*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+CRIMINAL REVISION CASE No.1506 of 2014
% Dated 15.09.2014
Between:
# Intelligence Officer, Narcotics Control Bureau
Hyderabad Sub-Zone ...Revision
Petitioner
and
$ M.Shivakumar @ Raju,
….Respondent ! Counsel for the Revision Petitioner : Sri Gopalakrishna Gokhaley Spl.Public Prosecutor ^ Counsel for respondent : Sri M.Suresh Shiv Sagar < GIST : ---
>HEAD NOTE : ---
? Cases referred:
1. 2001 Crl.L.J.4250
2. AIR 1977 SC 2185=(1977) 4 SCC 137
3. (1977) 4 SCC 551
4. Crl.A.No.814 of 2013
5. 1980(1) SCC 43
6. 1983(1) SCC 1
7. AIR 1961 SC 218
8. AIR 1962 SC 527
9. 2006(3) SCC-245 at paras-30&31 page-260.
10. 1976-1-SCR-803
11. 2003(8) SCC-648 at paras-27&28 page-664.
12. 2008(13) SCC 584
13. 2000(2) ALT Crl.98
14. AIR 2011 SC 1137
15. AIR 1966 Allahabad 84
16. ILR 5 Allahabad 163
17. (AIR 2011 SC 312=2011(1) SC 694
18. (2009) 14 SCC 286
19. 2012(13) SCC 720
20. 1995(1) SCC 349
21. 2008(5) SCC 66
22. 2005(2) SCC 42
23. 1978(1) SCC 118
24. AIR 1967 SC 1639
25. AIR 1958 SC 376
26. (1980) 2 SCC 565
27. AIR 2005 SC 3490
28. (2003 SCC 409)
29. (2001) Crl. L.J. 117 SC
30. 2003 SCC Crl.1664
31. 2002 SCC Crl.1769
32. LAWS SC 2008-7-158
33. AIR 2009 SC 1357
34. AIR 1993 SC 1
35. 2000(1) ALD 404 SC
36. Crl.A.No.1868 of 2013, dated 28.10.2013
37. 1999(6) SCC 172
38. 2005(4) SCC 350
39. 2014(5) SCC 345
40. AIR 2011 SC 2699
41. AIR 2011 SC 1939
42. 2013(1) ALD Crl.748 SC
43. 2009(2) ALD Crl. 822 SC
44. 2013(1) ALT Crl.385 SC
45. 2011(1) SCC 609
46. 2009 (8) SCC 539
47. 1990(2) SCC 409
48. 2008(4) SCC 668
49. 1966(3) SCC 698
50. 1964(2)SCR 752
51. 1962(3) SCR 338
52. 2013 Law Suit (SC) 941
53. 2013(2) DCR Crl.280(SC)
54. 1994(6) SCC 731
55. 2001(2) SCC 566
56. 2001(2) SCC 562
57. 2001(7) SCC 672
58. 2001(7) SCC 677
59. 2007(7)SCC 798
60. 2009 Crl.L.J.3043(SC)
61. 2009(1) SCC 482
62. 2009(2) SCC 624
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1506 of 2014
ORDER:
The Complainant-Intelligence Officer of Narcotics Control Bureau, Hyderabad, Sub Zone filed the petition originally under Section 439(2) of Cr.P.C. read with 37 of the Narcotic Drugs and Psychotropic Substances Act,1985 amended by Act 9 of 2001(for short, ‘the NDPS Act’) with a prayer to cancel the bail order granted to the respondent/A.1 in Case No.NCB F.No.48/1/2/2013/NCB/Sub Zone, Hyderabad and to set aside the order granting bail passed by the learned in charge Metropolitan Judge, Ranga Reddy district at L.B.Nagar in Crl.M.P.No.1091of 2014,dated 20.05.2014, in the interest of justice and order for remanding the respondent/A.1 to judicial custody.
2. It appears from the office objection taken on maintainability of the application under Section 439(2) of Cr.P.C. from the earlier filed application under Section 437(5) of Cr.P.C. read with 37 of the NDPS Act before the learned Metropolitan Sessions Judge, Cyberabad, at L.B.Nagar, in Crl.P.No.239 of 2014 against the order granting bail in the above referred Crl.M.P.No.1091 of 2014, that was ended in dismissal, thereby mentioned the provision of law as Sections 397 and 401 of Cr.P.C. as a revision impugning the same on the grounds that the judgment of the learned Judge is illegal, improper and incorrect and contrary to the rules of the criminal jurisprudence and the provisions of the NDPS Act, that the learned Judge erred in allowing the petition in Crl.M.P.No.1091 of 2014 granting bail without following the mandatory provisions of Section 37 of the NDPS Act, in as much as, the respondent(A.1) could not rebut the presumption in terms of Section 35 of the NDPS Act, that the learned Judge should have seen that the ingredients that constitute said offence are made out by the prosecution in as much as the conduct of the respondent(A.1) clearly established that he contravened the provisions of the NDPS Act, that the learned Judge ought not to have passed the order without appreciating the ingredients and nature of the contraband which is Methamphetamine which is psychotropic drug in terms of Section 2 of the NDPS Act, that the learned Judge ought to have seen that genuineness of the panchanama be concluded at the stage of trial and finding given in respect of panchanama at the stage of hearing the bail application is illegal and having regard to the above the grant of bail is illegal and unsustainable as against the provisions of the NDPS Act and Rules of criminal jurisprudence, hence, prayed to set aside the order granting bail.
3. In fact, from the above grounds it is crystal clear of seeking cancellation of bail by attacking correctness and legality of the order granting bail and it is not by way of revision to sit against the dismissal application in Crl.M.P.No.239 of 2014 by the learned Metropolitan Sessions Judge, of the bail cancellation application sought against grant of bail in Crl.M.P.No.1091 of 2014 for clarity sake. As the original Petition filed under Section 439(2) Cr.P.C. dated 23.06.2014 while keeping in file from the objection of the registry along with it fresh application as revision to comply with the objection of the registry filed on 21.07.2014 which reads that the prayer is seeking the cancellation of bail to say the relevant provision is Section 439(2) of Cr.P.C. from the prayer sought.
