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Judgment
Shailendra Shukla, J
Submissions were made on the sixth repeat bail application filed under Section 439 of Cr.P.C for grant of bail. The applicant is being implicated in crime No.157/2015, registered at police station Bhavgarh, District Mandsaur for the offence punishable under Sections 353, 307/34 of IPC, under Sections 25, 27 of Arms Act and under Section 8/15/29 of NDPC Act. He is in jail since 19.4.2015.
As per prosecution story, on 19.4.2015, a vehicle was intercepted by police. However, the occupants of the vehicle opened fire on the police. The accused were nabbed with difficulty and from one of the accused a 12 bore firearm and a live cartridge was found and the vehicle was found to contain 4 quintals 71 Kgs and 800 grms of poppy straw.
A perusal of the past bail applications shows that the first application for grant of bail was dismissed for want of prosecution on 20.1.2017. The second bail application was withdrawn vide order dated 18.5.2017. The third bail application was rejected vide order dated 19.6.2018 on the ground that poppy straw has been recovered from the possession of the applicant, however, the trial was directed to be expedited within a period of six months. The fourth bail application was considered on 5.8.2019 considering the handicap under Section 37 of NDPS Act, the application was rejected. However, direction to expedite the trial was renewed. The fifth bail application filed for temporary bail was rejected and this is the sixth bail application.
On the last occasion, learned counsel has raised an objection as to how a judge notified for trying NDPS cases could have framed charges under the provisions of IPC. This Court had invited counsel's attention towards Section 36-A(2) of NDPS Act.
Learned counsel sought time to peruse the same.
Today submissions were made.
Section 36-A(2) of is as follows :-
"36-A(2) when trying an offence under this Act, a special Court may also try an offence other than an offence under this Act with which the accused may under the Cr.P.C be charged at the same trial."
Section 220 of Cr.P.C provides that :-
"If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence."
The above provisions provide an answer to the query of learned counsel and in view of the aforesaid provisions, a special Judge notified under NDPS Act can also frame the charge for offences committed under different Act, if they are committed during the course of the same transaction.
Learned counsel has referred to a case of Madras High Court in the case of S. Gandhi vs. State of Tamil Nadu , 2018 SCC Online Madras 163 in which trial of a case under Prevention of Corruption Act by an NDPS notified Judge was held to be beyond jurisdiction.
The reason for such observation is that just as the notified Judge can alone try an offence under NDPS Act, similarly a notification is also needed for trying offence under the Prevention of Corruption Act, which was not the case as per the facts of the aforesaid case. It has further been stated that although the applicant did not fire from a firearm and the gun was fired by another accused still charged under Section 25 of the Acts Act was framed.
Considered.
On perusal of the material available, the gun was fired by one of the three accused persons and therefore, common intention get involved and liability under Section 307/34 of IPC accrues to all the three persons. Further the quantity of poppy straw was commercial in nature and therefore, provisions under Section 37 of NDPS Act are strictly applicable and applicant has not been able to show that he is not guilty of offence under NDPS Act and he is not likely to commit such offence while on bail.
Consequently, all objections raised by the learned counsel are set aside and this 6th repeat bail application stands rejected on merit.