REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  137  OF 2009     (Arising out of S.L.P. (Criminal) No.1057 of 2008)

UNION OF INDIA — APPELLANT

VERSUS

RATTAN MALLIK @ HABUL — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

Delay condoned.

2. Leave granted.

3. Challenge  in  this  appeal,  by  the  Union  of  India,  is  to  the  order  dated  13th

November,  2006,  passed  by  the  High  Court  of  Judicature  at  Allahabad

suspending the sentence awarded by the trial Court to the respondent for having

committed offences under Sections 8/27A and 8/29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and granting him

bail.

4. Since in this appeal we propose to deal with the short question, viz. whether the

High Court, while accepting the prayer for grant of bail, had kept in view the

parameters of Section 37 of the NDPS Act, we deem it unnecessary to advert to

the facts of the case against the respondent in greater detail.  It would suffice to

note that the case of the prosecution against the respondent was that he was

involved in financing and trading in 14.900 kilograms of heroin, recovered from

a specially made cavity above the cabin of a truck. Upon consideration of the

evidence adduced, the Trial Court came to the conclusion that the prosecution

had successfully proved the charges against the respondent and three others.

On conviction, the Trial  Court sentenced the respondent to undergo rigorous

imprisonment for ten years and to pay a fine of Rs.1 lac under Section 27A of

the NDPS Act and undergo rigorous imprisonment for ten years and a fine of

Rs.1 lac under Section 29 of the NDPS Act, with default stipulation.

5. Being aggrieved, the respondent preferred an appeal to the High Court along

with an application for suspension of sentence and grant of bail till his appeal

was finally decided. The High Court, by the impugned order, has allowed the bail

application and has ordered that the respondent shall be released on bail on his

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executing a personal bond and furnishing two sureties each in the like amount

to the satisfaction of the concerned Court.  

6. The  considerations  which  weighed  with  the  High  Court  for  suspension  of

sentence and grant of bail  are brief  and for the sake of ready reference are

extracted below:

“The  appellant  has  been  convicted  under  Sections  8/27-A and 8/29 N.D.P.S. Act for ten years R.I and also fine.  Nothing has been found from his possession.  Besides the appellant is in jail since 5.9.2003.  Three years have already lapsed.  There is no chance of the appeal being heard within a period of seven years.”

7. Aggrieved thereby, the Union of India has preferred this appeal.

8. Mr. A. Sharan, learned Additional Solicitor General of India, strenuously urged

that the High Court has committed a grave error of law in granting bail to the

respondent,  ignoring the mandatory provisions of Section 37 of the NDPS

Act.  The learned counsel contended that the High Court lost sight of the

restrictions  and  limitations  imposed  by  Section  37  of  the  NDPS  Act.

According to the learned counsel, the grant of bail to the respondent, without

recording any finding on the conditions as stipulated in Section 37(1)(b)(ii) of

the  NDPS  Act,  the  order  suspending  the  sentence  is  ex  facie  illegal  and

therefore  deserves to be set  aside,  with a direction to the respondent  to

surrender to custody forthwith. In support of the proposition that suspension 3

of sentence by the appellate Court has to be within the parameters of law,

prescribed by the Legislature, the learned senior counsel placed reliance on a

three  judge  Bench decision of  this  Court  in  Dadu  alias  Tulsidas  Vs.  State  of

Maharashtra1.  

9. Learned counsel appearing on behalf of the respondent, on the other hand,

supported the impugned order and submitted that if the impugned order is

read as a whole,  it  can be inferred therefrom that the learned Judge was

conscious of the provisions of Section 37 of the NDPS Act.  It is, thus, urged

that the order granting bail to the respondent being discretionary, this Court

should be loath to interfere with it in exercise of its jurisdiction under Article

136 of the Constitution.

10.Having carefully gone through the impugned order,  we are constrained to

observe that while dealing with the application for bail,  the learned Judge

appears to have lost sight of the mandatory requirements of Section 37 of

the NDPS Act and thus, the impugned order is clearly unsustainable.

11.The broad principles which should weigh with the Court in granting bail in a

non-bailable offence have been enumerated in a catena of decisions of this

Court and, therefore, for the sake of brevity, we do not propose to reiterate

the same. However, when a prosecution/conviction is for offence(s) under a

1 (2000) 8 SCC 437 4

special statute and that statute contains specific provisions for dealing with

matters arising thereunder, including an application for grant of bail, these

provisions  cannot  be  ignored  while  dealing  with  such  an  application.  As

already noted, in the present case, the respondent has been convicted and

sentenced for offences under the NDPS Act and therefore, while dealing with

his application for grant of bail,  in addition to the broad principles to be

applied in prosecution for offences under the Indian Penal Code, 1860 the

relevant provision in the said special statute in this regard had to be kept in

view.

