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Judgment
S. Thangaraj, J.—The petitioner/accused No. 1 in C.C. No. 521/98 on the file of the Special Judge for NDPS Act cases, Madurai has filed
this petition for his release on bail.
The respondent has filed a complaint against the petitioner and another accused for offences u/s 6(c) punishable under Sections 21, 27-A, 28
and 29 of the NDPS Act, 1985 and under Sections 193 and 120-B, IPC and the said complaint was taken on file by learned Special Judge for
NDPS Act cases, Madurai in C.C. No. 521/98.
The petitioner herein and other accused are public servants employed under the Narcotic Control Bureau at Madurai and Tirunelveli
respectively. The respondent received a specific information that the petitioner herein along with others was indulging in trafficking and that around
2 kgs. of heroin was in the possession of the petitioner at his room No. 116, Thiruchenduran Mansion, Vasantha Nagar, Madurai-5. On receipt of
the information, the Officers of Narcotic Control Bureau, South Zonal Unit, Chennai went to the said premises and seized 2 kgs. of heroin on being
produced by the petitioner herein. After observing all necessaiy formalities, the petitioner was arrested on 8.5.1998.
Earlier the petitioner has filed a bail application in Crl. O.P. No. 8785/98. His wife Tmt Gladys Lilly, who is the second accused in the
complaint, also filed a bail application in Crl. O.P. No. 9305/98. One Madhavan and another Karunakaran were originally arrested in connection
with this case also filed bail applications in Crl. O.P. Nos. 9973/98 and 10074/98 on the file of this Court. After due consideration, this Court
dismissed all the applications by an order dated 13.8.1998. Aggrieved by that, the petitioner has filed Special Leave to Appeal (Crl.) No. 2800/98
before the Hon''ble Supreme Court of India and the same was dismissed on the ground that the petitioner was detained by an order dated
28.9.1998 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue u/s 3(1) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. Subsequently, the petitioner moved before the Hon''ble Supreme Court of India
in W.P. (Crl.) No. 194/98 and the order of detention was quashed by Their Lordships of the Supreme Court by their judgment dated 14.5.1999.
Thereafter, the petitioner has come forward with the present application for bail.
Learned Special Public Prosecutor for the respondent Department has filed a preliminary objection petition as to the maintainability of the
present Crl. O.P. No. 13269/99. The main contention in the preliminary objection petition is that as already this Court has analysed the entire
materials, both documentary and legal, and thereafter, dismissed the bail application, the judgment passed by the Hon''ble Supreme Court of India
in W.P. (Crl.) No. 194/98 cannot be taken as a change of circumstance in favour of the petitioner and therefore, the present petition for bail will
not lie.
Learned Counsel for the petitioner has argued that against the order passed by this Court Crl. OP. No. 8785/98 dated 13.8.1998, the
petitioner has preferred a petition for Special Leave for Appeal (Crl.) No. 2800/98 and the same was dismissed on the ground that he was
detained u/s 3(1) of the NDPS Act and that since the said order was quashed, the petitioner can review his application for bail.
Learned Special Public Prosecutor for the respondent Department has contended that in such a situation, the application shall not lie before this
Court and the petitioner can move the Hon''ble Supreme Court of India directly.
To negative the said contention of the Department, learned Counsel for the petitioner has relied on a decision of the Supreme Court in Babu
Singh and Others Vs. State of U.P., Their Lordships have held--
But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments
and different considerations. While we surely must set store by this circumstances, we cannot accede to the faint plea that we are barred from
second consideration at a later stage.
In Ram Sahodar Vs. State of Madhya Pradesh, . A Division Bench of the Madhya Pradesh High Court has considered the earlier order passed
by a Single Judge of that Court which created a bar that the accused should not be granted bail till the disposal of the case against them and held
that there is no provision under the Code of Criminal Procedure authorising a Court to put a clog on such subsequent applications where a person
earlier found not entitled to be released on bail, may subsequetly become so entitled due to those changed circumstances.
In Menino Lopes v. State of Goa, 1995 (3) Cri 386, it was held that even though an application for bail has been rejected at an earlier stage,
the accused may be released on bail at any time thereafter.
