TMI Blog2016 (8) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... reported Kanwar Singh Meena Vs. State of Rajasthan and another [2012 (10) TMI 1114 - SUPREME COURT] and Neeru Yadav Vs. State of Uttar Pradesh and another [2015 (9) TMI 1430 - SUPREME COURT ] has held that the order enlarging the accused person on bail or granting anticipatory bail without considering the serious allegation made against the accused person and without considering as to whether any prima facie case has been made out and quantum of punishment that may be imposed, then the said order is illegal. The ratio in the above judgments and the judgments relied on by the learned Special Public Prosecutor appearing for the petitioner is squarely applicable to the facts of the present case. Hence, the order of the learned Additional District and Sessions Judge enlarging the respondent on bail, is illegal and non-est in law. Therefore, this criminal original petition is liable to be allowed. Accordingly, the criminal original petition is allowed and the bail granted to the respondent by the learned Additional District and Sessions Judge (Special Court for E.C. and NDPS Act cases), Pudukottai is cancelled. - Crl.O.P.(MD)No.14252 of 2016 & Crl.M.P.(MD)No.6652 of 2016 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a receiver of the parcel in Chennai was intercepted by the Officers of Customs, when he came to receive the parcel from Shri Renganathan Speed Parcel Service at Chennai. The respondent gave voluntary statement that he has procured the Tablets at the instruction of one Jamaludeen of Ramanathapuram and he is at present residing in Dubai and he gave his mobile number. He has also confessed that as per the instructions of Jamaludeen, he used to hand over Zolfresh Tablets to Ravi or Raja, who would call him over phone and take delivery of the Tablets from Abuthathir, the respondent herein. The respondent used to receive ₹ 2,000/- to ₹ 5,000/- for this work. He has also confessed that Sureshkumar asked him to contact Mohamed Syed Mustafa and he knew that the drugs are to be sold under the prescription of a Doctor, a registered Medical Practitioner and can be transported with proper documents only. He was informed that the Tablets were smuggled from India to Malaysia and admitted the offence. He was arrested on 29.04.2016 and remanded to judicial custody. In the investigation, it was revealed that previously Sureshkumar, the then Medical Representative of Abbott India Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh Tablets procured by the respondent and transported to him is 4.745 K.Gs and the quantum of Zolpidem, which is psychotropic substance, is more than commercial quantity. Therefore, Section 37 of NDPS Act is attracted and the learned Additional District and Sessions Judge failed to consider Section 37 of NDPS Act while enlarging the respondent on bail. The learned Additional District and Sessions Judge also failed to consider the well settled guidelines for grant of bail as per orders of this Court and also the Hon'ble Apex Court that the Court while considering the petition for bail must consider, (a) Prima facie case against the accused person; (b) quantum of punishment if convicted; (c) Whether the accused person if enlarged on bail, will tamper with the evidence, influence the witness or abscond; and (d) whether the accused person will indulge in similar offences, if enlarge on bail or granted anticipatory bail. 8. In support of his submissions, the learned Special Public Prosecutor relied on the following judgments: (i) AIR 2008 SC 2576 [N.R.Mon Vs. Md.Nasimuddin], wherein in paragraphs 5 to 9, it has been held as follows: 5. As rightly conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court seems to have completely overlooked the underlying object of Section 37. It did not take note of the confessional statement recorded under Section 67 of the Act. Description of drug at Sl. No. 43 of the Schedule which reads as follows has not been kept in view: Sl. No. International non-proprietary names Other non-proprietary names Chemical name 43 * DIAZEPAM * * * * 7-Chrolo-1, 3-dihydro-1, methyl-5-phenyl-2H-1, 4-benzondiasepin-2-one * In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason.? 8. In Union of India v. Abdulla [2004 (13) SCC 504],it was noted as follows: (SCC p. 505, para 5) 5. The respondent herein was charged of the offences punishable under Sections 8/21/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 before the Court of Special Judge, Lucknow. His application for grant of bail was rejected by the Special Judge by assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention that in a matter involving seizure of commercial quantity of a substance prohibited by the NDPS Act when the Public Prosecutor appears on notice of the bail application he would be standing there as a mute spectator not opposing the bail application unless he was at the beck of the accused. We find no substance in this argument. In our view, the very fact that the Public Prosecutor appeared would suggest that he appeared to oppose the bail application. In any event, the order of the High Court does not suggest that the Public Prosecutor had agreed for bail being granted. In the aforesaid circumstances, we find no substance whatsoever in the contention raised by Mr Singh.?? (ii) AIR 2004 SC 3022 : 2004 (3) SCC 549 [Collector of Customs, New Delhi Vs. Ahmadalieva Nodira], wherein in paragraph 8, it has been held as follows: 8. In the aforesaid background, this does not appear to be a case where it could be reasonably believed that the accused was not guilty of the alleged offence. Therefore, the grant of bail to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The respondent-accused is directed to sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continue to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by him or associated with the two companies and that Section 79 of the Information Technology Act could not by any stretch of imagination guarantee immunity from prosecution under the provisions of the Act. 11. We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under Section 79 of the Information Technology Act but the said business was only a facade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Information Technology Act itself. 12. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail, that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted. 13. For the reasons recorded above, we find no merit in this appeal, which is accordingly dismissed. We however qualify that the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail already granted cannot be cancelled in a mechanical manner, unless the order of the lower Court granting bail is perverse and granted without considering the facts and circumstances of the case. Therefore, the order of the learned Additional District and Sessions Judge cannot be set aside. 10. In support of his submissions, the learned Senior Counsel appearing for respondent relied on the following judgments: (i) 1995 (1) SCC 349 [Dolat Ram and others Vs. State of Haryana], wherein in paragraph 4, it has been held as follows: 4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh case [1986 (4) SCC 481 : 1986 SCC (Cri) 511 : 1986 (3) SCR 802] the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency; (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are of course illustrative and not exhaustive. Remand to custody merely because of non-fulfilment of the requirements of Sub-clause (ii) would really amount to review of the earlier order, which is not permissible, in view of what has been stated in Section 362 of the Code, which provision applies to proceedings before the Special Court (or till constitution of such Courts before the Court of Session). This is what has been held by the Single Judge of this Court in Ramesh Chandra's case also.? 11. The learned Special Public Prosecutor appearing for the petitioner and the learned Senior Counsel appearing for the respondent relied on the judgment reported in 2012 (1) LW (Crl.) 70 [M.Veludurain Vs. The State, Rep. by the Superintendent of Customs, Special Narcotic Cell, Nagercoil], wherein in paragraphs 11, 14 and 16, it has been held as follows: 11. While deciding the relevant clause of Section 21, under which the accused shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court that out of the total quantity of the contraband weighing 7.5 kilograms, the morphine content was only 56.96 gms, which, according to the accused, was an intermediate quantity. Therefore, it was contended before the Hon'ble Supreme Court that as per E.Micheal Raj's, case, the accused should be convicted only under Section 21(b) of the NDPS Act for having found in possession of the intermediate quantity of opium. But, the Hon'ble Supreme Court did not agree with the said contention of the accused. The Hon'ble Supreme Court, after referring to the definition of opium, as found in Section 2(xv) of the NDPS Act and the notification issued by the Central Government, in Paragraph Nos.15, 16, 17, 21, 22 and 23 of the said Judgment, held as follows:- 15. Opium is essentially derived from the opium poppy plant. The opium poppy gives out a juice which is opium. The secreted juice contains several alkaloid substances like morphine, codeine, thebaine, etc. Morphine is the primary alkaloid in opium. 16. Opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tity. 23. The judgment in E. Micheal Raj (Supra) has dealt with heroin i.e., Diacetylmorphine which is an Opium Derivative within the meaning of the term as defined in Section 2(xvi) of the NDPS Act, and therefore, a `manufactured drug' within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case. Ultimately, referring to the above facts, the definitions in respect of the opium and the other relevant provisions, the Hon'ble Supreme Court distinguished the ratio in E.Micheal Raj's, case and in Paragraph No.24 of the said Judgment held as follows:- 24. In Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550, this Court dealt with a case where the black-coloured liquid substance was taken as an opium derivative. The FSL report had been to the effect that it contained 2.8% anhydride morphine, apart from pieces of poppy (Posedoda) flowers. This was considered only for the purpose of bringing the substance within the sweep of Section 2(xvi)(e) as `opium derivative' which requires a minimum 0.2% morphine.? 14. Thus, a close reading of the above Judgment of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out valid licence, is punishable with minimum sentence of 10 years imprisonment, which may extend to 20 years and a fine of ₹ 1,00,000/-, which may extend to ₹ 2,00,000/-. As per Section 37 of NDPS Act, the burden is on the accused person to prove that he is not guilty of offence and he would not commit an offence, if he is enlarged on bail. Further, only when the Court is satisfied on reasonable ground that the accused person is not guilty, can enlarge the accused person on bail, otherwise, there is a bar to enlarge the accused on bail, if he was in possession of contraband, more than commercial quantity. 14. It is relevant to extract Section 37 of NDPS Act. 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 Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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