I. A. Ansari,J.
1. This is an application made under Section 438 of Cr.PC seeking pre-arrest bail by the petitioner, namely, Baljit Singh, in connection with CID Police Station Case No. 52/2002 under Section 20(b)(i)/29 of the NDPS Act.
2. I have heard Mr. B. K. Mahajan, learned counsel for petitioner, and Mrs. B. Rajkhowa, learned Addl. P. P., on the question of maintainability of this application for pre-arrest bail. This hearing was held in consequence of the order, dated 28.2.2003, which is quoted herein below :
'In both the cases the preliminary question raised is regarding the maintainability of the application for pre-arrest bail in a case under the NDPS Act. Moreso, in view of the recent decision of this Court in the case of Suresh Dutta v. State of Tripura, (2003) 1 GLJ 107. Learned counsel for the petitioner prays for some time to make submission. List the matter in the next week.
Released from part heard. Let it be listed before any other Bench.'
3. From a careful reading of the decision in Suresh Dutta v. State of Tripura, reported in (203) 1 GLT 107 it appears that in this decision, the view taken was that since Section 36A(3) of the NDPS Act refers to only Section 439 Cr.PC and not to Section 438 Cr.PC, the High Court's power relating to bail in a case under the NDPS Act is confined to granting or not granting of bails in respect of persons, who are in custody under the NDPS Act, and that the High Court cannot invoke the powers under Section 438 Cr.PC to grant pre-arrest bail to any person apprehending arrest under the NDPS Act.
4. For better appreciation of the issue, which has been raised in Suresh Dutta (supra), it is imperative to refer to Section 36A of NDPS Act and the relevant portion thereof is quoted below :
'36A. Offences triable by Special Courts. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -
(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or Sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973 such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :
Provided that where such Magistrate considers -
(i) when such person is forwarded to him as aforesaid ; or
(ii) upon or at any time before the expiry of the period of detention authorized by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction ;
(c) the Special Court may exercise, in relation to the person forwarded to it under Clause (6), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section ;
(d) a Special Court may, upon a perusal of the police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under Clause (6) of Sub-section (1) of that section as if the reference to 'Magistrate' in that section included also a reference to a 'Special Court' constituted under Section 36.'
5. Now, the question is as to whether the High Court can, in the light of the language of Sub-section (3) of Section 36A, exercise powers under Section 438 Cr.PC
6. It is, no doubt, true that Section 36A(3) refers to only Section 439 Cr.PC and not to Section 438 Cr.PC.
7. A close reading of the provisions contained in Section 36A clearly shows that this section envisages and deals with only those cases, where a person is detained in custody for having committed offence or offences under the NDPS Act and it is for this reason that Section 36A(3) refers to Section 439 Cr.PC only and clarifies that the High Court may exercise under the NDPS Act such powers, which may be available to the High Court under Section 439 Cr.PC. Since Section 36A does not postulate and/or conceive of the case of persons, who may, on apprehending arrest, approach the Court of Sessions or High Court under Section 438 Cr.PC seeking anticipatory bail, it is logical to infer that it is for this reason that Section 36A(3) does not refer to Section 438 Cr.PC.
8. In other words, since Section 36A(3) does not deal with and/or envisage a case of anticipatory bail, the Legislature has not referred to Section 438 Cr.PC at all. This does not mean nor can it be stretched to mean that the powers of the Sessions Court or High Court to grant bail under Section 438 Cr.PC stand excluded, when an offence under the NDPS Act is involved. No such limitation can be imported into or read into the provisions of Section 36A(3).
9. It needs to be noted that Section 12AA(4) of the Essential Commodities Act is perimeteria with the provisions of Section 36A(3) of the NDPS Act. When a question was raised whether the High Court and/or Sessions Court can exercise powers under Section 438 Cr.PC for granting anticipatory bail to a person in a case, wherein the provisions of Essential Commodities Act are involved, a Division Bench of Andhra Pradesh High Court in B. Kuppa Naidu v. State of A.P., reported in (1986) CRL LJ 561 (AP) observed and held as follows :
'It is quite apparent from Section 12AA that it does not postulate anticipatory bail at all to be granted and, therefore, the exclusion of the powers conferred under Section 438 Cr.PC by the special provision under the Essential Commodities Act, does not arise. Section 12-AA provides for release of persons after being apprehended of arrest. An analogous provision is enacted under Section 437 of the Cr.PC. Therefore, it is quite manifest that the principle of Generalia specialibus non derogant has no application in this case, inasmuch as, there is no express provision under the Essential Commodities Act to grant anticipatory bail. If that be so, Section 438 will have to be attracted even to those involved in the offence under the Essential Commodities Act which is a special enactment, as not even by implication, the right conferred under Section 438 Cr.PC cannot be said to have been taken away by virtue of the provisions under Section 12AA of the Essential Commodities Act Each has occupied an independent and different field. This view also is supported by a decision of the Punjab and Haryana High Court in Rajkumar v. State of Punjab, 1985 EFR 339 wherein it is stated that, 'the power to grant pre-arrest bail lies with the Court of Sessions as also the High Court'. It was further held :
'This provision (Section 12-AA (d) prima facie applies to case of bail of persons who stand arrested. Seemingly, the power of Court of Session to grant pre-arrest bail under Section 438 Cr.PC has not been taken away by the insertion of Section 12AA.
