Full Judgment
B.L. Hansaria, C.J.
1. This Court having known that the learned Sessions Judge, Sundargarh, had released the opposite party, an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (shortly called 'the Act') on bail without considering the mandatory requirements of Section 37 thereof on the ground that there was violation of some of the provisions of the Act as a result of which the detention became illegal placing reliance on the judgment of this Court in Bidyadhar Dolai v. State, (199 2) 5OCR 31, in paragraph 15 of which it was stated that the detention order was being quashed with the aid of Section 482 of the Code of Criminal Procedure (hereinafter 'the Code'), which power is not available to a Court of Session, took suo motu cognizance being prima facie satisfied about the illegality of the order inasmuch as paragraph 15 of the aforesaid judgment had made it clear that the release was not in exercise of the power conferred by Section 439 of the Code, which power had been invoked by the Sessions Judge to order for release on bail. On notice being issued, the opposite party appeared and filed his show cause stating, inter alia, that the learned Sessions Judge had not only considered the violation of some of the provisions of the Act but also the ailment and health condition of the opposite party and as no case for cancellation of the bail has been made out, the order may not be set aside.
2. The case was heard on merits on 9-4-1993 and 16-4-1993 when Shri Ray addressed on behalf of the opposite party and Shri Misra, learned Additional Standing Counsel, on behalf of the State.
3. The first submission of Shri Ray is that though the learned Sessions Judge had not considered the requirements of Section 37 of the Act while releasing the opposite party on bail, that has not made the order illegal though it may be improper. On being questioned, Shri Ray, however, fairly states that the requirement of Section 37 are rnandatory. Now. the law is well settled that if a mandatory requirement is not complied with, the order has to be regarded as illegal and not merely improper.
4. Another submission advanced is that no case for cancellation has been made out, because bail once granted can be cancelled on circumstances like misuse of liberty, interference with the course of investigation, attempt to tamper with evidence, threatening to witnesses, likelihood o1 fleeing, attempt to make himself scarce by going underground or making himself beyond the reach of his surety, which have been mentioned in paragraph 11 of Aslam Babulal Desai v. State of Maharashtra, AIR 1993 SC 1, the order cannot really be set aside. This submission is misconceived inasmuch as this Court has not invoked its power Under Section 439(2) of the Code to cancel the bail, but its general power of revision conferred by Section 397 which is available to set right illegal orders, so also its inherent power Under Section 482 of the Code which springs into action when according to this Court some action is required to prevent abuse of the process of any Court subordinate to it or otherwise to secure the ends of justice. Of course, the result of the setting aside of the order-the illegality in which had put the Court in motion, if that be the conclusion of the Court, would be that the bail granted in favour of the Court, opposite party shall stand cancelled, but that would be the consequeence. That is not the primary aim of the Court; its concern is the illegality in the order. The consequence(s) to follow cannot put fetter on its power. So the ground on which bail can be cancelled need not be present in the case at hand before the order of the Sessions Judge can be set aside.
5. Being confronted with this situation, Shri Ray submits that the grant of bail being an interlocutory order as held by a Bench of this Court in Nilu v. State, 56(1983) CUT 123, the power of revision conferred by Section 387(1) cannot be invoked in view of what has been stated in Section 397(2).
6. A perusal of the aforesaid decision shows that it adopted the view taken in Durga Prasad v. State of Orissa, 56(1983) CLT 129, which is a judgment of a learned Single Judge of this Court, and also agreed with the decision of the Andhra Pradesh High Court in Thakur v. Hariprasad v. State of A. P. 1977 Crl LJ 471, in which there is an elaborate discussion of this aspect of the matter and it was held that order relating to bail is an interlocutory order.
7. Reference to Durga Prasad shows that it held an order granting or refusing bail as interlocutory by referring to Amar Nath v. State of Haryana, AIR 1977 SC 2185, in which order for bail was given as an instance of interlocutory order. As Amar Nath's case, which is by a Bench of two learned Judges was approved in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, which is a rendering by three learned Judges, which decision in its turn received approval of a Bench of four learned Judges in V. C. Shukla v. State. AIR 1980 SC 962, which is still holding the field, it has to be accepted that an order of bail is interlocutory, and so, revisional power of this Court Under Section 397(1) cannot be exercised, because of the ban imposed by Section 397(2).
