Supreme court of
india
BENCH: PANDIAN, S.R. (J) & REDDY, K. JAYACHANDRA
(J)
On 29.01.1991
NARCOTICS CONTROL BUREAU : PETITIONER
Vs.
KRISHAN LAL AND OTHERS RESPONDENT
CITATION: 1991 AIR 558
1991 SCR (1) 139, 1991 SCC (1) 705 JT 1991 (1) 258, 1991 SCALE (1)97
ACT:
Narcotic Drugs and Psychotropic
Substances Act, 1985:Sections 36 and 37(2)-Special Courts-Powers to grant bail-Restrictions-
Whether to be treated as fetters on High Court to grant bail under s. 439, Cr.
P.C.
Code of Criminal Procedure 1973:
Section 439-Bail-High Court’s power-Whether restricted by s. 37(2) of the Narcotics
Drugs and Psychotropic Substances Act, 1985.
HEADNOTE:
The respondents in the appeals
who were arrested for offences under various sections of the narcotic Drugs and
Psychotropic Substances Act, 1985, were refused bail, and were remanded to
judicial custody. On the basis of the report the Magistrate took cognizance,
and remanded them to judicial custody.
The respondents filed writ
petition and criminal miscellaneous petition before the High Court seeking bail
under s. 167(2), Criminal Procedure Code on the grounds of belated submission
of the charge sheet , and on account of illness. The matter was referred to a
Division Bench held that the limitations placed on the Special Court under s.
37 (2) of the Narcotic Drugs and Psychotropic Substances Act could not be read
as fetters on the High Court in exercise of its power under s. 439, Cr.P.C. to
grant bail.
Aggrieved, the Narcotics
Control Bureau appealed to this Court, and contended that the High Court had no
untrammeled powers in the matter of granting bail, as the provisions of s. 37
of the NDPS Act override those of s. 439, Cr. P.C.
On the question: whether
the limitation placed on the Special Court under s. 37(2) of the NDPS Act is to
be treated as fetters on the powers of the High Court also in granting bail
under s. 439, Cr. P.C.
Disposing of the appeals,
this Court,
HELD:
1. The powers of the High Court to grant bail under
s. 439, Cr. p.C. are subject to the limitations contained in the amended s.37
of the Narcotic Drugs and Psychotropic Substances Act, 1985, 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.
2. When there is a special enactment in force
relating to the manner of investigation, enquiry or otherwise dealing with
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.
3. (a)
The Narcotic Drugs and Psychotropic
Substances Act, 1985 is a special enactment, enacted with a view to make
stringent provisions for the control and regulation of operations relating to
narcotic drugs and psychotropic substances. That being the underlying object
and particularly when the provisions of s.37 of the NDPS Act are in negative
terms limiting the scope of the applicability of the provisions of the Criminal
Procedure Code regarding bail, it cannot be said that the High Court’s power to
grant bail under s. 439, cr. P.C. are not subject to the limitation mentioned
under s. 37 of the NDPS Act.
(b)
Section 37 of the NDPS Act starts with a no
obstinate clause stating that notwithstanding anything contained in the Code of
Criminal Procedure, 1973 no person accused of an offence prescribed therein
shall be released on bail unless the conditions contained therein were satisfied.
(c)
The non-obstante clause with
which s. 37 of the NDPS Act starts should be given its due meaning and clearly it
is intended to restrict the powers to grant bail.
(d)
In case of inconsistency
between s. 439, Cr. P.C. and S.37 of the NDPS Act, s. 37 prevails.
(e)
Consequently the power to grant
bail under any of the provisions of the Code of Criminal Procedure should necessarily
be subject to the conditions mentioned in s. 37 of the NDPS Act. Lt. Col. Prithi Pal Singh Bedi etc. v. Union of
India & Others, [1983] 1 SCR 393 and Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR page 52,
relied on. Usmanbhai Dawoodbhai Memon
and Others v. State of Gujarat, [1988] 2 SCC 271, referred to.
4. The two accused-respondents being on bail for
a long time under the orders of the High Court and the Narcotics Control Bureau
not passing the cancellation of bail, the matter need not be remitted to the
High Court, and the respondents would continue to be on bail.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 810-811 of 1989. From the
Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl. W.P. No.
