both the unamended and theamended provisions. The unamended Section 37 stood as follows :- ``37. Offences to be cognizable and non-bailable

(1) Notwithstanding anything contained in the Code ofCriminal Procedure 1973 (2 of 1974) -Criminal Procedure 1973 (2 of 1974) - (a) every offence punishable under the Act shall becognizable;cognizable; (b) no person accused of an offence punishable for aterm of imprisonment of five years or more underterm of imprisonment of five years or more under I

i.-

this Act shall be released on bail or on his own bondunless-

(i) The Public Prosecutor has been given anopportunity to oppose the application for suchrelease, andopportunity to oppose the application for suchrelease, and

(ii) Where the Public Prosecutor opposes theapplication, the Court is satisfied that thereare reasonable grounds for believing that heis not guilty of such offence and that he is notlikely to commit any offence while on bail.application, the Court is satisfied that thereare reasonable grounds for believing that heis not guilty of such offence and that he is notlikely to commit any offence while on bail.

(2) The limitations on granting of bail specified inClause (b) of sub-section (1) are in addition to thelimitations under the Code of Criminal Procedure, 1973 (2of 1974), or any other law for the time being in force ongranting of bail''.

After the amendment the Section stands as follows :- "37 . Offences to be cognizable and non-bailable :

(1) Notwithstanding anything contained in the Code ofCriminal Procedure,1973(2 of 1974) -Criminal Procedure,1973(2 of 1974) -

(a) every offence punishable under this Act shallbe cognizable;be cognizable;(b)no person accused of an offence punishablefor offences under Section 19 or Section 24or Section 27-A and also for offencesinvolving commercial quantity shall bereleased on bail or on his own bond unless -for offences under Section 19 or Section 24or Section 27-A and also for offencesinvolving commercial quantity shall bereleased on bail or on his own bond unless - The Public Prosecutor has been giventhe opportunity to oppose theapplication for such release, andthe opportunity to oppose theapplication for such release, and HTEWhere the Public Prosecutor opposes anapplication, the Court is satisfied thatthere are reasonable grounds forbelieving that he is not guilty of suchoffence and that he is not likely tocommit any offence while on bail.application, the Court is satisfied thatthere are reasonable grounds forbelieving that he is not guilty of suchoffence and that he is not likely tocommit any offence while on bail.

(3) The limitations on granting of bail specified inclause (b) of sub-section (1) are in addition to thelimitations under the Code of Criminal Procedure, 1973 (2of 1974) of any other law for the time being in force, ongranting of bail."

'

ENEE

The scope of Section 37 came to be considered in manycases by the Hon'ble Supreme Court including in thecase, "Intelligence Officer, Narcotic Bureau v. SambhuSonkar reported in 2001 Crl.L.J. 1082 : AIR 2001 SC 830.

The result is that no accused can be granted bail by anyCourt, if the offence involved is punishable withimprisonment for 5 years or more, unless the twinconditions contained in Section 37 are satisfied.

8. It is noticeable from the above that in place of the words``offences punishable for a term of imprisonment of 5 years or more"occurring in the unamended Section, have been substituted with thewords ``offence punishable for offences u/S 19 or Section 24 orSection 27-A and also for offences involving commercial quantity''. Itis also clear that the two conditions for granting bail specified in theSection have been made applicable to the offences falling underSection 19 or Section 24 or Section 27-A and also for offencesinvolving commercial quantity.

Shri Karma Thinlay, the ld. Addl. P.P. relying on thedecision of the Apex Court in Narcotic Central Bureau vs. DilipPrahlad 2004 Crl.L.J. 1815 and few other decisions submitted thatclause (b) of sub-section (1) of Section 37 imposes limitations ongranting of bail in addition to those provided under Cr. P. C. and thatsuch embargo has been placed keeping in view the deleterious natureof the offence. It is however conceded by him that the cases inwhich such observations were made involved offences which werepunishable with higher punishment than in the present case.Therefore, the observations do not obviously cover cases of smallquantity as the present one.

The scope of the unamended Sec. 37 of the Act came to be considered by the Apex Court in Jnte///-gence Off/-cer Warcofi-csC. Bureau v. Sambhu Sonkar & Another 2001 Crl. L. J. 1082

where it has been observed as follows: - `` ............ As per the mandate of S. 37 no person accused of anoffence punishable for a term of imprisonment of 5 years ormore under the Act can be released on bail unless theconditions mentioned in sub-clauses (i) and (ij) of Clause (b)are satisfied.Plain reading of theabovesaid clause makes it clear that in case where the personis accused of an offence punishable for a term of imprisonmentof 5 years then he cannot be released unless the conditionsmentioned therein are satisfied

10. It is clear from the amended provision, that no person accused of an offence punishable for offences u/Ss. 19 or 24 or 27-A

and for offences involving commercial quantity can be released onbail if the two preconditions mentioned in the Sections, are notsatisfied. This provision came up for consideration in a number ofdecisions and it has been uniformly held that all other offences notcovered by the Sections and not falling within the commercialquantity mentioned therein, fall outside the purview of Sec. 37 andwould be covered by the schedule in the Cr. P. C. for the purpose ofbail. This would be clear from the following decisions relied on by the ld. Sr. Counsel for the Petitioners.

