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CASE NO.:

Appeal (civil) 137 of 2001

PETITIONER:

INTELLIGENCE OFFICER, NARCOTICS C. BUREAU

Vs.

RESPONDENT:

SAMBHU SONKAR AND ANOTHER

DATE OF JUDGMENT: 02/02/2001

BENCH:

M.B. Shah & S.N. Variava.

JUDGMENT:

Shah, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

Limited question involved in this appeal is whether the

restrictions imposed under Section 37 of the Narcotic Drugs

Psychotropic Substances Act, 1985 (hereinafter referred to

as the Act) would be applicable in a case where offence is

punishable under Section 20 (b) (i) for possessing Ganja?

It is the prosecution version that acting on intelligence

report a batch of Narcotic Control Bureau officers searched

the premises of respondent No.1, Shambhu Sonkar, at G.T.

Road, P.S. Golabari, District Howrah on 22.11.1999 and

recovered 18.7 Kgs. of Ganja and a sum of Rs.4,370/- . On

the same date a confessional statement of the respondent was

also recorded. The respondent filed a bail application

before the Additional District Judge, Howrah, which was

rejected by order dated 2nd February, 2000. Thereafter, the

respondent approached the High Court of Calcutta and the

High Court by its order dated 7th March, 2000 allowed the

said bail application by holding that restrictions imposed

by Section 37 of the N.D.P.S. Act, 1985 (hereinafter

referred to as NDPS Act) would not be applicable as the

maximum imprisonment provided for the offence under Section

20(b)(i) is 5 years. That order is challenged by filing the

present petition under Article 136 of the Constitution.

Learned Additional Solicitor General submitted that

order passed by the High Court is on the face of it against

the statutory mandate provided under Section 37. As against

this, learned counsel appearing for the respondents

submitted that the interpretation given by the High Court is

justified, particularly because it affects personal liberty

of a citizen who is yet to be tried. For appreciating the

rival contentions we would refer to Sections 20 and 37 of

the said Act which read thus: -

20. Punishment for contravention in relation to

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cannabis plant and cannabis.Whoever, in contravention of

any provision of this Act or any rule or order made or

condition of licence granted thereunder,--

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases,

transports, imports inter-State, exports inter-State or

uses cannabis,

shall be punishable,--

(i) where such contravention relates to ganja or the

cultivation of cannabis plant, with rigorous imprisonment

for a term which may extend to five years and shall also be

liable to fine which may extend to fifty thousand rupees;

(ii) where such contravention relates to cannabis other

than ganja, with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to

twenty years and shall also be liable to fine which shall

not be less than one lakh rupees and which may extend to two

lakh rupees;

Provided that the court may, for reasons to be recorded

in the judgment, impose a fine exceeding two lakh rupees.

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 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 time being in force on

granting of bail.

The scheme of section 37 reveals that the exercise of

the power to grant bail by the Special Judge is not only

subject to the limitations contained under Section 439 of

the Cr.P.C., but is also subject to the limitation placed by

Section 37 which commences with non-obstante clause. The

operative part of the said section is in negative in

prescribing the enlargement of bail of any person accused of

commission of an offence under the Act unless two conditions

are satisfied. The first condition is that prosecution must

be given an opportunity to oppose the application and the

second is that the Court must be satisfied that there are

reasonable grounds for believing that he is not guilty of

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such offence. If either of these two conditions is not

satisfied, the ban for granting bail operates. As per the

mandate of Section 37, no person accused of an offence

punishable for a term of imprisonment of 5 years or more

under the Act can be released on bail unless the conditions

mentioned in sub-clauses (i) and (ii) of Clause (b) are

satisfied. Pre-condition for application of clause (b)

would be that offence is punishable for a term of

imprisonment of 5 years or more. Plain reading of the above

said clause makes it clear that in case where the person is

accused of an offence punishable for a terms of imprisonment

of 5 years then he cannot be released unless the conditions

mentioned therein are satisfied. In case of offence

punishable under Section 20 (b) (i), maximum punishment is

for a term of imprisonment of 5 years and a fine which may

extend to Rs. 50,000/-. There is no justifiable reason to

hold that maximum term of imprisonment is to be excluded for

the purpose of interpretation and Section 37 would not cover

in its fold offence punishable under Section 20(b)(i).

Further, even if we consider the legislative intent in

context of other provisions which provide for punishment it

would be clear that Section 37 would cover in its fold the

offence punishable under Section 20(b)(i). Provisions

empowering the Court to impose punishment can be divided

into four parts, namely, (i) less than five years, (ii) up

to five years (iii) more than five years and (iv) providing

death penalty. Sections 26, 27 and 32 provide for

imprisonment for a term which may be less than five years.

Section 25(a) provides that the imprisonment may extend up

to ten years. Other sections, namely, Section 15, 16, 17,

18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that

punishment shall not be for a term less than ten years.

Except Section 20(b)(i), there is no provision which

prescribes that imprisonment may extend to five years. For

the offence punishable under said Section, in appropriate

cases, Court may impose maximum punishment of five years.

Therefore, there is no reason to exclude the said clause

from the operation of Section 37.

The aforesaid interpretation is also in consonance with

the legislative object. The Act has provided stringent

provisions for the control and regulation of operations

relating to Narcotic Drugs and Psychotropic Substances and

matters connected therewith. For granting of bail, in the

Statement of Objects and Reasons for introducing Bill 125 of

1988 (Act 2 of 1989), the following passage has been stated:

Even though the major offences are non-bailable by

virtue of the level of punishment, on technical grounds,

drug offenders were being released on bail. In the light of

certain difficulties faced in the enforcement of the NDPS

Act, 1985 the need to amend the law to further strengthen

it, has been felt.

Further, in Maktool Singh v. State of Punjab [(1999) 3

SCC 321] this Court while interpreting Section 32A which

provides that no sentence awarded under the Act other than

Section 27 shall be suspended or remitted or commuted,

considered Section 37 along with the scheme of the Act and

held thus:-

The only offences exempted from the purview of the

aforesaid rigours on the bail provisions are those under

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Sections 26 and 27 of the Act. The former is punishable up

to a maximum imprisonment for three years and the latter up

to a maximum imprisonment for one year. For all other

offences, the courts power to release an accused on bail

during the period before conviction has been thus

drastically curtailed by providing that if the Public

Prosecutor opposes the bail application, no accused shall be

released on bail, unless the court is satisfied that there

are reasonable grounds for believing that he is not guilty

of such offence.

In view of the foregoing discussion, it would be

difficult to accept the contention of the learned counsel

for the respondent that the liberal interpretation given by

the High Court to Section 37 is justified as it affects

personal liberty of a citizen who is yet to be tried. In

our view, considering the legislative intent of curbing the

practice of giving bail on technical ground in a crime which

adversely affects the entire society including lives of

number of persons and the object of making stringent

provisions for control of illicit traffic in narcotic drugs

and psychotropic substances, there is no reason to accept

the construction of the section which its language can

hardly bear.

In the result, the appeal is allowed, the impugned order

passed by the High Court releasing the respondent on bail is

set aside. Bail bonds of the accused stand cancelled and he

is directed to be taken into custody. The trial court is

directed to expedite the trial.