Supreme Court of India
UNION OF INDIAversusRATTAN MALLIK @ HABUL
- Citation
- 2009 INSC 64
- Decided
- 23 January 2009
- Disposal
- Disposed off
- Bench
- D K JAIN
Holding
A bail order for an offence under the NDPS Act is invalid unless the court fulfills the cumulative conditions of Section 37(1)(b), namely giving the public prosecutor a chance to oppose and being satisfied on reasonable grounds that the accused is not guilty and will not reoffend.
Summary
The respondent, Ratian Mallik, was convicted under Sections 27A and 29 of the NDNDPS Act for financing and trading 14.9 kg of heroin and sentenced to ten years' rigorous imprisonment for each offence along with fines. He appealed the conviction and, while his appeal was pending, sought suspension of the sentence and bail. The Allahabad High Court granted bail, relying on the facts that no heroin was found in his possession, he had already spent three years in jail, and his appeal was unlikely to be heard within seven years. The Union of India challenged this order, contending that the High Court ignored the mandatory conditions of Section 37 of the NDPS Act for granting bail. The Supreme Court held that when bail is sought for an offence under a special statute like the NDPS Act, the court must satisfy the cumulative conditions of Section 37(1)(b), including giving the public prosecutor a chance to oppose and being satisfied on reasonable grounds that the accused is not guilty and will not commit another offence. Since the High Court failed to meet these requirements, its bail order was set aside and the appeal was allowed, with the matter remitted to the High Court for fresh consideration after the respondent surrenders.
Issues considered
- Whether the High Court, in granting bail to a person convicted under the NDPS Act, complied with the mandatory conditions of Section 37(1)(b).
- Whether the circumstances cited by the High Court satisfy the requirement of "reasonable grounds" for believing the accused is not guilty and will not commit another offence.
Legislation cited
- Code of Criminal Procedure, 1973s. 439
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 27A, s. 29, s. 37
Subjects
NDPS ActBailSection 37Special statuteCriminal ProcedureSuspension of sentenceReasonable grounds
Judgment
[2009] 1 S.C.R. 533
.,.... UNION OF INDIA A
... v.
RATIAN MALLIK@ HABUL
(Criminal Appeal No. 137 of 2009)
JANUARY 23, 2009
B
[D.K. JAIN AND R.M. LODHA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 8127A, 8129 and 37 - Conviction for offences under c
provisions of the Act - Grant of bail to accused and
suspension of sentence by High Court - Held: When
prosecution/conviction is foroffence(s) under a special statute
and that statute provides specific provision for dealing with
matters arising thereunder, the provisions cannot be ignored- D
Grant of bail, being without keeping in view the mandatory
requirements of s. 37, not sustainable - Matter remitted to
High Court- Code of Criminal Procedure, 1973 - s. 439.
s.37 (1) (b) and (2) - Grant of bail- To the offender for
offences under the Act - Parameters for - discussed. E
High Court, by the impugned order had suspended
the sentence awarded by trial Court to the respondent for
having committed offences ulss. 8127 A and 8/29 of
Narcotic Drugs and Psychotropic Substances Act, 1985. F
Respondent was released on bail.
The qµestion for consideration in appeal to this Court
was whether High Court, while accepting the prayer for
-/
grant of bail, had kept in view the parameters of s.37 of
the Act• G
.,.
Allowing the appeal and remitting the matter to High
Court, the Court
533 H
534 SUPREME COURT REPORTS [2009] 1 S.C.R.
A HELD: 1.1. When a prosecution/conviction is for ,,.,.
offence(s) under a special statute and that statute ,..
contains specific provisions for dealing with matters
arising thereunder, including an application for grant of
bail, these provisions cannot be ignored while dealing
B with such an application. In the present case, the
respondent has been convicted and sentenced for
offences under the Act and therefore, while dealing with
his application for grant of bail, in addition to the broad
principles to be applied in prosecution for offences under
c IPC, the relevant provision in the said special statute in
this regard had to be kept in view. [Para 11] [539-A-D]
1.2. The impugned order having been passed
ignoring the mandatory requirements of Section 37 of
Narcotic Drugs and Psychotropic substances Act, 1985,
D it cannot be sustained. In the present case, the
circumstances which have weighed with the High Court
to conclude that it was a fit case for grant of bail are : (i)
that nothing has been found from the possession of the
respondent; (ii) he is in jail for the last three years and
E (iii) that there is no chance of his appeal being heard
within a period of seven years. The stated circumstances
may be relevant for grant of bail in matters arising out of
conviction under the IPC etc. but are not sufficient to
satisfy the mandatory requirements as stipulated in sub-
F clause (b) of sub-section (1) of Section 37 of the Act.