622 of 1988 and Crl. Misc. Main Petition No. 1132 of 1988. J.S. Arora, Sudhansu
S. Das, Satish Agrawal and N.P. Kaushik for the Appellant. V.C. Mahajan, A.K.
Ganguli Ashok Bhan, A. Subhashini, P.P.. Tripathi and S.K. Sabharwal for the
Respondents. The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi by a common order
in two petitions filed under The
Narcotic Drugs & Psychtropic 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 Narcotic Control
Bureau has filed these two appeals.
The peritioners 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 judicial 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 Court 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 provisions of the
Cr.P.C. in the matter of granting bail and as such the High Court has no untrammeled
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 this 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 Section 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."
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)
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 a term of imprisonment of five
years or more under this Act 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 oppose 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 law being in force on granting of bail."
Now
it becomes necessary to extract Section 439 Cr. P..C. which reads as under:
"439.
Special powers of the High Court or Court of Section regarding bail--(1) A High
Court or Court of Session may direct--
(a)
that any person accused of an offence and in custody be released on bail, and
if the offence is of the nature specified in sub-section (3) of Section 437 ,
may impose any condition which it considers necessary for the purposes
mentioned in that sub-section;
(b)
that any condition imposed by a magistrate when releasing any person on bail be
set aside or modified;
Provided that the High Court or the
Court of Session shall, before granting bail to a person who is accused on an offence
which is triable exclusively by the Court of Session or which, though not so
triable, is punishable with imprisonment for life, give noticeof the
application for bail to the Public prosecutor unless it is, for reason to be
recorded in writing , of opinion that it is not practicable to give such
notice.
(2)
A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody."
The High Court having taken into
consideration subsection (3) of Section 36-A took the view that the limitations
placed on the Special Courts cannot be read as fetters in its exercise of the
powers under Section 439 Cr.P.C. In this context, the Division Bench referred
to to subsections(8) and (9) of Section 20 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (’TADA Act’ for short) which are similar to
Section 37 of NDPS Act and also relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others v.
State of Gujarat, [1988] 2 SCC 271 a case which arose under the TADA Act.
We shall refer to this judgment at a later stage after analysing the scope and effect
of Section 37 of NDPS Act.
Section 37 as amended starts
with a non-obstante clause stating that notwithstanding anything contained in
the Code of Criminal Procedure, 1973 no person accused of an offence prescribed
therein shall be released on bail unless the conditions contained therein were
satisfied. The NDPS Act is a special enactment as already noted it was enacted
with a view to make stringent provision for the control and regulation of
operations relating to narcotic drugs and psychotropic substances. The being
the underlying object and particularly when the provisions of Section 37 of
NDPS Act are in negative terms limiting the scope of the applicability of the
provisions of Cr. P.C. regarding bail, in our view, it cannot be held 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 NDPS Act. 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. In case of inconistency between Section
439 Cr. P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this
context Section 4 Cr. P.C. may be noted which read thus:
"(4) Trial of
offences under the Indian Penal Code and other laws—
(1) All offences under
the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried,
and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under
any other law shall be investigated, inquired into, tried, and otherwise dealt
with according to the same provision, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences."
It can thus be seen 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 Cr.
P.C. should be subject to such special enactment. In interpretating the scope
of such a statute the dominant purpose underlying the statute has to be borne
in mind. In Lt. Col. Prithi Pal Singh
Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 regarding the
mode of interpretation the Supreme Court observed as follows:
"The dominant
purpose in construing a statute is to ascertain the intention of Parliament.
One of the well recognised canons of construction is that the legislature
speaks its mind by use of correct expression and unless there is any ambiguity
in the language of the provision, the Court should adopt literal construction
if it does not lead to an absurdity."
As already noted, Section 37 of
the NDPS Act starts with a non-obstante clause stating that notwithstanding
anything contained in the Code of Criminal Procedure, 1973 no person accused of
an offence prescribed therein shall be released on bail unless the conditions
contained therein are satisfied. Consequently the power to grant bail under any
of the provisions of Cr. P.C. should necessarily be subject to the conditions
mentioned in Section 37 of the NDPS Act.
