STATE OF MADHYA PRADESHversusKAJAD

                          ST ATE OF MAD HY A PRADESH                                   A
                                       v.
                                     KAJAD

                                SEPTEMBER 6, 2001

                        [M.B. SHAH AND R.P. SETHI, JJ.]                                B

          Narcotic Drugs and Psychotropic Substances Act, 1985 :

          Sec.37-Requirements before granting bail-Nature of-Held,
    mandatory-Limitations in granting bail-Jn addition to the limitation under         C
    CrPC-Negation of bail is the rule and its grant an exception-Successive
    bail applications permissible under changed circumstances only else
    consideration of subsequent bail application amounts to reviewing earlier
    order-Not permissible under criminal law.

           Respondent was apprehended under S.50 of N.D.P.S. Act, 1985. Opium          D
    was seized from him and he was charge sheeted. His application for bail was
    rejected by the Trial Court and the High Court. However, subsequent
    application for bail was allowed by the High Court. Hence this appeal by
    State.

             Allowing the appeal, the Court                                            E
           HELD : I. The purpose of enacting the N.D.P.S. Act is to control the
    menace of drug trafficking as is evident form its scheme. Section 37 of the
    Act clearly states that person accused of an offence punishable for a term
    of 5 years or more shall not generally be released on bail. Thus negation
    of bail is the rule and its grant an exception. Under sub-clause II of Cl.(b)      F
    of Sec.37(1), Court before granting bail must satisfy on the basis of record
    produced before it that there exists reasonable ground for believing that the
    accused is not guilty of the offence with which he is charged and further that


-   he is not likely to commit any offence while on bail. Court must also take
    into consideration that the above condition of bail are in addition to the
    limitation provided under Cr.P.C. or any other law for the time being in force     G
    regulating the grant of bail. Liberal approach in the matter of bail is uncalled
    for. [620-B, C, DJ

          Maktool Singh v. State of Punjab, [1999) 3 SCC 321; Intelligence
    Officer, Narcotics Control Bureau v. Sambhu Sankar and Anr., JT (2001) 2           H
                                          617
    618                     SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A   SC 372 and Smt. D. Sarojini v. State of A.P., (2001) 4 Supreme (179), relied
    on.

          2. Successive bail applications are permissible under changed
    circumstances. But without change in the circumstances, the second bail
B   application would be deemed to be seeking review of earlier judgment which
    is not permissible under criminal law. 1621-D, E]

          Hari Singh Mann v. Harbhajan Singh Bajwa and Anr., (2001] 1 SCC
    169, relied on.

C         3. The impugned order passed ignoring the mandatory requirement of
    Sec. 37 of NDPS Act and condition of granting bail under Cr.P.C., is not
    sustainable. [621-FI

         CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 907
    of 2001.
D        From the Judgment and Order dated 7 .12.2000 of the Madhya
    Pradesh Hgh Court in M. Cr!. C.No. 3306 of 2000.

          Uma Nath Singh and Ms. Bharti Tyagi for the Appellant.

          C.L. Sahu and Ms. Hema Sahu for the Respondent.
E
          The Judgment of the Court was delivered by

          SETHI, J. Leave granted.

          Acting upon a definite information received by the Police Station Jawad,
F   District Neemuch, Madhya Pradesh, force was deployed and the respondent-
    accused apprehended on the night of 24th March, 2000. After compliance of
    the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic
    Substances Act, 1985 (hereinafter called "the Act"), opium weighing 7 Kgs,
    was seized from the accused which he had kept in his bag. After completing
G   necessary procedural formalities and getting the samples tested, a charge-
    sheet was submitted against the accused in the competent court. Applications
    for bail moved by the accused was rejected by the trial court. Dissatisfied with
    the rejection of his bail application, the respondent-accused moved an
    application in the High Court which was registered as Miscellaneous Criminal
    Case No. 2052 of 2000. The said application was rejected by the High Court
H   vide order dated 5.6.200. Without mentioning any change in the circumstances,
                          STATE v. KAJAD [SETHI, J.]                        619

the respondent-accused moved another application in the High Court in the          A
month of August, 2000 which was adjourned from time to time and ultimately
allowed vide the order impugned in this appeal.

      Learned counsel appearing for the appellant-State has contended that
the High Court has committed an error of law by granting bail to the respondent-
accused ignoring the provisions of Section 37 of the Act, though merely            B
making a mention of it in the impugned order. It is further contended that in
the facts and circumstances of the case, the High Court was not justified in
granting the bail to the accused in view of the dismissal of his earlier bail
application and in the absence of any change in the circumstances. The
learned Judge granting the bail is stated to have adopted a casual approach        C
in dealing with a heinous crime committed under the Act. It is submitted that
the order granting the bail amounts to reviewing the earlier order which is not
permissible in criminal cases.