4. The respondent(A.1) to the bail cancellation petition herein, opposed the petition not only on the maintainability as a revision against the order granting bail or dismissal of the application for cancellation of bail but also on drawing attention of the Court to several minute facts of the case including from the panchanamas in saying there is no material to say the accused is likely to be convicted from facing trial and the bar under Section 37(1)(b) of the NDPS Act has no application and the learned Sessions judge was right in granting bail in Crl.M.P.No.1091 of 2014 and the order no way requires interference much less to cancel by sitting against by this Court even from the prayer to cancel or set aside the bail order.
5. Heard both the parties and perused the material on record. In the course of submission of the respective arguments at length, both parties drawn attention of the Court to several expressions particularly of the Apex Court in relation to the respective contentions and instead of reproducing by making the order bulky and to avoid repetition, those are to be dealt with contextually from the relevancy.
6. Now the points that arise for consideration are:-
1) Whether the proceedings originally filed as application for cancellation of bail and from the registry taken objection, by keeping the application on the file as an attachment to it as a revision in the prayer seeking to allow the same by setting aside the bail order in Crl.M.P.No.1091 of 2014 20.05.2014 granted by the learned Metropolitan Sessions Judge, Cyberabad, is not maintainable either under Section 397 read with 401 of Cr.P.C. or even under Section 439(2) of Cr.P.C. from earlier application moved by the complainant-prosecution agency under Section 437(5) Cr.P.C. read with Section 37 of the NDPS Act, in Crl.M.P.No.239 of2014 for cancellation of the bail order granted in Crl.M.P.No.1091 of 2014 since ended in dismissal and even otherwise on merits no grounds to interfere by this Court with said order granting bail and if so, with what observations in relation to the facts and propositions of law?
2) To what result?
Point No.1:
7-A. A revision application before the High Court under Section 397 read with 401 of Cr.P.C. against the order granting or refusing or cancelling bail since interlocutory in nature is not maintainable practically by virtue of the bar under Section 397(2) of Cr.P.C. No doubt, the Apex Court in M/s Bhaskar Industries Limited Vs M/s Bhivani denim and
[1]
apparels held that what is interlocutory in nature and what is not is not to decide from mere look of the order but consequent on its result. The Apex Court (two Judge Bench) earlier to it in Amarnath Vs. State of Haryana [2] , observed that orders summoning witnesses, adjourning the cases, passing orders for bail, calling for report and such other steps in aid of pending criminal proceedings may no doubt amount to interlocutory orders. Referring to the expression of Amarnath(supra), the Apex Court [3] three judge bench in Madhu Limaye Vs State of Maharashtra observed that orders purely interim or temporary in nature which do not decide important rights or liabilities of the parties can be termed as interlocutory orders; whereas, the orders which substantially effects the rights of the parties cannot be said to be interlocutory in nature. The three Judge Bench expression in Madhu Limaye(supra) somewhat deviated from the two judge Bench expression in Amaranath(supra) in saying even the order is interlocutory, when the order substantially effects the rights of the parties, it cannot be said to be interlocutory in nature and further that even the order is interlocutory in nature with a bar for maintainability of revision against it under Section 397(2) of Cr.P.C., if the impugned order clearly brings about a situation which is an abuse of process of the Court or to set aside the same for the purpose of securing the ends of justice or interference with the impugned order by the High Court is absolutely necessary which are within the meaning of Section 561-A(old)-482(new) of Cr.P.C.; then nothing in Section 397 Cr.P.C. can limit or effect the exercise of the inherent powers of the High Court in such cases. Even the expression relied on by the respondent/A.1 of Mohit @ [4] Sonu Vs. State of U.P. of two judge Bench expression of the Apex Court dated 01.07.2013 did not lay down any different proposition, apart from the facts of the case relates to summoning of the above appellants Mohit and others as additional accused under Section 319 Cr.P.C. and the expression did not answer whether the same is interlocutory in nature or not by left open and remanding the matter to the trial Court for fresh disposal, from the revision allowed by the High Court without notice before hearing to accused under Section 401 Cr.P.C.
7-B. In Mohit @ Sonu(supra) the Apex Court referred the settled expression of Madhu Limaye(supra) besides the expression earlier to it in Amarnath(supra) saying the orders which are not purely interlocutory in nature and which could be corrected in exercise of revisional power, the High Court would refuse to exercise inherent power; but where if revision is not maintainable, to exercise inherent power the order clearly brings a situation of abuse of process of the Court or for securing ends of justice or interference is absolutely necessary. It also referred Rajkumar Vs. State[5] in distinguishing the power of revision and inherent power of the High Court in holding that none of the Cr.P.C. provisions will affect the amplitude of the inherent power reserved in the High Court by Section 482 of Cr.P.C. but for inherent power should not invade the area set apart for specific power under a specific provision of the Code. It also held referring to Municipal Corporation of Delhi Vs. Ramakishan [6] Rahatagi which relied upon Madhu Limaye three judge Bench expression supra, saying on the question whether, where a power is exercised under Section 397 Cr.P.C., the High Court could exercise those powers under Section 482 Cr.P.C.; that the matter is however no longer res-integra as the entire controversy has been set at rest by Madhu Limaye(supra)-where it was pointed out that Section 482 Cr.P.C. had a different parameter to exercise the inherent power to pass necessary orders and is a provision independent of Section 397(2) Cr.P.C. to exercise revisional powers; a plain reading of Section 482 Cr.P.C. follow that, nothing in the Code (which include Section 397(2) Cr.P.C. also), shall be deemed to limit or affect the inherent powers of the High Court but for to say the order brings about a situation which is an abuse of process of the Court or for the purpose of securing the ends of justice or interference by the High Court is absolutely necessary for exercise of the inherent power sparingly to say in such a situation. It also observed that the High Court alone can pass such orders ex debito justitiae- to do real and substantial justice in the lis. It was also observed referring to Section 151 C.P.C. and the earlier expressions of the Apex Court in Padamsen Vs. State of Uttar
[7] [8]
Pradesh & Manoharlal Chopra Vs. Rai Bahadur that it is well recognized that the High Court is vested with inherent power, however, said inherent power is not to be exercised contrary to any express provision that being the intention of legislature in enacting the civil & criminal procedure codes vis-a-vis the law laid down by the Apex Court.
