REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 462 OF 2018
[@ SPECIAL LEAVE PETITION (CRL.) NO. 8184 OF 2017]
SATPAL SINGH Appellant(s)
VERSUS
THE STATE OF PUNJAB Respondent(s)
WITH
CRIMINAL APPEAL NO. 463 OF 2018
[@ SPECIAL LEAVE PETITION (CRL.) NO. 1428 OF 2018]
J U D G M E N T
KURIAN, J.
1. Leave granted.
2. The appellant – Satpal Singh (in Crl. Appeal. No.
462 of 2018) is before this Court, challenging the
order dated 04.10.2017 passed by the High Court of
Punjab and Haryana at Chandigarh in CRM-M-37140 of
2017 rejecting his application for anticipatory bail.
The High Court took note of the fact that the
appellant was an accused in FIR No. 0053, dated
11.06.2017 under Sections 22 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (in
short, “the NDPS Act”), registered at Police Station
Bhadson, District Patiala. Though it was argued that
a coordinate Bench of the High Court had granted
anticipatory bail to the co-accused, namely, Beant
Singh and Gurwinder Singh, who are brothers of the
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appellant, as per order dated 21.09.2017, the learned
Judge was not inclined to accept the contention since
there was no question of parity as far as the bail is
concerned and in view of the fact that the Coordinate
Bench had not taken note of the limitations under
Section 37 of the NDPS Act. In our view, the learned
Judge is perfectly right in his approach and in
declining the protection under Section 438 of the
Code of Criminal Procedure, 1973 (in short “Cr.P.C.”)
3. Section 37 of the NDPS Act reads as follows :-
“Offences 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.
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(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.]” (Emphasis supplied)
4. Under Section 37 of the NDPS Act, when a person
is accused of an offence punishable under Section 19
or 24 or 27A and also for offences involving
commercial quantity, he shall not be released on bail
unless the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and in case a Public Prosecutor opposes the
application, the court must be satisfied that there
are reasonable grounds for believing that the person
is not guilty of the alleged offence and that he is
not likely to commit any offence while on bail.
Materials on record are to be seen and the
antecedents of the accused is to be examined to enter
such a satisfaction. These limitations are in
addition to those prescribed under the Cr.P.C or any
other law in force on the grant of bail. In view of
the seriousness of the offence, the law makers have
consciously put such stringent restrictions on the
discretion available to the court while considering
application for release of a person on bail. It is
unfortunate that the provision has not been noticed
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by the High Court. And it is more unfortunate that
the same has not been brought to the notice of the
Court.
5. Having thus noticed that apparently a wrong order
has been passed by the coordinate Bench of the High
Court, this Court, by order dated 22.11.2017,
directed the State to verify whether any steps have
been taken for challenging the orders granting
anticipatory bail to the co-accused.
6. The matter was adjourned to 15.12.2017 and
thereafter to 17.01.2018, and noticing that still no
steps had been taken by the State of Punjab for
challenging the apparently wrong order passed by the
High Court in respect of Beant Singh and Gurwinder
Singh, this Court passed the following order on
18.01.2018 :-
“Seeking, among other things, parity the
petitioner has sought for anticipatory
bail. Noticing the anticipatory bail
granted in an NDPS case to the
co-accused, this Court by order dated
22.11.2017, while issuing notice passed
the following order:-
“Issue notice, returnable in
three weeks.
In the meantime, the
respondent-State is directed to
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clarify as to whether any steps
have been taken for challenging
the orders granting anticipatory
bail to the co-accused in the
same case.”
It is also relevant to note that in the
impugned order dated 4.10.2017 the
learned Judge has noted that the
coordinate Bench which granted
anticipatory bail to the co-accused has
omitted to take note of Section 37 of
NDPS Act, 1985.
Thereafter, the matter was posted on
15.12.2017 and the counsel sought three
weeks' time to file counter affidavit,
which was granted.
Today, learned counsel for the
respondent/State submits that the
counter affidavit is ready and the same
may be permitted to be filed during the
course of the week.
Permission is granted.
At paragraph 6 of the counter affidavit
it is stated “... no decision for
challenging the order dated 21.09.2017,
whereby anticipatory bail was granted to
co-accused, namely, Beant Singh and
Gurwinder Singh has been taken by the
Government”.
Learned counsel for the respondent/State
submits that the process takes some
time, since the file has to pass through
many hands.
We direct the Secretary (Law) or the
Secretary concerned in the Government
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dealing with the matters regarding
sanction to be present before this Court
with the records pertaining to the
sanction for cancellation of the bail
granted to the co-accused by order dated
21.09.2017, on the next date of hearing.
Post on 07.02.2018.”