In Manjoor Khan v. State of Bihar 1998 SCC 1541, their Lordships of the Supreme Court have held--
Since the appellant has a right under the Code of Criminal Procedure to pray for bail as and when he intends to, the High Court could not have
debarred him from exercising his such right for one year. Of course, whether such prayer would be entertained or not, it is for the High Court to
decide but it cannot prevent an accused from seeking his release on bail.
From these decisions, it is clear that the High Court cannot prevent an accused person seeking his release on bail on the ground that his earlier
application was dismissed. An accused person can file any number of bail applications, he cannot be prevented from doing so, however, it is for
the accused to show the change of circumstance after dismissal of the bail application.
In the instant case, the earlier bail application was dismissed by this Court by an Order dated 13.8.1998. Aggrieved by the said order, the
petitioner/accused has moved the Hon''ble Supreme Court of India for Special Leave to Appeal (Crl.) 2800/98 and the same was dismissed on
the ground that he was detained by an order passed by the Competent Authority as contemplated u/s 3(1) of the NDPS Act. When once the
detention order was quashed by Their Lordships of the Supreme Court, the accused/the petitioner herein has a ground to reagitate his prayer for
bail. The judgment passed by Their Lordships of the Honourable Supreme Court of India in W.P. (Crl.) No. 194/98 dated 14.5.1999 should be
taken as a change of circumstance, since the earlier order was passed on the ground of his detention. When once the detention order was quashed,
his plea gets a new life and it should be considered to be a change of circumstance in his favour.
The next argument of the learned Special Public Prosecutor for the respondent-Department is that the accused cannot file a bail application
before this Court and he should prefer the bail application only before the Honourable Supreme Court of India is an argument which has to be
dismissed in limine. When the Special Leave Appeal (Crl.) No. 2800/98 was dismissed on the ground of detention order passed and after the
quashing of the said detention order, the accused is entitled to file a bail application before this Court or even before the Special Court for
N.D.P.S. Cases and not directly before the Honourable Supreme Court of India. When a competent forum is available to hear the bail plea of the
accused, the respondent cannot fetter the right of the accused person by contending that he should directly file the bail application before the
Honourable Supreme Court.
The other argument on the side of the Respondent-Narcotic Control Bureau is that the judgment passed by Their Lordships of the Supreme
Court in W.P. (Crl.) No. 194/98 dated 14.5.1999 is a ""technical judgment"" and the same will not give any right to the petitioner to file a second
bail application for his release is also, devoid of any merit. Their Lordships of the Supreme Court in the Writ Petition have considered the validity
of the detention order and not on the merits of the bail plea of the accused and therefore, when the accused has raised a different plea for his
release on bail, it is incumbent upon this Court to consider the said plea. Therefore, the so-called preliminary objection raised by the respondent,
Narcotic Control Bureau is not in accordance with the law and the same is liable to be dismissed.
The petitioner was the Superintendent of Central Excise, Madurai, an Officer empowered u/s 4(2) of the NDPS Act to arrest a person in
unlawful possession of Narcotic and Psychotropic Substances to seize the said substance and to proceed against them in accordance with law.
The petitioner''s wife one Gladdy Lilly was the Superintendent of Central Excise at Tirunelveli. The Assistant Director Narcotic Control Bureau,
South Zonal Unit, Chennai received an information from an informant that the petitioner herein and his wife were engaged in illicit trafficking of
Narcotic Drugs and Psychotropic Substances in Madurai and Tuticorin and that if the room of the petitioner wherein the petitioner was staying was
searched, 2 kgs. of heroin could be recovered from his possession. On receipt of the information, the Assistant Director, Narcotic Control Bureau,
Chennai recorded the same and submitted a copy to the Director of Narcotic Control Bureau, Chennai. A copy of recorded information dated
8.5.1998 was sent to the Special Court for NDPS cases, Madurai and the same was received by the said Court on 12.5.1998. Oil the said
information, when the Assistant Director searched the room of the petitioner at No. 116 Thiruchenduran Mansion, Vasantha Nagar, Madurai-5 in
the presence of one Krishna Rao and one Ayyannan, it was found that the accused was in possession of 2 kgs. of heroin and the same was seized
under cover of a mahazar in the presence of the witnesses duly attested by them. The petitioner has also signed the said mahazar.
