Union of India (Uoi) Vs. Ashok Kumar Jaiswal - Court Judgment

Excerpt:
narcotic drugs and psychotropic substances act, 1985 - section 37 -respondent charged under the act and by the impugned order respondent granted bail - before granting bail the court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of offence and that he is not likely to commit offences under the act while on bail - bail granted to respondent in a casu8al manner without any justifiable reason - order not sustainable - appeal allowed - hindu succession act,1956[c.a.no.30/1956] -- section 8: [d.v. shylendra kumar, j] general rules of succession recognition of customary law - whether the customary practice prevalent in a community can prevail over the statutory provisions, particularly a customary practice of aliyasanthana can prevail over the provisions of section 8 of the hindu succession act 11956 and whether the parties by their conduct can start a custom afresh, though such custom was not prevalent earlier but sought to be followed by the act of the parties? held, if the customary law is already prevalent and the conduct of the parties is in consonance with the said customary law, that can be recognized on paper with law but if a customary law is not prevalent or was not in existence already, by act of parties at a given point of time, it cannot pleaded that they have adopted or begun such a custom thereafter. on facts, held, a mere request made by the propositus requesting his son-in-law to remain as mane aliya does not attract the customary practice of aliyasanthana into the family and therefore no benefit can be claimed by the so called mane aliya to insist that the practice of aliyasanthana should be followed in the family.order1. leave granted.2. the respondent is charged for offence under sections 8 and 21 of the narcotic drugs & psychotropic substances act, 1985 (in short 'the act'). by the impugned order of the high court which is under challenge in this appeal, respondent has been granted bail. the relevant part of the order readsas under:' heard.3. considering the recovery and detention, it is a fit case for bail. the bail application is allowed. 'it is evident that the high court did not at all take into consideration the requirements of section 37 of the act as it stood when the application of the respondent for grant of bail was allowed and bail was granted to him merely observing that 'considering the recovery and detention it is a fit case for bail'. the legislature with a view to check the menace of drugs incorporated in the act the stringent 2 provisions of section 37 for considering prayer for grant of bail of those who are accused of offence punishable for a term of imprisonment of five years or more under the act.4. under the mandatory conditions provided in section 37 before granting bail the court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of offence and that he is not likely to commit offences under the act while on bail. this court in various judgments while quashing the orders granting bail to accused of offence under the act have cautioned the courts about the mandatory requirements of section 37. (union of india v. ram samujh and anr. : 1999(66)ecc335 and supdt., narcotics control bureau, madras v. r. paulsamy : 2001crilj117 ).5. in the impugned order the bail has been granted to the respondent in a casual manner without any justifiable reason and without satisfying the provisions of section 37 as the same stood when the impugned order was passed. the impugned order is, therefore, unsustainable. 6. learned counsel for the respondent, however, sought to rely on section 37 as amended on 9th may, 2001. the impugned order was passed before the amendment, i.e., on 2nd march, 2001. in this state of affairs learned counsel for the 3 respondent fairly concedes that the impugned order could not be legally passed without complying with the provisions of section 37 as it stood on the date when the impugned order was passed. learned counsel further submits that a fresh application for grant of bail, in view of the amendment of section 37 as aforesaid, will be filed by the respondent. we express no opinion on the aspect of applicability or otherwise of the amended provision to the facts of this case.7. suffice it to observe that as and when fresh application is filed, it will be dealt with in accordance with law.8. for the aforesaid reasons the appeal is allowed and the impugned order is set aside. the bail bonds are cancelled and the respondent is directed to be taken into custody forthwith.

Judgment:
ORDER

1. Leave granted.

2. The respondent is charged for offence under Sections 8 and 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short 'the Act'). By the impugned order of the High Court which is under challenge in this appeal, respondent has been granted bail. The relevant part of the order readsas under:' Heard.

3. Considering the recovery and detention, it is a fit case for bail. The bail application is allowed. 'It is evident that the High Court did not at all take into consideration the requirements of Section 37 of the Act as it stood when the application of the respondent for grant of bail was allowed and bail was granted to him merely observing that 'considering the recovery and detention it is a fit case for bail'. The Legislature with a view to check the menace of drugs incorporated in the Act the stringent 2 provisions of Section 37 for considering prayer for grant of bail of those who are accused of offence punishable for a term of imprisonment of five years or more under the Act.

4. Under the mandatory conditions provided in Section 37 before granting bail the Court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of offence and that he is not likely to commit offences under the Act while on bail. This Court in various judgments while quashing the orders granting bail to accused of offence under the Act have cautioned the courts about the mandatory requirements of Section 37. (Union of India v. Ram Samujh and Anr. : 1999(66)ECC335 and Supdt., Narcotics Control Bureau, Madras v. R. Paulsamy : 2001CriLJ117 ).

5. In the impugned order the bail has been granted to the respondent in a casual manner without any justifiable reason and without satisfying the provisions of Section 37 as the same stood when the impugned order was passed. The impugned order is, therefore, unsustainable.

6. Learned counsel for the respondent, however, sought to rely on Section 37 as amended on 9th May, 2001. The impugned order was passed before the amendment, i.e., on 2nd March, 2001. In this state of affairs learned counsel for the 3 respondent fairly concedes that the impugned order could not be legally passed without complying with the provisions of Section 37 as it stood on the date when the impugned order was passed. Learned counsel further submits that a fresh application for grant of bail, in view of the amendment of Section 37 as aforesaid, will be filed by the respondent. We express no opinion on the aspect of applicability or otherwise of the amended provision to the facts of this case.

7. Suffice it to observe that as and when fresh application is filed, it will be dealt with in accordance with law.

8. For the aforesaid reasons the appeal is allowed and the impugned order is set aside. The bail bonds are cancelled and the respondent is directed to be taken into custody forthwith.