±n Abdul Aziz v. State of u. P. 2002 Crl.L.J. 2913 the AIIahabad High Court held as follows: - •\,, ``9. From the analysis of provisions of section 37 of theN.D.P.S. Act and sections 4 and 5 of the Cr. P. C. it isclear that except for offence under sections 19, 24 and27-A of the Act, the provisions for bail as given in the Cr.P. C. will apply. The offences no doubt are alsocognizable and to this extent also the provisions of theAct will prevail over the provisions of the Cr. P. C.Therefore, in the matter of bail the provisions of Cr. P .C.will apply in the present case."

ln Manoj Kumar vs. State of H. P. 2003 Crl.L.J. 1644 the l+.P.

High Court observed as follows: -

``11. Rigor of Section 37, relating to bail for offencesunder the Act, has also been relaxed by the amendmentso far possession of small and less than commercialquantity of contraband is concerned."

lr\ State of H.P. vs. Munshi Ram 2003 Crl.L.J. 1946, the same High Court observed as follows: - ``6 ...... „ .............. small quantity and non-commercial quantitycontinue to be cognizable and non-bailable and limitations forgranting bail for these offences will be under the Code ofCriminal Procedure or any other law for the time being in force,on granting of bail."

11. It is amply clear from the above decision that all offenceswhich are not covered by the offences specified in the Sections andthe amount falls short of the commercial quantity mentioned thereinfall outside the scope of Sec. 37 and the twin conditions specifiedtherein for grant of bail do not apply.

12. This brings us to the question as to whether theseoffences are bailable. A bailable offence has been defined in Clause(a) of Sec. 2 of Cr. P. C. as an offence which is shown as bailable inthe first schedule or which is bailable by any other law for the timebeing in force. It is now well settled that on the basis of Sec.4(2) ofCr.P,C. if there is any specific provision in respect of bail in aparticular special or local Act, then that specific provision of bailcontained in that Act shall apply to determine whether a particularoffence is bailable or non-bailable, but if there is no such specificprovision then second part of the schedule appended to Cr. P. C., !,,.,

!,,.,

shall operate to ascertain the classification of offences as bailable ornon-bailable. We have already come to the conclusion above that theoffences under the NDPS Act not falling under Secs. 19, 24 and 27-Aand not involving commercial quantity are not covered by and fallwithin the purview of Sec.37 which deals with provision of bail underthe Act. It is evident that there is no other provision under the Actwhich deals with classification of offences as bailable or non-bailableand in the circumstances, a reference has to be made to the secondpart of the schedule to ascertain the classification of the offence asbailable or non-bailable. Therefore, coming to the schedule, it maybe noticed that it consists of two parts. The first part contains list ofoffences under the Indian Penal Code and show which of them arebailable and which are non-bailable. The second part of the schedulewhich is relevant for our purpose lays down that if an offence underthe special or local Act is punishable with death, imprisonment for lifeand imprisonment for 3 years and upwards, it shall be non-bailableand, if such offence is punishable with imprisonment for less than 3years or with fine only, it shall be bailable. The offences in thepresent case being admittedly punishable with imprisonment for lessthan three years fall in the category of offences classified as bailableunder part two of the schedule,

13. Thus, in view of the foregoing discussions andobservations, it follows that the offences falling under Sec. 22(a) and27(b) of the NDPS Act fall in the category of bailable offences.Accordingly, taking into consideration the quantum of the contrabandseized, the fact that the offences are punishable with imprisonment of6 months only, and the fact that the Petitioners are in custody for over two months now, I allow the Petition on the followingconditions: -

(i) The petitioners shall execute bond for Rs.25,000.00(Rupees twenty five thousand) with two solventsureties each of the like amount to the satisfactionof the Special Judge, N.D.P.S. Act, Sikkim atGangtok.(Rupees twenty five thousand) with two solventsureties each of the like amount to the satisfactionof the Special Judge, N.D.P.S. Act, Sikkim atGangtok.

(ii) They shall not do anything to influence thewitnesses and shall be present on each date ofhearing before the Special Court.witnesses and shall be present on each date ofhearing before the Special Court.

(iii) They shall not leave the State without priorpermission of the Special Court.permission of the Special Court.

Send a copy of this order to the concerned Court below for needful compliance.

( A. P. Subba )Judge28/_0_9/2006

/