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CASE NO.: Appeal (crl.)  1223 of 2007

PETITIONER: Union of India

RESPONDENT: Shri Shiv Shanker Kesari

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  1223          OF 2007 (Arising out of SLP (Crl.) No. 5621 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the grant of bail by a  learned Single Judge of the Allahabad High Court to the  respondent who  was charged for alleged commission of  offence punishable under Sections 8, 15, 27A and 29 of the  Narcotic Drugs and Psychotropic Substances Act, 1985 (in  short the ’Act’). Allegation was that he was found to be in  possession of huge quantity of poppy straw. It is the case of  the prosecution that the raiding party seized nearly 400 Kg. of  poppy straw from the possession of the accused-respondent.  The prayer for bail made by the respondent was rejected by  learned Special Judge (NDPS Act), Varanasi. The High Court  by the impugned order accepted the prayer for bail on the  ground that the recovery was not from the exclusive  possession of the accused-respondent and other members of  the family are involved in the case. It was noted that the  respondent had no criminal history. Accordingly, the prayer  for grant of  bail was allowed.  

3.      According to learned counsel for the appellant the  parameters of Section 37 of the Act have not been kept in view  while accepting the prayer for grant of bail. It was pointed out  that huge quantity of poppy straw was recovered from the  possession of the respondent from house No.K.63/121, Gola  Deena Nath, Varanasi. It is submitted that the prayer for bail  was rejected by the District Judge in terms of Section 37 of the  Act after elaborately dealing with the background facts. Bail  can only be granted on fulfillment of two conditions i.e. (i)  where there are reasonable grounds for believing that the  accused is not guilty of the offence and (ii) that he is not likely  to commit any offence while on bail. Learned Single Judge  while accepting the prayer for bail has not recorded any  finding that there are reasonable grounds for believing that the  accused was not guilty. Further, no finding has been recorded  that he is not likely to commit any offence while on bail.  

4.      Learned counsel for the respondent on the other hand  submitted that the prosecution has failed to establish  exclusive possession and the applicant-respondent had no  criminal history. Therefore, it was submitted that the order of

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the High Court does not suffer from any infirmity.  

5.      Section 37 of the Act reads as follows:

"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".  

6.      As the provision itself provides no person shall be  granted bail unless the two conditions are satisfied.  They are;  the satisfaction of the Court that there are reasonable grounds  for believing that the accused is not guilty and that he is not  likely to commit any offence while on bail.  Both the conditions  have to be satisfied. If either of these two conditions is not  satisfied, the bar operates and the accused cannot be released  on bail.  

7.      The expression used in Section 37 (1)(b) (ii) is "reasonable  grounds". The expression means something more than prima  facie grounds. It connotes substantial probable causes for  believing that the accused is not guilty of the offence charged  and this reasonable belief contemplated in turn points to  existence of such facts and circumstances as are sufficient in  themselves to justify recording of satisfaction that the accused  is not guilty of the offence charged.  

8.      The word "reasonable" has in law the prima facie  meaning of reasonable in        regard to those circumstances of  which the actor, called on to act reasonably, knows or ought to  know.  It is difficult to give an exact definition of the word  ’reasonable’.  Stroud’s Judicial Dictionary, Fourth Edition,  page 2258 states that it would be unreasonable to expect an  exact definition of the word "reasonable’. Reason varies in its  conclusions according to the idiosyncrasy of the individual,  and the times and circumstances in which he thinks. The  reasoning which built up the old scholastic logic sounds now   like the jingling of a child’s toy. (See: Municipal Corporation of  Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4

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SCC 497. and Gujarat Water Supplies and Sewerage Board v.  Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC  532].   9.      It is often said "an attempt to give a specific meaning to  the word ’reasonable’ is trying to count what is not number  and measure what is not space". The author of ’Words and  Phrases’ (Permanent Edition) has quoted from in re Nice &  Schreiber 123 F. 987, 988 to give a plausible meaning for the  said word. He says, "the expression ’reasonable’ is a relative  term, and the facts of the particular controversy must be  considered before the question as to what constitutes  reasonable can be determined". It is not meant to be expedient  or convenient but certainly something more than that.  

10.     The word ’reasonable’ signifies "in accordance with  reason". In the ultimate analysis it is a question of fact,  whether a particular act is reasonable or not depends on the  circumstances in a given situation. (See: Municipal  Corporation of Greater Mumbai and another v. Kamla Mills  Ltd. (2003) 6 SCC 315).

11.     The Court while considering the application for bail with  reference to Section 37 of the Act is not called upon to record a  finding of not guilty. It is for the limited purpose essentially  confined to the question of releasing the accused on bail that  the Court is called upon to see if there are reasonable grounds  for believing that the accused is not guilty and records its  satisfaction  about the existence of such grounds. But the  Court has not to consider the matter as if it is pronouncing a  judgment of acquittal and recording a finding of not guilty.

12.     Additionally, the Court has to record a finding that while  on bail the accused is not likely to commit any offence and  there should also exist some materials to come to such a  conclusion.  

13.     In the instant case, it appears that there was a statement  recorded under Section 67 of the  Act. The respondent has  taken a stand that the same was under coercion. The  acceptability of such a stand is a matter of trial. Additionally,  the High Court has not indicated any reason as to why it was  of the view that the contraband articles were not seized from  the exclusive possession of the accused-respondent.  

14.     Above being the position, the impugned order is clearly  unsustainable and is set aside. The bail application shall be  considered afresh by the High Court keeping in view the  parameters of Section 37 of the Act. The bail application shall  be taken  up after the accused surrenders to custody. The  accused-respondent is directed to forthwith surrender to  custody. The High Court would do well to dispose of the bail  application expeditiously after the accused surrenders to  custody.  

15.     The appeal is allowed.