9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 1907 - HC - Money LaunderingGrant of Bail - Smuggling - Sections 37 of the NDPS Act - petition in possession of intoxicating powder - constitutional validity of Section 37(1)(b)(ii) of the NDPS Act - the petitioner is seeking bail under more liberal provisions of Section 439 Cr.P.C, whereas the State is seeking to restrict the right of bail of the petitioner on the basis of strict and rigorous conditions prescribed under Sections 37 of the NDPS Act. HELD THAT - A bare perusal of Section 439 of Cr.P.C shows that this Section has left the discretion of the Sessions Court or of the High Court to be comparatively unfettered and leaves upto the Court conscience as to whether to impose conditions upon the persons released under that Section, primarily, to secure his presence during trial or as an effort to prevent the person so released, from indulging in criminal activities in future. Although another Section, (added in Punjab), Section 439-A Cr.P.C casts upon High Court to record reason for its satisfaction that there are reasonable grounds for believing that such person is not guilty of any offence specified in that Section. However, this Section 439-A has its application only qua specified and limited number of offences under Indian Penal Code, Explosive Substances Act and the offences under the Arms Act. But even this restriction upon the discretion of the High Court, to release a person on bail, ends at this point only. However, Section 37 of the NDPS Act prescribes much more rigorous conditions for release of a person on bail during the trial. Besides prescribing for giving opportunity of hearing to the Public Prosecutor, this Section gives a right to the Public Prosecutor to oppose the application. On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section castes a duty upon the Court to satisfy itself that there are reasonable grounds for believing (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy in this case is regarding the above-said two conditions. Since the life and liberty of a person cannot be violated except in accordance with due process of law, which has been interpreted to be a just, reasonable and fair process, therefore, it has to be seen whether the conditions prescribed under Section 37(1)(b)(ii), are reasonable enough to pass the test of being due process of law as contemplated by Article 21 of the Constitution of India and the test of being not arbitrary or irrational as are to be excluded as per the mandate of Article 14 of the Constitution.Even the reading down of the language of Section 37(1)(b)(ii) does not save it from being inherently inconsistent and from leading to absurdity of result of its operation. As per read down language also, while granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him. And this satisfaction has to be recorded by the Court with reference to the material on record. Whereas at the stage of framing of charge on the basis of same material and record, the Court is to arrive at a prima-facie satisfaction that such a person has committed such offence. In that situation, the accused would be entitled to get the charge quashed, moment he is granted bail by recording satisfaction of the Court as required under Section 37(1)(b)(ii) - Even as per the best interpretation of Section 37(1)(b)(ii) which may be intended to retain the constitutional validity of the provision, what the Court is required to consider is that, in all reasonableness, the petitioner is not involved in the offence or that prima-facie the ingredients of the offence are not made out. There is no problem to this extent. Any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophisticated psychological theories of human behaviour, using sophisticated statistical tools of factorization, based on common minimum behavioural factors in large number of people, are still struggling to find a credible answer in this regard. This Court finds substance in the argument of learned counsel for the petitioner that the Arresting Officer has not complied with the provisions of Section 50 and 51, as interpreted by the Hon'ble Supreme Court and by this Court, in a number of judgments. Merely asking a person whether he wants to be searched before a gazetted officer or Magistrate is not the sufficient compliance of Section 50 of NDPS Act. Even the factum of giving such option is being denied by the petitioner. The provisions of the above two Sections are meant, basically, to protect an individual against the false implication by the Police. If this protection is sought to be denied by the Police then this is one of the reasons which can lead, and is leading, the Court in the present case, to come, to a prima-facie, but reasonable satisfaction that the petitioner is not involved in the crime allegled in the present case - so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit any offence' or offence under NDPS Act' after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. The petitioner is ordered to be released on bail during trial - petition allowed.
Issues Involved:
1. Right to life and liberty under Article 21 of the Constitution. 2. Conditions for bail under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. 3. Compliance with procedural safeguards under Sections 50 and 51 of the NDPS Act. 4. Constitutional validity of Section 37(1)(b)(ii) of the NDPS Act. 5. Judicial discretion under Section 439 of the Criminal Procedure Code (Cr.P.C). Issue-wise Analysis: 1. Right to Life and Liberty under Article 21 of the Constitution: The judgment emphasizes the fundamental right to life and liberty guaranteed by Article 21 of the Constitution, which cannot be suspended even under other constitutional provisions. The court highlights the continuous debate between individual rights and state power, particularly in the context of bail and custody. The petitioner’s right to liberty is central to the case, as he seeks bail pending trial. 2. Conditions for Bail under Section 37 of the NDPS Act: Section 37 of the NDPS Act imposes stringent conditions for granting bail, including the requirement for the court to be satisfied that the accused is not guilty and is unlikely to commit any offense while on bail. The court notes that the Special Judge dismissed the bail application based on the petitioner’s conscious possession of 300 grams of intoxicating powder. However, the court finds that the Special Judge did not record satisfaction regarding the petitioner’s likelihood to commit an offense while on bail, as required by Section 37(1)(b)(ii). 3. Compliance with Procedural Safeguards under Sections 50 and 51 of the NDPS Act: The petitioner argues that the police did not comply with the procedural safeguards under Sections 50 and 51 of the NDPS Act, which are designed to protect individuals from false implication. The court agrees, noting that merely asking the petitioner whether he wanted to be searched before a gazetted officer or magistrate is insufficient compliance with Section 50. This non-compliance contributes to the court’s prima facie satisfaction that the petitioner may not be guilty. 4. Constitutional Validity of Section 37(1)(b)(ii) of the NDPS Act: The court discusses the constitutional validity of Section 37(1)(b)(ii), noting that similar provisions in other acts have been declared unconstitutional for being arbitrary and irrational. The court highlights the inherent inconsistency and irrationality of requiring the court to be satisfied that the accused is not guilty and is unlikely to commit any offense while on bail. This requirement is seen as violating the presumption of innocence and being humanly impossible to satisfy. The court references the Supreme Court’s judgment in Nikesh Tarachand Shah, which declared a similar provision in the Prevention of Money Laundering Act unconstitutional. 5. Judicial Discretion under Section 439 of the Cr.P.C: Section 439 of the Cr.P.C grants the High Court or Court of Session discretion to grant bail. The court contrasts this with the more rigorous conditions under Section 37 of the NDPS Act. The court finds that the language of Section 37 is amenable to discriminatory application and lacks adequate determining principles, making it arbitrary and unreasonable. The court concludes that the petitioner’s right to bail should not be defeated by the irrational conditions of Section 37, especially given the procedural non-compliance by the police and the petitioner’s previous acquittal in a similar case. Conclusion: The court allows the petitioner’s bail application, ordering his release on bail during the trial. The court emphasizes the need for a fair, reasonable, and non-discriminatory procedure in line with Articles 14 and 21 of the Constitution. The petitioner is to be released on furnishing bail bonds/sureties to the satisfaction of the trial court.
|