Merely because, according to the Judge, nothing was
found from the possession of the respondent, it could not
be said at this stage that the respondent was not guilty
of the offences for which he had been charged and
G convicted. It seems that the provisions of the Act and
more particularly Section 37 were not brought to the
notice of the Judge. [Paras 15 and 16] [541-E-H; 542-A- ••
B]
2.1. It is clear from a bare reading of the non-obstante
H
UNION OF INDIA v. RATIAN MALLIK@ HABUL 535
clause in Section 37 of the Act and sub-section (2) thereof A
that the power to grant bail to a person accused of having
committed offence under the Act is not only subject to
the limitations imposed u/s. 439 Cr.P.C., it is also s'ubject
to the restrictions placed by sub-clause (b) of sub-section
(1) of Section 37 of the Act. Apart from giving an B
opportunity to the Public Prosecutor to oppose the
application for such release, the other twin conditions viz;
(i) the satisfaction of the Court that there are reasonable
grounds for believing that the accused is not guilty of the
alleged offence; and (ii) that he is not likely to commit any c
offence while on bail, have to be satisfied. It is manifest
that the conditions are cumulative and not alternative.
[Para 13] (540-D-F]
2.2. The satisfaction contemplated regarding the
accused being not guilty, has to be based on D
"reasonable grounds". The expression ·reasonable
grounds' has not been defined in the Act but means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
accused is not guilty of the offence he is charged with. E
The reasonable belief contemplated in turn points to
existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. Thus,
recording of satisfaction on both the aspects is sine qua F
non for granting of bail under the Act. [Para 13] [540F-H]
Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798,
relied on.
2.3. While considering an application for bail with G
reference to Section 37 of the Act, the Court is not called
upon to record a finding of 'not guilty'. At this stage, it is
neither necessary nor desirable to weigh the evidence
meticulously to arrive at a positive finding as to whether
H
536 SUPREME COURT REPORTS [2009) 1 S.C.R.
A or not the accused has committed offence under the Act.
What is to be seen is whether there is reasonable ground
for believing that the accused is not guilty of the
offence(s) he is charged with and further that he is not
likely to commit an offence under the said Act while on
B bail. The satisfaction of the Court about the existence of
the said twin conditions is for a limited purpose and is
confined to the question of releasing the accused on bail.
[Para 14] (541-A-D]
C Dadu alias Tulsidas v. State of Maharashtra (2000) 8
sec 437, referred to.
Case Law Reference:
(2000) a sec 437 referred to Para 8
D (2007) 1 sec 798 relied on Para 13
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 137 of 2009.
From the Judgment and Order dated 13.11.2006 of the
E High Court of Judicature at Allahabad in Crl. Appeal No. 662
of 2006.
A. Sharan, A.S.G., Sunita Sharma, S.N. Terdol and
Sushma Suri for the Appellant.
F
. A.K. De, Rajesh Dwivedi, V.P. Tripathi and Dipak Kumar
Jena for the Respondent.
The Judgment of the Court was delivered by
G D.K. JAIN, J.1. Delay condoned.
2. Leave granted.
3. Challenge in this appeal, by the Union of India, is to the
order dated 13th November, 2006, passed by the High Court
H of Judicature at Allahabad suspending the sentence awarded
UNION OF INDIA v. RATTAN MALLIK@HABUL 537
[D.K. JAIN, J.]
by the trial Court to the respondent for having committed A
offences under Sections 8/27A and 8/29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short 'the NDPS
Act') and granting him bail.
