Madhya Pradesh High Court
Union Of India vs Gulam E Mustafa on 20 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:1417
1 CRR-3982-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 20th OF JANUARY, 2025
CRIMINAL REVISION No. 3982 of 2022
UNION OF INDIA
Versus
GULAM E MUSTAFA
Appearance:
Shriv Manoj Kumar Soni - Advocate for the petitioner.
Shri Shantanu Sharma - Advocate for the respondent [R-1].
ORDER
This Criminal Revision under section 397 read with section 401 of
Cr.P.C, 1973 read with section 439(2) of Cr.P.C is filed assailing the order
dated 13/09/2022 passed by learned Special Judge (under NDPS Act), Indore
allowing bail application no. 4436/2022 filed under section 439 of Cr.P.C for
grant of bail in relation to Crime no. 2 of 2022 registered at NCB, Indore for
the offence punishable under sections 8/22, 25(A), 27(A) and 29 of NDPS
Act, 1985.
2. It is stated in the application that on 17/02/2022, NCB, Indore, on
secret information intercepted Gulam-E-Mustafa near Agrasen Square,
Indore. He was found in possession of contraband Mephedrone, total
quantity 160 grams. The contraband was seized from the possession of
Gulam-E-Mustafa in due compliance with procedure. He was arrested. He
informed that the contraband was provided to him by Shahnawaz.
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Accordingly, Shahnawaz was arrested. On completion of investigation, final
report was submitted for the offence punishable under sections 8/22, 25(A),
27(A) and 29 of NDPS Act registered at NCB, Indore at Crime no. 2 of
2022.
3. Respondent/accused Gulam-E-Muustafa filed an application under
section 439 of Cr.P.C for grant of bail before Learned Special Judge (under
NDPS Act), Indore bearing BA no. 4436 of 2022. The petitioner / NCB
objected to grant of bail, but learned Special Judge allowed the application
and extended the benefit of bail to respondent Gulam-E-Mustafa.
4. Feeling aggrieved by the aforestated impugned order, present
petition is filed assailing the impugned order before this Court on following
grounds.
a) Learned Special Judge mentioned that there is
discrepancies with regard to name of the contraband in the
weighing Panchanama, however, the fact remains that after
chemical analysis, the contraband was found to be Mephedrone.
b) The commercial quantity of contraband Mephedrone
was seized from the possession of respondent Gulam-E-Mustafa.
Learned Special Judge did not consider the bar contained under
section 37 of the NDPS Act.
c) The application for grant of bail to accused Shahnawaz
was rejected by the same Court, from whom, no contraband was
seized. The contraband was seized from the exclusive and
conscious possession of the respondent Gulam-E-Mustafa.
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d) The FSL report has concluded that the contraband
is Mephedrone.
5. On these grounds, it is stated that the impugned order is illegal and
against the canons of law, therefore, deserves to be set-aside
6. Learned counsel for the petitioner, in addition to the grounds
mentioned in the revision, referring to the judgments delivered by Hon'ble
Supreme Court in the case of State of M.P. V/s Kajad reported in 2001 SCC
(Cri.) 1520; Satpaal Singh v/s State of Punjab reported in 2018 SAR (CRI)
623; State v/s Syed Amir. reported in 2003 SCC(Cr) 1690; UOI vs Mohit
Aggarwal [SLP (Cr.)6128- 29/2022 order dt 19.07.2022], contends that
Section 37 of NDPS Act creates persuasive bar against grant of bail, unless
the conditions specified therein are complied with. The impugned order does
not show consideration of parameter under section 37 of the NDPS Act.
7. Per-contra, learned counsel for the respondent/ accused submits
that the respondent / accused was extended the benefit of bail considering
overall circumstances of the case and inconsistency in the investigation.
Learned counsel, referring to the judgment delivered by Hon'ble Supreme
Court in the case of Himanshu Sharma Vs. State of Madhya Pradesh
reported in 2024 INSC 139 , submits that the impugned order does not suffer
from any impropriety or illegality. The respondent has not misused the
liberty extended to him. There is no allegation that the respondent has
flouted the conditions of bail order. The impugned order was not procured by
misrepresentation of fraud. Therefore, the bail once extended, cannot be
cancelled on the ground that the order is perverse in law. The petition is
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meritless.
