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2014 (4) TMI 1333 - HC - Indian LawsSeeking release on bail/suspension of sentence in the matters where the conviction is recorded for the offence under the Narcotic Drugs and Psychotropic Substances Act 1985 - Contraband item - HELD THAT - The issue was considered by Hon ble the Supreme Court in the case of Rattan Mallik 2009 (1) TMI 844 - SUPREME COURT wherein too the Apex Court emphasised that the conditions given under Section 37 of the Act of 1985 are cumulative and mandatory thus required to be taken into consideration while dealing with an application for grant of release on bail and the court if finds it proper to grant such application is under a statutory obligation to record its satisfaction. In the case of Mansingh 2004 (9) TMI 718 - SC ORDER Hon ble the Supreme Court granted an application seeking suspension of sentence during pendency of an appeal before the High Court by taking into consideration the substantial period of imprisonment already undergone and further the circumstance of no likelihood of expeditious hearing of the appeal. As a matter of fact the court in this case did not examine the requirements of Section 37 as the order was passed for doing complete justice as the accused was behind the bars for a period of more than seven years and there was no chance of expeditious hearing of the appeal. Such an order was passed by Hon ble the Supreme Court in exercise of its extraordinary powers available under Article 142(1) of the Constitution of India. The Apex Court as per the provision aforesaid is having an authority to make such order, if necessary for doing complete justice in any cause or matter pending before it. The authority of Hon ble the Supreme Court under Article 142 of the Constitution of India is an extraordinary authority and that is not abide by the statutory provisions. The power available can very well be exercised beyond statutory limits if that is required for dispensing complete justice in any case. It shall be pertinent to notice here that as per Article 141 of the Constitution of India the law declared by the Supreme Court shall be binding on all courts within the territory of India as such the binding effect in the form of precedent is available to the judgments declaring law by the Apex Court. Article 142 of the Constitution of India nowhere refers judgments but decree or order. Hon ble Supreme Court may grant release on bail or suspension of sentence without getting itself satisfied with the requirements of Section 37 of the Act of 1985 if that is necessary for doing complete justice such an authority however is not available to the High Court or the trial court as the case may be. As already stated the order passed in the case of Mansingh is a reflection of the authority exercised under Article 142 of the Constitution of India thus is not having a binding effect or in other words an authority of precedent for the High Court or the other courts subordinate. Conclusion - i) The extraordinary powers under Article 142 do not constitute a precedent for lower courts regarding bail applications under the NDPS Act. ii) Lower courts must adhere to the statutory requirements of Section 37 when considering bail applications ensuring that the twin conditions are satisfied. The reference is answered accordingly.
ISSUES PRESENTED and CONSIDERED
The core legal question considered by the High Court was the applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) in determining the release on bail or suspension of sentence for offenses involving commercial quantities of contraband. The Court was tasked with resolving the conflict between two Supreme Court judgments: Union of India v. Rattan Mallik alias Habul and Mansingh v. Union of India, in relation to bail applications under the NDPS Act. ISSUE-WISE DETAILED ANALYSIS Relevant Legal Framework and Precedents Section 37 of the NDPS Act provides that offenses under the Act are cognizable and non-bailable, with specific conditions for granting bail. The conditions require that the Public Prosecutor be given an opportunity to oppose the bail application and that the court be 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 in Dadu alias Tulsidas v. State of Maharashtra and Rattan Mallik emphasized the mandatory and cumulative nature of these conditions. In contrast, the order in Mansingh granted bail based on the substantial period of imprisonment already served and the improbability of an expeditious hearing, without detailed reasoning under Section 37. Court's Interpretation and Reasoning The Court interpreted that the decision in Mansingh was an exercise of the Supreme Court's extraordinary powers under Article 142 of the Constitution, which allows the Court to pass orders necessary for complete justice. This power is not bound by statutory provisions and cannot be considered a precedent for lower courts, which must operate within statutory limits. Key Evidence and Findings The Court noted that the Mansingh order did not examine the requirements of Section 37 and was passed to do complete justice, given the accused's prolonged imprisonment and the lack of an imminent appeal hearing. In contrast, Dadu alias Tulsidas and Rattan Mallik provided detailed legal reasoning under Section 37, emphasizing the need for courts to record satisfaction on the twin conditions for bail. Application of Law to Facts The Court applied the legal principles from Dadu alias Tulsidas and Rattan Mallik to conclude that lower courts must adhere to Section 37's requirements when considering bail applications under the NDPS Act. The extraordinary powers exercised in Mansingh do not serve as a binding precedent for such applications. Treatment of Competing Arguments The Court acknowledged the argument that Mansingh provided a basis for bail based on the duration of imprisonment and pending appeal but clarified that this was an exercise of Article 142 powers, not a statutory interpretation of Section 37. The Court emphasized that lower courts lack the authority to bypass statutory requirements in the same manner. Conclusions The Court concluded that applications for bail or suspension of sentence under the NDPS Act must be considered in light of Section 37, following the legal reasoning in Dadu alias Tulsidas and Rattan Mallik. The extraordinary order in Mansingh does not alter the statutory requirements for lower courts. SIGNIFICANT HOLDINGS The Court held that:
The reference was answered by affirming the binding nature of the legal reasoning in Dadu alias Tulsidas and Rattan Mallik for applications under the NDPS Act, while recognizing the unique nature of the Mansingh order under Article 142.
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