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TMI Blog2009 (1) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... at he is not likely to commit an offence under the said Act while on bail? - CRIMINAL APPEAL NO. 137 OF 2009 - - - Dated:- 23-1-2009 - D.K. JAIN R.M. LODHA JJ. JUDGMENT D.K. JAIN, J.: Delay condoned. 2. Leave granted. 3. Challenge in this appeal, by the Union of India, is to the order dated 13th November, 2006, passed by the High Court of Judicature at Allahabad suspending the sentence awarded by the trial Court to the respondent for having committed offences under Sections 8/27A and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act') and granting him bail. 4. Since in this appeal we propose to deal with the short question, viz. whether the High Court, while accepting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence are extracted below: The appellant has been convicted under Sections 8/27-A and 8/29 N.D.P.S. Act for ten years R.I and also fine. Nothing has been found from his possession. Besides the appellant is in jail since 5.9.2003. Three years have already lapsed. There is no chance of the appeal being heard within a period of seven years. 7. Aggrieved thereby, the Union of India has preferred this appeal. 8. Mr. A. Sharan, learned Additional Solicitor General of India, strenuously urged that the High Court has committed a grave error of law in granting bail to the respondent, ignoring the mandatory provisions of Section 37 of the NDPS Act. The learned counsel contended that the High Court lost sight of the restrictions and limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a (2000) 8 SCC 437 special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application. As already noted, in the present case, the respondent has been convicted and sentenced for offences under the NDPS Act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are : (i) that nothing has been found (2007) 7 SCC 798 from the possession of the respondent; (ii) he is in jail for the last three years and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of sub-section (1) of Section 37 of the ND ..... X X X X Extracts X X X X X X X X Extracts X X X X
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