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TMI Blog1991 (1) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under Section 439 Cr.P.C. for granting bail. The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent. 3. The learned counsel appearing for the appellants submitted that the High Court has misconstrued the provisions of Sections 36-A and 37 of the NDPS Act and that latter Section as amended starts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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." Now it becomes necessary to extract Section 439 Cr.P.C. which reads as under : "439. Special powers of the High Court or Court of Session regarding bail (1) A High Court or Court of Session may direct - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified; Provided that the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time .being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.P.C. should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others (1983) 1 SCR 393 regarding the mode of interpretation the Supreme Court observed as follows: "The dominant purpose in construing a statute is to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant 'anticipatory bail' under Section 438. The rule making authority obviously thought offences arising out of contravention of Rules and orders made thereunder were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session' within the meaning of Section 437 of the Code. The exercise of the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation 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 referring to the ratio laid down in Balchand Jain's case, (1977) 2 SCR 52 observed thus : "The view expressed in Balchand Jain case is not applicable at all for more than one reason. There was nothing in the Defence and Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether. On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 application for bail under Section 439 or under Section 482 of the Code." From the above discussion it emerges that in Usmanbhai's case (1988) 2 SCC 271 the Supreme Court did not express anything contrary to what has been observed in Balchand Jain's case (1977) 2 SCR 52 and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non-obstinate clause must be given its due importance. For all the aforesaid reasons we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly. 8. The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time. The learned counsel appearing for the Narcotics Control Bureau, the appe ..... 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