7-C. It was also held by the Apex Court in Popular Muthaiah Vs State
[9]
rep. by Inspector of police that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties and it can be exercised in respect of even incidental or supplemental power irrespective of nature of proceedings; as it acts ex debito justitiae-to mean to do real and substantial justice in the lis for which alone the power exists inherently. The Apex Court in Popular Muthaiah(supra) referred the earlier expressions in 1) Nawabganj Sugar Mills
[10]
Vs. Union of India holding that, though there are limitations on the powers of the Court, it cannot abandon its inherent powers. The inherent power has its roots in necessity and its breadth is coextensive with the necessity and in
[11]
2) South Eastern Coal Fields Ltd. Vs State of M.P. holding that act of court does not confine to act of primary court, but even appellate or revisional or other superior court as it is an act of court as a whole. In Popular Muthaiah(supra) it is also held referring to the scope of the Maxim actus curiae neminem gravabit-t hat this principle is not confined to erroneous act of court, but is applicable to all acts which the court would not have passed if correctly appraised of the facts and the law.
7-D. Coming to other contention on maintainability under 439(2)Cr.P.C. also concerned; the three judge Bench expression of the [12] Apex Court in Narendra K.Amin Vs. State of Gujarat held in categorical terms that the cancellation of bail parameters are different to the grant of bail, though it is loosely observed as appeal against a bail order, practically under Cr.P.C. even there is no appeal remedy against grant of bail for cancellation but for invoking section 439(2) Cr.P.C. and the expression appeal used in the sense that it can be moved the higher Court for cancellation. It is to say the Court has to treat the application even filed either as appeal or revision only under Section 439(2) Cr.P.C. Thus, bail cancellation application is maintainable under Section 439(2) Cr.P.C. It did not lay any distinction between even application for cancellation filed and went unsuccessful before Court of Session/trial Court, again not maintainable before High Court under Section 439(2) Cr.P.C. Further, this Court in Kodiripaka Praveen Kumar Vs. State of [13] AP held that the revision since not maintainable against Sessions Judge’s order cancelling bail already granted, before High Court from the bar under Section 397(2) Cr.P.C., it was modified in passing the order under Section 439 Cr.P.C. It is to say from the above expressions that even as revision filed impugning bail order or cancellation order, the same shall be disposed of by converting or treating as an application for cancellation under Section 439 Cr.P.C. It is also for the reason that it is not the form or the provision but the substance that is criteria and procedural law is handmaid but not mistress of justice and Court is no way prevented from wrong provision to treat with correct provision if there is substance in the application of the correct provision in the matter on record. It is also in this juncture to mention the expression of the Apex [14] Court in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra relying upon the Full Bench expression of Allahabad High Court in [15] Rajnarayana Saxena Vs. Bhimsen which relied upon the earlier Full Bench expression of the Allahabad High Court in Narsing Das Vs. [16] Mangal Dubey holding that the Courts have to act upon the positive principle that every procedure is permissible till it is shown to be prohibited and prohibition as a general principle cannot be presumed. Thus, from the above even the bail cancellation application before the Court of Sessions dismissed again filing application for cancellation of bail before the High Court not barred under Section 439(2) Cr.P.C., apart from power of the court to convert the revision as application under Section 439(2) Cr.P.C. Now from the above, the order granting bail if unsustainable and even it does not prone for sitting against in revision, it can be converted in its entertaining as application under Section 439(2) Cr.P.C. and otherwise even can be interfered by invoking the inherent power of this Court under Section 482 Cr.P.C. from the expressions referred supra to sub-serve the ends of justice or to prevent abuse of process of Court or otherwise being absolutely necessary to cancel the bail order, but for to say the scope of Section 439(2) Cr.P.C. is large when compared to the scope of Section 482 Cr.P.C.
7-E. It is from the above before discussing further on the factual matrix, coming to the scope regarding cancellation of bail:
7-E(i). The Apex Court in Siddharam Satlingappa Mhetre Vs.
[17] State of Maharashtra held that the Courts are equally empowered like in granting or refusal of bail also in cancellation of bail by exercising the judicial discretion vested statutory.
7-E(ii). The two judge bench expression of Apex Court in Masroor [18] Vs. State of Uttar Pradesh observed that the grant of bail without recording reasons is impermissible equally in failure to consider the relevant factors like nature of offence, evidence collected by prosecution, circumstances under which offence committed and giving reasons is different from discussing merits and demerits and for such granting that deserves cancellation of bail under Section 439(2) of Cr.P.C. it also observed that liberty of the individual and interest of society in general has to be balanced in grant or refusal with reasons. On facts held the failure to indicate reasons for grant of bail of the accusation is serious in nature makes the order indefensible in holding committed manifest error in such granting that warrants interference for revocation of the bail.
7-E(iii). In Padmakar Tukaram Bhavnagare Vs. State of [19] Maharashtra two judge bench expression of the Apex Court held that grounds for cancellation of bail are no doubt interference with due course of justice against the concession of bail but to cancel such bail order it must be perverse outcome without application of mind and without consideration of the relevant material. It also held that perverse to mean order passed ignoring material on record or by taking consideration of irrelevant material and such vulnerable order granting bail must be quashed and for that conclusion placed reliance upon Dolat Ram Vs.
State of Haryana [20] [21] and Dinesh MN Vs. State of Gujarat 7-E(iv). In Narendra K.Amin (supra) it was observed at para-16 that the Court in entertaining the application for cancellation of bail cannot re-appreciate the evidence generally. It was also observed that against the order granting bail even a superior Court can be moved for cancellation under Section 439(2) of Cr.P.C.
7-E(v). It was also observed in para-21 of Narendra K.Amin(supra) referring to Kalyan Chandra Sarkar Vs. Rajeshranjan @ Pappu [22] Yadav that though elaborate appreciation of the merits of the matter need not be undertaken, there is a need to indicate reasons in the order about prima facie conclusion for grant or refusal or for cancellation of bail. It was observed at para-23 of Narendra K.Amin(supra) that the Court dealing with any application for cancellation of bail is invariably under Section 439(2) of Cr.P.C. where it can consider by the re-appreciation of the material only to the extent whether irrelevant material was taken into consideration or relevant material was not taken into consideration in granting bail.
