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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.