CASE NO.: Appeal (crl.) 611-612 of 1995 PETITIONER: UNION OF INDIA RESPONDENT: THAMISHARASI AND ORS.

DATE OF JUDGMENT: 01/05/1995 BENCH: J.S. VERMA & MRS. SUJATA V. MANOHAR JUDGMENT: JUDGMENT 1995 (3) SCR 905 The Judgment of the Court was delivered by J. S. VERMA, J. Leave granted in special leave petitions. The common question of law for decision is: whether the proviso to subsection (2) of section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act".) to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of the respondents who were arrested for the commission of offences under the N.D.P.S. Act in default of filing the complaint within that period. Hence these appeals by special leave. The material facts are only a few. Admittedly, the Narcotics Control Bureau got a tip-off that a consignment of flasks exported from Madras to Israel contained Hashish concealed therein; and pursuant to this tip-of the consignment was seized at Israel on 8.6.1994. On the bask of information, the premises of the accused Armukham, Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the concerned authorities. These accused were arrested on 27.6.1994 and produced before the Magistrate who granted remand from time to time. We need not mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 since that is the subject matter of a different proceeding wherein the order of preventive detention was challenged.

Admittedly, the complaint against the accused was not filed within the maximum period of 90 days of the arrest specified in the proviso to subsection (2) of Section 167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on expiry of the specified period of 90 days and they have been directed to be released on bail on that ground alone. The High Court has rejected the prayer for cancellation of the bail by the impugned order. Hence, these appeals which involved for decision the aforesaid common question of law. It may be mentioned that in the meantime, after the aforesaid prescribed period, the complaint has been filed but this subsequent fact is not material for decision of the above question of law. It is common ground that the legality of the impugned order granting bail is to be decided with reference to its date prior to the filing of the complaint. The power to detain the accused on the basis of the material now available on merits or the liability of the accused for preventive detention is a separate question which does not arise for consideration herein, and would remain unaffected by the view taken in these appeals on the sole question for decision. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the N.D.P.S. Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub-section (2) of Section 167 Cr. P.C. is excluded in the case of a person accused of any offence punishable under the N.D.P.S. Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the N.D.P.S. Act supports the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. instead of indicating its exclusion in such cases. The relevant provisions in the Code of Criminal Procedure, 1973 are as under: "4. Trial of offence under the Indian Penal Code and other laws. - (1) AH offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise deal with ac-cording to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner trying or otherwise dealing with such offences." "167. Procedure when investigation cannot be completed in twenty-four hours. - (1) Whenever any person is arrested and detained in custody, and

it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that (a) the Magistrate may authorities the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceed(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, were the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail of he is prepared to and .does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter XXXIII for the purpose of that chapter: (b).............. (c).............. Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. xxx xxx xxx

The relevant provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 are as under : "36-A. Offences triable by Special Courts. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. (b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate .is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate : Provided that where such Magistrate considers (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction ; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under the section; xxx xxx xxx

(3) Nothing contained in this section shall be deemed to affect that special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36".

"36-C. Application of Code to proceedings before a Special Court. - Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor." 37. Offence to be cognizable and non-bailable - (1) Not-withstanding 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 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. xxx xxx xxx"

"51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act." Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the N.D.P.S. Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 Cr. P.C.; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forward to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr. P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr. P.C., particularly sub-section (2) thereof, is an indication that no part of subsection (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S. Act. This conclusion is reinforced by some other provisions of the N.D.P.S. Act, Section 36-C says that "save as otherwise provided in this Act, the

provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court." This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the N.D.P.S. Act "save as otherwise provided in this Act." Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Except for Section 37 of the N.D.P.S. Act, no other provision of the N.D.P.S. Act is relied on to contend that there is any inconsistent provisions in the N.D.P.S. Act to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section (2) of Section 167 of the Code is made expressly applicable by Section 36-A of the N.D.P.S. Act. The question, therefore, is: Whether Section 37 of the N.D.P.S. Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section (2) of Section 167 is expressly made applicable by the N.D.P.S. Act? The nonobstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section 37. Clause (b) of sub-section (1) specifies the two limitations on granting of bail, namely, (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Additional Solicitor General contends that these limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to subsection (2) of Section 167 Cr.P.C. is excluded in such cases. We are unable to accept this contention. The limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 CR. P.C. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of

reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible. Sub-section (3) of Section 36-A provides that the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure shall not be affected by anything contained in Section 36-A of the N.D.P.S. Act. Sub-section (2) of Section 167 Cr. P.C. has been expressly applied by Section 36-A of the Act and the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision in this Act in relation to arrests made under this Act. It is this context in which Section 37(l)(b) has to be construed wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the Code of Criminal Procedure with which Section 37(1) (b) of the Act can be treated to be inconsistent. In the Code of Criminal Procedure, it is Section 437 and not Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in case of non-bailable offence under Section 437 is as follows: "(i) such person shall not be so re-leased if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;" In other words, under Section 437 of the Code the person is not to be released on bail "if there appear reasonable grounds for .believing that he has been guilty of an offence......." while according to Section 37 of the N.D.P.S. Act, the accused shall not be released on bail unless "the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.......". The requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the requirement of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the N.D.P.S. Act. Under Section 437 Cr. P.C., the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty while under section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the N.D.P.S. Act it is the accused who has to

show that there are reasonable grounds for believing that he is not guilty. The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. Act is in the nature of a condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P.C., it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the N.D.P.S. Act more stringent. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. In our opinion, in order to exclude the application of the proviso to subsection (2) of Section 167 Cr. P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. A comparison with the relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") is useful. Section 20 therein provides for modified application of certain provisions of the Code of Criminal Procedure. Sub-section (4) of Section 20 specifies the modification with which Section 167 Cr. P.C. is applied, to a person accused of an offence under the TADA Act. One of the modifications

expressly made .therein is by the provision for a longer total period of permissible custody during investigation. A corresponding provision is absent in the N.D.P.S. Act. Thereafter sub-sections (8) and (9) of Section 20 are provisions corresponding to sub-sections (1) and (2) of Section 37 of the N.D.P.S. Act. This similarity between the two Acts is striking and in this context the absence in the N.D.P.S. Act of a provision like subsection (4) of Section 20 of TADA Act assumes further significance and supports the construction we have made of Section 37 of the N.D.P.S. Act. The TADA Act is a stringent statute to meet an extraordinary situation as in the N.D.P.S. Act. It is also significant that notwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is nothing in Section 37 of the N.D.P.S. Act similar to sub-section (4) of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections (8) and (9) of Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. in cases of arrest made for commission of offences under the N.D.P.S. Act, is quite evident. It is settled that 'the court will have no power of remand of an accused to any custody unless the power is conferred by law". (See Natabar Panda Bisnu Charon Panda Batakwshna Panda Babaji Panda v. State of Orissa, [1975] Supp. SCR 137). The power must, therefore, be traced to some provision of the statute. There is clear mention of Section 167 Cr. P.C. in the N.D.P.S. Act for the exercise of this power. Ordinarily, there must also be an outer limit prescribed by specification of the total period of permissible remand during investigation. This too is provided in Section 167. To exclude merely this part of Section 167, an express provision in the statute was necessary, assuming there could be conferment of power of remand unlimited in point of time which, in substance, is the argument of the learned Additional Solicitor General. The effect of the proviso to sub-section (2) of Section 167 Cr.P.C. was stated in Natabar Parida (supra), thus:"................... The law as engrafted in proviso (a) to sections 167(2) and section 309(2) of the New Code confers the powers of remand to jail custody during the pendency of the investigation only under the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded........ But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy - murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to