7-E(vi). It was also observed in para-24 of Narendra [23] K.Amin(supra) referring to Koran Vs. Rama Vilas that concept of cancellation by setting aside an unjustified or perverse order granting bail is different from cancellation of bail on the misconduct of accused after grant of bail concession. Having regard to the subsequent conduct of the accused relevant concerned is only if the bail order seeking cancellation sought for from any interference with witnesses or possibility of fleeing away from justice or tampering of prosecution evidence, but not where the very order granting bail is impugned and found unjust either by non- consideration of relevant material and the provisions or by consideration of irrelevant material and provisions that prone to cancellation. Thus, from the above propositions of law it is clear on the permissibility of cancellation of bail from the impugned order granting bail is found unjust.
Therefrom, application under Section 439(2) of Cr.P.C. for cancellation of the bail can be maintained if impugned order granting bail is unjust.
7-E(vii). In the case on hand, irrespective of the application filed herein under Section 439(2) of Cr.P.C. for cancellation of the bail, it is from the objection of the registry, represented with additional material by mentioned as a revision under Section 397(2) read with 401 of Cr.P.C. On reading of Section 439(2) of Cr.P.C. of the power of the High Court to cancel the bail thereunder, it no way interdicts even such application once filed and ended in dismissal before the Court of Sessions or before the trial Court other than the Court of Sessions, to maintain against said impugned order granting bail, a fresh application before the High Court as discussed supra. It is also opt to refer in this regard the expression of the Apex Court in Kalyan Chandra Sarkar(supra) of the well laid down principle that order granting or refusing bail is not a bar for fresh application to maintain under the principle of resjudicata and as such fresh application is maintainable but for on worth circumstances showing. From that analogy and from the law laid down in the expressions supra including Madhu Limaye(surpa) of the same are interlocutory in nature and there is no resjudicata and as such successive applications for cancellation of bail even maintainable under Section 439(2) Cr.P.C. Apart from it, even revision is not maintainable, the Court, if the case falls within the conditions contemplated by Section 439(2) Cr.P.C. as per the expressions referred supra, treat the pending application even referred as revision as an application under Section 482 of Cr.P.C.
7-E(viii). Having regard to the above, the contention against maintainability of the petition under Section 439(2) of Cr.P.C. won’t lie and has no legs to stand, leave about the same or even filed as a revision, once it comes within the four corners of Section 439(2) or Section 482 of Cr.P.C. can be entertained, even by conversion or treating as such. It is also as per the well laid down expression of the Apex Court five judge Bench way back in Ratilal Bhanji Mithani Vs. Assistant [24] Collector of Customs, Bombay referring to the earlier three judge bench expression in Talab Haji Hussain Vs. Madhukar Purshottam [25] Mondkar that the High Court is having the inherent power under Section 561-A(old) 482(new) Cr.P.C. to cancel bail granted to a person even in a bailable offence, where such an order is necessary to secure the end of justice or to prevent abuse of process of Court as this power is always preserved to the High Court under the Code. It was also observed that the inherent power of the High Court is not conferred by Cr.P.C. but for to say the power which inheres in the High Court no way limited or effected for its exercise by High Court by the provisions of Cr.P.C. and ultimately at para-11 observed that the High Court cancelled the previous bail orders as it found that the appellant is intimating witness in the factual matrix of that case and even the same challenged in the appeal in the Apex Court, the Apex Court while sitting in appeal not chosen to re- examine the findings of the fact under Article 136 of the Constitution of India and thereby not chosen to interfere in upholding order cancelling the bail however with observation that the accused, if facts permit, may move for fresh bail to decide on own merits. It is to say, cancellation of bail is no way even a bar to the maintainability of another bail application seeking bail if there are changed circumstances or factual matrix in support of it that should be shown.
7-E(ix). In fact, the Apex Court in Siddharam Satlingappa Mhetre(supra) referring to the constitutional Bench expression of the [26] Apex Court in Gurubaksh Singh Sibbia Vs. State of Maharashtra observed that the grant or refusal or even cancellation of bail is the judicial discretion to be exercised with circumspection but for to say blanket orders should not be passed and orders won’t sustain without reasons. It was also observed the considerations in this regard from the crime is against society that:-
“3. The society has a vital interest in grant of refusal of bail
because every criminal offence is the offence against the State. The order granting or refusing bal must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime wile on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. Just as the Liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order, Both are equally important.......
103. It is settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time.
8-A. From the above, with reference to the cases detailed supra, coming to the impugned order granting bail to the respondent/A.1 in the above crime the gist of which reads as follows:-
8-A(i). From the above order granting bail by the in charge Metropolitan Sessions Judge, dated 20.05.2014 what was contended on behalf of the accused by the learned counsel for seeking bail reflected in paras-3 and 5 supra is, respondent/A.1 herein alleged as not committed any offence and he is in judicial custody since 29.11.2013 i.e. for 173 days though unlike under Section 167 of Cr.P.C. of 90 days maximum remand period; under the NDPS Act, the maximum remand period is 180 days (subject to extension) and it is contended by the accused that the manufacturer of the alleged drug is A.5 and A.5 was enlarged on bail by the order of the Hon’ble High Court and the respondent/A.1 was not even found in physical position of the alleged drug to keep him behind the bars without bail. Whereas, the learned Special Public Prosecutor in support of the counter filed contended that investigation is in progress, the laboratory reports are to be received and not a fit case to grant bail and the Court has to consider the provisions of the NDPS Act, while granting bail particularly when there is a prima facie case. It was therefrom observed that a room of the lodge in which the alleged drug was found is 5kgs. and add that was booked in the name of A.2 and A.3 and no material to show the respondent/A.1 in occupation of the room at the time of occurrence and except his confessional statement and panchanama which was prepared by the officials, there is no other record about the presence of A.1 at the time of alleged raid upon the room in contending the A.1’s presence at the time of the alleged seizure is doubtful and one of the panch witnesses though resident of Chantal, Hyderabad, the other is of Adilabad and by securing the panchas, the raid was conducted in the room of the Vishnupriya lodge, near Kukatpalli bus stop where the accused persons 1 to 3 were present in the room of the lodge while in possession of the contraband in question though none of the locality residents summoned but for setting up own panchas for seizure of the alleged drug Methamphetamine; whereas on chemical analysis it is found as Amphetamine and the order of the High Court granting bail to the A.5 in Crl.P.No.2204 of 2014 dated 03.03.2014 when read shows the A.1 also more or less stands on the same footing to A5 and as can be seen from the material on record investigation is completed mostly but for filing charge sheet and as A.5 already granted bail though he is manufacturer of the drug in dispute and thereby granted bail on personal bond of Rs.50,000/- with two sureties for like sum each to the satisfaction of IX Metropolitan Magistrate, Cyberabad at Miyapur and after release to appear before the Station House Officer, NCB, Hyderabad, on every Monday, Wednesday and Friday till filing of charge sheet between 9.00 A.M. to 6.00 P.M.
