2019 (11) TMI 1066 - HC - Indian Laws

Cancellation of bail - smuggling - Sections 23(c), 27A, 28 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 - HELD THAT - True, the prayer for cancellation of bail granted to the second accused is made not on the ground that he has violated the conditions of bail but on the ground of illegality of the order granting him bail. The allegation against the second accused is that he had booked the flight ticket for the first accused. He had booked the flight ticket for the first accused not at the instance of the first accused but at the instance of one Ashraf @ Sharafudheen. The offence alleged against the second accused is punishable under Section 29 of the Act. Considering the nature of the act allegedly committed by the second accused, there are reasonable grounds for believing that he is not guilty of an offence punishable under Section 29 of the Act. There are also no materials to find that he is likely to commit any offence, while on bail. In fact, during the period he was on bail, he has not committed any offence. In these circumstances, he is entitled to be released on bail on satisfaction by this Court of the two conditions mentioned under Section 37(1) (b) of the Act. Therefore, the bail already granted to him by the learned Sessions Judge, as early as on 07.02.2019, need not be cancelled. The order passed by the learned Additional Sessions Judge granting statutory bail to the first accused, without considering the provisions contained in Section 36A(4) of the Act, was illegal - inspite of the illegality committed by the learned Additional Sessions Judge in granting statutory bail to the first accused, at this distant point of time, I am not inclined to cancel the bail granted to the first accused, especially in the absence of any material produced by the petitioner to show that complaint was filed within a period of 180 days from the date of arrest of the first accused. Petition dismissed.

Issues Involved:

1. Cancellation of bail granted to accused 1, 2, and 4 to 6 under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Detailed Analysis:

Issue 1: Cancellation of Bail for the Second Accused

The learned Sessions Judge granted bail to the second accused on the grounds that no narcotic substance was seized from his possession, and his involvement was limited to booking a ticket for the first accused at the instance of another individual. The judge did not consider the conditions under Section 37(1)(b) of the Act, which requires satisfaction that the accused is not guilty and is unlikely to commit an offence while on bail. Despite the procedural oversight, the High Court found no sufficient grounds to cancel the bail, noting the delay in filing the cancellation application and the absence of any violation of bail conditions by the second accused. The court concluded that there are reasonable grounds to believe that the second accused is not guilty of an offence under Section 29 of the Act and is unlikely to commit any offence while on bail.

Issue 2: Cancellation of Bail for the Fourth Accused

The fourth accused was granted bail based on the fact that no narcotic substances were seized from him, and his involvement was limited to arranging a person to go to Qatar at the instance of another individual. The Sessions Judge did not address the twin conditions under Section 37(1)(b) of the Act. Despite the procedural oversight, the High Court found no sufficient grounds to cancel the bail, noting the delay in filing the cancellation application and the absence of any violation of bail conditions by the fourth accused. The court concluded that there are reasonable grounds to believe that the fourth accused is not guilty of an offence under Section 29 of the Act and is unlikely to commit any offence while on bail.

Issue 3: Cancellation of Bail for the Fifth Accused

The fifth accused was granted bail based on the fact that no narcotic substances were seized from him, and his involvement was limited to arranging the first accused as the person to go to Qatar and arranging a vehicle for him. The Sessions Judge did not address the twin conditions under Section 37(1)(b) of the Act. Despite the procedural oversight, the High Court found no sufficient grounds to cancel the bail, noting the delay in filing the cancellation application and the absence of any violation of bail conditions by the fifth accused. The court concluded that there are reasonable grounds to believe that the fifth accused is not guilty of an offence under Section 29 of the Act and is unlikely to commit any offence while on bail.

Issue 4: Cancellation of Bail for the Sixth Accused

The sixth accused was granted bail based on the fact that his involvement was limited to collecting the trolley bag, flight ticket, and visa from the third accused and taking the first accused to the airport. The Sessions Judge did not address the twin conditions under Section 37(1)(b) of the Act. Despite the procedural oversight, the High Court found no sufficient grounds to cancel the bail, noting the delay in filing the cancellation application and the absence of any violation of bail conditions by the sixth accused. The court concluded that there are reasonable grounds to believe that the sixth accused is not guilty of an offence under Section 29 of the Act and is unlikely to commit any offence while on bail.

Issue 5: Cancellation of Bail for the First Accused

The first accused was granted statutory bail by the Sessions Judge on the grounds that he had been under detention for more than sixty days without a chargesheet being filed. The High Court noted that the Sessions Judge failed to consider the provisions under Section 36A(4) of the Act, which extend the detention period to 180 days for offences involving commercial quantities. Despite this procedural oversight, the High Court decided not to cancel the bail due to the delay in filing the cancellation application and the absence of any material to show that the complaint was filed within 180 days. The court emphasized that the statutory bail was granted without considering the correct quantity of the narcotic substance involved.

Conclusion:

The High Court dismissed all the petitions for cancellation of bail, emphasizing that the procedural oversights by the Sessions Judge in not considering the twin conditions under Section 37(1)(b) of the Act were not sufficient grounds for cancellation, especially considering the delay in filing the applications and the absence of any violations of bail conditions by the accused. The court clarified that its observations should not influence the trial court in framing charges or during the trial.

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