It is the case of the petitioner that on 8.5.1998 at about 10.30 a.m., while he was in his office, he received a phone call from an unknown
person stating that a person was standing under suspicious circumstances with a plastic bag in his hand at Vasantha Nagar bus stop and if he goes
there immediately, he can arrest the person and seize heroin which is in his possession. When the accused asked the person, he refused to give his
name and address and kept the phone. On receipt of the said information, the petitioner searched for any Inspector availabe in the office and one
had gone out and the other was in the office, he informed the Inspector in the said office that he would return by 12.30 p.m. As the driver was not
available, he took one Vivekanandan Driver-cum-Sepoy along with him and he travelled in the office jeep driven by the said Vivekanandan
through South Gate, Madurai. As the accused has booked ticket to go to his native place at 10.30 p.m. by train, he stopped the jeep for a minute
and purchased a bag from the Khadi Shop for Rs. 46 for carrying his things to native place. There was heavy crowd in the Vasantha Nagar bus
stop and a traffic Jam was also there. He stopped the vehicle on the right hand side in front of the lodge wherein he was staying, got down from the
vehicle and went towards the bus stop searching whether any suspicious person is standing there. He saw a person standing with a plastic bag in
his hand and before he could cross the road, the hefty person, who was standing with a plastic bag in his hand, dropped the bag and ran away
from there. As there was heavy crowd, the accused could not chase him. He seized the bag and before searching the same, he called two persons,
one by name Mani, a watch repair and the other by name Sekar, who was working in a Cinema Theatre. A crowd gathered there, immediately, he
contacted the office from the nearby telephone booth and he could not get the connection. The accused thought that he could keep the contraband
article in his room before he could contact the office over phone again and he kept the said plastic bag inside the bag which he had purchased from
the Khadi shop and went to his room. By that time, the Assistant Director and the witnesses came there and he handed over the bag to them. The
accused had further submitted that inspite of his repeated requests, the Assistant Director refused to believe what he had stated. The said statement
of the accused was also recorded by the said Officer who seized the contraband in the presence of the witnesses under cover of a mahazar and
arrested the accused. This is the case in nutshell which is pending against the accused.
The petitioner has filed this petition for his release on bail. The petitioner has not stated the provision of law under which he has filed this
application. The bail application can be filed, before this Court either u/s 439, Cr. PC or u/s 37(1)(b)(ii) of the NDPS Act. Their Lordships of the
Supreme Court in Narcotics Control Bureau Vs. Kishan Lal and others, , have held--
In view of Section 4, Cr. PC 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. PC 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. Consequently, the power to grant bail under any of the provisions of Cr. PC
should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act. It must, therefore, be held that the powers of the High
Court to grant bail u/s 439 are subject to the limitations contained in the amended Section 37 of 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.
At page 708, it was further held--
Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973,
no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act
is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations
relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of
NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. PC regarding bail, in our view, it cannot be held that
the High Court''s powers to grant bail u/s 439, Cr. PC are not subject to the limitation mentioned u/s 37 of NDPS Act. The non-obstante clause
with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency
between Section 439, Cr. PC and Section 37 of the NDPS Act, Section 37 prevails.
In view of the decision of Their Lordships of the Supreme Court, the case of the petitioner has to be considered as contemplated u/s 37(1)(b)(ii) of
the NDPS Act.
Learned Counsel for the petitioner has raised various grounds for the release of the accused on bail and one among such grounds is that the
independent witnesses for the search, seizure and arrest of the accused have given statements under Sections 164, Cr. PC before the Competent
Court and what they have stated in their statements would go to show that the case against the petitioner cannot be believed and accused has got
every chance of an acquittal in the trial Court. Such a confession has also been given by one Vivekanandan, Sepoy-cum-Driver, who was the
driver of the Vehicle in which the accused travelled during the relevant time and also the witnesses for the seizure of the contraband when an
unknown person dropped the contraband article and ran away from there.
In Jogendra Nahak and Others Vs. State of Orissa and Others, , Their Lordships of the Supreme Court have considered the recording of said
statements by the Courts at the request of the persons who are witness in the said cases and after considering sub-Section 5 of Section 164, Cr.