We shall now refer to some of the
decisions of the Court dealing with the analogous provision in other special enactments.
Rule 184 of the Defense and Internal Security of India Rules, 1971 which is
analogous to Sec. 37 of the NDPS Act runs as follows:
"Rule 184.
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V
of 1898) no person accused or convicted of a contravention of these Rules or
orders made there under shall, if in custody, be released on bail or his own
bond unless--
(a) the prosecution has
been given an opportunity to opposed the application for such release, and
(b) where the prosecution
opposes the application and the contravention is of any such provision of these
Rules or orders made there under as the Central Government or the State
Government may be notified order specify in this behalf, the Court is satisfied
that there are reasonable grounds for believing that he is not guilty of such contravention."
The Rule commences with a
non-obstante clause and in its operative part imposes a ban on release on bail
of a person accused or convicted of a contravention of the Rules. It imposes
fetters on the exercise of the power of granting bail in certain kinds of
cases. In Balchand Jain v. State of
Madhya Pradesh, [1977] 2 SCR 52 a question arose whether the power to grant
anticipatory bail under Section 438 can stand side by side with Rule 184 of
whether former provision is overridden by the latter. This Court held that Rule
184 does not stand in the way of Court of Session or High Court granting
anticipatory bail on the ground that the two provision operate at two different
stages. Of course, in the instant case, we are not concerned with Section 438
but the observation regarding the scope of Rule 184 are relevant which read
thus:
"But even if Rule
184 does not apply in such a case, the policy behind this Rule would have to be
borne in mind by the Court while exercising its power to grant ’anticipatory
bail’ under Section 438. The Rule making authority obviously though offences
arising out of contravention of Rules and orders made there-under were serious
offences as they might imperil the defense of India or civil defense or
internal security or public safety or maintenance of public order or hamper
maintenance of supplies and services 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 opportunity 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:
"(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 go 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 section 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 analogous to Section 37 of NDPS Act
and they read thus:
"(8) Notwithstanding
anything contained in the Code, no person accused on an offence punishable under
this Act or any rule made thereunder shall, if in custody, 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 limitation on
granting of bail specified in sub-section (8) are in addition to the limitations
under the Code or any other law for the time being in force or granting of
bail."
It may be noted at this stage
that the power of the High Court or the Sessions Court to grant anticipatory
bail has been completely taken away under Section 20(7) of the TADA Act. The
contention was that the sources of power of a designated court to 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 independent judiciary free from executive control. After considering
these submissions this Court held that:
"Though there is no
express provision excluding the applicability of Section 439 of the Code similar
to the one contained in Section 20(7) of the Act in relation to a case
involving the arrest of any person on an accusation of having committed an
offence punishable under the Act or any rule made there under, but that result
must, by necessary implication, follow. it is true that the source of power of
a Designated Court to grant bail is no 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(8) 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 of section 437 of the Code. The exercise of the power 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) of the
Act."
(emphasis supplied)
Having held so, the learned Judge
proceeded to consider the controversy as to the power of the High Court to
grant bail under Section 439 Cr. P.C. Act excluding the jurisdiction of the
High Court entertain an appeal or revision against 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, this Court held as under:
"The controversy as to the power of the High
Court to grant bail under Section 439 of the Code must also turn on the
construction of Section 20(8) of the Act. 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 and the second condition is that where there is such opposition, the
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. 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 places limitations on such powers. This is
implicit by Section 20(9) which in terms provides that the limitations or
granting of bail specified in subsection (8) are in addition to the limitations
under the Code or any other law for the time being in force on granting of
bail. it therefore follows that the power derived by a Designated Court to grant
bail to a person accused of an 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
Usman bhai’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 defense
and Internal Security of India Act or the Rules framed there-under which would
exclude the jurisdiction and power of the High Court altogether. On the contrary,
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 order, 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 situation. If 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 High 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) of the 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 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
Defense and Internal Security of India Act, 1971. They proceed on the well
recognised principle that an outer 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 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 long
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.
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