Hiremath, J.
1. The accused has challenged in this Appeal his conviction by the I Additional Sessions Judge, Dharwad, sitting at Hubli, under Section 34 of the Karnataka Excise Act, Sections 17, 18 and 20 of the Narcotic Drugs & Psychotropic Substances Act (NDPS Act for short), Section 5 of the Explosive Substances Act and Section 25 of the Indian Arms Act, and has applied under I.A.I, for bail. He has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/- for the offences under Sections 17/18 of the NDPS Act; R.I for 5 years and fine of Rs.25,000/- for the offence under Section 29 of the NDPS Act, R.I. for 10 years and a fine of Rs.1,00,000/- for the offence under Section 20 of the NDPS Act; R.I. for 5 years for the offence under Section 5 of the Explosive Substances Act and R.I. for 3 years with a fine of Rs.8,000/- for the offence under Section 25 of the Indian Arms Act.
2. To invoke the various provisions of the NDPS Act, it is the prosecution allegation that on 3.9.1987 when the house in occupation of the accused was raided by the police party at Hubli, he was found in possession of 886 KGs 500 Gms of Ganja, 520 Gms of opium, 130 grams of charas, a pistol, 23 live catridges, 4 country bombs and cash of Rs.50,000/- which, according to the prosecution, was in his possession on account of his doing money lending business without a license. The trial Court however acquitted the appellant/accused for the offence under the Money Lenders Act but convicted and sentenced him for the other offences as aforesaid.
3. In the bail application it is urged that the accused was on bail during the trial and he never abused the liberty granted to him while granting bail. The trial took place for nearly 6 years. His permanent place of residence is Hubli and has properties as well. The maximum sentence provided by law by way of substantive sentence of R.I has now been imposed upon him. Thus, the only ground on which the bail is sought is that during trial he was on bail and he has not abused the liberty given to him.
4. The State, in the objections, while referring to the conviction and sentence imposed, has contended that it has serious apprehension that in the event of grant of bail to the accused, likelihood of attacking the prosecution witnesses deposing against him is very much and also likelihood of the accused fleeing from justice or repeating similar offences cannot be ruled out. The fact that the appellant was on bail during trial is not a ground that should be considered for bail in post-conviction application.
5. Learned Counsel for the appellant took us through merits as well and contended that the first and the foremost defence of the accused has been that all the contraband articles seized by the police are not proved to have been seized from his actual possession in as much as the premises from which they were seized are not shown to have been in actual possession of the appellant/accused. According to the learned Counsel, there is evidence to show that the house was mortgaged.
6. The trial Court has dealt with this aspect elaborately at para 21 of its judgment and pointed out that for the property in question the name of the accused has been entered as 'new holder' and on 12.4.1984 it is shown that the house had been mortgaged to one Subbaiah Gangappa Shirahatti. It is not possible to make out whether it was a possessory mortgage handing over possession to the mortgagee. The fact that his name appears as 'new holder' shows that he has acquired the property in the year 1973. The trial Court having dealt with other material has ultimately found that the premises was in fact in actual possession of the accused and to come to a different conclusion this Court will have to examine the evidence adduced and then say whether this finding is sustainable or not. It is too early at this stage to pre-judge this issue. The fact that there is a finding in favour of the prosecution in this behalf cannot be ignored now.
7. The seriousness of the offences, the object of the legislation and the various provisions made under the Code for granting bail even during the pendency of the appeal, cannot be ignored, while considering the application for bail in post conviction appeals of this nature. Learned Additional State Public Prosecutor invited our attention to the Decision of the Supreme Court in the case of NARCOTICS CONTROL BUREAU v. KISHAN LAL AND ORS., 1991 Crl.LJ. 654 in which the grant of bail under Section 439 Cr.P.C. came to be considered in the light of the restrictions laid under Section 37 of the NDPS Act. Section 37 of the said Act, as it found place after the Amending Act in the year 1989, reads as follows:-
'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 a term of imprisonment of five years or more under this Act 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 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.'