8. Heard both the parties and perused the record.
9. Hon'ble Supreme Court in the case of Himanshu Sharma (supra) has
observed as under :-
"In the instant case, the respondents herein had filed the criminal
miscellaneous petition before the High Court seeking cancellation of
bail on grounds that the bail was obtained by the petitioners herein by
gross misrepresentation of facts, misleading the court and indulging in
fraud. Thus, the petition challenged the legality of the grant of bail and
required the bail order to be set aside on ground of it being perverse in
law. Such determination would entail eventual cancellation of bail. The
circumstances brought on record did not reflect any situation where the
bail was misused by the petitioner/accused. Therefore, the High Court
could not have entertained the said petition and cancelled the bail on
grounds of it being perverse in law.
Law is well settled by a catena of judgments rendered by this
Court that the considerations for grant of bail and cancellation thereof
are entirely different. Bail granted to an accused can only be cancelled
if the Court is satisfied that after being released on bail, (a) the accused
has misused the liberty granted to him; (b) flouted the conditions of
bail order; (c ) that the bail was granted in ignorance of statutory
provisions restricting the powers of the Court to grant bail; (d) or that
the bail was procured by misrepresentation or fraud. In the present
case, none of these situations existed." (emphasis added)
10. For the sake of reference, section 37 of the NDPS Act, 1985 is
reproduced hereunder :
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 1[offences under
section 19 or section 24 or section 27A 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
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(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 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.].
11. With regard to "persuasive bar" under Section 37 of NDPS Act,
1985 Hon'ble Supreme Court in Narcotics Control Bureau v. Kashif, 2024
INSC 1045 has held as under:
"COMPLIANCE OF THE MANDATE UNDER SECTION 37:
8. There has been consistent and persistent view of this Court that
in the NDPS cases, where the offence is punishable with minimum
sentence of ten years, the accused shall generally be not released
on bail. Negation of bail is the rule and its grant is an exception.
While considering the application for bail, the court has to bear in
mind the provisions of Section 37 of the NDPS Act, which are
mandatory in nature. The recording of finding as mandated in
Section 37 is a sine qua non for granting bail to the accused
involved in the offences under the said Act. Apart from the
granting opportunity of hearing to the Public Prosecutor, the other
two conditions i.e., (i) the satisfaction of the court that there are
reasonable grounds for believing that the accused is not guilty of
the alleged offence and that (ii) he is not likely to commit any
offence while on bail, are the cumulative and not alternative
conditions.
9. In State of M.P. vs. Kajad (2001) 7 SCC 673 , this Court while
considering the scope of Section 37 in the light of the scheme of the Act,
had observed that: -
"A perusal of Section 37 of the Act leaves no doubt in the mind
of the court that a person accused of an offence, punishable for a
term of imprisonment of five years or more, shall generally be not
released on bail. Negation of bail is the rule and its grant an
exception under sub-clause (ii) of clause (b) of Section 37(1). For
granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable grounds
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for believing that the accused is not guilty of the offences with
which he is charged and further that he is not likely to commit any
offence while on bail. It has further to be noticed that the
conditions for granting the bail, specified in clause (b) of sub-
section (1) of Section 37 are in addition to the limitations provided
under the Code of Criminal Procedure or any other law for the
time being in force regulating the grant of bail. Liberal approach in
the matter of bail under the Act is uncalled for."
10. Similarly, recently a three-Judge Bench in NCB vs. Mohit
Aggarwal (2022) 18 SCC 374, considering the earlier judgments
on the parameters of bail available under Section 37 of the said
Act held that:
"The length of the period of his custody or the fact that the
charge-sheet has been filed and the trial has commenced are by
themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37 of
the NDPS Act."
11. So far as the facts of the present case are concerned, it appears
that a complaint case has been filed by the NCB against the
respondent and six others before the Special Court, for the
offences under Section 8, 22(c), 23(c) and 29 of the NDPS Act.
The respondent-accused filed the bail application directly in the
High Court without first approaching the Special Court, and
curiously the High Court without considering as to whether the
twin conditions mentioned in clause (b) sub-section (1) of Section
37 were fulfilled or not, concluded without any material on record
that Section 37 was not attracted as there was non-compliance of
Section 52A of the said Act within reasonable time. The Appellant
- NCB having opposed the bail application, it was obligatory on
the part of the High Court to record a satisfaction on the
cumulative conditions namely, that there were reasonable grounds
for believing that the Respondent - Accused was not guilty of the
alleged offences and that he was not likely to commit any offence
while on bail, as contemplated in Section 37(1)(b) of the said Act.
