1991 (10) TMI 54 - HC - Customs

Summary

Issues Involved:

1. Validity of the initial bail order dated 9-6-1987.
2. Issuance of a non-bailable warrant on 13-8-1987.
3. Application for cancellation of bail under Section 439 of the Code of Criminal Procedure.
4. Invocation of inherent powers under Section 482 of the Code of Criminal Procedure.
5. Applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.
6. Interpretation of Section 439(2) of the Code of Criminal Procedure.
7. Humanitarian considerations in bail decisions.

Issue-wise Detailed Analysis:

1. Validity of the Initial Bail Order Dated 9-6-1987:

The learned Additional Chief Metropolitan Magistrate ordered the release of the Accused on bail on 9-6-1987. However, the Accused could not avail of the bail and continued to be in custody. The Court noted that the original bail order was still valid at that time.

2. Issuance of a Non-Bailable Warrant on 13-8-1987:

On 13-8-1987, the Customs Department filed a complaint, and the learned Chief Metropolitan Magistrate issued a non-bailable warrant. The Accused continued to be in custody, and the case was committed to the Court of Session for trial. The Court held that the issuance of the non-bailable warrant did not ipso facto nullify the effects of the earlier bail order.

3. Application for Cancellation of Bail Under Section 439 of the Code of Criminal Procedure:

The Customs Department applied for cancellation of the bail order passed by the learned Additional Sessions Judge on 27-11-1990. The Court noted that the learned Additional Sessions Judge granted bail relying on a decision of this Court in a similar case. The Court held that the bail order of 9-6-1987 was only effective until the filing of the complaint and that the learned Additional Sessions Judge's order was not based on merits.

4. Invocation of Inherent Powers Under Section 482 of the Code of Criminal Procedure:

The Department invoked the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure. The Court entertained the application, noting that issues of importance were involved and that it was essential to do substantial justice by brushing aside technicalities.

5. Applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act:

The Department argued that the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act applied, contending that the Accused was facing a serious charge and that her release on bail would frustrate the prosecution. The Court agreed that the stringent provisions of Section 37 were applicable and that the learned Additional Sessions Judge was not justified in ordering the release of the Accused.

6. Interpretation of Section 439(2) of the Code of Criminal Procedure:

The Court addressed the argument that Section 439(2) could not apply unless the Accused had availed of the bail order. The Court held that the section presupposes the grant of bail and that it is permissible to reconsider a bail order at any point after it is passed, regardless of whether the Accused has been released. The Court emphasized that the section allows for the cancellation of bail and re-arrest of the Accused.

7. Humanitarian Considerations in Bail Decisions:

The Court acknowledged the plea for a humanitarian approach, considering the Accused's prolonged custody, her status as a foreign national, and her health condition. However, the Court held that these factors could not override the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. The Court directed the learned Additional Sessions Judge to expedite the trial and dispose of the case within three months.

Conclusion:

The Court allowed the applications filed by the Customs Department/State, set aside the order of the learned Additional Sessions Judge dated 27-11-1990, and clarified that the initial bail order dated 9-6-1987 was no longer operative or enforceable. The rule was made absolute.