4. Since in this appeal we propose to deal with the short B
question, viz. whether the High Court, while accepting the prayer
for grant of bail, had kept in view the parameters of Section
~ 37 of the NDPS Act, we deem it unnecessary to advert to the
facts of the case against the respondent in greater detail. It
would suffice to note that the case of the prosecution against
the respondent was that he was involved in financing and
c
trading in 14.900 kilograms of heroin, recovered from a
specially made cavity above the cabin of a truck. Upon
consideration of the evidence adduced, the Trial Court came
to the conclusion that the prosecution had successfully proved
the charges against the respondent and three others. On D
conviction, the Trial Court sentenced the respondent to undergo
rigorous imprisonment for ten years and to pay a fine of Rs.1
lac under Section 27A of the NDPS Act and undergo rigorous
imprisonment for ten years and a fine of Rs.1 lac under Section
29 of the NDPS Act, with default stipulation. E
5. Being aggrieved, the respondent preferred an appeal
to the High Court along with an application for suspension of
sentence and grant of bail till his appeal was finally decided.
The High Court, by the impugned order, has allowed the bail F
application and has ordered that the respondent shall be
released on bail on his executing a personal bond and furnishing
two sureties each in the like amount to the satisfaction of the
concerned Court.
6. The considerations which weighed with the High Court G
for suspension of sentence and grant of bail are brief and for
the sake of ready reference are extracted below:
"The appellant has been convicted under Sections 8/27-
A and 8/29 N.D.P.S. Act for ten years R.I and also fine. H
538 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Nothing has been found from his possession. Besides the
appellant is in jail since 5.9.2003. Three years have
already lapsed. There is no chance of the appeal being
heard within a period of seven years."
7. Aggrieved thereby, the Union of India has preferred this
B
appeal.
8. Mr. A. Sharan, learned Additional Solicitor General of
India, strenuously urged that the High Court has committed a
grave error of law in granting bail to the respondent, ignoring
c the mandatory provisions of Section 37 of the NDPS Act. The
learned counsel contended that the High Court lost sight of the
restrictions and limitations imposed by Section 37 of the NDPS
Act. According to the learned counsel, the grant of bail to the
respondent, without recording any finding on the conditions as
D stipulated in Section 37(1 )(b)(ii) of the NDPS Act, the order
suspending the sentence is ex facie illegal and therefore
deserves to be set aside, with a direction to the respondent to
surrender to custody forthwith. In support of the propositiOn that
suspension of sentence by the appellate Court has to be within
E the parameters of law, prescribed by the Legislature, the
learned senior counsel placed reliance on a three judge Bench
decision of this Court in Dadu alias Tu/sidas v. State of
Maharashtra 1•
9. Learned counsel appearing on behalf of the respondent,
F on the other hand, supported the impugned order and
submitted that if the impugned order is read as a whole, it can
be inferred therefrom that the learned Judge was conscious of
the provisions of Section 37 of the NDPS Act. It is, thus, urged
that the order granting bail to the respondent being
G discretionary, this Court should be loath to interfere with it in
exercise of its jurisdiction under Article 136 of the Constitution.
10. Having carefully gone through the impugned order, we
•
H 1 c20ooi a sec 437.
UNION OF INOIA v. RATTAN MALLIK@HABUL 539
[D.K. JAIN, J.]
are constrained to observe that while dealing with the A
application for bail, the learned Judge appears to have lost
sight of the mandatory requirements of Section 37 of the NDPS
Act and thus, the impugned order is clearly unsustainable.
11. The broad principles which should weigh with the Court
B
in granting bail in a non-bailable offence have been
enumerated in a catena of decisions of this Court and,
--.;.. therefore, for the sake of brevity, we do not propose to reiterate
the same. However, when a prosecution/conviction is for
offence(s) under a special statute and that statute contains
specific provisions for dealing with matters arising thereunder, c
including an application for grant of bail, these provisions
cannot be ignored while dealing with such an application. As
already noted, in the present case, the respondent has been
convicted and sentenced for offences under the NDPS Act and
therefore, while dealing with his application for grant of bail, in D
addition to the broad principles to be applied in prosecution
for offences under the Indian Penal Code, 1860 the relevant
provision in the said special statute in this regard had to be
kept in view.
