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Judgment
S.S. Sudhalkar, J.
The petitioners, who are ASI and Head Constable respectively, have filed this application for anticipatory bail because they apprehend arrest in connection with FIR No. 94 dated 9.8.1996 under sections 18 and 59 of the NDPS Act (for short ''the Act''), Police Station Tapa, District Sangrur.
I have heard learned counsel for the petitioners and learned AAG, for the State.
The case against the petitioners as can be made out from the averments in the petition itself is that the petitioners connived with an accused who was arrested for possessing one kilogram of opium and facilitated his escape.
Learned counsel for the petitioners has argued that the prosecution under section 59 of the Act cannot be launched without the prior sanction of the Government as provided in subsection (3) of section 59 of the Act. The said subsection (3) of Section 59 of the Act reads as under :
"59(3). No court shall take cognizance of any offence under sub section (1) or subsection (2) except on a complaint in writing made with the previous sanction of the Central Government or, as the case may be, the State Government."
The learned AAG argued that bar of subsection (3) of Section 59 of the Act shall come only if the chargesheet (challan) is submitted to the court without the sanction of the Government but there is no bar regarding investigation or arrest. He also argued that the quantity of opium deposited in the malkhanma was less than that was recovered from the accused by the present petitioner.
The present petitioners are already suspended as can be seen from para 4 of the petition. Learned counsel for the petitioners argued that the petitioners were not incharge of malkhana. If it is found that the petitioners have misappropriated a part of the opium before it was deposited in the malkhana, they can be prosecuted for the offence under section 18 of the Act. The allegations, if true, are serious. The investigation is still going on and when for an ordinary man even for the regular bail, bar of section 37(i)(b) of the Act has to be overcome before grant of bail, no concession can be given to the petitioners who are police officials. I also agree with the submission of learned AAG that section 59(3) of the Act does not come in the way of investigation of an offence under section 59(1) of the Act.
In view of the above, I do not find it proper to grant anticipatory bail to the petitioners. This application is, therefore, dismissed.