8-A(ii). On perusal of the above order now impugned, it no way shows consideration relevant aspects like Section 35, 54 or any of the provisions of the NDPS Act and any application of mind of the Court before granting bail to the rigour of Section 37(1)b) of the NDPS Act. None of the provisions of the NDPS Act were discussed or considered but for influenced by the order granting bail to A.5 by the Hon’ble High Court(another bench) in saying A.5 granted bail already and A.1 is also on the same footing with A.5 to say mainly influenced by that order and not otherwise as but for that, the trial Court should not have chosen to grant from the very tenor of the order supra. It has infact taken irrelevant considerations in its saying the accused is in judicial custody for about 173 days and investigation mostly completed, though those are not at all the considerations as laid down by the three judge bench expression Narendra K. Amin at para-22 in its saying mere fact that accused has undergone certain period of incarceration by itself would not entitle him to be enlarged on bail, nor the fact that the file is not likely to be concluded in near future, when the gravity of offence is severe and there are allegations against the accused of possibility of interfering with witnesses and the like. In this case hand, the offence involving is commercial quantity of psychotropic substance with severe punishment and penalty and same the trial Court did not advert to.
8-A(iii). It is subsequently even the complainant NCB-Intelligence Officer filed the Crl.M.P.No.239 of 2014 under Section 437(5) Cr.P.C. read with 37 of the NDPS Act to cancel said bail order and on 12.06.2014 the same was ended in dismissal without deciding on merits by the order of the learned Sessions Judge saying - if the complainant/NCB officials feel that there is violation of the mandatory provisions of the Section 37 of the NDPS Act, they are expected to file revision against the order granting bail to A.1 in Crl.P.No.1091 of 2014 thereby the application for cancellation of bail cannot be considered in its dismissal. In so dismissing under a wrong premise of only a revision remedy available against the order granting bail by the Court of Sessions to the High Court and not to move the Sessions Court which granted the bail for cancellation, further observed in saying as if no jurisdiction as if that only the post-bail conduct of the accused alone criteria, that there is no complaint from the NCB officials that A.1 has violated any of the conditions of the bail and thereby held Court cannot sit as appeal or revision Court to decide whether grant of bail to A.1 is proper or not since granted by the same Court and has generally Courts are supposed to be jealous in cancelling the bail unless there is compliant of violation of the conditions like interference with investigation or influencing the witnesses or trying to leave jurisdiction of Court and if the complainant/NCB officials feel that there is violation of the mandatory provisions of the Section 37 of the NDPS Act, they are expected to file in High Court revision against the order granting bail to A.1 in Crl.P.No.1091 of 2014 thereby the application for cancellation of bail cannot be considered.
8-A(iv). Said order is basically unsustainable and in ignorance of the legal parameters, though very Section 439(2) Cr.P.C. enables cancellation of bail by the Court which granted it within the judicial discretion based on facts. In fact, for said unsustainable conclusion of not maintainability in dismissal for alleged want of jurisdiction even went into discussion of the facts as follows:- It is on specific information to NCB of Methamphetamine being delivered to A.1 by A.2 and A.3 at about 4.00 P.M. on 26.11.2013 at Vishnupriya lodge in Room No.304, the NCB officials entered the room with the mediators and even the accused persons 1 to 3 there also confessed that Methamphetamine was kept in Rexene bag being handed over to A.2 and A.3 there by the A.1 and the substance found to be Amphetamine to a tune of 5.225kgs, that was seized and after drawn samples duly sealed under cover of panchanama and the officials later raided there after midnight at 1.00 A.M. in the early hours on 27.11.2014, the Balaji laboratories, Subash Nagar, Zeedimetla where A.4 to A.6 found and seized therefrom of 5.7kgs contraband and the same after collection of samples duly sealed besides cash of Rs.15,00,000/- in the presence of the mediators and effected arrest of the accused persons 1 to 6 respectively and that contraband is also Amphetamine when tested at the laboratory and A.6 in judicial custody, whereas, A.1 granted bail which is now sought for cancellation saying that should not have been granted to A.1-the prime accused in possession of more than commercial quantity and there is nothing to say no reasonable grounds to believe that he has not committed the offence to the entitlement of the bail and the High Court already dismissed the bail application of A.2 and A.3 in Crl.M.P.No.4145 of 2014 dated 29.04.2014 saying any attack on the mediators reports and truth of which should be decided only during trial and it is now premature to go into for bail and the bail order obtained by the A.5 from the High Court sought for cancellation in Crl.M.P.No.4795 of 2014 and without even considering the orders passed subsequently by the High court dismissing the bail application of A.2 and A.3 supra and that too, that Section 50 of the NDPS Act has no application for no personal search involved and whether it is Amphetamine or Methamphetamine makes no difference as both are the psychotropic substances as defined under the NDPS Act, and the contraband seized from possession of the A.1 is commercial quantity as per the submission by the learned special Public Prosecutor. Whereas, the A.1 opposed application for cancellation of bail contending that grant or refusal of the bail is on one footing; whereas the cancellation of bail is completely on different footing and from the investigation completed and final report filed as complaint, at the stage no need to keep the accused in jail pending trial. From the rival contentions it was observed that Section 37 of the NDPS Act prohibits enlarging a person on bail if found in possession of commercial quantity of Narcotic drugs or psychotropic substance and even in cases where Section 37 of the NDPS Act bar applies, the Court can grant bail after serving notice on Public prosecutor and once satisfied of reasonable grounds to believe the accused found not guilty of the offence and not likely to commit any offence and A.1 found in constructive possession of the contraband which is a controlled substance of commercial quantity and Section 37 of the NDPS Act bar applies and no doubt there is no finding in granting bail of no grounds to hold the accused not guilty of the offence from any material with discussion further truth or otherwise of panchanama for mediator’s report can be considered only at the trial and now premature at the time grant or refusal of bail and similarly Section 50 of the NDPS Act is not applicable to the case on hand since contraband was not physically found in possession of the accused persons 1 to 3 but in the room where they were found and once the bail application of A.2 and A.3 dismissed by the High Court in Crl.M.P.No.414 of 2014 and the A.1 also stands in the same footing from the contraband found in their possession in the room. However, that order dismissing the bail application of A.2 and A.3 not placed for consideration before this Court but for order granting bail to A.5, for the Court in granting bail to A.1 in Crl.P.No.1091 of 2014 based on it.