be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals," but surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature." (at pages 142-143) (emphasis supplied) The learned Additional Solicitor General placed strong reliance on the decision of this Court in Narcotics Control Bureau v. Kishan Lal and Others, [1991] 1 S.C.C. 705. The only thing decided in that case is that the power of the High Court to grant bail under Section 439 of the Code of Criminal Procedure is subject to the limitations contained in the amended Section 37 of the N.D.P.S. Act since those additional limitations are applicable to the High Court also in the matter of granting bail. That is a different question. That decision does not, therefore, answer the question which arises for consideration in the present case. No other decision of this Court has been relied on by either side at the hearing before us to support a different view. For the aforesaid reasons, these appeals are dismissed resulting in the interim orders made herein being vacated. However, it is made clear that this decision will not affect any other order made in accordance with law which may be in force permitting the continuance in detention of the respondents. Appeals dismissed.

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Title BAHADUR SINGH Vs. STATE OF HARYANA AJMER SINGH Vs. STATE OF HARYANA STATE OF HARYANA & ORS. Vs. JAGDISH SIDHARTHA VASHISHT @ MANU SHARMA Vs. STATE (NCT OF DELHI) BAHADUR SINGH Vs. STATE OF HARYANA STATE OF PUNJAB Vs. LAKHWINDER SINGH & ANR. VIJAYSINH CHANDUBHA JADEJA Vs. STATE OF GUJARAT IQBAL MOOSA PATEL Vs. STATE OF GUJARAT JARNAIL SINGH Vs. STATE OF PUNJAB R.S. MISHRA Vs. STATE OF ORISSA & ORS. HARJIT SINGH Vs. STATE OF PUNJAB BINOD KUMAR Vs. STATE OF JHARKHAND & ORS. ASHOK @ DANGRA JAISWAL Vs. STATE OF M.P.

Coram Coram: ALTAMAS KABIR CYRIAC JOSEPH Coram: P. SATHASIVAM H.L. DATTU Coram: K.G. BALAKRISHNAN J.M. PANCHAL B.S. CHAUHAN Coram: P. SATHASIVAM SWATANTER KUMAR Coram: ALTAMAS KABIR CYRIAC JOSEPH Coram: MUKUNDAKAM SHARMA A.K. PATNAIK Coram: D.K. JAIN B. SUDERSHAN REDDY MUKUNDAKAM SHARMA R.M. LODHA DEEPAK VERMA Coram: MARKANDEY KATJU T.S. THAKUR Coram: B. SUDERSHAN REDDY SURINDER SINGH NIJJAR Coram: J.M. PANCHAL H.L. GOKHALE Coram: P. SATHASIVAM B.S. CHAUHAN Coram: DALVEER BHANDARI DEEPAK VERMA Coram: AFTAB ALAM R.M. LODHA

MUSTAQ QURESHI V/S STATE OF M.P.

M.CR.C NO- 2776/99 DT 16-7-99

The grant of regular bail on merits stands on different footing than grant of regular bail in accordance with the provisions of section 167 [2] CR PC. Pendency of an application for grant of regular bail before the higher courts does not de-bar the courts below to exercise its jurisdiction as defined under section 167 [2]

1.MANOJ V/S - STATE OF MP -1999(2)JLJ 1=( supreme court) The accused was arrested under section 167 (2) formally however he was not produced before magistrate as per requirement of the section 167 and section 57 such arrest after 24 hours becomes otiose.and the accused cannot be detained in custody beyond the period of 24 hours. It is now well settled that benefit of provisions to section 167 (2) of the code is available to an accused involved in the offices under N. D. P. S.Act. It has been decided by the Supreme Court in union of India v/s Thamisharasi JT1995(4)SC that there is no provision in the NDPS act which will exclude the application of the section 167 (2).

