Union Of India vs Niyazuddin Sk

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2017 [@ SPECIAL LEAVE PETITION (CRL) NO. 7495 OF 2015]

UNION OF INDIA APPELLANT(S)

VERSUS

NIYAZUDDIN SK & ANR. RESPONDENT(S)

J U D G M E N T

KURIAN, J.

Leave granted.

2. The appellant is before this Court aggrieved by the

order dated 22.09.2014 releasing Respondent Nos.1 and 2 on

bail.

3. We are informed that Respondent No.2/Md. Asif Aslam is

absconding.

4. The respondents are the accused in a N.D.P.S. case

charged under Section 22/23 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'the NDPS

Act'). The consideration by the High Court in the impugned

order reads as follows:

Signature Not Verified

“Having heard the learned advocate Digitally signed by NARENDRA PRASAD Date: 2017.08.03 17:44:52 IST Reason: for the petitioners and the learned

advocate for the State and considering the

materials available in the case diary and also considering the fact that the

petitioners are in custody for last 203

days and the investigation is complete and

the chargesheet has already been submitted

and further considering the fact that the

consignment in question was validly

imported in India and the same has already

been seized, we are of the opinion that

further detention of the

accused/petitioners is not necessary.

Therefore, the accused/petitioner

no.1, namely, Niyazuddin Sk., and the

petitioner no.2, namely Md. Asif Aslam, be

released on bail upon furnishing a bond of

Rs.15,000/- (Rupees fifteen thousand) only

each with two sureties of like amount, one

of whom must be local each, to the

satisfaction of the learned Chief Judicial

Magistrate, Barasat.”

5. Shri Ranjit Kumar, learned Solicitor General, inviting

our reference to Section 37 of the NDPS Act submits that

there is no consideration by the High Court on the special

conditions referred to in Section 37 of the NDPS Act.

Section 37 reads as under:-

“37. 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.

(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.”

6. Learned counsel for the respondents submits that this

is not a case covered under Section 37 of the NDPS Act.

It is certainly a matter to be addressed by the High

Court.

7. Section 37 of the NDPS Act contains special provisions

with regard to grant of bail in respect of certain

offences enumerated under the said Section. They are :-

(1) In the case of a person accused of an

offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity.

The accusation in the present case is with regard to the

fourth factor namely, commercial quantity. Be that as it

may, once the Public Prosecutor opposes the application

for bail to a person accused of the enumerated offences

under Section 37 of the NDPS Act, in case, the court

proposes to grant bail to such a person, two conditions

are to be mandatorily satisfied in addition to the normal

requirements under the provisions of the Cr.P.C. or any

other enactment. (1) The court must be satisfied that

there are reasonable grounds for believing that the person

is not guilty of such offence; (2) that person is not

likely to commit any offence while on bail.

8. There is no such consideration with regard to the

mandatory requirements, while releasing the respondents

on bail.

9. Hence, we are satisfied that the matter needs to be

considered afresh by the High Court. The impugned order is

set aside and the matter is remitted to the High Court for

fresh consideration. It will be open to the parties to

take all available contentions before the High Court.

10. We request the High Court to refer to the contentions

of both side and pass order in accordance with law within

a period of six months from the date of receipt of a copy

of this judgment. Till orders are passed, as above, and in

view of the fact that even the charges have not been

framed so far, Respondent No.1/Niyazuddin SK shall be

released on interim bail by the High Court, till the

matter is disposed of.

11. With the above observations and directions, the appeal stands disposed of.

.......................J. [KURIAN JOSEPH]

.......................J. [R. BANUMATHI]

NEW DELHI;

JULY 28, 2017.

ITEM NO.44 COURT NO.6 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).7495/2015

(Arising out of impugned final judgment and order dated 22-09-2014 in CRM No. 10431/2014 passed by the High Court of Calcutta)

UNION OF INDIA Petitioner(s)

VERSUS

NIYAZUDDIN SK & ANR. Respondent(s)

Date : 28-07-2017 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MRS. JUSTICE R. BANUMATHI

For Petitioner(s) Mr. Ranjit Singh,SG Mr. T.C. Sharma,Adv.

Mrs. Ranjana Narayan,Adv.

Mr. B. Krishna Prasad, AOR Mr. Ritin Rai,Adv.

For Respondent(s) Ms. Rukhsana Choudhury, AOR Mr. Musharraf Hussain,Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is disposed of in terms of the signed judgment.

(NARENDRA PRASAD) (RENU DIWAN) COURT MASTER (SH) ASST. REGISTRAR

(Signed “Reportable” Judgment is placed on the file)