8-A(v). From the above order dismissing the application in Crl.M.P.No.239 of 2014 for cancellation of the bail granted in Crl.P.No.1091 of 2014 supra, the learned Sessions Judge almost accepted the A.2 and A.3 were refused for bail who are in same footing to A.1 to whom the bail is granted by influencing upon the order in favour of A.5 granted by the High Court and without even considering the rigour of Section 37 and other provisions of the NDPS Act and with no finding of reasonable grounds of accused not guilty of the offence, however, the remedy is to file the revision against the order granting of the bail by that Court in the High Court ignoring the scope of Section 439(2) of Cr.P.C. which clearly speaks the Court which granted the bail also cancelled the bail and it need not be by filing revision. In fact, revision is not even maintainable as held in the Apex Court three Judge Bench expression Madhu Limaye(supra).
8-A(vi). On perusal of the above order, while holding granting bail to respondent/A.1 herein is unsustainable and in ignorance of the mandatory provisions, it is left open to the NCB officials to move the High Court which is per se also unsustainable besides the very bail order is also held unsustainable as it clearly speaks there are no findings either granting bail or in dismissing the application for cancellation of bail but for left open the issue to this Court now to decide.
8-A(vii). In fact, the learned Sessions Judge also went wrong in saying the cancellation of bail is only for any post-bail conduct of the accused that is not the only consideration as it all depends upon several factors relating to the factual matrix of each case and it includes whether bail could not be granted, where the order passed granting bail is in ignorance of the mandatory provision of settled expressions or without reasons and or outcome of perversity or otherwise unsustainable besides also the grounds of there is any abuse of concession form the subsequent conduct. In this regard, the law is fairly settled as discussed supra and also from the following other expressions:
[27] 8-A(vii)(a). In State through CBI Vs. Amarmani Tripathy also referring to Kalyan Chandra Sarkar(supra) where the bail orders granted were cancelled one from order is not sustainable on merits and seriousness of the crime and the other from the seriousness of the crime and subsequent conduct. At para-8 of Amarmani Tripathy(supra) that the object underlying cancellation of bail is to protect the fair trial and secure justice to being done to the society by preventing the accused who is set at liberty by the bail order from tampering with evidence or the like----.It hardly requires to be stated that, once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent the accused in order to get away from the clutches of the same, indulged in various activities in tampering with witnesses, threatened family members or victim and creates problems of law and order situation.
8-A(vii)(b). In Kalyan Chandra Sarkar(supra), it was observed that, any detention of the accused in the commission of a non bailable offence during pendency of the trial cannot be questioned as violation of Article 221 of the Constitution of India since the same is authorised by statute of law, unless they are granted bail from any entitlement on coming to conclusion of prosecution failed to make out prima facie case or Court be satisfied by recording the reasons in this regard that in spite of existence of prima facie case, there is need to release such persons on bail where fact situations require it to do so. It was observed that while deciding the cases with reference to the facts, more so in criminal cases the Court should bear in mind each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case as a case is only an authority from what it actually decides and what not logically fallows from it.
[28] 8-A(vii)(c). In Sunil F Shaw Vs. Union of India the Apex Court held that release of accused on bail from internment through Court would still retained constructive control over him through the sureties through conditions of the bond given by the accused and the sureties.
8-A(vii)(d). The Apex Court in Superintendent, NCB, Chennai Vs. [29] R.Poulsawmy held that once Section 37(1)(b) NDPS Act applies, it is mandatory on the part of the Court of its satisfaction to grant or decline to grant bail to consider the scope of Section 37 of the Act. The rigour of Section 37(2) of the NDPS Act is in addition to the restrictions for grant of bail under Chapter XXXIII Cr.P.C. The subjective satisfaction of the Court must reflect in the order granting bail of the twin conditions of reasonable grounds to believe that the accused is not likely to be convicted and he is not likely to commit any offence while on bail and the conditions are cumulative and not alternative.
8-A(viii). From the above, now coming to the facts, it is prima facie shows that the accused persons 1 to 3 were found in the room No.304 of Vishnupriya lodge, Kukatpally and the contraband of commercial quantity which is psychotropic substance found in the room and substantiates to the information received by the NCB officials about A.1 going to hand over the commercial quantity of the contraband to A.2 and A.3 there and the same was seized there from after their disclosure statements covered by Section 67 of the NDPS Act and there so far as from their conscious possession of the contraband in the room while they were in the room concerned within the purview of Section 54 of the NDPS Act under which there is a reverse onus clause to rebut the presumption against the [30] accused persons supra vide Madanlal Vs. State of HP and Avatar [31] Singh Vs. State in holding possession used in Section 54 includes conscious either constructive or physical and so far as awareness about the particular fact from the state of mind which is criteria is enough to attract Section 54 to hold conscious possession. Thus, the contention that there is no possession under Section 54 of the NDPS Act but for such contention left open to raise in the trial as defence irrespective of this observation in this application for cancellation of bail concerned of prima facie accusation. Apart from it there is a culpable mental state against the accused the Court shall presume under Section 35 of the NDPS Act under which there is a reverse onus clause to rebut the presumption against the accused persons supra, but for such contention left open to raise in the trial as defence irrespective of this observation in this application for cancellation of bail concerned of prima facie accusation. It is even putting the burden on the accused under reverse onus clauses to rebut the presumption against the accused persons somewhat deviation to the general principles on right of silence of the accused within the constitutional protection and with presumption of innocence generally in the cannons of criminal law, said presumption against the accused under the reverse onus clause as deviation to the general principals of law held in the larger public interest of the society is constitutionally valid as also held by the Apex Court in Noor Aga Vs. State of Panjab [32] . Even in [33] Sami Ullaha Vs. Superintendent, NCB speaks of retracted confession in terms of Section 67 of the NDPS Act held on facts cannot be a basis for conviction and not even of any inadmissibility much less in considering scope of section 37 of the NDPS Act. The decision in Aslam [34] Babulal Desai Vs. State also speaks the power to cancel even the bail earlier granted was for non-filing of charge sheet under Section 167 Cr.P.C. within the statutory period.
