Top News Headlines 4th Feb 2022: S. 37 NDPS Act: Reasonable Grounds Mean Something More Than Prima Facie Grounds

S. 37 NDPS Act: Reasonable Grounds Mean Something More Than Prima Facie Grounds: Calcutta HC

• The Calcutta HC has, in the case tilted Manik Das vs Narcotics Control Bureau has interpreted section 37 of the Narcotic Drugs And Psychotropic Substances Act and has observed that the words ‘reasonable grounds’ means something more than mere ‘prima facie’ grounds.
• In the instant case, one Sanjiv Kumar, Intelligence Officer, NCB had received information that a large quantity of ganja would be brought in a TATA Ace Gold car by Susanta Devi and Manik Chandra Das and would be unloaded in the house of Susanta and then supplied to one Asim Mirdha.
• On the basis of the above intelligence, a team of NCB Officers led by Superintendent, NCB executed the operation and arrested two suspects named Swapon Biswas and Susanta Dey. When the investigative team reached the house of Manik Das and Asim Mirdha, the latter was found in the house and upon interrogation he revealed that he was to procure the ganja through an arrangement made by Susanta Dey.
• All the seized articles were found to be ganja and the report was submitted before the Court. During investigation, Asit Karmakar and Manik Das were arrested and their statements were recorded under section 67 of the NDPS Act. The present bail application was filed by Manik Das before the Calcutta HC.
• It is important to note here that section 37 of the NDPS Act provides that the offences under the Act are cognizable and non- bailable. It also provided that bail shall not be granted to the accused under NDPS Act unless the Public Prosecutor has been given a reasonable opportunity of opposing the bail application.
• The section also provides that the Court must be satisfied that there are reasonable grounds to believe that the accused has not committed the said offence and is not likely to commit any offence while he is on bail before allowing the application.
• The HC observed that the words ‘reasonable grounds’ contemplate substantial grounds for believing that the accused has not committed the said offence. These words contemplate the existence of facts and circumstances which sufficiently justify that the accused has not committed the said offence.
• The Court also observed that in light of the seriousness of the offences that are punishable under the NDPS Act, it is seen that the power to grant bail is not just subject to the restrictions contained in section 439 of CrPC, but also the restrictions mentioned in section 37 of NDPS Act.
• It was also observed that in order to grant bail under section 37 of the NDPS Act, the court has to be satisfied of the dual conditions that the public prosecutor has had an opportunity of opposing the application and that there are reasonable grounds for believing that the accused has not committed the said offence and that he will not commit an offence while he is enlarged on bail.
• While rejecting the bail application, the Court held that the onus lies on the accused to prove that he was not in contact with the other accused persons by leading cogent evidence in this regard and to disprove the validity of the mobile phone which the NCB seeks to rely upon to prove the nexus between the applicant and the other accused in the case. This onus, according to the Court, has not been discharged by the accused.

Accused Cannot Be Discharged Under Section 245(2) CrPC Without Recording Reasons And Examining Witness: Calcutta HC

• In the case of Supratik Ghosh vs. State of West Bengal and anr. the Hon’ble Calcutta HC has held that the Magistrate, discharging an accused under section 245(2) of CrPC has to be satisfied of the fact that no case has been made out and has to record reasons for the same. Thus, he cannot discharge the accused merely on the ground that the accused has failed to show cause as to why he has not affixed his proper signature on the application.
• In the instant case, the accused had been charged with the offences under section 420 and section and 120B of IPC. The lower Court had discharged the accused under section 245(2) of CrPC on the ground that the application filed by the complainant showing cause as to his absence in Court was not signed by him.
• The complainant, aggrieved by the said order, filed revision petition before the Calcutta HC.
• The HC observed that it is a legal necessity that the Court, while discharging the accused under section 245(2) CrPC has to record the finding that no case has been made out against the accused which would warrant his conviction and the Court has to record the reasons for the said observation. No such finding had been recorded by the lower Court and it seemed to the HC that the lower Court was basing the discharge solely on the fact that the application of the petitioner was not in proper form.
• The Court also observed that a bare perusal of the impugned section would clearly show that a mere absence of the complainant would not warrant the discharge of the accused. The discharge can be ordered only after taking into consideration the evidence that had already been adduced by the prosecution.
• It was also noted by the HC that the application containing some assertions should be verified by the person making the same by affixing his signature as a matter of procedure, there is no provision which mandates the same. Hence the rejection of the case solely on this basis was highly irregular.
• Thus, the HC allowed the revision and the order of the lower Court was set aside.

Arbitral Award To Be Patently Illegal If The Arbitrator Fails To Act According To Terms Of Contract Or Ignores Specific Terms Of The Contract: Supreme Court

• The Supreme Court Bench, in the case of Indian Oil Corporation Ltd v Shree Ganesh Petroleum Rajgurunagar, has observed that an award will be patently illegal where the Arbitral Tribunal fails to act on terms of the contract or ignores the specific terms of a contract.
• Brief facts of the case are that the Appellant took a plot of land (premise) on lease for a term of 29 years from the Respondent and executed two agreements viz. a Lease Agreement and a Dealership Agreement.
• As per the terms of the contract, the Appellant was entitled to assign, transfer, sublet, underlet or part with the possession of the premise or any part thereof to any person without the consent of the Lessor.
• The terms of the lease agreement provided for dispute redressal of any nature to be referred to the sole Arbitrator of the Managing Director (MD) of the Appellant and if the MD is unable to act as the Arbitrator, the matter was to be referred to a person designated by him. It was also mutually agreed that where the MD cannot act as the Arbitrator as aforesaid, the matter shall not be referred to Arbitration.
• And as per the Dealership Agreement, any dispute was to be referred to the sole arbitrator of the Marketing Director of the Appellant, who might himself act as the Arbitrator or nominate another officer of the Appellant to act as the Arbitrator.
• The Appellant, by a letter dated 20 August 2008, called upon the Respondent to vacate the retail outlet and hand over peaceful possession thereof to the Appellant and also to settle accounts.
• The Defendant challenged the termination and the matter was referred to Arbitration. The Arbitrator held the termination of lease to be valid and the lease period was reduced from 29 years to 19 years 11 months. Further, monthly lease rent was also increased with a 10% increment clause after every 3 years.
• The Issue before the Court was whether adjudication of dispute under the Lease Agreement was beyond the jurisdiction of the Arbitrator.
• The Supreme Court Bench held that Arbitration award, to the extent of the lease rent and period, was patently beyond the scope of the Arbitrator appointed in terms of the Dealership Agreement.
• The Bench held that Arbitration Tribunal is a creature of Contract and an award is patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract.
• The Bench further noted that an error in interpreting the contractual terms where there is a valid and lawful submission of the disputes is an error within the jurisdiction of the Arbitral Tribunal.
• The Bench further noted that the Court does not sit in appeal in case of an award made by a Tribunal with regards to interpretation of a contractual terms unless such interpretation is unreasonable or perverse.
• In cases of contractual provisions being ambiguous or capable of being interpreted in more than one way, Courts cannot interfere with the Arbitral Award only because it is of the opinion that better alternate interpretation could have been possible.
• The Court held that the Arbitral award ignoring the terms of a contract in relation to the lease rent and lease term is in patent disregard of the terms of the Agreement between the parties and thus, against public policy.
• Lastly, the court also observed that the role of an Arbitrator is to arbitrate in terms of the contract and he has no separate power apart from the power under the contract. Any award beyond the terms of the contract will be beyond the scope of his jurisdiction.
• An Arbitral Tribunal is not a court of law and thus cannot exercise powers ex debito justitiae (as a matter of right)