NARCOTICS CONTROL BUREAU v. KISHAN LAL AND OTHERS

Citation: [1991] 1 S.C.R. 139

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, K. JAYACHANDRA REDDY

Case summary

a common order in two petitions filed under The Narcotic Drugs & Psychotropic Substances Act, 1985 ('NDPS Act' for short) held that 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 not...

Judgment text

The Judgment of the Court was delivered by ~ K. JAYACll:ANDRA REDDY, J. The High Court of Delhi by. a common order in two petitions filed under The Narcotic Drugs & Psychotropic Substances Act, 1985 ('NDPS Act' for short) held that 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 not applicable to the High Court. Aggrieved by the said order, the Nan::otics Control Bureau has filed these two appeals. The petitioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act. They were refused bail and remanded to judidal custody. On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody.

The petitioners filed a writ petition as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to· be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Coui:t under Section 37(2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under Section 439 Cr. P. C. for granting bail. The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent.

The learned counsel appearing for the appellants submitted that the High Court has misconstrued the provisions of Section 36-A and 37 of the NDPS Act and that latter Section as amended starts with the non-obstante clause limiting the scope of the provisions of the Cr. P. C. in the matter of granting baii and as such the High Court has no untremelled powers to grant bail inasmuch as the provisions of the amended Section 37 of the NDPS Act override the provisions of Section 439 Cr. P . C. We may at th~s stage note the relevant provisions of NDPS Act. The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc. Sections 15 to 35 deal with various offences and penalties.

Section 36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Section 36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub_-section (b) of Section 36-A .. lays down that if the Magistrate to whom an accused is forwarded under Section 167 Cr. P. C. , considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial.

Sub~section (3) of Section 36-A reads thus: "Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under-Sectio:ri 439-of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36. " BU:REAU v. KISHAN LAL (REDDY, J. ] 143 Now let us note Section 37 as amended in the year 1989 and the same is in the following terms: "37.

Offences to be cognizable and non-bailable-(1) Nothwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable;- -- f supplies and ser- >- · vices to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be released on bail unless the prosecution is given an oppor tunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention.

If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines -while exercising the power to grant 'anticipatory bail' to a. - person apprehending arrest on such accusation, though they' would not be strictly applicable. " (emphasis supplied)' Fazal Ali, J. in his concurring judgment also held thus: y "(4) that in cases covered by r. 184 of the Rules the Court exercising power under s. 436 or s. 438 of the Code has got to comply with the conditions mentioned in clauses (a)&. (b) of r. 184 and only after the Court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed.

" In Usmanbhai's case a question whether the provisions of sub-sections (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration. The language of sub-sections· (8) and (9) of-section-20 is analo-gous to Section 37 of NDPS Act and they read thus: "(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released• on bail or on his own bond unless- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) 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.

(9) The llmitations on granting oT ba"lf specified Iri sllb- -Section (8) are in addition to the limitations under the Code or any other ~aw for the time being in force on granting of bail. " It may b~ noted at this stage that the power of th~ High Court or the SessioQs _CoJ. Irt to_granf aritidpat~ry bail lias been com_. Pletely-taken away unde_rSection 20(7) of tl;le TADA Act·. -:rhe contention was'that the source ~f power of a designated court tq grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail. It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation . of an! ndependent fudiciaryfree from executive control.

After considering these submissions this Court heid that: - - "Though there is no express provision excluding the _ applicability of Section 439 of the Code similar'fo the one y· contained in Section 20(7) of the Act in relation tb a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is __;.. ___ made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(~) are 'in addition to the limitations under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code.

it cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session' within the meaning of ---- Section 437 of the Code. The exercise ofthepower to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) ofthe Act. " (emphasis supplied) Having held so, the learned Judge proceeded to consider the contro- )versy as to the power of the High Court to grant bail under Section 439 Cr. P. C. Having regard to the explicit bar under Section 19(2) of the TADA Act excluding_the iurisdiction of the High Court ente_rtain an appc::al or revision ag_ainst the judgment of the designated court, it. is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal Procedure. However, regarding the construction of non-obstante clause in Sec.

20(8) of the Act, th~s Court held as under: ''The controversy as to· the power of the High Court to grarit bail under Section439 ofthe Code·must also turn on the construction of Section 20(8) of the AcL It commences with a non-obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. .. The first condition is that the prosecution must be given an opportunity to oppose the application for such release afld the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believii. ig that he is not guilty of such offence and that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail.

It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only pla~es limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or an_y other law for ! he time befog fo. force on grantii1g ·of ball. It therefore follows that the power derived \)y Designated Court to gri!! lt bail to a person accused . of ap offence under the' Act, if'in custody, is derived from the Code and not from Section 20(8) of the Act. " It can thus be seen that even in Usmanbhai's case -also there is no observation supporting the view taken by the High Court in the impugned judgment. As a matter of fact in Usmanbhai's case Sen, J.

who spoke for the Bench, after referring to the ratio laid down in Balchand Jain's case observed thus: - ' "The view expressed in Balchand Jain case is not applicable at all for more than one reason. 'there ·was nothing in the Defence and Internal Security of Indfa Act or the Rules . frame~'\ther~der which would exclude the jurisdiction and power of the High Court altogether. On the Cbntrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory orqer, of a Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court.

Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the .. Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous sit:. iation. lf it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) ofthe Act.

which enjoins that notwithstanding anything in the Code, no person >--accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. " .. (emphasis supplied) The High Court in the impugned judgment, however, referred to Usmanbhai's case and held that the limitations placed under Section 37 of the NDPS Act are exactly similar to the ones in sub-section (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts. But we may point out that in paragraph 16 in Usmanbhai's case it is observed: "As a murder of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in- respect of the jurisdiction and power of the High Court to entertain an application for bail under Section 439 of the H.

Code or by recourse to its inherent powers under Section 482. " However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain's case is not applicable to the facts in Usmanbhai's case and the same is clear from the observations made in Usmanbhai's case which read as under: "Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to· - grant bail under Sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code.

" From the above discussion it emerges that in Usmanbhai's case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain's case and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non-obstante clause must be given its due importance. For all the aforesaid reasons we hold that the powers of --·< ' the High Court to grant bail under Section 439 are subject to the limitations contained in the amended . Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly. The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a Jong time. The learned counsel appearing for the Narcotics Control Bureau, the appellant herein, is also not pressing cancellation of the bail.

Therefore, we are not remitting the matters of the High Court for fresh consideration. Pending the proceedings, they would continue to be on bail. Subject to the above clarification of law, the appeals are disposed of. R. P. Appeals disposed of.