I have, therefore, no hesitation in holding that the Sessions Court, so also the High Court, are not fettered by the provisions enacted under Section 12-AA of the Essential Commodities Act from exercising powers laid down under Section 438 Cr.PC' (Emphasis is added)
10. Similar view appears to have been taken by a Division Bench of Rajasthan High Court in Suresh Chand and Ors. v. State of Rajasthan, reported in (1985) Cr. L.J. 1750 wherein the Court observed and held as follows :
'This sub-section envisages that a person should be first arrested and then he can apply for bail, which is a similar provision like Section 439 Cr.PC. There is no bar or prohibition under Section 12AA that Section 438 Cr.PC will not apply to cases under the Essential Commodities Act. The Legislature while enacting Section 12AA was fully aware of the existence of Section 438 Cr.PC and if they intended that the Special Court or the High Court should not exercise power under Section 438 Cr.PC in cases under the Essential Commodities Act, nothing prevented them to make a mention in Section 12AA and the very fact that the Legislature has omitted to specifically debar the jurisdiction of the Special Court or the High Court under Section 438 Cr.PC shows that the Legislature never intended to do so Moreover, reading of Section 12AC makes it quite clear that the provisions of Cr.PC (including the provisions as to bail and bonds) shall apply to proceedings before the Special Court. Section 438 Cr.PC is also a provision of Cr.PC and is applicable to proceedings before a Special Court.'
11. To the same effect is the position of law as stated in Karamchand v. State of M.P. reported in (1985) Crl. LJ 1561 (UP).
12. Even in Narcotics Control Bureau v. Kishan LaL (AIR 1991 SC 558), when the Apex Court considered the scope of Section 439 Cr.PC vis-a-vis Section 37 of the NDPS Act it was held that exercise of power to grant bail by the High Court is subject to the limitations imposed by Section 37. In this case, however, their Lordships also took into consideration their decision in Balchand Jain v. State of M.P. (AIR 1977 SC 366) wherein a question was raised whether Rule 184 of the Defence and Internal Security of the India Rules, 1971, which is analogous to Section 37 of the NDPS Act, excluded the powers of anticipatory bail contained in Section 438 Cr.PC. Dealing with this aspect of the matter, the Apex Court in Narcotics Control Bureau (supra) observed as follows :
'The Rule commences with a non obstante clause and in its operative part, imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. It imposes fetters on the exercise of the power of granting bail in certain kinds of cases. In Balchand Jain v. State of Madhya Pradesh, (1977) 2 SCR 521 AIR 1977 SC 366, a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 or whether former provision is overridden by the latter. This Court held that Rule 184 does not stand in the way of Court of Sessions or High Court granting anticipatory bail on the ground that the two provisions operate at two different stages.' (Emphasis is added)
13. From the above discussions, it is crystal clear that Section 36A(3) relates to, and deals with, cases of persons, who are taken into custody and it is for this reason that Section 37 refers to Section 439 Cr.PC only. However, as Section 36A does not deal with and/or relate to cases of persons, who apprehend arrest in connection with NDPS case, no reference has been made to the provisions of Section 438 Cr.PC in Section 36. In other words, omission to refer to Section 438 Cr.PC in Section 36A(3) cannot be stretched to mean that the powers under Section 438 Cr.PC will not be available to the cases of persons, who on apprehending arrest under the NDPS Act, apply for anticipatory bail. However, the powers under Section 438 Cr.PC can be exercised, in the light of the law laid down in Narcotics Control Bureau (supra), with the limitations imposed by Section 37.
14. There is yet another aspect of the matter, which needs careful consideration by this Court, but for appreciating this aspect of the matter, a reference needs to be made to Section 36C, which reads as follows :
'36C. Application of Code of Proceedings before a Special Court. - Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.'
15. A careful reading of Section 36C shows that a Special Court under the NDPS Act exercises the same powers as are exercised by a Court of Sessions and all the provisions relating to bail/bonds contained in Code of Criminal Procedure are applicable to the cases under the NDPS Act. The provisions for bail/bond are contained in Chapter 13 of the Code of Criminal Procedure. The Title of the Chapter reads 'Provisions for bail/bonds.'
16. Thus, a careful reading of Section 36C will show that the Special Court has the power relating to bail or bond as given in Chapter 13. This Chapter 13 includes not only Section 439 Cr.PC but also Sections 437 and 438 Cr.PC. Viewed from this angle too, it is clear that since the Special Court exercises powers of the Sessions Court, it does have the powers under Section 438 Cr.PC too. It will be incongruent to hold that while the Court of Sessions when acting as a Special Court under the NDPS Act, can exercise, by virtue of Section 36C, the powers to grant pre-arrest bail under Section 438 Cr.PC, the High Court cannot, on account of the provisions contained in Section 36A(3), exercise power to grant pre-arrest bail under Section 438 Cr.PC. Such an interpretation is difficult to conceive.
17. In view of the fact that I have taken a view on the issue raised in this case different from the one, which has been adopted in Suresh Dutta (supra), the matter needs to be referred to a larger Bench for examining the matter and for a final decision in the matter so as to prevent flow of conflicting orders emanating from the Courts on the above subject.
18. Considering, therefore, the matter in its entirety, the Registry is directed to lay the matter before the Hon'ble Chief Justice for consideration.
19. Let the above directions be brought to the notice of the DR (I&E;).