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CASE NO.: Appeal (crl.)  349 of 2004

PETITIONER: Narcotics Control Bureau                                 

RESPONDENT: Dilip Pralhad Namade                                     

DATE OF JUDGMENT: 18/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: JUDGMENT

O R D E R  

(Arising out of SLP (Crl.) No. 2783/2003)

ARIJIT PASAYAT,J

       Leave granted.

       Grant of bail to the respondent by a learned Single  judge of Bombay High Court is questioned by the Narcotics  Control Bureau (in short the "NCB").  The respondent is  facing trial for alleged commission of offences punishable  under Section 29 read with Sections 8(c),22,28 and 30 of the  Narcotics Drugs and Psychotropic Substances Act, 1985 (for  short the ’NDPS Act’). The allegations against the  respondent Dilip Pralhad Namade  (hereinafter referred to as  ‘the accused’) were that he was involved in the  manufacturing of mandrax tablets and he is the person who  has supplied the technical know how of preparation for the  tablets.          Officers of the appellant- Bureau , Mumbai  Zonal  Unit, got information that one Suresh Faturmal Jain was  travelling in a red Ford Escort car and was carrying 20,000  Mandrax Tablets to be delivered to two persons at a  particular place.  Acting on the information, two officers  of the Bureau went to the vicinity of the place where the  tablets were to be delivered.  Two persons were called to  act as Panchas.  They found that there were three persons  travelling in the car.  The officers searched the car and  arrested all the three occupants.  One of them were Suresh  Futormal Jain and others were Karakutti Karan Anthony and  Rajeev Shirook.  From the bags, 20 Kgm. of Mandrax Tablets  were recovered.  Statement of all the three accused persons  were recorded and on the basis of certain facts disclosed in  the statements, a search was taken up by the Officers and   650 Kgs.  of chemicals used for manufacturing Mandrax  tablets were recovered.  During the course of investigation,  other persons were also searched and enquiries were made.   The case against the respondent-accused was that he was  instrumental in helping the other accused persons in setting  up a plant and machinery for manufacture of Methaqualone  Powder  and Mandrax Tablets.  With the help of others, the

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respondent alongwith accused No. 10  manufactured eleven  lakhs Mandrax tablets on three occasions for other accused  persons.  He had also visited the factory of accused No. 13  for the purpose of procurement of the Mandrax Tableting  Machineries etc.  A bail application was filed by the respondent- accused, which was rejected on 27.8.2001 by the  Special  judge Subsequently an application was filed on 21.6.2002  before the Special Judge for  direction to the prosecuting  agency to supply copies of certain documents purported to  have been recovered from his house.  The Special Judge  directed the prosecution to furnish the copies.         Subsequently an application for bail was filed by the  respondent-accused before the Bombay High Court on  27.8.2002.  By the Impugned order dated 19.12.2002 the High  Court granted bail to the respondent-accused primarily on  the term that the direction given by the Special Judge for  supply of copies of documents was not complied with, though  the bail application was opposed.           In support of the appeal Mr. L. Nageshwara Rao, learned  Additional Solicitor General submitted that while granting  bail the provisions of Section 37 of the Act were not kept  in view.  There is a prohibition on the grant of bail in  terms of Section 37 of the NDPS Act and only under the  specified conditions bail can be granted. Non-supply of  documents pursuant to the court’s order is not one of the  grounds on which bail can be granted.  In fact the High  Court recorded a wrong conclusion by observing that the  order was not complied with and there was also no challenge  to the order directing supply of documents. As a matter of  fact claiming privilege the Bureau had filed an application  before the Special Judge clearly indicating that it would  not be in the interest of justice to grant copies, and  prayer was made to the Court that instead of granting copies  the accused, if he so desires, could inspect the documents  in presence of officials of the Bureau.  That offer was not  accepted by the accused respondent.  The Bureau wanted to  avoid the possibility of any tampering with the original  documents and also further dissemination of the formula in  public and that is why inspection, as indicated above was  offered.  The accused having not chosen to inspect the  documents could not have made a grievance about non-supply  of copies or alleged  non-compliance of the directions of  the learned Special Judge.        Per contra Mr. E.C. Agrarwala, learned counsel  appearing for the respondent-accused submitted that stand  taken by the appellant-Bureau is nothing but a camouflage to  hide its inaction and non-compliance with the orders of the   Special Judge.  There was a specific direction for supply of  copies and there is no ground indicated to substantiate the  claim of privilege.  In any event, the order granting bail  was passed on 19.12.2002 and this Court was approached in  May 2003 and in the meantime nearly  1= years have elapsed  without any allegations of the respondent-accused having  misused his liberties.  He submitted that in two cases i.e.  SLP (Crl.) No. 1136/2002  ( N.C.B. vs. Amar Pal Singh ) and SLP(Crl.) No. 434/2003,  ( N.C.B. vs. Smt. Hamida Sayyed Ali Shaikh) this Court did  not interfere with  order granting bail on the sole ground  of long passage of time.  Therefore, it is submitted that  liberty granted to the respondent-accused should not be  withdrawn.         It would be appropriate to take note of few provisions  which have relevance i.e. Section 2(xxiii) defining  "psychotropic substances", and Section 37 dealing with

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bail.  They 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  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

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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 and he is not likely to commit any offence  while on bail. This nature of embargo seems to have been  envisaged keeping in view the deleterious nature of the  offence, necessitates of public interest and the normal  tendencies of the persons involved in such network to pursue  their activities with greater vigour and make hay when, at  large.  In the case at hand the High Court seems to have  completely overlooked the underlying object of Section 37  and transgressed the limitations statutorily imposed in  allowing bail. It did not take note of the confessional  statement recorded under Section 67 of the Act.                  A bare reading of the impugned judgment shows that the  scope and ambit of Section 37 of the NDPS Act was not kept  in view by the High Court. Mere non-compliance of the order  passed for supply of copies, if any, cannot as in the  instant case entitle an accused to get bail notwithstanding  prohibitions contained in Section 37.         The circumstances under which the bail can be granted  in  the  background of Section 37 have been indicated above.   

The case is not one to which the exceptions provided in  Section 37 can be applied.   Coming to the plea reqarding long passage of time it is  to be noted that the two orders passed by this Court in SLP  (crl.) Nos. 1136/2002 and 434/2003 referred to above do not  lay down any principle of law of invariable nature to be  universally applied.  Furthermore, disposal of SLP against a  judgment of the High Court does not mean that the said  judgment is affirmed by such dismissal.  The order passed in  any SLP at threshold without detailed reasons does not  constitute any declaration of law or constitute a binding  precedent. (see Union of India and others vs. Jaipal Singh  2003(7) Supreme 676).  This court cannot and does not  reverse or modify the decree or order appealed against while  deciding the petition for special leave to appeal and that  too when the SLP was being dismissed.  What is impugned  before this Court can  be reversed or modified only after  granting leave and then assuming appellate jurisdiction over  it.  If the order impugned before this Court cannot be  reversed or modified at the SLP stage obviously that order  cannot also be affirmed at the SLP stage (see Kunhayammed  and others vs. State of Kerala and another (2000)6 SCC 359)  and  Sri Ramnik Vallabhdas Madvane and Ors.  vs. Taraben  Pravinlal Madhvani 2003 (8) Supreme 208).  The inevitable conclusion is that the judgment has no  legal sanction.  We, therefore, set aside the impugned  judgment of the High Court granting bail to the respondent.   The respondent-accused is directed to surrender to custody  forthwith. Appeal is allowed.