TMI Blog1991 (1) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals are disposed of. - 810-811 of 1989 - - - Dated:- 29-1-1991 - S. Ratnavel Pandian and K. Jayachandra Reddy, JJ. REPRESENTED BY: S/Shri J.S. Arora, Sudhansu S. Das, Satish Agrawal and N.P. Kaushik, Advocates, for the Appellant. S/Shri V.C. Mahajan and A.K. Ganguli, Sr. Advocates with Ashok Bhan, A. Subhashini, P.P. Tripathi and S.K. Sabharwal, Advocates, for the Respondents. [Judgment per: K. Jayachandra Reddy, J.]. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs Psychotropic Substances Act, 1985 ( NDPS Act for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court. Aggrieved by the said order, the Narcotics Control Bureau has filed these two appeals. 2. The petitioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody. The petitioners filed a writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who shall take cognizance and proceed with the trial. Sub-section (3) of Section 36-A reads thus: Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate" in that section included also a reference to a Special Court constituted under Section 36." Now let us note Section 37 as amended in the year 1989 and the same is in the following terms: 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 oppose the application, the court is satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, in our view, it cannot be held that the High Court s powers to grant bail under Section 439 Cr.P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstinate clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 Cr.P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4 Cr.P.C. may be noted which reads thus: 4. Trial of offences under the Indian Penal Code and other laws. - (1) All offences under the Indian Penal Code (45 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." The Rule commences with a non-obstinate clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. It imposes fetters on the exercise of the power of granting bail in certain kinds of cases. In Balchand Jain v. State of Madhya Pradesh, (1977) 2 SCR 52, a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 or whether former provision is over riden by the latter. This Court held that Rule 184 does not stand in the way of Court of Sessions or High Court granting anticipatory bail on the ground that the two provisions operate at two different stages. Of course, in the instant case, we are not concerned with Section 438 but the observations regarding the scope of Rule 184 are relevant which read thus : But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utor has been given an opportunity to oppose the application for such release, and (b) 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. (9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail." It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act. The contention was that the source of power of a designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail. It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control. After considering these submissions this Court held that: Though there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such opposition, the court must be 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. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from Section 20(8) of the Act." It can thus be seen that even in Usmanbhai s case (1988) 2 SCC 271 also there is no observation supporting the view taken by the High Court in the impugned judgment. As a matter of fact in Usmanbhai s case (1988) 2 SCC 271, Sen, J. who spoke for the Bench, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under Section 439 of the Code or by recourse to its inherent powers under Section 482. However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain s case (1977) 2 SCR 52 is not applicable to the facts in Usmanbhai s case (1988) 2 SCC 271 and the same is clear from the observations made in Usmanbhai s case (1988) 2 SCC 271 which read as under : Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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