8. Shri Ray then contends that the bar created by Section 397(2) would operate even while exercising inherent power Under Section 432. In support of this submission, the learned counsel refers to Municipal Corporation of Delhi v. Ram Kishan, AIR 1983 SC 67. This decision, however, does not support this submission of Shri Ray because that had followed what was laid down in Madhu Limaye's case as would appear from paragraph 5 ; and in Madhu Limaye's case, it was made clear that 397(2) would not stand as a bar in exercise the power Under Section 482, though the High Court must exercise its inherent power very sparingly, but if in a case an order clearly brings out a situation which is an abuse of the process of this Court or for the purpose of securing ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the inherent power available to a High Court, of course, such a case would be few and far between. It may be stated that in Nilu's case {supra) also the Bench of this Court after referring to Madhu Limaye's case had held that Section 397(2) was not a bar in exercise of inherent power by this Court Under Section 482.
9. In support of his aforesaid submission, Shri Ray has also referred to Dharampal v. Ramshri, (1993) 6 OCR (SC) 109, in which it was held that inherent power of the High Court Under Section 482 cannot be exercised in a case where second revision is a bar, as provided by Section 397(3). As to this, decision, which is by a Bench of two learned Judges. I have two observations to make. The first is that it has not taken note of any earlier decision of the Apex Court including that of Madhu Limaye, which is by a Bench of three learned Judges and was referred approvingly by a Bench of four learned Judges in V. C. Shukla, Secondly, that case dealt with bar of Section 397(3) whereas we are concerned with the bar of Section 397(2), and it may be that different considerations may arise in the two situations.
10. Being satisfied that the power Under Section 4S2 is available, the question is whether the present is a case where this power should be exercised. Madhu Limaye's case has stated this power should be exercised very sparingly to prevent the abuse of the process of any Court or otherwise to secure ends of justice. Now, if a person against whom the allegation be about his involvement in the offence under the Act. and if such a person is released on bail without satisfaction of the mandatory requirements contemplated by Section 37 of the Act, the release has to be taken very seriously in view of the growing of drug trafficking and the very injurious effect on the society which drug addiction produces. I am of the view that release of such a person in flagrant violation of law has to be taken to be a case of abuse of the power or process of the Court. Further the protection of the larger interest of the society (which is clearly involved in the case at hand) has to be the aim of judicial process and the guiding star of every Court established to secure justice. This aspect would require interference with such an order, of course not in every case but where the enormity of the alleged offence so demand. In the present case the allegation is that more than 15 grams of brown sugar was found with the accused. The quantity itself speaks about the enormity of the offence and I am satisfied that the present is a fit case where the power Under Sections 482 of the Code should be exercised.
11. The last submission made by Shri Ray is that though the learned Sessions Judge had not referred to a decision of a learned single Judge of this Court in Satyabrata v. State, 1991 (II) OLR 475, which had soon the light of the day by the date the order of the learned Sessions Judge was passed, no illegality in his order may be read, because in Satyabrata's case relief had been given to an accused under the Act by exercising power Under Section 439 where some provisions of the Act had not been complied with by holding that Section 37 would not be a bar in such a situation. As to this decision, it may be pointed out that as even today that does not hold good in view of the decision of the Full Bench of this Court in Banka v. State, 1992 (II) OLR 395. As such, if the learned Sessions Judge would have relied on Satyabrata's case while releasing the opposite party on bail, no illegality could have been read in his order, but Satyabrata's case cannot be relied after the aforesaid Full Bench decision to hold that the opposite party could have been released on bail despite the requirements of Section 37 of the Act being act satisfied. As the matter is being examined by this Court, (indeed, notice be issued after the aforesaid Full Bench decision had been pronounced), the law as laid down by the Full Bench has to be applied, and not which was stated by a learned Single Judge.
12. The curtain is drawn by Shri Ray by submitting that the learned Sessions Judge also mentioned about the ailment and health condition of the opposite party while releasing him on bail. The least said the better about this. Not only that it is just ipse dixit, but may be a ruse, a camouflage.
13. I conclude by saying that, according to me, the present is a fit case where the inherent power of this Court Under Section 482 of the Code, which is available despite the bar contained in Section 397(2), should be invoked, and while doing so, I set aside the order of the learned Sessions Judge, despite best efforts made by Shri Ray to sustain the same. The result is that the bail granted to the opposite party stands cancelled.