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CASE NO.:

Appeal (crl.) 312 of 2004

PETITIONER:

Customs, New Delhi

RESPONDENT:

Ahmadalieva Nodira

DATE OF JUDGMENT: 11/03/2004

BENCH:

S. RAJENDRA BABU,ARIJIT PASAYAT & G.P. MATHUR

JUDGMENT:

J U D G M E N T

Arising out of SLP (Crl.) No.4169 of 2002

ARIJIT PASAYAT, J.

Leave granted.

Grant of bail to the respondent (hereinafter referred

to as 'the accused') by a learned Single Judge, of the Delhi

High Court is questioned by the Customs authorities who had

purportedly recovered huge quantity of "Diazepam" - 5

mg." Tablets from her.

Factual background necessary to be noted is as follows:

On 4.4.2000 Customs authorities detained the

respondent-accused, a Uzbeck national who came to India to

do business in garments and was found carrying large

quantity of "Diazepam" - 5 mg. tablets". In the statement

recorded under Section 67 of the Narcotic Drugs and

Psychotropic Substance Act, 1985 (in short 'the NDPS Act')

recovery of tablets was admitted by the accused. She was

arrested on 5.4.2000. An application for bail was file

before the Special Court, NDPS Act which was rejected taking

into account of the embargo placed under Section 37 of the

Act. The accused-respondent filed an application for bail

under Section 439 read with Section 482 of the Code of

Criminal Procedure, 1973 (in short 'the Code'). The stand

taken essentially was that he tablets seized were not

"psychotropic substance" within the definition of the term

in the Act. The application was opposed by the detaining

authorities on the ground that the article in question was

covered by Serial no. 43 of the Schedule to the Act, the

export production manufacture, possession etc. which are

prohibited under Section 8 of the Act. The High Court was

of the view that no definite material was placed to show the

materials allegedly recovered conforms to the chemical name

mentioned in the Item no.43 of the Schedule to the Act, and,

therefore, cannot be treated to be a psychotropic substance.

Report of the Central Control Laboratory which was placed

for consideration was held to be of no consequence.

Accordingly bail was granted to the respondent on her

furnishing personal bond for a sum of Rs.1,00,000/- with one

surety for the like amount to the satisfaction of the Trial

Court. It was further stipulated that the respondent-

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accused was not to leave the jurisdiction of the Trial Court

without prior permission from that Court.

In support of the appeal, Mr. K.K. Sood, learned

Additional Solicitor General, submitted that approach of the

High Court is clearly erroneous and overlooks the

restrictions and limitations imposed by Section 37 of the

NDPS Act. With reference to serial no.43 of the Schedule to

the Act it is submitted that not only the seized articles

conform to the description but also the laboratory reports

evidentiary value was totally overlooked. There is no

appearance for the respondent-accused in spite of the

notice.

It would be appropriate to take note of few provisions

which have relevance. Section 2(xxiii) defining

"psychotropic substances" and Section 37 dealing with bail

read as follows:

Section 2(xxiii)

"psychotropic substance" means any

substance, natural or synthetic, or any

natural material or any salt or preparation

of such substance or material included in the

list of psychotropic substances specified in

the Schedule.

Section 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 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.

(2) The limitation 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 time being in force

on granting of bail."

As observed by this Court in Union of India v.

Thamisharasi & Ors. (JT 1995 (4) SC 253) clause (b) of sub-

section (1) of Section 37 imposes limitations on granting of

bail in addition to those provided under the Code. The two

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limitations are (1) an opportunity to the public prosecutor

to oppose the bail application and (2) satisfaction of the

Court that there are reasonable grounds for believing that

the accused is not guilty of such offence and that he is not

likely to commit any offence while on bail.

The limitations on granting of bail come in only when

the question of granting bail arises on merits. Apart from

the grant of opportunity to the public prosecutor, the other

twin conditions which really have relevance so far the

present accused-respondent is concerned, are (1) the

satisfaction of the Court that there are reasonable grounds

for believing that the accused is not guilty of the alleged

offence and that he is not likely to commit any offence

while on bail. The conditions are cumulative and not

alternative. The satisfaction contemplated regarding the

accused being not guilty has to be based for reasonable

grounds. The expression "reasonable grounds" means

something more than prima facie grounds. It contemplates

substantial probable causes for believing that the accused

is not guilty of the alleged offence. The reasonable belief

contemplated in the provision requires existence of such

facts and circumstances as are sufficient in themselves to

justify satisfaction that the accused is not guilty of the

alleged offence. In the case at hand the High Court seems

to have completely overlooked the underlying object of

Section 37. It did not take note of the confessional

statement recorded under Section 67 of the Act. Description

Serial no.43 of the Schedule which reads as follows has not

been kept in view.

Sl. No. International Other Chemical name

non-proprietary non-proprietary

......

43 DIAZEPAM 7-Chloro-1, 3-dihydro-1-

methyl-5-phenyl-2H-1

4-benzondiazepin-2-one

.......

In addition, the report of the Central Revenue Control

Laboratory was brought to the notice of the High Court. The

same was lightly brushed aside without any justifiable

reason.

In the aforesaid background, this does not appear to be

a case where it could be reasonably believed that the

accused was not guilty of the alleged offence. Therefore,

the grant of bail to the accused was not called for. The

impugned order granting bail is set aside and the bail

granted is cancelled. The accused-respondent is directed to

surrender to custody forthwith. Additionally it shall be

open to the Trial Court to issue notice to the surety and in

case the accused does not surrender to custody, as directed,

to pass appropriate orders so far as the surety and the

amount of security are concerned. It is made clear that no

final opinion on the merit of the case has been expressed in

this judgment, and whatever has been stated is the

background of Section 37 of the Act for the purpose of bail.

The appeal is allowed.

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