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1995 (5) TMI 261 - SC - CustomsWhether the proviso to sub- section (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? Held that - 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. In order to exclude the application of the proviso to sub- section (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.Appeal dismissed.
Issues Involved:
1. Applicability of the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act). 2. Interpretation of Section 37 of the N.D.P.S. Act in relation to bail provisions. 3. Comparison with provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act). Issue-wise Detailed Analysis: 1. Applicability of the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 to offences under the N.D.P.S. Act: The Supreme Court addressed whether the proviso to sub-section (2) of Section 167 Cr.P.C. can be invoked by an accused arrested under the N.D.P.S. Act to claim release on bail if the complaint is not filed within the specified period. The Court noted that the Madras High Court had affirmed this applicability, directing the release on bail of the respondents due to the failure to file the complaint within the 90-day period. The Court emphasized that the relevant provisions of the Cr.P.C. apply to all offences unless there is a specific enactment regulating the manner of dealing with such offences. The N.D.P.S. Act's Section 36-A explicitly applies sub-section (2) of Section 167 Cr.P.C. to persons accused under the N.D.P.S. Act, indicating that no part of sub-section (2) is inapplicable unless there is a specific contrary provision in the N.D.P.S. Act. 2. Interpretation of Section 37 of the N.D.P.S. Act in relation to bail provisions: The Court examined whether Section 37 of the N.D.P.S. Act excludes the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. The non-obstante clause in Section 37(1) indicates that its provisions override corresponding provisions of the Cr.P.C. Section 37 imposes additional limitations on granting bail, specifically requiring an opportunity for the Public Prosecutor to oppose bail and the court's satisfaction that the accused is not guilty and not likely to commit any offence while on bail. The Court clarified that these limitations apply when bail is considered on merits, not when bail is automatically granted due to the default in filing the complaint within the maximum period allowed during the investigation. The Court rejected the contention that the belief in the accused's guilt could be formed during the investigation without the complaint being filed, noting that the accused is not provided with material to discharge the burden under Section 37(1)(b) until the complaint is filed. 3. Comparison with provisions of the TADA Act: The Court compared the N.D.P.S. Act with the TADA Act, noting that the TADA Act explicitly modifies the application of Section 167 Cr.P.C., including extending the permissible custody period during the investigation. The absence of a similar provision in the N.D.P.S. Act indicates the legislative intent not to exclude the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. for offences under the N.D.P.S. Act. The Court concluded that the limitations in Section 37 of the N.D.P.S. Act are additional to those in Section 437 Cr.P.C. and do not exclude the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C., which pertains to the total period of custody permissible during the investigation. Conclusion: The Supreme Court dismissed the appeals, affirming that the proviso to sub-section (2) of Section 167 Cr.P.C. applies to offences under the N.D.P.S. Act. The decision clarified that the automatic grant of bail due to the default in filing the complaint within the specified period is not affected by the additional limitations on granting bail under Section 37 of the N.D.P.S. Act. The Court emphasized the need for an express provision to exclude the applicability of the proviso, which is absent in the N.D.P.S. Act. The interim orders were vacated, and the decision does not affect any other lawful orders permitting the continuance of detention of the respondents.
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