12.Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from

29th May, 1989 with further amendment by Act 9 of 2001 reads as follows:

“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 offences under Section 19  or  Section  24  or  Section  27A  and  also  for  offences  involving commercial  quantity  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.

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(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 (12 of 1974), or any other law for the time being in force on granting of bail.”

13.It is plain from a bare reading of the  non-obstante clause in the Section and

sub-section (2) thereof that the power to grant bail to a person accused of

having committed  offence under  the NDPS  Act  is  not  only  subject  to the

limitations imposed under Section 439 of the Code of Criminal Procedure,

1973, it is also subject to the restrictions placed by sub-clause (b) of sub-

section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to

the Public Prosecutor to oppose the application for such release, the other

twin conditions viz; (i) the satisfaction of the Court that there are reasonable

grounds for believing that the accused is not guilty of the alleged offence;

and (ii) that he is not likely to commit any offence while on bail, have to be

satisfied.   It  is  manifest  that  the  conditions  are  cumulative  and  not

alternative. The satisfaction contemplated regarding the accused being not

guilty, has to be based on “reasonable grounds”. The expression ‘reasonable

grounds’ has not been defined in the said Act but means something more

than prima facie grounds. It connotes substantial probable causes for believing

that  the  accused  is  not  guilty  of  the  offence  he  is  charged  with.  The

reasonable belief contemplated in turn points to existence of such facts and

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circumstances as are sufficient in themselves to justify satisfaction that the

accused  is  not  guilty  of  the  alleged  offence.  [Vide  Union  of  India  Vs.  Shiv

Shanker  Kesari2] Thus,  recording of  satisfaction on both the aspects,  noted

above, is sine qua non for granting of bail under the NDPS Act.

14.We may, however, hasten to add that while considering an application for bail

with reference to Section 37 of the NDPS Act, the Court is not called upon to

record a finding of ‘not guilty’.   At this stage, it  is neither necessary nor

desirable to weigh the evidence meticulously to arrive at a positive finding as

to whether or not the accused has committed offence under the NDPS Act.

What is to be seen is whether there is reasonable ground for believing that

the accused is not guilty of the offence(s) he is charged with and further that

he is not likely to commit an offence under the said Act while on bail.  The

satisfaction of the Court about the existence of the said twin conditions is for

a limited purpose and is confined to the question of releasing the accused on

bail.

15.Bearing in mind the above broad principles, we may now consider the merits

of the present appeal.  It is evident from the afore-extracted paragraph that

the circumstances which have weighed with the learned Judge to conclude

that it was a fit case for grant of bail are : (i) that nothing has been found

2 (2007) 7 SCC 798 7

from the possession of the respondent; (ii) he is in jail for the last three years

and (iii) that there is no chance of his appeal being heard within a period of

seven years.  In our opinion, the stated circumstances may be relevant for

grant of bail in matters arising out of conviction under the Indian Penal Code,

1860 etc.  but are not sufficient to satisfy the mandatory requirements as

stipulated in sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act.

Merely because, according to the Ld. Judge,  nothing was found from the

possession of  the respondent,  it  could not be said at  this  stage that the

respondent was not guilty of the offences for which he had been charged and

convicted. We find no substance in the argument of learned counsel for the

respondent  that  the  observation  of  the  learned  Judge  to  the  effect  that

“nothing has been found from his possession” by itself shows application of

mind by the Ld. Judge tantamounting to  “satisfaction” within the meaning of

the said provision. It seems that the provisions of the NDPS Act and more

particularly Section 37 were not brought to the notice of the learned Judge.

16.Thus, in our opinion, the impugned order having been passed ignoring the

mandatory  requirements  of  Section  37  of  the  NDPS  Act,  it  cannot  be

sustained. Accordingly, the appeal is allowed and the matter is remitted back

to the  High  Court  for  fresh  consideration  of  the  application  filed  by  the

respondent for suspension of sentence and for granting of bail, keeping in

view the parameters of Section 37 of the NDPS Act, enumerated above.  We 8

further direct that the bail  application shall  be taken up for consideration

only after the respondent surrenders to custody.  The respondent is directed

to surrender to custody within two weeks of the date of this order, failing

which the High Court will take appropriate steps for his arrest.

17.The appeal stands disposed of accordingly.   

..…………………………………………J.

      (D.K. JAIN)  

                            ..….…………………………………….J.        (R.M. LODHA)

NEW DELHI; JANUARY 23, 2009.

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