TMI Blog2014 (7) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.] 5. As per Section 37(1)(b), if it is the commercial quantity of the Narcotic drug or psychotropic substance, whatever be the penal provision, leave about irrespective of commercial quantity similar rider is there for those offences punishable under Sections 19, 24 and 27(a). Section 37 (1) (b)(ii) speaks 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. 6. The counsel for prosecution placed reliance upon (i) BabuaVs State of Orissa - 2001(2) SCC 566 , wherein it has held that, Court should examine whether prosecution statements, if believed would result in conviction if it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv ShankerKesari2] 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 fora limitedpurpose 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 circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention raised as not a writ petition questioning the constitutional validity of the Section, 37 of the Act; leave about similar bar by another provision of this chapter in Section 32-A against suspension of sentence and grant of bail of a convict pending appeal, which as constitutionally valid including in Dadu Vs State - 2000 Crl.L.J.4619 (SC). 9. The counsel for A.5 to the application, regarding the requirements for cancellation of bail, placed reliance upon a case in State (Delhi Administration) v. Sanjay Gandhi - 1978(2) SCC 411 paras 13 and 24, which speaks that: 13. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only, if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. 24. Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Jaipur MDS v. Commissioner of Income Tax - AIR 1977 SC 1348 and Surya Kaksh Singh v. State of U.P. -Crl.A.No.1680 of 2013 of the Apex Court to recall an order passed when not correct. It is practically the petition that has to be considered within the above scope of Section 482 read with 439 (2) of Cr.P.C. read with Section 37of NDPS Act. 13. From this, 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 vide- Madanlal v. State of Himachal Pradesh - 2003 SCCCrl. 1664 and Avtar Singh And Ors. vs State Of Uttar Pradesh - 2002 SCC (Crl) 1769 (A E) Section 25 same punishment of substantive against those allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, threat or promise being relevant and admissible; also as per Section 29 confession otherwise relevant, not to become irrelevant because of promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. 15. Here from this perspective, there is a disclosure statement made by the respondent to this application-A.5, which is prima facie (for purpose of the bail application scope) to hold as relevant for consideration in considering the said disclosure since what is discussed supra admissible, prohibits for the entitlement to the concession of bail under Section 37 of the Act. This confession ordisclosure statement what ever it may of the accused at his pre arrest stage, running in 8 pages with all minute details and the same is corroborated by the statement of the owner of the premises of the Balaji Lab, Quthbullapur Mandal, where from the contra ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untary. The other contention is that even the panchanama of seizure discloses service of notice under Section 50 of the NDPS Act, not complied with. Admittedly no search of person conducted and it is required only when there is search of person involved for mandatory compliance. Section 50 of the Act here not applied when admittedly there is no search of person, much less involved even in anticipation of need of search, any notice given when not conducted, the question of compliance does not arise, but for in conducting. Having regard to the above, such contention no way survives. Then, coming to the other contention, the complicity of A.5 cannot be made out as the very seizure panchanama shows from the prosecution, of A.4 was the lessee and not the A.5. In fact what is discussed supra, one is real lessee and the other ostensible so far as A.4 and A.5 concerned. Having regard to the above, that contention may not survive. 17. It is from these propositions, averments and contentions, now coming to the point for consideration of order passed by this court (another Bench) in granting bail is it within the parameters of Section 37 NDPS Act, if not for holding with great respect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orbidden conduct, buttressed by sanctions calculated to prevent it. According to Robert Jackson liberty to be achieved is only within and through the rule of law. 19. Having regard to the above, it is the duty of the court torecall its own order granting bail, within the parameters of law more particularly by invoking Section 482 Cr.P.C. Accordingly the point is answered. 20. In the result, the 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 by directing the respondent No.5 accused to surrender before the authorities within 5 days, failing which it is left open to the officials concerned to apprehend him and submit to judicial custody. 21. As the observations made in the bail application are only to the extent of considering the scope of Section 37 of NDPS Act and non existence of reasonable grounds for believing that he is not guilty of such offence and is not likely to commit any offence while on bail to say otherwise in holding of no prima facie case for entitlement to bail; these observations shall no way influence much less prejudice the mind of either t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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