2018 (7) TMI 32 - SC - Indian Laws

Application of anticipatory bail - limitations under Section 37 of the NDPS Act - Held that - Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Having thus noticed that apparently a wrong order has been passed by the coordinate Bench of the High Court, this Court, by order dated 22-11-2017, directed the State to verify whether any steps have been taken for challenging the orders granting anticipatory bail to the co-accused. In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail. The order dated 31-10-2017 passed by the Sessions Court is also set aside. All the three accused in both these appeals are directed to surrender before the trial court. However, we make it clear that they are free to apply for regular bail, in which case, the Sessions Court will consider the matter on the merits of the application.

Summary

Issues Involved:
1. Application for anticipatory bail.
2. Interpretation and application of Section 37 of the NDPS Act.
3. Grant of regular bail based on interim orders.
4. Lack of due diligence by the prosecution.

Detailed Analysis:

1. Application for anticipatory bail:
The appellant challenged the order dated 4-10-2017 by the High Court of Punjab and Haryana, which rejected his application for anticipatory bail under Sections 22 and 29 of the NDPS Act. The High Court noted that the appellant's co-accused had been granted anticipatory bail by a coordinate Bench, but declined the appellant's application due to the limitations under Section 37 of the NDPS Act.

2. Interpretation and application of Section 37 of the NDPS Act:
Section 37 of the NDPS Act imposes stringent restrictions on granting bail for offences involving commercial quantities of drugs. The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The High Court's coordinate Bench had failed to consider these limitations, leading to the rejection of the appellant's bail application.

3. Grant of regular bail based on interim orders:
The Sessions Court granted regular bail to the co-accused based on an interim order from the High Court, without considering the final order. The Supreme Court criticized this approach, noting that the protection under Section 438 Cr.P.C. (anticipatory bail) is only valid until the court summons the accused based on the charge sheet. The accused must then seek regular bail under Section 439 Cr.P.C., which requires a different level of judicial satisfaction.

4. Lack of due diligence by the prosecution:
The Supreme Court noted the prosecution's lackadaisical attitude in not challenging the High Court's order granting anticipatory bail to the co-accused. The State had not taken timely steps to file a special leave petition, despite being aware of the grave drug addiction situation in Punjab. The Court directed the Additional Chief Secretary, Home Affairs and Justice, to conduct an inquiry into the officials' lack of vigilance.

Judgment:
The Supreme Court set aside the High Court's order dated 21-9-2017 and the Sessions Court's order dated 31-10-2017, directing all accused to surrender before the trial court. The Court emphasized that the observations made in the judgment should not affect the trial or any future bail applications. The appellant's appeal (Crl. Appeal No. 462 of 2018) was dismissed, and the State's appeal (Crl. Appeal No. 463 of 2018) was allowed.