S.K. Dubey, J.
1. The aforesaid applications under Section 439, Code of Criminal Procedure, 1973 for grant of bail to the accused persons who have been arraigned as aceused Under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') came up for hearing before Dipak Misra, J. wherein learned Counsel for the applicants, relying on a single Bench decision of the Karnataka High Court in A. V. Dharmasingh v. The State of Karnataka by the State Public Prosecutor, Bangalore 1993 Cri LJ 94 and a Division Bench decision of Patna High Court, Kamlesh Kumar v. State of Bihar (1994) 2 Pat PLJR 600 : (1995) 1 EFR 74, contended that in view of quantum of punishment provided Under Section 20(b)(i) of the NDPS Act in respect of the offence relating to 'GANJA' the rigours contained in Section 37 would not apply, and, therefore, the bail application can be considered independent of the provision contained in Section 37 of the NDPS Act. The State counsel relying on the decisions of Orissa and Madras High Courts, Rajendra Panda v. State of Orissa (1992) 1 Crimes 79 : (1992 Cri LJ 491); Sundaresan alias Meganathan alias Mega v. State 1993 Cri LJ 3342, contended that offence punishable Under Section 20(b)(i) comes within the ambit of Section 37(1)(b), therefore, the rigours of Section 37 would apply. In view of the cleavage of opinion of the High Courts the learned single Judge was of the opinion that the matter calls for an authoritative pronouncement by a larger Bench. Hence these matters have come up before us for hearing.
2. The question for our consideration is while considering an application for bail by a Court to the accused charged for an offence punishable Under Section 20(b)(i) of the NDPS Act can be considered independent of Section 37 of the NDPS Act. To appreciate the contention it would be appropriate to quote Section 20 and Section 37 of the NDPS Act
20. Punishment for contravention in relation to cannabis plant flnd cannabis.- Whoever, in contravention of any provision of this Act or any rule or order made/or condition of licence granted thereunder,-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, trans/ports, imports inter-State, exports inter-State or uses cannabis,
shall be pupishable,-
(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;
(ii) where such contravention relates to cannabis other than ganja with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees :
Provided that the Court may, for reasons to be recorded in the Judgments, impose a fine exceeding two lakh rupees.
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-
(1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor oppose 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 speci lied 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.
3. From a bare look to Section 37, it is evident while considering an application for bail Under Section 439, Cr.P.C. by an accused for an offence punishable for a term of imprisonment of five years or more under the NDPS Act, the limitations specified in Clause (b) of Sub-section (1) of Section 37 comes into play. The Supreme Court in case of Narcotics Control Bureau v. Kishanlal 1991 Cri LJ 654 : AIR 1991 SC 558, considered the scope and effect of Section and observed in para 6 thus :
Section 37 as amended starts with a non obstante Clausestating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 438, Cr.P.C, are not subject to the limitation mentioned under Section 37 of NDPS Act. The non obslante Clausewith which the tarts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr.P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4, Cr.P.C. may be noted which reads thus :
4. Trial of offences under the Indian Penal Code and other laws- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, fried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating. inquiring into., trying or otherwise dealing with such offences,
It can thus be seen that when there is a special enactment in force relating to the manner of investigation, inquiry or otherwise dealing with such offences, the other powers under Cr.P.C. should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India (1983) 1 SCR 393 : AIR 1982 SC 1413 : (1983 Cri LJ 647), regarding the mode of interpretation the Supreme Court observed as follows (at p. 1419 of AIR) : (at p.654 of Cri LJ) :
The dorninantpurpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity.As already noted, Section 37 of the NDPS Act starts with a non obstante Clausestating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr.P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.
4. The Supreme Court in case of Union of India v. Thamisharasi (1995) 4 SCC 190: (1995 AIR SCW 2543) considered the question of applicability of the limitations on grant of bail specified in Clause (b) of Sub-section (1) of Section 37 in a case of default in filing the complaint with in the maximum period of custody permitted during investigation by virtue of Sub-section (2) of Section 167. Cr.P.C. and observed that it is not inconsistent with Section 167(2), Cr.P.C. and that Section 37(1)(b) applies only when the question of granting bail arises on merits and not when grant of bail is automatic on default of filing complaint within the specified period. Limitations on granting of bail specified under Section 37(1)(b) of the NDPS Act are in addition to limitations provided under Section 437, Cr.P.C. and they do not exclude applicability of the proviso to Section 167(2).
5. In view of the legal settled position the question whether rigours of Section 37 of NDPS Act which are in the nature of the conditions precedent for the exercise of the power to grant bail would apply in relation to an accused who has been booked for an offence under Section 20(b)(i) of the NDPS Act which is punishable with rigorous imprisonment for a term which may which may extend to fifty thousand rupees.