STATE THROUGH CBI V/S DAWOOD IBRAHIM= 1997 SCC (CRI)636= Even after taking cognizance of an offence the court can authorise detention in POLICE custody of a person arrested during further investigation -- words " accused if in custody "in section 309 (2) does not refer to a person who is arrested in the course of further investigation. The remand and custody referred to in first provisio of section 309 relates to post cognizance stage and can only be judicial custody. Section 73; -- magistrate has power to issue a warrant under section 73 during investigation also. Such power can be exercised by him for appearance of the accused before the court only and not before the police in aid of investigation. On such production the court can authorise his detention in police custody only after exercise of his judicial discretion and not on the mere asking of the police.

GAURI SHANKAR V/S STATE OF M.P. 1995 J.L.J. 47 The offences punishable under provisions of N.D.P.S. ACT. are governed by provisions of the CRPC, in view of the observations made by the Supreme Court in DIRECTOR OF ENFORCEMENT V/S DEEPAK MAHAJAN 1994 S.C.C. (CRI) 785 and HITENDER THAKUR V/S STATE OF MAHARASHTRA (1994) 4 S C C 602 , the offender indicated for the offences under the special act like F. E. R. A., customs act and TADA are to be dealt with , keeping in view the provisions of section 167 of CRPC, as and when necessary.The provisions of section 167 [2] CR PC are applicable to the offence under section 8/2 N. D. P. S. Act charge sheet not filed within 90 days, the accused becomes entitled to bail , The bail granted under section 167 [2] may be canceled on convincing material, such prayer may be considered by court if there is genuine need.

SANJAY DUTT V/S STATE (1994)5 S.C.C. 410 The accused has a right to be released on bail in default of completion of the investigation and filing of the challan within the time allowed, it is the right which ensures to , and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.

NARCOTICS CONTROL BUREAU V. KRISHAN LAL & ORS [1991] RD-SC 20 (29 January 1991)
PANDIAN, S.R. (J) PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1991 AIR 558 1991 SCR (1) 139 1991 SCC (1) 705 JT 1991 (1) 258 1991 SCALE (1)97 ACT: Narcotic Drugs and Psychotropic Substances Act, 1985:Sections 36 and 37(2)-Special Courts-Powers to grant bail-Restrictions- Whether to be treated as fetters on High Court to grant bail under s. 439, Cr. P.C. Code of Criminal Procedure 1973: Section 439-Bail-High Court's power-Whether restricted by s. 37(2) of the Narcotics Drugs and Psychotropic Substances Act, 1985. HEADNOTE: The respondents in the appeals who were arrested for offences under various sections of the narcotic Drugs and Psychotropic Substances Act, 1985, were refused bail, and were remanded to judicial custody. On the basis of the report the Magistrate took cognizance, and remanded them to judicial custody. The respondents filed writ petition and criminal miscellaneous petition before the High Court seeking bail under s. 167(2), Criminal Procedure Code on the grounds of belated submission of the chargesheet, and on account of illness. The matter was referred to a Division Bench held that the limitations placed on the Special Court under s. 37 (2) of the Narcotic Drugs and Psychotropic Substances Act could not be read as fetters on the High Court in exercise of its power under s. 439, Cr.P.C. to grant bail. Aggreieved, the Narcotics Control Bureau appealed to this Court, and contended that the High Court had no untremelled powers in the matter of granting bail, as the provisions of s. 37 of the NDPS Act override those of s. 439, Cr. P.C.

On the question: whether the limitation placed on the Special Court under s. 37(2) of the NDPS Act is to be treated as fetters on the powers of the High Court also in granting bail under s. 439, Cr. P.C. Disposing of the appeals, this Court, 140 HELD: 1. The powers of the High Court to grant bail under s. 439, Cr. p.C. are subject to the limitations contained in the amended s.37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, 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. [151E] 2. When there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with offences, the other powers under the Code of Criminal Procedure 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. [145C] 3.1 The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special enactment, 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 s.37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of the Criminal Procedure Code regarding bail, it cannot be said that the High Court's power to grant bail under s. 439, cr. P.C. are not subject to the limitation mentioned under s. 37 of the NDPS Act. [144E-G] 3.2 Section 37 of the NDPS Act starts with a non- obstinate 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/[144E; 145F] 3.3 The non-obstante clause with which s. 37 of the NDPS Act starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail [144G] 3.4 In case of inconsistency between s. 439, Cr. P.C. and S.37 of the NDPS Act, s. 37 prevails. 3.5 Consequently the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the conditions mentioned in s. 37 of the NDPS Act. [145F,G] Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 and Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR page 52, relied on. 141 Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat, [1988] 2 SCC 271, referred to.

