The High Court of Tripura allowed an appeal that was filed for canceling the order of bail given by the learned special judge. The court ruled that bail in NDPS cases should strictly adhere to the conditions outlined in Section 37 of the NDPS Act, emphasizing that procedural violations should be addressed during the trial, not during the bail application process, and that bail is an exception rather than a rule in such cases.
Brief Facts:
This application was filed under Section 439(2) read with Section 482 CrPC for recalling/cancelling the order of bail registered under sections 22(C)/25/29 of the NDPS Act and by the learned special judge wherein the accused were enlarged on bail.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that violation of the procedure embodied under the provisions of the NDPS Act is not to be considered during the course of granting bail to the accused arrested under the penal provisions of the NDPS Act. It was further submitted that the accused are habitual offenders and they are found to be involved in the trading of illicit psychotropic substances. It was argued that the accused after being released on bail was arrested twice in connection with two other cases. It was further argued that while granting bail to the accused, the Judge could not consider the parameters of granting bail as embodied under Section 37 of the NDPS Act and in cases of NDPS Act and UAPA Act, bail is not a rule but an exception.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent contended that the accused are innocent and they have been falsely implicated in the case. It was further contended that the judge has rightly observed that Section 42(1) of the NDPS Act has been grossly violated by the arresting police officers and there is no cogent ground to cancel the bail of the accused.
Observations of the court:
The court observed that the Courts should not forget the rigours of NDPS and UAPA Act where it is, by now well settled that bail is not a rule, but, an exception and the Courts cannot bypass the twin conditions embodied in Section 37 of the NDPS Act. It is further observed that Before granting bail, the Courts should prima facie arrive at a finding that there are reasonable grounds for believing that the accused arrested in connection with the NDPS case is not guilty of the offence and he would not likely commit such an offence.
The court further observed that the judge has only considered the aspect of procedural violation while allowing the application for granting bail to the accused and procedural violations or irregularities should not be taken into consideration while deciding an application for granting bail filed by an accused arrested in connection with the penal provisions under the NDPS Act. The court stated that Section 37 itself envisages the limitations on granting bail in addition to the limitations prescribed in the Cr.P.C. or any other law for the time being in force on granting bail.
The court held that the Courts while considering the application for bail must strictly adhere to the two conditions embodied in Section 37 of the NDPS Act, and must record its reason of satisfaction that there are substantial probable causes for believing that the accused is not guilty of committing such offence and that there is no likelihood of repetition of committing such offence by the accused while on bail. It is re-iterated that while considering the bail application filed by the accused arrested under the penal provisions of the NDPS Act, learned Special Judges should be confined within the limits embodied in Section 37 of the NDPS Act and Procedural violations, if any, shall be taken into consideration during the course of trial, and not at the stage of consideration of bail application. The court further held that the Courts should not forget the limitations under Section 37 of the NDPS Act in addition to the limitations prescribed in CrPC.
The decision of the Court:
The court allowed the petition.
Case Title: The State of Tripura vs. Sri Mahabul Alam & Ors.
Coram: Hon’ble Mr. Justice Arindam Lodh
Case No.: B.A. 12/2023
Advocate for the Petitioner: Mr. S. Debnath
Advocate for the Respondent: Mr. J. Bhattacharjee, Mr. Sajib Ghosh
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