Date of judgement:
15th July 2021
Bench:
Justice M. Dhandapani
Parties:
Appellant – M.V.Srinivasan, Ashok Kumar, Raja Chandrasekaran.
Respondent – Bharat Choudhary
SUBJECT
The bail granted by Trial Court to the accused stating sexual enhancement drugs do not attract NDPS was quashed by the High Court of Madras as the contraband seized from their place were of commercial quantity which attracts the bar from bail under section 37 of the NDPS Act.
LEGAL PROVISIONS
- Section 37 of NDPS Act- offences to be cognizable and non bailable
- Section 8 Of NDPS Act- prohibition of certain operations
- Section 439(2) of Cr.P.C- the high court of court of session ca put back the person to custody who has been granted bail.
OVERVIEW
- The Directorate of Revenue Intelligence(DRI), Chennai, seized tablets which weighed around 90 kgs and were approx 1,37,665 in number. They were found at the following places- residence of Raja Chandrasekaran, M/s. Aviation star express, franchise of ST Courier and office of DHL Express.
- These places belonged to Raja Chandrasekaran, M.V Srinivasan, and Ashok Kumar. They agreed to the trafficking along with 4th accused (A 4). Hence, they were booked under section 8 (c) of NDPS Act.
- Further it was found that the various suppliers were from Nagpur and Rjasthan and the tablets were being sent to USA under the name of Ayurvedic medicines. There were secret codes on the package which were only understood by the receiver and sender. The contraband were Zolpidem, Alprazolam and Diazepam tablets which were sent by courier to the US.
- Apart from this, A4 confessed the involvement ofSanjeev, Prakash Kataria and Prabhakaran as the persons, who procured and supplied the drugs.”A4 used to run call centre in USA.
- In addition to the above drugs, drugs such as Addrell containing Dextraamphathamine, Oxycodeine, Acetomorphine, Tramadol, M-30 containing Tramadol + Hydrocodone HCL, M-365 containing Hydrocodone- HCL+Acetomorphine, Zolfresh, etc., werefound.”
- A4 filed an application for bail on medical grounds after which the Special Judge granted him interim bail stating that the conditions of section 37 of NDPS Act had not been fulfilled. Aggrieved by this the prosecution filed an appealbefore the Special Court against the interim bail granted.
- A4 once again filed an application for bail on basis that no psychotropic drugs were being found in his house/office. The Special Court held that the win test contemplated u/s 37 of the NDPS Act stood complied with and thus enlarged A4 on bail. Subsequently, the prosecutors filed a petition before the High Court.
- The public prosecutor stated that the bail granted to A4 is wholly erroneous. He stated that section 37 of NDPS Act provides for bar on grant of bail if the quantity of contraband is a commercial quantity.
- The learned counsel from the side of A4 submitted that the Trial Court took a look on all issues and then after analyzing gave decision of granting bail. He said that no contraband was found and hence this does not attract Section 37.
- The counsel appearing for Raja Chandrasekaran, M.V Srinivasan, and Ashok Kumar also appeared for bail but it was canceled. He stated that they genuinely believed that the parcels contained ayurvedic medicines and stated that A4 was the mastermind behind all and these 3 were only working without any knowledge.
ISSUES
- Whetherthe circumstances under which bail once granted could be cancelled by the same Court or by a higher Court?
- Whether the bail granted could be cancelled even in cases where the accused has not flouted any conditions?”
JUDGMENT ANALYSIS
- The bail granted to A4 was cancelled. The contraband was sent for test whose result showed that mostly the substance consisted of sexual enhancement tablets but some had narcotic substances present.
- The finding of trial court that the twin tests(the public prosecutor opposed bail which is first test and the second condition that the accused is not guilty of offences was not satisfied, on basis of evidence collected) was fully satisfied fell short of acceptance. The Court held that the failure of the same attracts the bar u/s 37 of the NDPS Act and, therefore, bail couldn’t be granted to A-4.
- Furthermore, the other 3 accused were not granted bail as they attracted the bar under section 37 of NDPS Act. Section 439(2) of Cr.P.C gives power to the court to cancel the bail.
- Usually, the court avoids to grant bail in such situation as it jeopardizes the personal liberty of a person but when they do so, they do it with carefulness.
- In this case, the contraband was about 1.38 lakh tablets which was way beyond the commercial quantified quantity.
- The Court held that after analyzing, it could be said that the trial court while granting bail ignored the relevant material and focused on irrelevant ones. The bail was granted on untenable grounds. The order of bail resulted in miscarriage of justice. Moreover, the accused was charged under NDPS Act which is very serious in nature and also takingnote of the gravity of the offence, the accused should not be granted the bail
Conclusion
“Bail is rule, jail is an exception” - The Supreme Courthas stated this in context to right to life and liberty under Article 21 of the Constitution. Section 439 of Cr.P.C. gives power to the courts for granting bail. Drugrelated-cases are dealt under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The law makes cultivation, consumption, abating consumption, sale or transaction of narcotic drugs and psychotropic substances listed under the NDPS Act as crime.
But the punishment for crime by law is flexible under the act of NDPS. It varies from a person being sent to rehabilitation center to jail(1 year in prison or fine).Section 37 of NDPS Act talks about granting bail to the accused person involved ina drug case.
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