4. The two accused-respondents being on bail for a long time under the orders of the High Court and the Narcotics Control Bureau not passing the cancellation of bail, the matter need not be remitted to the High Court, and the respondents would continue to be on bail. [151F] CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 810-811 of 1989. From the Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl. W.P. No. 622 of 1988 and Crl. Misc. Main Petition No. 1132 of 1988. J.S. Arora, Sudhansu S. Das, Satish Agrawal and N.P. Kaushik for the Appellant. V.C. Mahajan, A.K. Ganguli Ashok Bhan, A. Subhashini, P.P.. Tripathi and S.K. Sabharwal for the Respondents. The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs & Psychtropic Substances Act, 1985 (`NDPS Act' for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court. Aggrieved by the said order, the Narcotic Control Bureau has filed these two appeals. The peritioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody. The petitioners filed a writ petition as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as 142 fetters on the High Court in exercise of powers under Section 439 Cr. P.C. for granting bail. The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent. The learned counsel appearing for,the appellants submitted that the High Court has misconstrued the provisions of Section 36-A and 37 of the NDPS Act and that latter Section as amended starts with the non-obstante clause limiting the scope of provisions of

the Cr.P.C. in the matter of granting bail and as such the High Court has no untremelled powers to grant bail inasmuch as the provisions of the amended Section 37 of the NDPS Act override the provisions of Section 439 Cr. P.C. We may at this stage note the relevant provisions of NDPS Act. The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotrophic substances etc. Sections 15 to 35 deal with various offences and penalties. Section 36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Section 36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub-section (b) of Section 36-A lays down that if the Magistrate to whom an accused is forwarded under Section 167 Cr. P.C., considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial. Sub-section (3) of Section 36-A reads thus: "Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "Special Court" constituted under Section 36." 143 Now let us note Section 37 as amended in the year 1989 and the same is in the following terms: "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 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. (2) The ,limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the law being in force on granting of bail." Now it becomes necessary to extract Section 439 Cr. P..C. which reads as under: "439. Special powers of the High Court or Court of Section regarding bail--(1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in

custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437 , may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or the Court of Session shall, 144 before granting bail to a person who is accused on anoffence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public prosecutor unless it is, for reason to be recorded in writing , of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." The High Court having taken into consideration sub- section (3) of Section 36-A took the view that the limitations placed on the Special Courts cannot be read as fetters in its exercise of the powers under Section 439 Cr. P.C. In this context, the Division Bench referred to to sub- sections(8) and (9) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA Act' for short) which are similar to Section 37 of NDPS Act and also relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat, [1988] 2 SCC 271 a case which arose under the TADA Act. We shall refer to this judgment at a later stage after analysing the scope and effect of Section 37 of NDPS Act. 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 as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The 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. P.C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 Cr. P.C. are not subject to the limitation mentioned under Section 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 inconistency between Section 439 Cr. P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4 Cr. P.C. may be noted which read thus: 145 "(4) Trial of offences under the Indian Penal Code and other laws--(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." It can thus be seen that 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. P.C. should be subject to such special enactment. In interpretating the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 regarding the mode of interpretation the Supreme Court observed as follows: "The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity." As already noted, Section 37 of the nDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Conde of Criminal Procedure, 1973 no personaccused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act. We shall now refer to some of the decisions of the Court dealing with the analogous provision in other special enactments. Rule 184 of the Defence and Internal Security of India Rules, 1971 which is analogous to Sec. 37 of the NDPS Act runs as follows: 146 "Rule 184. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless-(a) the prosecution has been given an opportunity to opposed the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may be notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." The Rule commences with a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. it imposes fetters on the exercise of the power of granting bail in certain kinds of cases. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52 a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 of whether former provision is overridden by the latter. This Court held that Rule 184 does not stand in the way of Court of Session or High Court granting anticipatory bail on the ground that the two provision operate at two different stages. Of course, in the instant case, we are not concerned with Section 438 but the observation regarding the scope of Rule 184 are relevant which read thus:

