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2014 (7) TMI 1068 - HC - CustomsCancellation of bail orders - parameters of Section 37 NDPS Act - Held that:- there must be some thing more than prima facie grounds, within the meaning of reasonable grounds as a substantial probable cause for believing that accused is not guilty of such offence, and another requirement of satisfaction of the Court is that he is not likely to commit any offence while on bail; and in the absence of showing the material the accused is not entitled to the concession of bail by virtue of rider under Section 37 of the Act; irrespective of the Qualified (not absolute) fundamental right of personal liberty as part of the fundamental rights of the individualenshrined under Article 21 of the Constitution of India; by virtue of the legal bar to say a person who waived the constitutional privilege of liberty by involved in the grave crime, in the larger interest of society cannot be given concession of individual liberty. Here, practically, Section 37 of NDPS Act is a special provision and it starts with thenon-obstante clause in showing irrespective of what is contained in Chapter XXXIII of Criminal Procedure Code, Section 37 of the Act prevails in case of conflict to override and in case of no conflict and reconcilability, to consider as additional consideration (vide section 51 of the Act). Here thecancellation of bail sought for is not by raising any subsequent or supervening circumstance or violation of conditions, to say said principle of law has no application to the facts, when the contention is the bail granted without proper consideration of Section 37 of the Act, hence to recall or cancel for Section 37 of the Act does not able the accused to the concession. It is important to note the fact that the contraband, involved in this case is a commercial quantity, which is undisputedly a psychotropic substance either in one category or the other very nearer to it. The provisions that to be kept in mind are Section 35- mensrea a reverse onus clause putting burden on accused to rebut the presumption the Court shall draw till rebutted of the culpable mental state; similarly under Section 54 regarding possession, which needless to say includes a conscious possession – whether physical or constructive as suffice of awareness about a particular fact from State of mind is criteria - it is the duty of the court to recall its own order granting bail, within the parameters of law more particularly by invoking Section 482 Cr.P.C. - application is allowed under Section 482 R/W. 439(2) Cr.P.C. R/W. 37 NDPS Act by recalling the bail order and for all purposes by cancelling the bail forthwith - accused to surrender before the authorities - Decided in favour of Revenue.
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