2016 (2) TMI 1370 - HC - Indian Laws

Seeking grant of interim bail - Interpretation of statute - whether the provisions and conditions of Section 37 of the NDPS Act would apply only to cases of bail or would also apply when the accused seeks interim bail? - HELD THAT - In the light of Section 37 of the NDPS Act, right or discretion to grant regular bail is exactingly restricted, for the specified offences under the NDPS Act have serious repercussions on the society and are pernicious. The balance, therefore, mandates that regular bail should not be granted unless the negative stipulations of Section 37 of the NDPS Act are satisfied and mere satisfaction of conditions of Section 437 of the Code are not sufficient - Interpretation must elucidate the meaning which should be given to the statutory provisions, keeping in view the language used in the provision and if necessary adopt purposive interpretation when the language is capable of different interpretations. Legal interpretation is required in consonance with the statute and also the principles of bail jurisprudence. The expression interim bail is not defined in the Code. It is an innovation by legal neologism which has gained acceptance and recognition. The terms, interim bail / interim suspension of sentence, have been used and accepted as part of legal vocabulary and are well known expressions. The said terms are used in contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final adjudication - Interim bail entailing temporary release can be granted under compelling circumstances and grounds, even when regular bail would not be justified. Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary exercise. The trial or the appellate Courts after conviction are entitled to grant interim bail to the accused/ convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release - reference disposed off.

Issues Involved:

1. Applicability of Section 37 of the NDPS Act to "interim" bail.
2. Distinction between "bail" and "interim" bail.
3. Judicial interpretation and the scope of granting "interim" bail under the NDPS Act.
4. Conditions under which "interim" bail can be granted.

Detailed Analysis:

1. Applicability of Section 37 of the NDPS Act to "interim" bail:

The primary issue is whether the provisions and conditions of Section 37 of the NDPS Act apply only to cases of "bail" or also to "interim" bail. Section 37 imposes stringent conditions for granting bail, stating that no person accused of certain offenses under the NDPS Act shall be released on bail unless the Public Prosecutor has had an opportunity to oppose the application, and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail. The Supreme Court has emphasized the importance of these conditions in cases like Narcotic Control Bureau vs. Kishan Lal & Ors. and Union of India vs. Ram Samujh & Anr., highlighting that the grant of bail under the NDPS Act is strictly regulated and circumscribed by these negative preconditions.

2. Distinction between "bail" and "interim" bail:

The term "bail" is not defined in the Code of Criminal Procedure, though it has been judicially interpreted as judicial release from custody. "Interim" bail, on the other hand, is a temporary release for a fixed period. The Supreme Court in cases like Moti Ram & Ors. vs. State of M.P. and Mukesh Kishanpuria Vs. State of West Bengal has discussed the concept of bail and its jurisprudential aspects, emphasizing that bail should ensure no arbitrariness in the deprivation of liberty. The distinction between regular bail and interim bail is significant, as interim bail is granted temporarily, often pending the final decision on regular bail.

3. Judicial interpretation and the scope of granting "interim" bail under the NDPS Act:

The Supreme Court in Sunil Fulchand Shah Vs. Union of India & Ors. and Dadu @ Tulsidas vs. State of Maharashtra has clarified that while parole and bail have different legal connotations, both involve temporary release from custody. The Court has recognized that in extreme and deserving cases, even under stringent laws like the NDPS Act, temporary release may be warranted. The decision in Dadu @ Tulsidas specifically interprets Section 32A of the NDPS Act, affirming that while the section restricts suspension of sentence, it does not prohibit the grant of parole or furlough, thereby distinguishing between "parole" and "bail."

4. Conditions under which "interim" bail can be granted:

The Court acknowledges that there can be circumstances where "interim" bail is justified even under the stringent conditions of the NDPS Act. The grant of interim bail should be sparingly used and justified by intolerable grief or suffering. The Court must consider whether the accused is likely to commit similar offenses and whether police custody would suffice to meet the ends of justice. The duration of interim bail should be minimal and necessary, subject to specific conditions.

Conclusion:

The Court concludes that:

1. Trial or appellate courts can grant "interim" bail in exceptional and extraordinary circumstances.
2. The strict provisions of Section 37/32A of the NDPS Act must be considered, and interim bail should only be granted for compelling reasons.
3. The nature of the offense and the past conduct of the accused should be considered in granting interim bail.
4. Interim bail should be for the minimal time necessary and subject to conditions.

The reference is accordingly disposed of, emphasizing that interim bail is a temporary measure and should not substitute regular bail.

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