Full Judgment
Arun Kumar Goel, J.
1. Heard learned counsel.
2. This application under Section 438, Cr.P.C. has been filed by the petitioner for admitting Him to bail for offence alleged against him under FIR No. 98 of 2003 of Police Station Una. This FIR was registeredon 3-2-2003.
3. As per allegations of the prosecution, petitioner and one Raj Kumar, when checked by the Police, were allegedly carrying the contraband. Further case alleged against them is, that so far Raj Kumar is concerned, he was found to be in possession of 70Grams of contraband i.e. charas, whereas the petitioner is alleged to have thrown away the contraband weighing 1030 grams and also having fled away from the spot. This position has been seriously contested by Mr. Thakur. As according to him this is the handy work of the police to have shown his client to be in possession of commercial quantity so that he is not able to get benefit of provision of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as NDPS Act 1985), as amended upto date. Per him his client is being falsely implicated in this case. He further submitted that statement of alleged co-accused Raj Kumar regarding the petitioner being in possession of 1030 grams of charas is being used so as to involve the petitioner. Whereas in fact nothing was possessed by his client so there is no question of his having thrown the contraband as alleged. Thus he is being falsely roped in.
4. It was further urged by Mr. Thakur that contraband alleged to have been thrown as aforesaid is also not made out from the record even if evidence collected by the police so far, is accepted for the sake of argument without being conceded. Thus he has prayed for admitting his client to bail under Section 438 of the Cr.P.C. With a view to advance his case, Mr. Thakur also submitted that this is a fit case for the grant of bail, and if benefit of this section is not allowed to the petitioner, it will give licence to the police to rope in any innocent person thereby falsely implicating him.
5. All these pleas have been controverted by Mr. Batish, learned Additional Advocate General who submitted that this application is not at all maintainable and even while passing interim order on 24-2-2003, this Court has exceeded its jurisdiction. N.D.P.S. Act 1985, is a special enactment, which according to him excludes the applicability of the provisions of Code of Criminal Procedure including those sections dealing with the bail in view of Section 37 of the N.D.P.S. Act, 1985. Therefore this Court lacks jurisdiction to entertain this bail application under Section 438, Cr.P.C. In addition to this ground, he also referred to the evidence collected by the police so far and submitted that pleas urged on behalf of the petitioner need to be rejected.
6. Lastly, it was submitted by learned Additional Advocate General, that so far present case is concerned, it is based on prior information. As such after recording such information provisions of Section 42 of the N.D.P.S. Act, 1985, were duly complied with. By referring to the police file, he pointed out that petitioner had been named in such information and intimation in this behalf as required under law was forwarded to the higher authorities by the I.O. Thus on this ground he has prayed for dismissal of this application since there is proper identification of the petitioner on record.
7. After having heard learned counsel for the parties and looking to the provisions of Section 37 of the N.D.P.S. Act, 1985, I am of the considered views that application under Section 438, Cr.P.C. would not lie for an offence under the said Act. Because when a reference is made to Section 37 of the N.D.P.S. Act, 1985, it starts with non obstante clause and under what circumstances bail can be granted have been enumerated in the Section itself.
8. Faced with this situation, learned counsel for the petitioner tried to take shelter under Section 36A(3) of the NDPS Act. For ready reference Section 37 as well as Sub-clause (3) of Section 36A are extracted here-in-below :
Section 37. Offence 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 (offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity) 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 limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.
Section 36A(3)
(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 (2 of 1974) and the High Court may exercise such powers including the powers under Clause (b) 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.
9. So far Sub-section 36A(3) supra is concerned, it only speaks of special power of the High Court regarding grant of bail under Section 439(1)(b), Cr.P.C. the context of reference to 'Magistrate' and 'Special Court' with reference to Section 36 of NDPS Act, 1985.
10. Plea based on Section 36A(3) supra is even otherwise ill founded and misconceived. Because admittedly this application is not under Section 439, Cr.P.C. And the petitioner is also not under arrest. Rather on his own showing, he has invoked Section 438, Cr.P.C. In this behalf it may also be noted that legislature substituted Section 36A by Act No. 9 of 2001 as it was originally incorporated vide Act No. 2 of 1989 has only incorporated Sub-section (3) thereof as extracted here-in-above. If it intended to include applicability of Section 438, Cr.P.C. also, there was nothing which prevented the legislature to apply the same also. Admittedly, except for applicability of Section 439(1)(b) of Cr.P.C. this Court has no power to deal with bail application like the present one. On this ground also this application must fail.
11. Looking to the material on record so far, at least it cannot be said at this stage, that the case against the petitioner is groundless on a prima facie examination of it. Particularly looking to the prior information recorded and the same having been forwarded to the higher authorities under Section 42 of the NDPS-Act, 1985. So even if the plea of Mr. Thakur that this application under Section 438, Cr.P.C. is maintainable is accepted, even then this is an additional ground to reject this application at this stage.
12. So far plea of learned Additional Advocate General that Court could not have passed the order dated 24-2-2003 is concerned. Suffice it to say that petitioner was not admitted to anticipatory bail. Notice of this application was issued as far as on 14-2-2003 and till 24-2-2003 State was unable to apprehend the petitioner. When it was urged on that day that investigation of this case is being hampered. Pursuant to the said order it was not disputed on behalf of the State that petitioner appeared before the Police. As such no order admitting the petitioner to bail, interim or otherwise was passed under Section 438, Cr.P.C.
13. No other point is urged.
14. In view of the aforesaid discussion there being no merit in this application, the same is hereby rejected. It is clarified that this order is meant to dispose of the present application filed by the petitioner. In case hereinafter he is able to make out a case for being admitted to bail in accordance with law, such a prayer will be considered by the Court appropriately, of course in accordance with law and in such a situation anything said in this order will not prejudice his case.
15. Copy dasti.