It was pointed-out that NDPS Act is a special enactment and enacted with a view to make stringent provisions for the control and regulations of operations relating to narcotic drugs and psychotropic substances, That being the underlying object and particularly when the provisions of Section 37 of the NDPS Act are in negative terms limiting the scope of applicability of the provisions of Cr.P.C. regarding bail, it cannot be said that the High Court's power to grant bail under Section 439 Cr.P.C. are not subject to the limitations mentioned under Section 37 of the NDPS Act. The non-obstinate clause with which the said Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In the case of inconsistency between Section 439 Cr.P.C. and Section 37 of NDPS Act, Section 37 prevails. Their Lordships, in order to assess the scope of Section 37 of NDPS Act, also referred to the spirit of Rule 184 of the Defence and Internal Security of India Rules, 1971. Adverting to the necessity of referring to Rule 184, it was observed that the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant 'anticipatory bail' under Section 433. The Rule making authority obviously thought offences arising out of contravention of Rules and orders made thereunder were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted for contravention of any Rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case of contravention of a Rule or order specified in this behalf in a notified order there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must prevail while granting anticipatory bail as well.
8. Referring to the aforesaid Decision, it has been urged on behalf of the State that while inducting Section 37 in NDPS Act in the year 1989 the Parliament took into consideration the seriousness of the offences covered under this Act. In the matter of granting bails in post conviction cases, this Court, in the case of CHIKKANNA v. STATE OF KARNATAKA, : ILR1992KAR572 relying on the Decision of the Supreme Court in the case of HUSSAINARA KHATOON v. HOME SECRETARY, : 1979CriLJ1036 has held that what should be construed as a 'reasonable time' in the matter of conclusion of appeals or trials in the criminal cases cannot be generalised and it necessarily varies from case to case and circumstances to circumstances. In that case bail was sought on the ground that the trial before the trial Court could not be concluded expeditiously. But the fact was that another counter case was to be tried along with that case. Therefore, if delay in trial occassioned, the Court should not be made responsible for the delay and the necessity of trying both the cases together after the committal order in the counter case, was one of the circumstances which contributed to the delay in commencement of the trial.
9. As far as the appellant is concerned, the Supreme Court in the case of KASHIMARA SINGH v. THE STATE OF PUNJAB, has held that the practice not to release on bail a person who has been sentenced to life imprisonment, was evolved in the High Court and the Supreme Court on the basis that once a person is found guilty and sentenced to life imprisonment, he should not be let loose so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for 5 or 6 years.
10. Thus, keeping in view the seriousness of the offences as welt as their gravity, if the Court is not in a position to dispose of the appeal within a measurable time, then the Court can grant bail to the appellant so that he should not remain in custody for unduly long time. In the light of these established propositions we have considered the gravity of the offences which are held to have been committed by the appellant as well as the various deterrent sentences imposed on the appellant. No doubt at one stage the learned Counsel for the appellant offered that the appellant would deposit the entire sum of Rs.2,30,000/- towards the fine imposed and sought for suspension of the sentences. It may be that the petitioner is in a position to cash down the entire fine amount in Court but that cannot be the consideration that should weigh with the Court.
11. If the scope and ambit of NDPS Act are considered the provisions therein are intended to protect persons from free and unbridled possession and use of such narcotic drugs which, of late, have assumed a very dangerous proportion in social life. Charas, opium and Ganja which are sought to be controlled under the NDPS act are found in large circulation in the society thus impairing the very health and orderly living in society. The trial Court has found that the appellant was in actual possession of these narcotic drugs and it is for this Court to consider on merits if there is no sufficient evidence to maintain the findings of the trial Court.
12. At this stage keeping in view the seriousness of the offences found committed by the appellant including possession of arms and ammunition in large quantity unlawfully it would be rather hazardous to grant bail to the petitioner.
13. Looking to the manner in which Court is hearing criminal appeals there is no likelihood of the appeal not coming up for hearing within a year.
For the aforesaid reasons we reject the application for bail.