"But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant 'anticipatory bail' under Section 438. The Rule making authority obviously though offences arising out of contravention of Rules and orders made there-under were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be- 147 released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 'anticipatory bail'to a person apprehending arrest on such accusation, though they would not be strictly applicable." (emphasis supplied) Fazal Ali, J. in his concurring judgment also held thus: "(4)_that in cases covered by r. 184 of the Rules the Court exercising power under s. 436 or s. 438 of the Code has go to comply with the conditions mentioned in clauses (a) & (b) of r. 184 and only after the Court has complied with those conditions that an order under any of these section of the Code in respect of such offences could be passed." In Usmanbhai's case a question whether the provisions of sub-sections (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration. The language of sub-sections (8) and (9) of section 20 is analogous to Section 37 of NDPS Act and they read thus: "(8) Notwithstanding anything contained in the Code, no person accused on an offence punishable under this Act or any rule made thereunder shall, if in custody, if in custody, be released on bail or on his own bond unless-- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes 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. (9) The limitation on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force or granting of bail." It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act. The contention was that the sources of power of a designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail. It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control. After considering these submissions this Court held that:

"Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. it is true that the source of powerof a Designated Court to grant bail is no Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. it cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session' within the meaning of of section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act." (emphasis supplied) Having held so, the learned Judge proceeded to consider the controversy as to the power of the High Court to grant bail under Section 439 Cr. P.C. Act excluding the jurisdiction of the High Court entertain an 149 appeal or revision against the judgment of the designated court, it is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal procedure. however, regarding the construction of non-obstante clause in Sec. 20(8) of the Act, this Court held as under: "The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act. It commences with a non-obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be 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. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. it is quite obvious that the source of power of a Designated Court to grant bail is not section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations or granting of bail specified in subsection (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. it therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from section 20(8) of the Act. It can thus be seen that even in Usmanbhai's case also there is no observation supporting the view taken by the High Court in the impugned judgment. As a matter of fact in

Usmanbhai's case Sen, J. who spoke for the Bench, after referring to the ratio laid down in Balchand Jain's case observed thus: "The view expressed in Balchand Jain case is not applicable at all for more than one reason. There was nothing in the defence and Internal Security of India Act or the Rules framed there-under which would exclude the jurisdiction 150 and power of the High Court altogether. On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the High Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied." (emphasis supplied) The High Court in the impugned judgment, however, referred to Usmanbhai's case and held that the limitations placed under Section 37 of the NDPS Act are exactly similar to the ones in sub-section (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts. But we may point out that in paragraph 16 in Usmanbhai's case it is observed: "As a murder of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482." 151 However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain's case is not applicable to the facts in Usmanbhai's case and the same is clear from the observations made in Usmanbhai's case which read as under: "Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an outer of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists. We must accordingly uphold the

view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code" From the above discussion it emerges that in Usmanbhai's case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain's case and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non-obstante clause must be powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the 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. The point of law is ordered accordingly. The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time. The learned counsel appearing for the Narcotics Control Bureau, the appellant herein, is also not pressing cancellation of the bail. Therefore, we are not remitting the matters of the High Court for fresh consideration. Pending the proceedings, they would continue to be on bail. Subject to the above clarification of law, the appeals are disposed of. R.P. Appeals disposed of.