PC that a statement of the witnesses shall be recorded in the manner in which the evidence is recorded and held--
If a Magistrate has power to record statement of any person u/s 164 of the Code, even without the Investigating Officer moving for it, then there is
no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to
be recorded by the Magistrate on being approached for that purpose and those not to be recorded.
In the present case, one of the arguments advanced by accused for grant of bail to them was based on the statements of the four appellants
recorded by the Magistrate u/s 164 of the Code. It is not part of the investigation to open up such avista nor can such steps be deemed necessary
for the administration of justice.
Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a Magistrate to record the
statement of a person unsponsored by the Investigating Agency.
From the said decision, it is clear that the power of the Magistrate u/s 164, Cr. PC to record the statements of persons connected with any
criminal case cannot be curtailed. At the same time, such statements which are not part of the investigation cannot be permitted to make use of.
Though their Lordships have not fettered the rights of the Magistrate to record the statement u/s 164, Cr. PC, it is left open to the Court to
consider those statements in terms of law and to decide the case. Ultimately, in the said case, their Lordships have confirmed the view taken by the
High Court which disallowed such statements. Therefore, wherther a statement recorded u/s 164, Cr. PC can be admitted or not is a question to
be decided by the Court in accordance with law and there cannot be any prevention of recording such statements or permitting such statements
discriminately without looking into the admissibility of the said statements.
In view of the above decision of their Lordships of the Supreme Court, the statements of the witnesses concerned in this case recorded u/s
164, Cr. PC cannot be considered for the purpose of granting bail to the petitioner as they are not statements recorded during investigation or such
statements deemed to be necessary for the administration of justice.
At this juncture, learned Special Public Prosecutor has relied on a decision of the Supreme Court in Asha & Ashanand and Ors. v. State of
Rajasthan 1997 (3) Cri 36 (SC), wherein it was held that the affidavits sworned by eye-witnesses of an incident wherein they denied any
knowledge about the incident shows only an attempt on the part of the accused to win over the witnesses.
Learned Government Advocate also relied on a decision of a Division Bench of the Karnataka High Court in State v. Firoz @ Jaggur 1998 (4)
Cri 521, wherein the Karnataka High Court has given some stringent directions to the prosecution and also the Criminal Courts to ensure that the
trial proceeds fairly and correctly. Such directions are general in nature, however, it is clear from the decision of the Supreme Court in J.T. 1999
(5) SC 312 stated that such a statement cannot be made use of in a bail application. Therefore, the arguments advanced on the side of the
petitioner on the basis of the alleged statements recorded u/s 164, Cr. PC cannot be taken into consideration while deciding the present application
for bail.
Section 37(1)(b)(ii) of the NDPS Act says--
When 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.
To release the accused on bail, there must be some reasonable ground for believing that he is not guilty of such offence and that he is likely to
commit any offence while on bail. When we consider the case against the petitioner, it is cigar that the officials have not considered certain
mandatory provisions as contemplated under the NDPS Act.
u/s 41(2) of the NDPS Act, the officials, who searched room of the accused, seized heroin and arrested the petitioner, are empowered u/s
11(2) of the NDPS Act. They have got power of entry, search, seizure and arrest without warrant or authorisation u/s 42 of the said Act.
Section 52(1) of the NDPS Act reads--
Disposal of persons arrested and articles seized:� Any officer arresting a person u/s 41, Section 42, Section 43 or Section 44 shall, as soon as
may be, inform him of the grounds for such arrest.
Section 57 of the NDPS Act says--
Report of arrest and seizure:� Whenever any person makes any arrest or seizure under this Act, he shall within forty-eight hours next after such
arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
Their Lordships of the Supreme Court in Mohinder Kumar Vs. The State, Panaji, Goa, , have considered the non-compliance of Section
42(2), 52 and 57 of the NDPPS Act and have held--
In Balbir Singh''s case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the
officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show
for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be
acquitted.
In the said decision, their Lordships have held that compliance with Sections 42(2), 52 and 57 are mandatory. These sections are equally
applicable to the officers empowered under the Act like the respondent officials and also the officials of the State Government, as contemplated u/s
41 of the NDPS Act. When we consider Section 52, it is clear from the records available that the ground of arrest was not informed to the
petitioner herein. Such fact has not been stated either in the mahazar or in the remand report or in the complaint or in other documents filed in this
case. In the above decision, their Lordships of the Supreme Court have held that informing the ground of such arrest is mandatory and the failure to
inform the accused of the grounds of such arrest would amount to failure to follow the mandatory provision.
