Judgment:
ORDER
P.K. Misra, J.
1. In these two applications for bail, common question of law relating to applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) (hereinafter referred to as the 'Act') arises and as such both the matters have been heard one after the other and the learned Standing Counsel has also been heard in both the cases.
The appellant in Criminal Appeal No. 65 of 1996 who has been convicted under Section 20(b)(i) of the Act and sentenced to undergo R. I. for two years and to pay a fine of Rs. 2,000/- in default, to undergo R. I. for six months more, has filed Misc Case No. 94 of 1996 for being released on bail during the pendency of the appeal. The appellant in Criminal Appeal No. 80 of 1996 who has been convicted under Section 20(b)(i) of the Act and sentenced to undergo R. I. for four years and to pay a fine of Rs. 5,000/-, in default, to undergo R. I. for one year more, has filed Misc. Case No. 10, of 1996 for being released on bail during the pendency of the appeal.
2. The learned Standing Counsel submits that the requirements indicated in Section 37 of the Act have to be fulfilled before bail can be granted in appeal against an order of conviction. He has relied upon the Division Bench decision of this Court reported in (1993) 6 OCR 250 (Ajay Kumar Nayak v. State of Orissa).
Mr. S. D. Das, learned counsel appearing for the appellant in Criminal Appeal No. 68 of 1996 submits that since the sentence is imprisonment for a period less than five years, the embargo on grant of bail as envisaged under Section 37 of the Act Is not attracted. He has relied upon the decisions reported in 1992 Crl LJ 205 (Kar.) (Shankar Krishnasa Habib and Anr. v. State of Karrtataka);1993 Cri LJ 94 (Kar.) (A. V. Dharmasingh and Ors. v. The State of Karnataka by the State Public' Prosecutor); (1995) 1 OCR 547 (MP) (Giriraj v. State of M. P.) ; and 1994 (3) Crimes 671 (Pat.) (Kamlesh Kumar and Ors. v. State of Bihar). He has further submitted that the mandatory requirements of Sections 42 and 50 of the Act having not been complied with, it cannot be said that there is any prima facie case against the accused person.
Mr. S. C. Sahu, learned counsel appearing on behalf of the appellant in Criminal Appeal No. 80/96 has adopted the same line of argument and in addition has relied upon the decision reported in (1993) 6 OCR 714 (Bijoy Kumar Raut v. State of Orissa).
3. In view of the Division Bench decision reported in (1993) 6 OCR 250, there cannot he any doubt that even while considering the question of grant of bail in appeal under Section 389 of the Code of Criminal Procedure, the appellate Court has to consider the effect of Section 37 of the Act. Section 37 of the Act as relevant is extracted hereunder :
'37. Offences to be cognizable and non bailable,
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) ......... ......... ......... (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.'
4. The decision of the Karnataka High Court in 1993 Crl LJ 94, relates to question of grant of bail during trial. In that case it was held thus :
'Interpreting the expression punishable for a term of imprisonment for 5 years or more in the light of the Supreme Court ruling quoted above AIR 1988 SC 1875 (Dr. Ajay Pradhan v. State of Madhya Pradesh). I am of the opinion that the expression means that the offence should be punishable with minimum of 5 years or more because the words 'or more' are added only to emphasise that the offences punishable with minimum 5 years or more are to be the offence for which the provision of Section 37 of the Act is made applicable. The said expression means that this offence should he punishable with minimum of 5 years or more. The words 'or more' are to be read with reference to '6 years' in their grammatical meaning. '5 years or more' means that the basis is 5 years and 'or more' Is the period that has to be considered with reference to the basis of '5 years. If the intention of the legislature was to make Section 37 of the Act applicable to the offences which are punishable even up to 5 years or less, then the legislature would not, have used the expression '5 years or more', It could have simply said for any offences It could not have qualified the word 'offence' in Section 37 with the expression 'punishable for a term of imprisonment for 6 years or more'. Therefore the expression means that the offence must be punishable with the punishment which shall be not less than 5 years, but it can be more. The ruling of the Supreme Court reported in 1991 Cri LJ 654 : (AIR 1991 SC 558) (Narcotics Control Bureau v. Kishan Lal ) can be distinguished on the ground that the Supreme Court has not considered this aspect of Section 37 in that ruling.'
