Sanjeevi vs State by Inspector of Police, B.1 North Beach Police Road, Madras-1

S.M. Ali Mohammed, J.—This petition is for enlarging the Petitioner/accused on bail.

The Petitioner is alleged to have committed offence, u/s 21 and 22 of Narcotic Drugs and Psychotropic Substances Act 1985. Learned Public

Prosecutor opposes the bail, on the grounds that 120 grams of brown sugar was recovered from the Petitioner, and the Petitioner had been

detained thrice, under Act 14 of 1982, previously. Learned Counsel for the Petitioner submits that as per S. 167(2) Code of Criminal Procedure if

the charge sheet is not filed within 90 days, bail can be granted. In support of the said contention, he relied upon the ratio held in Berlin Joseph @

Rani v. State1 wherein the Kerala High Court has considered the issue whether Section 37 of the Narcotic Drugs and Psychotropic Substances

Act overrides the command contained in the proviso to S. 167(2) of the Code of Criminal Procedure that on expiry of 90 days or 60 days, as the

case may be, the accused person shall be released on bail, if he is prepared to furnish bail. The Kerala High Court further held that the third limb

contains the legislative command that on the expiry of 60/90 days (as the case may be) an accused, shall be released on bail if he is prepared to

and does furnish bail. If the conditions in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, have to be complied with before

releasing an accused on bail even after the expiry of 60/90 days, the legislative directive contained in Section 167 loses its commanding force,

either Section 37 of the Narcotic Drugs and Psychotropic Substances Act has to yield to the proviso in Section 167(2) of the Code or Section 37

must override the other, and has finally held that the directive contained in Section 167(2) proviso, is intended to be issued at the appropriate stage

even if offences under N.D.P.S. Act are involved and if Section 37 of the N.D.P.S. Act is allowed to control or restrict the application to proviso

to Section 167(2) of the Code, the latter provision would become ineffective and dead letter. .

On the other hand, in a case reported in Seemairaj and two others v. Assistant Collector of Central Excise Head Quarters Preventive Unit,

Madras- 34 1992 L.W. Crl. 387 Pratap Singh, J. after elaborately considering the decisions of the apex court of the land has held as follows:

The preamble to N.D.P.S. Act shows that the object of the Act was to amend the law relating to Narcotic Drug and to make stringent provisions

for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances Act etc. The Act deals with the offences

which have got the potential to cause serious injury to the society as a whole, as compared to any other offences under other law. There can be no

laxity in the enforcement of the provisions of the Act. The offence investigated in a case under this Act, has national and international ramifications

and it is not easy to complete the investigation and file a complaint within a time bound schedule of 90 days or so. If, therefore, inspite of this

awareness, the accused person is allowed to go on bail on any technical plea such as the one canvassed before me, that would defeat the very

object of law.

In view of the above, I am clear that proviso to Section 167(2) Criminal Procedure Code, is not applicable to such cases covered by Section 37

of N.D.P.S. Act. In such cases, only if the requirements of Section 37(b) of the-Act are satisfied, the accused can be released on bail. In the

instant case before me, apart from the technical plea, that the Petitioner is entitled to bail by virtue of Section 167(2) Criminal procedure Code, no

other material has been placed before me to show that there are reasonable grounds for believing that Petitioner is not guilty of any such offence

and is not likely to commit any such offence while on bail. Hence, this petition praying for bail has to necessarily fail.

I am in respectful agreement with the view expressed by Pratap Singh, J., and with great respect, I am unable to accept the ratio held by the

Kerala High Court in Berlin Joseph @ Ram v. State 1992 1 C.C.R. 1047

In the instant case before me, apart from the technical plea that the Petitioner is entitled to bail, by virtue of Section 167(2) Criminal Procedure

Code, he has not taken any substantial grounds for enlarging him on bail. The only point taken by the Petitioner is that the police has foisted a false

and fabricated case against him. On the other hand, the allegations are that 120 gms. of brown sugar was recovered from the Petitioner, and the

Petitioner had been detained thrice under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drugs-Offenders, Forest-offenders,

Goondas, Immoral Traffic Offenders and Slumgrabbers Act, 1982 (Tamil Nadu Act 14 of 1982) previously and no motive is alleged against the

police for foisting any false case. In view of the above, the Petitioner has not made out any case for enlarging him on bail under S.37(1)(b) of

N.D.P.S. Act 1985, Bail refused and this petition is dismissed.