Section 57 of the NDPS Act contemplates that whenever any arrest or seizure is made under the said Act within forty-eight hours next after
such arrest or seizure a full report of all particulars of such arrest or seizure should be sent to his immediate official superior. No document shows
that such a report has been sent to the immediate official superior within forty-eight hours, as contemplated under the said section. In the above
decision, their Lordships of the Supreme Court have held that failure to follow such a mandatory provision would entitle the accused for an
acquittal.
Considering these two reasons on the basis of the decision of the Supreme Court, it is clear that two of the mandatory provisions have not
been complied with and in such circumstances, their Lordships in the above decision have held that the accused is entitled for an acquittal. When
the said decision is applied to the present case, it can be said that for the failure to follow the above mandatory provisions by the officers
concerned would entitle the accused to get an acquittal. In such circumstances, it can be said that there are reasonable grounds for believing that he
is not guilty of such offence as contemplated u/s 37(1)(b)(ii) of the NDPS Act.
The other requirement under the said section is that in case of release on bail, he is not likely to commit any such offence. As the accused was
working as Superintendent in Central Excise Department, Madurai, he has prepared the records to show that on getting information over phone,
he has recorded the information and went to the place near Vasantha Nagar bus stop at and seized the contraband article dropped on the road by
a suspected person, who ran away from there. Their petitioner has prepared various documents in order to show that the heroin in question was
recovered by him in his capacity as an Officer empowered under the NDPS Act. Whether the documents recorded by the petitioner are true or
not is a different matter altogether. The fact remains that he was an empowered officer to ""search, seize and arrest"" as per the provisions of the
NDPS Act.
It was argued on the side of the respondent that being a Superintendent in Central Excise Department, the petitioner indulged in trafficking of
narcotic substances and if released on bail, he would engage in similar activities. There must be some substantial reason to show that if released on
bail, he would commit similar offence. The petitioner had no previous convictions under the NDPS Act. The Department has also not taken any
action against him for indulging in illegal trafficking of narcotic substances. Though it was contended that the movement of the petitioner was
watched for some times and there were various information against him, there is no acceptable material to show that in the event of his release on
bail, he would involve in similar offence. In such circumstances, it can be said that there are reasonable grounds for believing that he is not likely to
commit any such offence while on bail, as required u/s 37(1)(b)(ii) of the NDPS Act.
On the side of the respondent-Department, it is submitted that the petitioner being an officer of the Central Excise Department having involved
in such offence and trafficking of narcotic drugs and psychotropic substances is an offence more serious than other offences. There cannot be any
doubt regarding the seriousness of the offence committed under the NDPS Act, 1985. Because the offence alleged against the accused is one of
very serious in nature, we cannot refuse bail, especially when there are grounds enabling the accused to be released on bail.
A Full Bench of the Supreme Court in State of Punjab v. Baldev Singh 1999 (6) Supr 159, while considering Section 50 of the said Act, held-
-
Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the
administration of justice. That cannot be permitted.
This decision, though rendered while considering Section 50 of the NDPS Act, is equally applicable to all the provisions of the said Act. When
the officers concerned have failed to follow the mandatory provisions of the Act, the accused is entitled to an acquittal and thereby he is also
entitled to get bail.
To substantiate the said ground, we have already cited the decision of the Honourable Supreme Court in Mohinder Kumar Vs. The State,
Panaji, Goa, and therefore, for all these reasons, the accused is entitled to be released on bail. However, considering the various circumstances,
some stringent conditions should be imposed while releasing him on bail.
In the result, the accused shall be released on bail on his executing a bond for a sum of Rs. 10,000 (Rupees Ten Thousand only) with two
sureties each for a like sum to the satisfaction of the Special Judge for NDPS Act cases, Madurai and on conditions that until further orders, he
should reside at Madras and appear before the Assistant Director, Narcotic Control Bureau, Chennai at 10.00 a.m. and 5.00 p.m. every day.