Calcutta High Court (Appellete Side)
Masidur Rahaman vs Union Of India on 4 February, 2022
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.M. (NDPS) 43 OF 2022
Masidur Rahaman
VS.
Union of India
For the petitioner : Mr. Sourav Chatterjee
For the State : Mr. Y. J. Dastoor, ASG
Mr. Phiroj Edulji
Heard on : February 4, 2022
Judgment on : February 4, 2022
DEBANGSU BASAK, J.:-
1. Petitioner seeks bail under Section 439 of the Code of
Criminal Procedure in connection with NDPS Case No.23 of
2018 arising out of NCB Crime No.23/NCB/KOL/2018 dated
May 17, 2018 under Sections 8(c) read with Sections 21(c)/29
of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Learned Advocate appearing for the petitioner submits
that the petitioner is in custody for more than three and half
years. He relies upon the order dated February 7, 2020
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passed by the Hon'ble Supreme Court in Criminal Appeal
No(s).245/2020 (@ SLP(Crl.) No.8823/2019) (Chitta Biswas
alias Subhas vs. The State of West Bengal) and submits that
the Hon'ble Supreme Court granted bail to a person found in
possession of narcotic substance of commercial quantity. He
submits that in Chitta Biswas alias Subhas (supra), the
Hon'ble High Court rejected the prayer for bail by an order
dated July 30, 2019 passed in CRM 6787 of 2019 after
discussing the applicability of Section 37 of the NDPS Act,
1985 to the facts of that case. In fact, the Hon'ble High Court
rejected the prayer for grant of an anticipatory bail on the
ground that commercial quantity of narcotics was seized from
the joint possession of the petitioner and the co-accused and
in view of the statutory restrictions of Section 37 of the NDPS
Act, 1985. He relies upon the order dated October 19, 2020
passed in CRM 8187 of 2020 (In the matter of: Shovon Nandi @
Mantu) and submits that a coordinate Bench after noticing
Chitta Biswas alias Subhas (supra), was pleased to grant
bail to the petitioner therein although being found in
possession of commercial quantity of codeine mixture.
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3. Learned Additional Solicitor General appearing for the
Union of India submits that 700 bottles of phensedyl was
seized from the possession of the petitioner and the same is
commercial quantity of narcotics within the meaning of the
NDPS Act, 1985. He relies upon 2021 SCC Online Cal 2690
(Sonu Ansari vs. State of West Bengal) and submits that,
Chitta Biswas alias Subhas (supra) was considered by the
High Court and in the facts of that case the prayer for bail was
denied. He submits that discussions with regard to Section 37
of the NDPS Act, 1985 are mandatory when proceedings
involve the provisions of the NDPS Act, for the purpose of
considering a prayer for bail of an accused. In support of
such contention, he relies upon (2018) 13 Supreme Court
Cases 813 (Satpal Singh vs. State of Punjab) and (2020)
12 Supreme Court Cases 122 (State of Kerala & Ors. Vs.
Rajesh & Ors).
4. In the facts of the present case, the petitioner was
arrested and commercial quantity of phensedyl was seized
from him. The provisions of Section 37 of the NDPS Act, 1985
are attracted in the facts of the present case. In Chitta
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Biswas alias Subhas (supra), the Hon'ble Supreme Court
granted bail to the accused. However, the Hon'ble Supreme
Court did not discuss the provisions of Section 37 of the NDPS
Act, 1985 therein.
5. Chitta Biswas alias Subhas (supra) was noted in CRM
8187 of 2020 (In the matter of: Shovon Nandi @ Mantu)
and the bail was granted. Section 37 of the NDPS Act, 1985 is
not discussed in Shovon Nandi @ Mantu (supra).
6. A three Judge Bench of the Hon'ble Supreme Court in
Satpal Singh (supra) is of the following view:
"14. Be that as it may, the order dated 21-
92017 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
Section 438 or 439 CrPC 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 inclined to grant the bail. Such a
satisfaction having not being entered, the order dated
21-9-2017 is only to be set aside and we do so."
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7. In Rajesh and Others (supra) the Hon'ble Supreme
Court noted various authorities on the provisions of NDPS Act,
1985 and particularly Section 37 thereof. It is of the view that:
"17. The jurisdiction of the court to grant bail is
circumscribed by the provisions of Section 37 of the
NDPS Act. It can be granted in case there are
reasonable grounds for believing that the accused is
not guilty of such offence, and that he is not likely to
commit any offence while on bail. It is the mandate of
the legislature which is required to be followed. At this
juncture, a reference to Section 37 of the Act is
apposite. That provision makes the offences under the
Act cognizable and non-bailable. It reads thus:
"37. Offences to be cognizable and non-
bailable.-(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973(2 of 1974)-
(a) every offence punishable under this Act
shall be cognizable;
(b) No person accused of an offence
punishable for offences under Section 19 or Section 24
or Section 27-A and also for offences involving
commercial quantity shall be released on bail or on his
own bond unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such release,
and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty of
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such offence and that he is not likely to commit 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."
