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CASE NO.: Appeal (crl.)  288 of 2004

PETITIONER: Union of India

RESPONDENT: Mahaboob Alam

DATE OF JUDGMENT: 27/02/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.)No.5200 of 2003)

SANTOSH HEGDE,J.

       Leave granted.

The respondent herein was convicted by the Special  Judge, N.D.P.S. Court, Lucknow, under section 21 of the  Narcotic Drugs and Psychotropic Substances Act, 1985 (the  Act) and since he was a previous offender, the court awarded  him the enhanced punishment provided under section 31 of the  Act and he was sentenced to undergo RI for 15 years with a fine  of Rs.1,50,000; in default to undergo RI for an additional period  of 2 years. It is to be noted that the respondent herein was  accused No.2 in the said case before the trial court while A-1  being a first offender was sentenced under section 21 of the Act  to undergo RI for 10 years with a fine of Rs.1 lac; in default of  payment of fine he was sentenced to undergo RI for an  additional period of 1 = years.

       The High Court while entertaining an appeal against the  said judgment and conviction filed by the respondent herein,  did not grant the respondent’s prayer for bail, consequently the  said application for bail was rejected on 9.7.2002. On a second  application filed by the respondent for grant of bail, the High  Court allowed the said application by the impugned order dated  4.3.2003 solely on the ground that A-1 from whom the  contraband was recovered, was released on bail and the  contraband in question was not recovered from the respondent.  From the impugned judgment we notice that the High Court did  not advert to any other aspect of the case nor to the legal  restriction imposed by the statute under section 32A of the Act.

       The Union of India has preferred the above appeal  against the said order of the High Court enlarging the  respondent on bail.

       It is relevant to mention herein that against the grant of  bail in regard to A-1 who was also enlarged on bail and whose  enlargement on bail was made the sole ground for enlarging the  present respondent bail, the Union of India has preferred a  separate SLP in which notice and non-bailable warrants have  been issued by this Court which have remained unexecuted till  date. The fact remains that the Union of India has challenged  the grant of bail to said accused also.

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       Learned Additional Solicitor General appearing for the  Union of India contended that the High Court apart from not  considering the mandatory restriction under section 32A of the  Act, did not also notice the fact that the respondent was a  previous offender and there were at least 4 other similar cases  pending against him under the Act. The High Court also did not  consider the possibility of the offender again indulging in the  dealings of contraband articles in the event of he being released  on bail which is also a very relevant factor to be borne in mind  while granting bail in cases involving offences under the Act.  He further contended that the respondent having suffered a  conviction, there is a presumption that the prosecution has  established its case against him in that circumstance, it was not  proper for the High Court to have enlarged the respondent on  bail. Learned counsel also submitted that the High Court failed  to take into consideration various judgments of this Court in  regard to enlarging the offenders on bail under the Act.

       Per contra, learned counsel for the respondent contended  that the respondent is a victim of conspiracy hatched by the  Department of Narcotics and the Police because in the year  1995, he had made a complaint to the Superintendent of Police  that some of the Police Officers had illegally detained him and  had demanded and collected a sum of Rs.50,000 for his release.  It is because of that complaint made by the respondent, the  Police and the officials of the Department of Narcotics are  foisting false cases against the respondent. He also contended  that in the present case as well as in other cases also no  contraband goods have been recovered from the respondent and  that the respondent has served nearly 4 years of his sentence,  and there is no possibility of the appeal being taken up for final  hearing in the near future, hence, the High Court was justified  in granting bail to the respondent.

       In the case of Dadu alias Tulsidas etc. v. State of  Maharashtra (2000 8 SCC 437), this Court held that though a   part of section 32-A insofar as it ousts the jurisdiction of the  court to suspend the sentence awarded to the convict under the  Act is unconstitutional, still held that the whole of the section  would not be invalid and the restriction imposed by the  offending section was distinct and severable. It further held that  the legislative mandate under that Section has to be followed by  the courts while granting bail to the offenders under the Act. It  also held that the court should bear in mind "that in a murder  case, the accused commits murder of one or two persons, while  those persons who are dealing in narcotic drugs are  instrumental in causing death or in inflicting death-blow to a  number of innocent young victims, who are vulnerable; it  causes deleterious effects and a deadly impact on the society;  they are a hazard to the society; even if they are released  temporarily, in all probability, they would continue their  nefarious activities of trafficking and/or dealing in intoxicants  clandestinely. Reason may be large stake and illegal profit  involved." In the said judgment also relied on the following  passage with approval in the case of Durand Didier v. Chief  Secretary, Union Territory of Goa (1990 1 SCC 95) in the  following words :

       "With deep concern, we may point out that the organised  activities of the underworld and the clandestine smuggling of  narcotic drugs and psychotropic substances into this country  and illegal trafficking in such drugs and substances have led to  drug addiction among a sizeable section of the public,  particularly the adolescents and students of both sexes and the  menace has assumed serious and alarming proportions in the

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recent years. Therefore, in order to effectively control and  eradicate this proliferating and booming devastating menace,  causing deleterious effects and deadly impact on the society as  a whole, Parliament in its wisdom, has made effective  provisions by introducing this Act 81 of 1985 specifying  mandatory minimum imprisonment and fine."         Following the above dangerous trend arising out of  narcotics trade, this Court in the said case held though the court  has the power of granting bail inspite of the language of section  32-A that the same should be done only and strictly subject to  the conditions spelt out in section 37 of the Act.  We notice that in the impugned judgment there has been  absolutely no application of mind to the above requirement of  law while granting bail to the respondent and the learned Judge  seriously erred in granting bail to a repeat offender merely on  the ground that a co-accused has been granted bail. While doing  so, the learned Judge has totally ignored the legislative intent of  the Act.         The argument of learned counsel for the respondent that  the appellant is a victim of vengeance, is an argument to be  taken note of by the High Court when it hears the appeal on  merit, and cannot be an argument for the purpose of grant of  bail; more so when the trial court has taken note of this  argument and has rejected the same.         Having perused the records, we are satisfied that this is  not a case in which the High Court ought to have enlarged the  respondent on bail.

       For the reasons stated above, we allow this appeal, set  aside the impugned order. The respondent who is in custody by  virtue of the non-bailable warrants  issued by this Court, shall  continue to be in custody unless for good reasons, he is  enlarged on bail by a competent court.