The non-recording of such satisfaction which is mandatory in
nature, has rendered the impugned order of High Court fallacious
and untenable. However, since the High Court has released the
respondent-accused on bail solely on the ground that there was
non-compliance of Section 52A of the said Act within reasonable
time, let us consider the scope and ambit as also the repercussions
of non-compliance or belated compliance of the said provision. (
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emphasis added)
12. Relevant portion of impugned order is extracted for reference :
''केस डायर एवं अिभलेख के अवलोकन से यह दिशत है क अिभयोग प अिभयु /आवेदक के
व इस आशय का पेश हु आ है क उसके आिधप य से मादक पदाथ एम.ड . मेफे ोन स,
0.160 कलो ाम(160 ाम) ज हु आ है । अिभयोग प के साथ ज ी पंचनामा संल न है , जसके
अनुसार दनांक 17.02.22 को 17:30 बजे घटना थल अ सेन चौराहा, लोहा म ड के पास बने
सुलभ शौचालय के पास से मादक पदाथ मेफे ोन ज होना बताया गया। करण म जहां ज ी क
कायवाह क गई है वहां पर उसका तौल वगैरह नह ं कया गया है । तौल वगैरह क कायवाह
एन.सी.बी. कायालय इं दौर म समय 18:30 बजे क गई है अथात ् ज ी कायवाह के िलये आरोपी
एवं सम त अिधकार कमचार घटना थल से एन.सी.बी. कायालय आये थे। अिभलेख के साथ
जो तौल पंचनामा संल न है उसम 160 ाम अवैध मादक पदाथ मेथा ोन ज होना बताया गया
है । मेथाडोन अिधिनयम क अनुसूची के मांक 68 पर अं कत है , जब क मैफे ोन 238. एफ पर
अं कत है । दोन मादक पदाथ अलग-अलग ण े ी के ह। इस स बंध म अिभयोजन ारा यह
अिभकिथत कया गया क तौल पंचनामा म टं कण ु ट के कारण मेथाडोन अं कत हो गया है ,
हालां क इस त य का िनराकरण मामले के गुणदोष पर कया जा सकता है । ज ी म मैफे ोन क
बताई गई है , जब क तौल मैथा ोन क बताई गई है । करण म अिभयोग प पेश कया जा चुका
है । हांला क तथाकिथत ज शुदा पदाथ वा ण यक मा ा का है , पर तु उपरो प र थितय को
गत रखते हु ए तथा आवेदक के व कोई आपरािधक रकाड नह ं होने के त य को दे खते हु ए
अिभयु /आवेदक को जमानत पर छोड़ा जाना यायोिचत तीत होता है ।
अत: गुणदोष पर कोई ट पणी कये बना आवेदक/अिभयु गुलाम ए मु तफा क ओर से तुत
थम िनयिमत जमानत आवेदन प अंतगत धारा 439 दं 0 0सं वीकार कर यह आदे िशत कया
जाता है क उसक ओर से यायालय क संतु यो य एक लाख पये क स म ितभूित एवं
इतनी ह रािश का य गत बंधप िन न शत के साथ तुत कये जाने पर उसे ितभूित पर
मु कया जावे:-''
13. Allegedly, the quantity of contraband Mephedrone recovered from
applicant Gulam-E-Mustafa is commercial quantity. The minor discripency
with regard to the mentioning the name of contraband in a Panchanama is
insignificant in view of the fact that after chemical analysis, the contraband
has found to be Mephedrone. The learned Special Judge had left this issue to
be decided on merit. The learned Special Judge mentioned that the seizure of
contraband relates to commercial quantity, but while extending benefit of
bail did not record any finding that the accused Gulam-E-Mustafa is not
prima-facie guilty of alleged offence and that he is not likely to commit the
same offence when enlarged on bail. Rather, his antecedents are indicative
that he is a regular offender. Thus, in absence of recording of such
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satisfaction, as mandated by Section 37(1)(b)(ii) of the NDPS Act 1985,
learned Special Judge manifestly committed an error and granted bail in
ignorance of statutory provisions restricting the powers of the Court to grant
bail. The respondent has enjoyed the benefit of an illegal order for substantial
period. It cannot be continued on the ground that he has not misused the
liberty.
14. In view of aforestated discussion and the illegality committed by
learned Special Judge in releasing the accused Gulam-E-Mustafa (respondent
herein) on bail, the petition is allowed and the order dated 13/09/2022 passed
by learned Special Judge (under NDPS Act), Indore allowing bail application
no. 4436/2022 is set aside. The accused/respondent Gulam-E-Mustafa shall
surrender before the trial Court forthwith.
C c as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
amol