6. Section 20 provides punishment for contravention in relation to cannabis plant and cannabis. Under Section 20(b)(i) the offence is punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees. Section 37 speaks of every offence under the NDPS Act to be cognizable and non-bailable. Section 37(1)(b) provides that where the offence is punishable under the NDPS Act with imprisonment of five years or more, then the accused shall not be released on bail or on his bond without hearing the Public Prosecutor. if the Public Prosecutor opposes the application, then the Court must be 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 such offence while on bail. The words used Under Section 37(1)(b) that no person accused of an offence punishable for a term of five years or more can in no sense be considered to be an offence providing punishment of a minimum sentence of five years or at least five years. The Parliament has not used the word 'minimum' before the base term of five years used in Section 37(1)(b). The word 'punishable' has not been defined under the Act. The Supreme Court while considering a case under Punjab Borstal Act, 1976 considered the meaning of word 'punishable' in Sube Singh v. State of Haryana (1989) 1 SCC 235 : (1989 Cri LJ 297) and after referring to the dictionary meaning of 'punishable' referred to in the report, observed that the word 'punishable' is ordinarily defined as deserving of or of capable of liable to punishment, capable of being punished by law or right, may be punished, or liable to be punished and not must be punished. Therefore, considering ordinary dictionary meaning of 'punishable' used in Section 37(1)(b) in our opinion, relates to the offences which are punishable 'for a term of five years or more'. It is not necessary that for an offence the minimum punishment should be provided for a term of five years. If for an offence the punishment provided may extend to five years, the limitations contained in Section 37(1)(b) would apply as Section 37(1)(b) does not speak of the imprisonment of minimum term of five years. Therefore, the word 'minimum' has not been employed before the expression 'of five years or more'. The said word cannot be added by the Courts which do not find place in the provision.
7. It is settled rule of interpretation that the Courts cannot add or mend and by construction make up deficiencies which are left there as the Court cannot reframe the legislation as it has no power to legislate. See : Nalinakhya v. Shyam Sunder Haldar AIR 1953 SC 148, State of M.P. v. G.S. Dall & Flour Mills AIR 1991 SC 772, Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96. It is also well established rule of interpretation that a provision must be interpreted by a written text. If the words of a statute arc plain, clear and free from any vagueness and arc reasonably, therefore, susceptible to only one meaning, the Courts are bound to construe them in their ordinary sense by giving full effect to that meaning. Consequences are for the Parliament. and not for the Courts, to consider. See : Commr. of Agricultural Income-tax, West Bengal v. Keshav Mandal AIR 1950 SC 265, Dr. Ajay Pradhan v. State of M.P. AIR 1988 SC 1875. Jitendra Tyagi v. Delhi Administration AIR 1990 SC 487 : (1990 Cri LJ 322), Nelson Motis v. Union of India AIR 1992 SC 1981, Page 33 of Principles of Statutory Interpretation, Sixth Edition by Justice G.P. Singh. Therefore, on plain reading of the words used in Section 37(1)(b) for a 'term of five years or more' and keeping in mind the object of the provisions we are of the opinion that the limitations contained in Section 37(1)(b) of the NDPS Act arc clearly attracted while considering the application under Section 439, Cr.P.C. for bail to an accused booked for an offence under Section 20(b)(i) of the NDPS Act.
8. This is also the view of Division Bench of Madras High Court in case of Sundaresan (1993 Cri LJ 3342) (supra) while considering the two provisions and the decision of the Supreme Court in Kishanlal's case (1991 Cri LJ 654)dcssenting with the view taken by Karnataka High Court in A.V. Dharma Singh's case (1993 Cri LJ 94) (supra) the Court observed that 'the word 'punishable ' is found in both the provisions, namely Section 20(b)(i) and also Section 37(1)(b) of the NDPS Act. As per Section 20(b)(i) of the NDPS Act, the maximum punishment is five years and whereas as per Section 37(1)(b) of the NDPS Act, the punishment is for a term of five years or more, that means that the punishment can be for a term of five years also or more. Therefore, no distinction was found with regard to applicability of Section 37(1)(b) of the NDPS Act for the offence punishable under Section 20(b)(i) of the NDPS Act.