The Madras High Court in Sudarsan v. State: 1993 Cri LJ 3342, dissented from the view taken by the Karnataka High Court and held that even in respect of offences punishable with imprisonment which may extend up to 5 years, the embargo envisaged under Section 37 of the Act was applicable. A similar matter came up before the Division Bench of Patna High Court reported in 1394 (3) Crimes 671. The Patna High Court followed the ratio of the decision of the Karnataka high Court and held that the provision of Section 37 of the Act had no application to offences which are punishable for a term of imprisonment up to 5 years and such embargo was applicable instead to offences which are punishable for a term of 5 years or more. In other words, where the offence is punishable with imprisonment for a period of not less than 5 years, the restriction is applicable, whereas where the offence is punishable with imprisonment which may extend up to 5 years, the restriction is inapplicable. In the decision of the Orissa High Court reported in (1993) 6 OCR 714 : while interpreting the provision of Section 167(2), Proviso, Code of Criminal Procedure, it was held that the expression contained in Section 167(2), Proviso (a) (i) to the effect, '...... offence punishable with...imprisonment for a term of not less than ten years' cannot be equated with the 'offence punishable with imprisonment for a period up to 10 years'. In short, it was held that where the offence was punishable for a period of imprisonment up to 10 years, the same would not come within Proviso (a) (i) of Section 167(2) of the Code of Criminal Procedure, but would come under Clause (ii) and charge-sheet has to be submitted within a period of sixty days. There is no doubt that if the ratio of the decisions of Karnataka and Patna High Courts is to be applied, the embargo contained in Section 37 of the Act would be out of the way. However, in a decision of this Court arising under the Act, reported in 1992 (1) Crimes 79 (Rajendra Panda and Anr. v. State of Orissa), it has been held, while considering the question of bail at the investigation/trial stage that the requirements of Section 37 the Act are to be complied with even in cases where the offence was punishable with a period up to 5 years' imprisonment. The question as to whether there is any real conflict between the two decisions of the Orissa High Court, namely, one reported in 1992 (1) Crimes 79 and the other reported in (1993) 6 OCR 714, need not be resolved in this case in view of the order proposed hereunder.
5. In the present cases, the sentence which has been imposed in each case is less than 5 years. While applying the provision of Section 37 of the Act the appellate Court has to consider the punishment which has already been imposed and not 'punishment which could have been imposed'. In other words, while applying the provision of Section 37 of the Act, the expression, no person accused of an offence punishable with a term of imprisonment for 5 years or more, should necessarily be interpreted to mean, no person convicted of an offence and sentenced to a term of imprisonment for 5 years or more. Therefore, in all such case where the actual punishment inflicted by the trial Court in imprisonment for a term less than 5 years, the embargo imposed under Section 37 of the Act would be inapplicable. If such an interpretation is not given, startling results may follow. Experience shows that in many cases keeping in view the nature of the offence and the quantum of contraband articles seized, the actual punishment inflicted is for a term much less than 5 years and the rigours of Section 37 of the Act are to be applied to such cases, in majority of the cases, the period of imprisonment inflicted by the trial Court would be over by the time the appeals are taken up for hearing, considering the alarming back-log of cases pending in the High Court.
In the cases at hand, I find that the two petitioners in both the cases have already remained in custody for a substantial period before, during and after trial. I, therefore, direct that the appellant in Criminal Appeal No. 68 of 1996 may be released on bail of Rs. 10,000/- with one surety for the like amount to the satisfaction of the Second Additional Sessions Judge, Bhubaneswar, in S. T. No. 216 of 1993. The appellant in Criminal Appeal No. 80 of 1996 may be released on bail of Rs. 10,000/- with two sureties, each for the like amount to the satisfaction of the Sessions Judge, Bolangir, in Sessions Case No. 157 of 1995.
Both the Misc. Cases are accordingly disposed of.