9. Even any search of the hotel room involved based on the prior information for compliance of the provisions like Section 42 of the NDPS Act, the mediators are there at the time of said seizure from any search; apart from the fact that information to the superiors despite there not required as the intelligence officer who conducted the raid and seized the contraband even involved search is an authorised officer and not mere empowered officer. Further there is compliance by intimation to the superiors. Even coming to the contention of in the so called intimation to the superiors, it is not incorporation of all the details of the panchanama concerned; only it is an intimation of the gist of information to the superiors and not requirement of verbatim information even statutory. The reason is also that an information to the superior is for the information sake for assurance of genuineness and keep within the knowledge of the superior to supervise or instruct as case may be, whereas, the panchanama details are regarding the full disclosure on information to the mediators in securing their presence as well as the persons of search involved if any or seizure. Even from the three judge bench expression of Abdul Rasheed [35] Ibrahim Mansuri Vs. State what all speaks compliance of Section 42 is to send the prior information to the superior by recording it and not that minute particulars of the information is required to be sent. In this expression in fact, the burden on accused under Section 35 of the Act under reverse onus clause is also well laid down.
10. Even coming to the contention that the ‘U’ tube electronic news clipping video graph of the seizure shows the panchanama entire facts are not correlating is also a matter for contention from material on record during trial after recording of evidence from any factual foundation as observed by this Court in dismissal of the bail application of A.2 and A.3 in this regard. The other contention that there is space between the respective signatures of accused and mediators to the conclusion of contents of panchanamas or disclosures and it is an subsequent creation in between the blank signed papers by cause incorporating the contents concerned, it is left open to make such contention in the defence of accused during trial but for to say, there is nothing to belie the disclosures/confessions and seizure/recovery of the contraband much less to impair the admissibility so far as prima facie accusation to ascertain concerned within the purview of Section 37 of the NDPS Act, as there is a prima facie presumption including under Section 114 of the Indian Evidence Act of all official acts are duly performed unless contrary is proved and there is no other basis to belie the so called panchanamas of seizure and confession containing the disclosure statements under Section 67 of the NDPS Act on its admissibility.
11. Even coming to the contention that there is a service of notice under Section 50 of the NDPS Act intimating in search required to the accused persons after entering the lodge and even the A.1 to A.3 with the contraband in the room not even in their physical possession, the contention is once there is service of notice that too from the prior information, the compliance of the mandatory provisions of Section 50 must be there and compliance not made for not taking before the Gazetted officer or Magistrate the accused persons for their person search that is suffice to say from mandatory non-compliance the case will not end in conviction. In this regard, the contention of the learned counsel for the accused No.1/respondent is by placing reliance upon the expression of [36] the Apex Court in Gurjanth Singh Vs. State of Panjab (two judge Bench), where it was observed that the accused were found guilty by the trial Court of Sessions for the offence under Section 15 of the NDPS Act involving the commercial quantity where the tractor with trolley proceeding on road was stopped and driver while trying to skip away overpowered by the police officials and in the tractor trolley found three gunny bags inside and as suspected some incriminating articles, informed that if he so desires, the search could be conducted in the presence of a Gazetted Officer or Magistrate and he consented for search before the Gazetted Officer or Magistrate and the D.S.P. of Gazette officer was secured and in his presence stated search of the gunny bags and found Poppy husk and narcotic drug and after collection of samples seizing contraband of 34 Kgs., slips affixed and the property seized and the trial Court held that there is no personal search involved and the D.S.P. was not a Gazette officer was only inspector category in charge or not regular promotee and thereby there is no search before gazette officer Section 50 the NDPS Act compliance not made is not supported the trial Court whereas on appeal the conviction of the judgment of the trial Court was confirmed and when the matter came before the Apex Court it was observed that the Constitutional Bench of the Apex Court in State of [37] Panjab Vs. Baldev Singh observed that mandatory compliance of Section 50 of the NDPS Act required where there is a personal search [38] and the state of H.P.Vs. Pawan Kumar also supports same that in the normal course of investigation by a police officer of an offence or suspected offence under Cr.P.C. where search is completed stumble upon possession of narcotic drug question of invoking Section 50 does not arise, but where there is arrest of the accused and search and seizure from him, the compliance of Section 50 is required. The two judge Bench in the Gurjanth Singh(supra) ultimately concluded that once notice is served to comply Section 50 and there was no proper compliance required by law mandatorily the accused is entitled to acquittal. The sum and substance of the expression is whether a notice is served for personal search and if the personal search is not conducted properly as contemplated by the law from the mandatory non-compliance, the recovery is illegal. The decision is not an authority to say seizure of the contraband from search of the vehicle, compliance of Section 50 is required much less from any service of notice for personal search if personal search not conducted and no seizure from the person, the proceedings are invalid of recovery from vehicle. The other decision placed reliance upon of another two judge bench expression in State of Rajasthan Vs.Paramanand [39] -is in holding that when there is prior information to the accused that they could be searched before nearest Magistrate or Gazetted Officer-the superintendent of Police who is part of raiding party the Gazette Officer for the search of a person, it is not a due compliance in holding said search of bag with a person as part of search of a person is illegal from the non-compliance. This decision also has no application to the present facts. In fact Pawan Kumar (supra) of Apex Court held that search of a person would mean person covering with clothing and pockets and baggage carrying and any article or container etc., can under no circumstances treated as search and seizure from person. Therefore it is not possible to include these articles within the ambit of search of a person occurring in Section 50 of the NDPS Act and therefore where Section 50 the NDPS Act would be applicable, recovery for search of the bag carried by the accused with him, the question it was observed in para-15 referring to two other expressions also in Paramanand(supra) that if merely a bag carried by a person is searched without there being any search of his person, Section 50 has no application; but the bag carried by him is searched and also the person searched, Section 50 compliance is mandatory. Here, the facts show in Paramanand(supra), a bag was not only searched but also his person was searched and thereby compliance of Section 50 of the NDPS Act held as mandatory and non-compliance leads to that search and seizure illegal. The other decision relied on is in State of Delhi Vs. Ram [40] Avtar where there is a search of a person and found in his shirt pocket heroine of 16 grams and for that there was no intimation of his right to be searched before the Gazetted Officer or Magistrate as required mandatorily under Section 50 of the NDPS Act, the search and seizure to that extent was held illegal. The other decision placed reliance upon in [41] this regard is in Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi it was held that for the search of a person Section 50 compliance mandatory and the accused provided with an option either to be searched in the presence of a Gazetted Officer or Magistrate. The accused must be physically produced before such Gazetted officer or Magistrate, once he opted to be so searched and the non-compliance by taking him before Gazetted officer or Magistrate at his option for search of his person entitles said search and seizure illegal.