9. The Kerala High Court in Peter v. State of Kerala (1993) 2 KFR 371, disagreeing with the view taken in A.V. Dharma Singh's case (1993 Cri LJ 94) (Kant) (supra) observed in para 12 thus :
In Section 37(b) of the Act 'accused of an offence punishable fora term of imprisonment of five years or more' qualifies the word 'person', the person should be accused of an offence punishable 'for a lerm of imprisonment of five years or more'. Therefore, the 'Five Years' is a term of imprisohment. It would be unrealistic to read omitting the words 'term of imprisonment' to understand 'of five years or more'. Such an approach would distort the actual meaning of the said phrase. When the legislature used the words 'term of imprisonment' it was unnecessary to add, the same is the maximum sentence, for 'term of imprisonment' would show that the five years is the maximum. Therefore, when Section 37(b) of the Act speaks of 'an offence punishable for a term of imprisonment of five years or more' the same could only mean, an offence which is punishable with five years or more that is, an offence punishable for a period of five years or more. Now to accept the argument of the learned counsel for the petitioners one should read into the said section the word 'Minimum' just before the words 'five years' and also omit the effect of the word 'term'. In the circumstances, it is not permissible to read into the said section a word which certainly is not intended, or omit to read the word 'term' which has paramount significance in interpreting the Section The argument of the learned counsel for the petitioners misses a very vital aspect inasmuch as the argument seeks to ignore the words 'for a term of imprisonment' in Section 37(b) of the Act.
10. The Orissa High Court in Rajendra Panda v. State of Orissa (1992 Cri LJ 491) (supra) after interpreting the language of the two provisions observed in para 6 of ((1992) 1 Crimes) : (para 7 of 1992 Cri LJ) thus :
The language used in Section 37(b) is clear to the effect that offences which carry punishment of five years or more arc covered by it. There is nothing in the language of the statute to infer that the sentence intended was minimum limit and not maximum limit. The language being clear and unambiguous there is no scope for taking a different view. In that view of the matter, it would be unreasonable to accept interpretation put by learned counsel for petitioners. In view of clear language of Section 37(b), offences covered by Section 20(b)(i) come within the ambit of the former provision. In other words, any person who is alleged to have committed an offence in terns of Section 20(b)(i), is not to be granted bail unless Court is satisfied that these 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.
11. The Rajasthan High Court in Gena Ram v. State of Rajasthan (1994) 1 Crimes 281 : (1994 Cri LJ 671) observed in paras 8 and 11 thus :
The non obstante Clausestating that 'notwithstanding contained in the Cr.P.C. 1973' makes it abundantly clear that the provisions of Section 37 of the Act, which is a Special Act, shall override the provisions of the Criminal Procedure Code. The NDPS Act, 1985 has been enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 of the Act are in a negative terms limiting the scope of the applicability of the provisions of the Cr.P.C. regarding bail, the High Court's power to grant bail under Section 439, Cr.P.C. is positively subject to the limitation mentioned in Section 37 of the Act. The learned single Bench also overlooked the contingencies that for the provisions of the contravention of this Act relating to ganja in appropriate cases, an accused can be punished with rigorous imprisonment for five years also. In such circumstances, the interpretation drawn by the learned single Judge of the Karnataka High Court in the aforementioned cases appears to me neither reasonable nor just nor in consonance with the object and purpose of this Act. In my considered opinion, the limitations specified in Section 37(1)(b) of the Act are fully applicable for an offence relating to ganja which is punishable under Section 20(b)(i) of the Act.
12. The decision of learned single Judge of the Karnataka High Court, relied by learned counsel for the applicants, in A. V. Dharma Singh's case (1993 Cri LJ 94) (supra) interpreting the I expression 'punishable for a term of imprisonment for five years or more' occurring in Clause (b) of Section 27(1) of th NDPS Act that the offence should be punishable for minimum five years or more, in our opinion is not correct to which with great respect we are unable to agree.
13. The Division Bench decision of Patna High Court in Kamlesh Kumar (1994 (2) Pat LJR 600) (supra) and a single Bench decision of Allahabad High Court in Sati Prasad Verma v. State of U.P. (1997) 2 EFR 116, have been rendered relying on the decision of Karnataka High Court in A.V. Dharma Singh's case (1993 Cri LJ 94), in holding that the rigour of Section 37(1)(b) would be applicable to offences which are punishable for minimum imprisonment for live years or more to which we are respectfully unable to subscribe.
14. It takes us to the recent decision of the Supreme Court in Braj Kishore Thakur v. Union of India (1997) 2 Supreme 471 : (AIR 1997 SC 1157) in a case of expungment of remarks against Sessions Judge passed by the learned single Judge of Patna High Court in passing the order of bail in view of the legal position laid down by the High Court of Patna in Kamlesh Kumar's case (supra), the Supreme Court observed that there was no justification at all for the learned single Judge of the same High Court to observe for the appellant Judge had exceeded jurisdiction in granting bail. The Supreme Court, in this case, did not consider the question and correctness of the decision rendered in Kamlesh Kumar's case. Therefore, the decision of the Supreme Court is distinguishable and is of no help to the applicants.
15. As a result of aforesaid discussion we are of the opinion that the limitation of Section 37(1)(b) of the NDPS Act are applicable while considering the application for grant of bail to a person who has been charged for an offence under Section 20(b)(i) of the NDPS Act.
16. Accordingly the reference is answered. Let the records of the cases be placed before the Referring Judge for deciding the applications for bail.