Rajni Devi vs The State
2005 Latest Caselaw 102 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This application has been filed by the petitioner seeking interim bail on the ground of the marriage of the petitioner's son which is to take place on 17.02.2005 and the engagement ceremony is to take place on 26.01.2005. Earlier interim bail had been granted to the petitioner on four occasions. Twice by this court and twice by the Additional Sessions Judge by orders dated 07.03.2000, 12.07.2002, 16.01.2004 and 04.03.2004. The first two orders were passed by this court and the latter two by the Additional Sessions Judge. The learned counsel for the petitioner submits that whenever interim bail was granted to the petitioner, the same was not misused and this fact has been recorded in the orders dated 12.07.2002, 16.01.2004 and 04.03.2004. Earlier, the interim bails were granted on the ground of looking after the minor children of the petitioner. On the last date i.e., on 17.01.2005, the respondent was directed to ascertain the age of the petitioner's son who is to be married. This court is informed that the date of birth of the son is 29.10.1983 which shows that in the year 2000, when the first order was passed, the petitioner was below 18 years of age and, therefore, this does not contradict the statement of the petitioner.

2. The learned counsel for the respondent opposes the ground of interim bail stating that this is a case under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). He submitted that this was a case in which Section 37 of the NDPS Act would come into play.

3. Mr Sharma, who appears for the State, contended that in such a situation, what to speak of regular bail, even interim bail should not be granted. In support of his contention, he cited two decisions, one of this court and one of the Supreme Court. I shall first consider the decision of this court in the case of Islamuddin @ Chottey v. State of Delhi :1999(51) DRJ 558. This was a case in which the petitioner therein was seeking interim bail on the ground that the petitioner's wife was suffering from acute appendicIT is and that she had to undergo surgery in connection with the said condition. While considering the interim bail application, this court had examined the provisions of Section 37 of the NDPS Act. This court observed as under:

"Hence in such a case the Public Prosecutor should be given an opportunity to oppose the application and if the Public Prosecutor opposes the application the Court cannot grant bail unless the Court is satisfied that 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. Bail cannot be granted on any other ground in view of the limitations on granting bail specified in clause (b) of sub-sec.(1) of Section 37. The court has no power to grant bail on the ground of illness or hospitalisation of the spouse or on any similar ground."

4. In so far as the last sentence as quoted above is concerned, it may be said that the court has no power to grant bail "merely" on the ground of illness or hospitalisation of the spouse or on any other similar ground unless and until the conditions specified in Section 37, which is a mandatory provision, are complied with. The only conditions that have to be complied mandatorily are that (1) notice must be given to the public prosecutor; (2) where the public prosecutor, after such notice, opposes the application, the court must be satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and ; (3) that he is not likely to commit any offence while on bail. These limitations, in term of Section 37 of the NDPS Act, are clearly in addition to the other limitations prescribed under the Code of Criminal Procedure, 1973 on the grant of bail. In the case which was cited by the learned counsel for the petitioner in paragraph 3 thereof, it is noted that the petitioner was involved in 21 other cases. In four of them he was convicted and in seven of them he was acquitted and the remaining cases were pending. It was also noted at page 560 of the said report that "as already observed this court has already rejected the petitioner's application for regular bail holding that this court is not satisfied that there are reasonable grounds for believing that he is not guilty of the alleged offences and that he is not likely to commit any offence while on bail."

5. It was in these circumstances that this court did not allow the application for interim bail in that case. In the facts of the present case, the situation is somewhat different. On two occasions, this court had granted interim bail in this very case i.e. on 07.03.2000 and 12.07.2002. Furthermore, the Additional Sessions Judge had also granted interim bail on 16.01.2004 and 04.03.2004. Therefore, the situation in the present case is entirely different. Insofar as the petitioner's being likely to commit an offence while on bail is concerned, it is negated by the fact that in the orders mentioned above it has been categorically noted that whenever interim bail was granted, it was not misused.

6. The learned counsel for the State also drew my attention to the decision in the case of Union of India v. Ram Samujh and Anr. 1999(3) C.C. Cases (SC) 22 wherein the Supreme Court observed as under:

"It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder or one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it causes deleterious effects and 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."

7. It is quite clear that to check the menace of dangerous drugs floating in the market, Parliament had provided that the person accused of an offence under the NDPS Act should not be released on bail during trial unless mandatory conditions provided under Section 37 of the said Act are complied with. This is what has been held by the Supreme Court in the decision cited hereinabove in paragraph 8 thereof. It clearly implies that unless the mandatory conditions are satisfied, where the bar of Section 37 is attracted, the accused should not be released on bail. This, however, does not mean that the accused cannot be released on bail under any situation. If the mandatory conditions are satisfied then the court can release a person on bail even under the NDPS Act. In the facts of the present case, particularly, because on earlier four occasions, the Additional Sessions Judge as well as this court were satisfied that clear grounds were made for grant of interim bail and the same had not been misused, I feel that there is no reason why this application should not be allowed. Accordingly, the petitioner is directed to be released on interim bail for a period of one month from the date of her release on her furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the concerned trial court.