7. Thereafter, the matter was adjourned to
07.02.2018. Incorporating the order dated 18.01.2018,
this Court passed a further order, which reads as
follows :-
“Today, Mr. N.S. Kalsi, Additional Chief
Secretary, Home Affairs and Justice,
along with Superintendent of Police,
Patiala and the other police officers
concerned are present in Court.
It is reported that the matter came to
the notice of the Additional Chief
Secretary, Home Affairs and Justice,
only on 25.01.2018 and within a week
steps have been taken to file a special
leave petition and the same has been
filed.
We direct the Additional Chief
Secretary, Home Affairs and Justice, to
conduct an appropriate inquiry as to who
are the officials/officers involved in
taking such a lackadaisical attitude
despite the High Court in the impugned
order pointing out that the order
granting bail to the co-accused was not
proper.
Needless to say that the Report shall
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contain names of the officers who,
despite three postings before this
Court, were not vigilant in not
bringing up the matter before the
Government. The Report, as above, shall
be filed within four weeks from today.
Post after four weeks.
The presence of the officers is
dispensed with until further orders.”
8. Thereafter, it appears the State became alert and
steps have been taken to challenge the anticipatory
bail granted to Beant Singh and Gurwinder Singh and
that is the subject matter of Crl. Appeal No. 463 of
2018.
9. The State has referred to in detail, the decision
of the Punjab and Haryana High Court in Vinod Kumar
vs. State of Punjab, reported in (2013) 1 RCR
(Criminal) 428 regarding drug addiction and its ill
effects in society. Thus, it is not as if the State
was not aware of the grave situation in the State of
Punjab. Yet, it is disturbing to note that the
prosecution has been lackadaisical in their approach
in not taking vigilant measures.
10. The learned counsel appearing for the accused
submits that pursuant to the order passed by the High
Court, they had surrendered before the Sessions Court
and they were released on regular bail. The order
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dated 31.10.2017 passed by the Sessions Court has
been made available for the perusal of the Court.
The order reads as follows :-
“Challan presented today. It be checked
and registered. Copies of documents
supplied to accused Gurwinder Singh and
Beant Singh who have come present free
of costs. They also moved application
for accepting and attesting the surety
bonds as per orders of the Hon’ble High
Court dated 14.7.2017. The copy of the
order passed by Hon’ble High Court is
also enclosed herewith. The said order
has been verified from the site of the
Hon’ble High Court through Internet. In
view of the orders passed by Hon’ble
High Court, both the accused are
directed to furnish the bail bonds in
the sum of Rs. One Lac with one surety
in the like amount each. Bonds
furnished which have been accepted and
attested. Amrik Singh is lodged in
Central Jail, Patiala in this case. Let
his production warrants be issued for
7.11.2017.”
11. It may be seen that what is noted by the learned
Sessions Judge is the interim order passed by
the High Court dated 14.07.2017, which reads as
follows :-
“Learned counsel for the petitioners
submits that as per the police version,
recovery of contraband was effected from
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the bag carried by Amrik Singh father of
petitioners and petitioner-Gurwinder
Singh was alleged to be driver of the
motor cycle. The question as to whether
the petitioners were in conscious
possession of contraband, in possession
of their father, is to be seen by the
Investigating Agency before presenting
the challan.
Notice of motion for 21.09.2017.
In the meanwhile, the petitioners are
directed to surrender before the police
and join investigation within a week.
In the event of their arrest being
required, they shall be released on
interim bail till the next date, subject
to their furnishing bonds to the
satisfaction of Arresting Officer.
However, they shall abide by the terms
and conditions as envisaged under
Section 438(2)(i) to (iv) Cr.P.C.
failing which they shall loose the
benefit of interim bail allowed to
them.”
12. As a matter of fact, the main petition itself
had been disposed of by order dated 21.09.2017. The
order reads as follows :-
“The present petition has been filed
under Section 438 Code of Criminal
Procedure for grant of anticipatory bail
to the petitioners in case FIR No. 0053
dated 11.06.2017 registered for the
offences punishable under Sections 22,
29 of Narcotic Drugs and Psychotropic
10
Substances Act, 1985 at Police Station
Bhadson, District Patiala.
Heard.
Amrik Singh was arrested by the police
with contraband which included various
drugs. The allegations against the
petitioner No. 2 Gurwinder Singh is that
he had escaped from the spot after
leaving the motor cycle on which he was
travelling with his father-Amrik Singh.
The allegations against petitioner
No.1-Beant Singh is that he had been
procuring contraband and giving the same
to his father and brother for sale.
Beant Singh was not even present at the
spot when the recovery was effected.
Even after his joining the investigation
nothing has been recovered by the police
regarding allegations contained in
secret information on the basis of which
this FIR was registered. Identity of
Gurwinder Singh as a person who
allegedly ran away from the spot is a
point which call for proof during trial.
