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:

“Having  heard  the  learned  advocate 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)