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TMI Blog2018 (7) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Appeal No. 462 of 2018 with Crl. A. No. 463 of 2018 - - - Dated:- 27-3-2018 - Kurian Joseph, Mohan M. Shantanagoudar and Navin Sinha, JJ. Shri H.P.S. Ghuman and Devesh Kumar Tripathi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on granting of bail.] (Emphasis supplied) 4. 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. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2018. 7. Thereafter, the matter was adjourned to 7-2-2018. Incorporating the order dated 18-1-2018, this Court passed a further order, which reads as follows :- Today, Mr. N.S. Kalsi, Additional Chief Secretary, Home Affairs and Justice, along with Superintendent of Police, Patiala and the other police officers concerned are present in Court. It is reported that the matter came to the notice of the Additional Chief Secretary, Home Affairs and Justice, only on 25-1-2018 and within a week steps have been taken to file a special leave petition and the same has been filed. We direct the Additional Chief Secretary, Home Affairs and Justice, to conduct an appropriate inquiry as to who are the officials/officers involved in taking such a lackadaisical attitude despite the High Court in the impugned order pointing out that the order granting bail to the co-accused was not proper. Needless to say that the Report shall contain names of the officers who, despite three postings before this Court, were not vigilant in not bringing up the matter before the Government. The Report, as above, shall be filed within four weeks from today. Post after four weeks. The presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be seen by the Investigating Agency before presenting the challan. Notice of motion for 21-9-2017. In the meanwhile, the petitioners are directed to surrender before the police and join investigation within a week. In the event of their arrest being required, they shall be released on interim bail till the next date, subject to their furnishing bonds to the satisfaction of Arresting Officer. However, they shall abide by the terms and conditions as envisaged under Section 438(2)(i) to (iv) Cr.P.C. failing which they shall loose the benefit of interim bail allowed to them. 12. As a matter of fact, the main petition itself had been disposed of by order dated 21-9-2017. The order reads as follows :- The present petition has been filed under Section 438 Code of Criminal Procedure for grant of anticipatory bail to the petitioners in case FIR No. 0053 dated 11-6-2017 registered for the offences punishable under Sections 22, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Bhadson, District Patiala. Heard. Amrik Singh was arrested by the police with contraband which included various drugs. The allegations against the petitioner No. 2 Gurw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. 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. 15. Be that as it may, the order dated 21-9-2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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