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TMI Blog2001 (5) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Magistrate that he had neither purchased any Chemical from anybody nor sold the same to any body. The petitioner was in judicial custody in the Central Jail from 23rd April, 1999 to 6th May, 1999 in connection with a case involving a petty offence. During the said period, the wife of the petitioner sent a telegram to respondent No. 1 on 24th April, 1999 intimating that the petitioner was in Jail No. 3, Central Jail, New Delhi and that he could be interrogated there. The said telegram was sent in response to a direction from respondent No. 1 to the petitioner to appear for interrogation on 26th April, 1999. However, respondent No. 1 did not seek interrogation of the petitioner during the period when he was in judicial custody. It is further stated in the petition that Sanjeev Kumar Aggarwal was known to the petitioner. However, they were not in talking terms since January, 1998. The petitioner was having business of various Chemicals in Simbhowli and Sanjeev Kumar Aggarwal also was having his business in the said area. Sanjeev Kumar Aggarwal had threatened the petitioner many times to close his business or to face dire consequences. Ultimately, the petitioner had to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 5. In their reply the respondents have denied the receipt of the telegram alleged to have been sent by the wife of the petitioner on 24th April, 1999 intimating that the petitioner was in jail at that time. However it is admitted that on 26th April, 1999, the petition had moved an application in the Court of Ms. O.K. Kochar, Additional Sessions Judge, New Delhi praying for a direction to the respondents to examine the petitioner in the case titled Customs v. Sanjeev Kumar Aggarwal and Ors. and that it was dismissed by the learned Additional Sessions Judge on 4th May, 1999. It is further stated that till 4th May, 1999, the petitioner was required only for the purposes of enquiry/investigations under Section 67 of the N.D.P.S. Act and that he was not an accused on that day and hence his application was rightly dismissed. 6. The respondents have also denied the claim of the petitioner that he was named by Sanjeev Kumar Aggarwal due to business rivalry. To disprove the claim of the petitioner, respondents have produced a report from the Police Station Simbhowli stating that the petitioner had not filed any complaint in the said police station against Sanjeev Kumar Aggarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to generality of the power conferred by Sub-section (1), an order made there under may provide for regulating by licenses, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled substance. Controlled substance has been defined in Section 2 of the N.D.P.S. Act. As per the said Section 2(viia), controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance . In exercise of the powers co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which provides that whoever abets or is a party to a criminal conspiracy to commit an offence under Chapter IV of the N.D.P.S. Act (which includes Section 25A), shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for such offence. According to the learned Counsel, the above suspicions have been strengthened by the investigations so far conducted. As per Section 41(2) of the N.D.P.S. Act, if an Officer empowered under the said section has reason to believe, from personal knowledge or information given by any person and taken in writing, that any person has committed an offence punishable under Chapter IV of the N.D.P.S. ct, such officer may, by himself or through an authorised subordinate officer, arrest such person. It was therefore contended by the learned Counsel that, after the enquiry, if an officer empowered under Section 41(2) comes to the conclusion that there is reason to believe that the petitioner has committed an offence punishable under Chapter IV of the N.D.P.S. Act, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh, , which though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is an necessary for the survival of the society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail . In paragraph 21 of the same judgment, the Supreme Court has point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of anticipatory bail should not generally be passed. 11. In Pokar Ram v. State of Rajasthan and Ors., , the Supreme Court has held that anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature. It has also been held that relevant considerations governing the Court's decision in granting anticipatory bail under Section 438 of the Criminal Procedure Code are materially different from those which should govern the decision on an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court. The Court has further held that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for grant of anticipatory bail. 12. In State v. Anil Sharma, , the Supreme Court has held that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the code of Criminal Procedure. The Court has further observed that success in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Supreme Court contending that the matters should be examined from the constitutional angle bearing in mind the scope of Articles 20(2) and 21 of the Constitution of India. it was contended on behalf of the petitioner that though an accused person could be arrested it may not be appropriate to detain him in custody in every case and that when there is presumption of innocence in his favor until the charge against him is established, it would not at all be consistent with the philosophy of the Constitution to subject such a person to interrogation by application of psychological or ambient pressures much less physical torture. It was also contended that in law an accused person could be arrested and if arrested, he is entitled to bail unless detention is needed in public interest. However, the Supreme Court dismissed the Special Leave Petition after stating that in considering a petition for gnat of bail, necessarily, if public interest requires, detention of citizen in custody for purposes of investigation could be considered and the petition could be rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. 15. In the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Aggarwal it did not constitute any offence because it is not an offence to deal in or to be in possession of a controlled substance. However, learned Counsel for the respondents pointed out that the petitioner is suspected to have violated Clauses 3, 4 and 5 of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993. Violation of the above mentioned provisions constitutes an offence punishable under Section 25-A of the N.D.P.S. Act. In the circumstances of this case, I am inclined to agree with the learned Counsel for the respondents that grant of anticipatory bail to the petitioner would impede the proper and effective investigation in the case. In my view, grant of anticipatory bail in this case will reduce the interrogation of the petition to a mere ritual. I am also not impressed by the argument that distinction must be drawn between cases involving violation of the provisions relating to narcotic drugs and psychotropic substances and cases involving violation of the provisions relating to controlled substances. Since the real nature and full extent of the offences will be known only after completion of the investigation, the distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommit any offence while on bail. (2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. The provisions contained in Section 37(1)(b) are mae applicable and operative notwithstanding anything contained in the Code of Criminal Procedure, 1973 . The limitations on granting of bail specified in Clause (b) of Sub-section 1 of Section 37 are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force on granting of bail. Therefore, whatever be the scope and extent of the power of the Court under Section 438 of the code of Criminal Procedure, while considering an application for bail in the case of a person accused of an offence punishable for a term of imprisonment of five years or more under the N.D.P.S. Act, the power of the Court remains restricted by the limitations specified in Clause (b) of Sub-section 1 of Section 37 of the N.D.P.S. Ac.t Hence in such a case the Public Prosector should be given an opportunity to oppose the application and, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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