18. This Court has laid down broad parameters
to be followed while considering the application for bail
moved by the accused involved in the offences under
the NDPS Act. In Union of India v. Ram Samujh, it has
been elaborated as under:
"7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or in
inflicting death-blow to a number of innocent young
victims, who are vulnerable; it causes deleterious
effects and a deadly impact on the society; they are a
hazard to the society; even if they are released
temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. Reason may be large
stake and illegal profit involved. This Court, dealing
with the contention with regard to punishment under
the NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v.
State (UT of Goa) as under: (SCC p. 104, para24)
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'24. With deep concern, we may point out that the
organized activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal
trafficking in such drugs and substances have led to
drug addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes
and the menace has assumed serious and alarming
proportions in the recent years. Therefore in order to
effectively control and eradicate this proliferating and
booming devastating menace, causing deleterious
effects and deadly impact on the society as a whole,
Parliament in its wisdom, has made effective
provisions by introducing this Act 81 of 1985
specifying mandatory minimum imprisonment and
fine.'
8. To check the menace of dangerous drugs
flooding the market, Parliament has provided that the
person accused of offences under the NDPS Act should
not be released on bail during trial unless the
mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that
the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence
while on bail are satisfied. The High Court has not
given any justifiable reason for not abiding by the
aforesaid mandate while ordering the release of the
respondent-accused on bail. Instead of attempting to
take a holistic view of the harmful socio-economic
consequences and health hazards which would
accompany trafficking illegally in dangerous drugs, the
court should implement the law in the spirit with which
Parliament, after due deliberation, has amended."
19. The scheme of Section 37 reveals that the
exercise of power to grant bail is not only subject to the
limitations contained under Section 439 CrPC, but is
also subject to the limitation placed by Section 37
which commences with non obstante clause. The
operative part of the said section is in the negative
form prescribing the enlargement of bail to any person
accused of commission of an offence under the Act,
unless twin conditions are satisfied. The first condition
is that the prosecution must be given an opportunity to
oppose the application; and the second, is that the
court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such
offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds"
means something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence.
The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence. In the
case on hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.
21. We may further like to observe that the
learned Single Judge has failed to record a finding
mandated under Section 37 of the NDPS Act which is a
sine qua non for granting bail to the accused under the
NDPS Act."
8. Sonu Ansari (supra) considered Chitta Biswas alias
Subhas (supra) after noting various authorities of the Hon'ble
Supreme Court including Rajesh and Others (supra) held
that provisions of Section 37 of the NDPS Act, 1985 are
mandatorily required to be considered by the High Court while
considering an application for bail involving commercial
quantity of contraband.
9. Prayer for grant of bail is considered the parameters
prescribed under Section 439 of the Criminal Procedure Code.
When the provisions of the NDPS Act, 1985 are attracted there
the additional parameters of Section 37 of the NDPS Act, 1985
are required to be considered. In a petition for bail involving
the NDPS Act, 1985 in addition to the restrictions under
Section 439 of the Criminal Procedure Code, the Court is
required to consider the limitation under Section 37 of the
NDPS Act, 1985. The Court is required to apply the test while
granting bail involving the NDPS Act, 1985 is whether there is
reasonable grounds to believe that the accused did not commit
the offence and whether he is likely to commit any while on
bail. The Court is, however, not required to return final finding
of not guilty or to pass a judgement of acquittal while
considering an application for bail which attracts Section 37 of
the NDPS Act, 1985.
10. Chitta Biswas alias Subhas (supra) states that it
considered the facts and circumstances on record, apart from
those noted therein and then proceeds to hold that case for
bail was made out. The facts and circumstances of that case
would obviously appear inter alia, from the case diary thereof.
In absence of appreciation of the entire contours of the facts
and circumstances of that case, it would not be advisable to
hold that the facts of the present case are similar to that
obtaining in Chitta Biswas alias Subhas (supra).
11. It can be contended that, a decision of the Supreme
Court, even if said be made by involving the provisions of
Article 142 of the Constitution, can be applied. Such
contention, with the deepest of respect, overlooks the fact that,
the factual situations in the two cases under considerations
needs to be indentical and that a petition for bail attracting
the provisions of Section 37 of the NDPS Act, 1985 is required
to be decided on the twin tests noted above.
12. In the facts of the present case, the petitioner is unable
to overcome the restrictions imposed under Section 37 of the
NDPS Act, 1985 in view of the fact that commercial quantity of
narcotics was seized from the possession of the petitioner.
There is no ground to believe that the petitioner did not
commit the offence. We are, therefore, unable to grant bail to
the petitioner.
13. Accordingly, the prayer for bail of the petitioner is
rejected.
14. However, in view of the period of detention of the
petitioner, it would be appropriate, in the interest of justice, to
request the court in seisin of the trial to expedite the same and
not grant any unnecessary adjournment to any of the parties.
15. C.R.M.(NDPS) 43 of 2022 is dismissed.
(Debangsu Basak,J.)
I Agree.
(Bibhas Ranjan De, J.)