Keeping in view the above fact but
without expressing any opinion on the
merits of the case, this petition is
allowed and the order dated 14.07.2017
is made absolute till the presentation
of challan, subject to the following
terms:-
(i) that the petitioners shall make
themselves available for interrogation
by the police as and when required;
(ii) that the petitioners shall not,
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directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the
accusation against them so as to
dissuade him from disclosing such facts
to the Court or to any police officer;
(iii) that the petitioners shall not
leave India without the prior permission
of the Court.
(iv) that the petitioners will seek
regular bail on the presentation of
challan in Court, which the trial Court
will decide on the basis of evidence
collected during investigation.”
13. It is unfortunate that the Sessions Court did not
take note of the final order passed by the High
Court. The Court should have enquired as to whether
the matter had been finally disposed of, particularly
after noticing the interim order. The casual approach
adopted by the learned Sessions Judge has apparently
led to the accused being released on regular bail, on
the basis of the interim order passed by the High
Court. When the application for anticipatory bail was
the subject matter before the High Court, the accused
had no business to go and surrender before the
Sessions Court and seek regular bail on the basis of
an interim order. The learned counsel for the
accused submits that they had produced the final
order passed by the High Court dated 21.09.2017 along
with the application for regular bail.
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14. In any case, the protection under Section 438,
Cr.P.C. is available to the accused only till the
court summons the accused based on the charge sheet
(report under Section 173(2), Cr.P.C.). On such
appearance, the accused has to seek regular bail
under Section 439 Cr.P.C. and that application has to
be considered by the court on its own merits. Merely
because an accused was under the protection of
anticipatory bail granted under Section 438 Cr.P.C.
that does not mean that he is automatically entitled
to regular bail under Section 439 Cr.P.C. The
satisfaction of the court for granting protection
under Section 438 Cr.P.C. is different from the one
under Section 439 Cr.P.C. while considering regular
bail.
15. Be that as it may, the order dated 21.09.2017
passed by the High Court does not show that there is
any reference to Section 37 of the NDPS Act. The
quantity is reportedly commercial. In the facts and
circumstances of the case, the High Court could not
have and should not have passed the order under
Sections 438 or 439 Cr.P.C. without reference to
Section 37 of the NDPS Act and without entering a
finding on the required level of satisfaction in case
the Court was otherwise inclined to grant the bail.
Such a satisfaction having not being entered, the
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order dated 21.09.2017 is only to be set aside and we
do so.
16. Consequently, the order dated 31.10.2017 passed
by the Sessions Court is also set aside. All the
three accused in both these appeals are directed to
surrender before the trial court. However, we make it
clear that they are free to apply for regular bail,
in which case, the Sessions Court will consider the
matter on the merits of the application. Before
parting with the Judgment, we also painfully note
that even in the inquiry conducted pursuant to the
orders passed by this Court, there was no reference
to the regular bail granted to Beant Singh and
Gurwinder Singh and that too, on production of an
interim order passed by the High Court. Had the same
been noticed, the State would have certainly taken
steps much earlier. This is once again to remind the
police and the prosecutor that they need to show due
diligence and vigilance while dealing with the cases
under the NDPS Act.
17. We make it clear that none of the observations
made in this judgment shall have any bearing on the
trial or consideration of any application for bail at
any stage since our order is only for the purpose of
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the appeals in the matter of grant of bail.
18. With the above observations and directions, the
Crl. Appeal No. 462 of 2018 is dismissed and that of
the State i.e. Crl. Appeal No. 463 of 2018 is
allowed.
.......................J.
[ KURIAN JOSEPH ]
.......................J.
[ MOHAN M. SHANTANAGOUDAR ]
.......................J.
[ NAVIN SINHA ]
New Delhi;
March 27, 2018.
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ITEM NO.10 COURT NO.5 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8184/2017
(Arising out of impugned final judgment and order dated 04-10-2017
in CRMM No. 37140/2017 passed by the High Court Of Punjab & Haryana
At Chandigarh)
SATPAL SINGH Petitioner(s)
VERSUS
THE STATE OF PUNJAB Respondent(s)
(IA No.118588/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS)
WITH
SLP(Crl) No. 1428/2018 (II-B)
Date : 27-03-2018 These matters were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON'BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. H. P. S. Ghuman, Adv.
Mr. Devesh Kumar Tripathi, AOR
For Respondent(s) Ms. Jaspreet Gogia, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
Crl. Appeal No. 462 of 2018 is dismissed and that of the State
i.e. Crl. Appeal No. 463 of 2018 is allowed in terms of the signed
reportable Judgment.
Pending Interlocutory Applications, if any, stand disposed of.
(JAYANT KUMAR ARORA) (RENU DIWAN)
COURT MASTER ASSISTANT REGISTRAR
(Signed reportable Judgment is placed on the file)