      It is not disputed that the accused was apprehended and charged for
the commission of an offence punishable under Section 18 of the Act which          D
is punishable with rigorous imprisonment for a term, not less than 10 years
but which may extend to 20 years and is also liable to a fine of not· less than
one lakh rupees.

     Section 37 of the Act provides that the offences under the Act shall be
cognizable and non-bailable. It reads:                                             E
        "Offences to be cognizable and non-bailable-,-( 1) Notwithstanding
        anything contained in the Code of Crim in al Procedure, 1973-

        (a) every offence punishable under this Act shall be cognizable;

        (b) no person accused of an offence punishable for a term of
                                                                                   F
        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
                                                                                   G
        (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-     H
    620                      SUPREME COURT REPORTS (2001] SUPP. 2 S.C',.

A           section (I) are in addition to the limitations under the Code of lr1mma1
            Procedure, 1973 or any other law for the time being in force, or
            granting of bail."

    The purpose for which the Act was enacted and the menace of drug trafficking
    which intends to curtail is evident from its scheme. A perusal of Section 37
B   of the Act leaves no doubt in the mind of the court that a person accused
    of an offence, punishable for a term of imprisonment of five years or more,
    shall generally be not released on bail. Negation of bail is the rule and its
    grant and exception under sub clause (ii) of clause (b) of Section 37(1). For
    granting the bail the court must, on the basis of the record produced before
C   it, be satisfied that there are reasonable grounds for believing that the accused
    is not guilty of the offences with which he is charged and further that he is
    not likely to commit any offence while on bail. It has further to be noticed
    that the conditions for granting the bail, specified in clause (b) of sub-section
    (!)of Section 37 are in addition to the limitations provided under the Code
    of Criminal Procedure or any other law for the time being in force regulating
D   the grant of bail. Liberal approach in the matter of bail under the Act is
    uncalled for.

          In Maktool Singh v. State of Punjab, [ 1999] 3 SCC 321 this Court
    considered the scope of Section 37 along with the scheme of the Act and
    held:
E
            "The only offences exempted from the purview of the aforesaid rigours
            on the bail provisions are those under Sections 26 and 27 of the Act.
            The former is punishable upto a maximum imprisonment for three
            years and the latter upto a maximum imprisonment for one year. For
            all other offences, the courts' s power to release an accused on bail
F           during the period before conviction has been thus drastically curtailed
            by providing that if the Public Prosecutor opposes the bail application,
            no accused shall be released on bail, unless the court is satisfied that
            there are reasonable grounds for believing that he is not guilty of
            such offence."
G
    To the same effect are the judgments of this Court in Intelligence officer,
    Narcotics Control Bureau v. Sambhu Sankar and Anr., JT (2001) 2 SC 372
    and Smt. D. Sarojini v. State of A.P., (2001) 4 Supreme 179.

          In the instant case, the learned Single Judge of the High Court has
H   granted the bail on his own sense of observation regarding the course of
                             STATE v. KAJAD [SETHI, J.]                          621
    conduct adopted by the accused at the time of his interception and arrest.          A
    Merely because the accused was found to be continuing to hold bag
    containing opium during the period, the raiding party searched him in


-   accordance with the provisions of the Act, the learned Judge was not justified
    to conclude "it is by itself unnatural". How the learned Judge concluded that
    the conduct of the accused or raiding party were unnatural is not discernible
    from the impugned order. A person, apprehended by a raiding party, who is
                                                                                        B

    sought to be searched is supposed to hold the goods in his possession
    unless he opts to flee from the place of occurrence or advised to throw the
    container in which the offending substance is contained. Section 37 of the
    Act has been referred in the impugned order not for the purposes of showing
    of its compliance but to justify the passing of an apparently wrong order. If,      C
    besides referring to Section 37 of the Act, the learned Judge would have



-
    referred to its provisions, he would not have fallen a prey to the ulterior
    designs of the respondent-accused.

           It has further to be noted that the factum of the rejection of his earlier
    bail application bearing Misc. case No. 2052 of 2000 on 5.6.2000 has not            D
    denied by the respondent. It is true that successive bail applications are
    permissible under the changed circumstances. But without the change in the
    circumstances the second application would be deemed to be seeking review
    of the earlier judgment which is not permissible under criminal law as has been
    held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and Anr.,            E
    (200 I] 1 SCC 169 and various other judgments.

          We are satisfied that the impugned order having been passed in violation
    of the provisions of the Act by ignoring the mandatory requirements of
    Section 37 and the conditions governing the grant of bail under the Code of
    Criminal Procedure and is thus not sustainable. Accordingly, the appeal is          F
    allowed by setting aside the order impugned. The respondent-accused shall
    surrender and his bail bonds are cancelled. He shall be taken into custody
    during the trial of the offence with which he has been charged.

    S.K.S.                                                         Appeal allowed.