E
12. Section 37 of the NDPS Act, as substituted by Act 2
of 1989 with effect from 29th May, 1989 with further
amendment by Act 9 of 2001 reads as follows:
)'
"37. Offences to be cognizable and non-bailable.- (1)
Notwithstanding anything contained in the Code of F
Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be
cognizable;
',
G
(b) no person accused of an offence punishable for
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-
H
540 SUPREME COURT REPORTS [2009) 1 S.C.R.
A (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
B
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 limitation$ 011 granting of bail specified in clause
c (b) of sub-section (1) are in addition to the limitations under
the Code of Criminal Procedure, 1973 (12of1974), or any
other law for the time being'ln force on granting of bail."
13. It is plain from a bare reading. of the non-obstante
0 clause in the Section and sub-section (2) thereof that the power
to grant bail to a person accused of having committed offence
under the NDPS Act is not only subject to the limitations
imposed under Section 439 of the Code of Criminal Procedure,
1973, it is also subject to the restrictions placed by sub-clause
E (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from
giving an opportunity to the Public Prosecutor to oppose the
application for such release, the other twin conditions viz; (i) the
satisfaction of the Court that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence;
and (ii) that he is not likely to commit any offence while on bail,
F have to be satisfied. It is manifest that the conditions are
cumulative and not alternative. The satisfaction contemplated
regarding the accused being not guilty, has to be based on
"reasonable grounds". The expression 'reasonable grounds'
has not been defined in the said Act but means something
G more than prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the offence
he is charged with. The reasonable belief contemplated in turn
points to existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused
H is not guilty of the alleged offence. [Vide Union of India v. Shiv
UNION OF INDIA v. RATIAN MALLIK@HABUL 541
[D.K. JAIN, J.]
Shanker Kesan2] Thus, recording of satisfaction on both the A
aspects, noted above, is sine qua non for granting of bail under
the NDPS Act.
14. We may, however, hasten to add that while considering
an application for bail with reference to Section 37 of the NDPS 8
Act, the Court is not called upon to record a finding of 'not guilty'.
At this stage, it is neither necessary nor desirable to weigh the
evidence meticulously to arrive at a positive finding as to
whether or not the accused has committed offence under the
NDPS Act. What is to be seen is whether there is reasonable C
ground for believing that the accused is not guilty of the
offence(s) he is charged with and further that he is not likely to
commit an offence under the said Act while on bail. The
satisfaction of the Court about the existence of the said twin
conditions is for a limited purpose and is confined to the
-f question of releasing the accused on bail. D
15. Bearing in mind the above broad principles, we may
now consider the merits of the present appeal. It is evident from
the afore-extracted paragraph that the circumstances which
have weighed with the learned Judge to conclude that it was a E
fit case for grant of bail are : (i) that nothing has been found
from the possession of the respondent; (ii) he is in jail for the
last three years and (iii) that there is no chance of his appeal
being heard within a period of seven years. In our opinion, the
stated circumstances may be relevant for grant of bail in F
matters arising out of conviction under the Indian Penal Code,
1860 etc. but are not sufficient to satisfy the mandatory
requirements as stipulated in sub-clause (b) of sub-section (1)
of Section 37 of the NDPS Act. Merely because, according to
the Ld. Judge, nothing was found from the possession of the G
respondent, it could not be said at this stage that the
respondent was not guilty of the offences for which he had been
charged and convicted. We find no substance in the argument
of learned counsel for the respondent that the observation of
2. (2007) 1 sec 798. H
542 SUPREME COURT REPORTS [2009] 1 S.C.R.
A the learned Judge to the effect that "nothing has been found
from his possession" by itself shows application of mind by the
Ld. Judge tantamounting to "satisfaction" within the meaning
of the said provision. It seems that the provisions of the NDPS
Act and more particularly Section 37 were not brought to the
B notice of the learned Judge.
16. Thus, in our opinion, the impugned order having been
passed ignoring the mandatory requirements of Section 37 of
the NDPS Act, it cannot be sustained. Accordingly, the appeal
·-
is allowed and the matter is remitted back to the High Court
C for fresh consideration of the application filed by the respondent
for suspension of sentence and for granting of bail, keeping in
view the parameters of Section 37 of the NDPS Act,
enumerated above. We further direct that the bail application
shall be taken up for consideration only after the respondent
D surrenders to custody. The respondent is directed to surrender
to custody within two weeks of the date of this order, failing
which the High Court will take appropriate steps for his arrest.
17. The appeal stands disposed of accordingly.
E
K.K.T. Appeal disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "NDPS Act"Sign in to search