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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.