12. The other judgement relied is in Surya Baksh Singh Vs. State of MP [42] , which is also a decision regarding non appraisal of the legal right of the accused to be personally searched before the Gazetted officer or Magistrate and merely asked to give consent for search of him before the police stated as Gazetted officer and held therefrom the non- compliance of the mandatory requirements vitiates the conviction based on the search and seizure from his person alone. From the above expressions, it is clear that if the conviction is based only on such search and seizure of the contraband in possession of person of the accused for search of his person, compliance of Section 50 is mandatory and for non- compliance, the search and seizure to that extent is illegal and if it is only basis for conviction, the conviction is also liable to be set aside. From all the above expressions where the personal search is involved, compliance of Section 50 of the NDPS Act for search of a person is mandatory and in the absence of which such recovery from a person of accused of the contraband with possession by search and seizure is illegal and conviction also unsustainable, if the conviction passed on such personal search and seizure of contraband. The other decisions relied by the respondent/A.1 on the scope of Section 50 of the NDPS Act Sarju Vs.State of UP [43] [44] and Myla Venkateshwarlu Vs. State of A.P.
regarding the compliance of Section 50 of the NDPS Act is mandatory.
13. In fact, the five judge bench expression of the Apex Court in [45] Vijayasinh Chandubha Jadeja Vs. State of Gujarat - it was observed with reference to Section 50 amended by Act 9 of 2001 and by clarifying the earlier constitutional bench expressions in Baldev Singh(supra) and another expression in Karnail Singh Vs. State of [46] Haryana observed on (Section 50 compliance) that informing to the suspect under Section 50 of the NDPS Act of right to be searched of his person even can be oral or writing and the non-compliance must be shown that failure to apply such mandatory provision of Section 50 of the NDPS Act cause prejudice to the accused and then to render such recovery of illicit article from the suspect inadmissible to vitiate the conviction if the same is recorded only on the basis of such illicit article recovered violating of Section 50 of the NDPS Act by searching a person. It is also observed that whether complied with or not and any prejudice caused or not must be matters in trial. Thus any contentions regarding Section 50 compliance required or not even no personal search involved admittedly, being matter for decision in trial and not a consideration for grant or refusal of bail.
14. Here, practically there is no personal search involved as the contraband is seized from the room. The contention of giving of notice for a personal search accrues a right to the accused for personal search and non-conducting of personal search as per Section 50 of the NDPS Act, entitles acquittal as per the contention of the accused thereby cannot sustain from the above expressions placed reliance, needless to say this observation is not conclusive but for left open to raise such contention during trial for deciding afresh from any further propositions as this observation is only to the limited extent of negating the contention of Section 50 of the NDPS Act, required even no search of person involved once notice issued and not conducted that entitles acquittal of the accused for holding reasonable grounds of accused not likely to be convicted to grant bail.
15. It is also opt to refer in this regard to answer the contention of the respondents that the Section 67 disclosure NDPS Act disclosure is hit by Section 25 of the Indian Evidence Act. In fact, the law as on date is well settled and also reiterated by the Apex Court in Raj kumar Kanval Vs.
[47] [48] Union of India and Kanhaiahlal Vs. Union of India and Batkujyothi Sawat Vs. State of Mysore [49] , Rajaram Jaiswal Vs. State [50] [51] of Bihar and State of Panjab Vs. Barkatram that it is admissible and no way hit by Section 25 of the Indian Evidence Act. The contention [52] that in Tofan Singh Vs. State of Tamil Nadu a reference to a larger bench in this regard before Supreme Court is pending no way help the contention of the accused of the said statement is hit by under Section of 25 of the Indian Evidence Act unless that reference is answered by setting aside the existing law of its admissibility and not hit by Section 25 of Indian Evidence Act.
16. Now it is to consider the order granting the bail to A.5 that influenced the learned Sessions Judge in granting bail order to A.1 in saying as if the A.1 and A.5 are on same footing though the bail sought by A.2 and A.3 was ended in dismissal even subsequently after grant of bail to A.5 by the High Court, with observation from the bar under Section 37 of the NDPS Act. It is also important to mention that this Court on the application for cancellation of bail for A.5 granted by the High Court in Crl.P.No.2204 of 2014 dated 03.03.2014 passed a detailed order after elaborate arguments cancelling the bail granted to the A.5 and that also from non-application of mind to the relevant provisions of the NDPS Act and the mandatory requirement of satisfaction of reasonable grounds existing of the case will not end in conviction against the accused and there is material to say the accused will not commit another crime while under concession of bail for both must be satisfied. From the above, the bail order granted by the learned Sessions Judge to the respondent/A.1 is unsustainable under law and is without even discussing the mandatory requirements of the Section 37 of the NDPS Act by application of mind and went wrong in granting bail from saying the accused is in judicial custody more than 173 days and investigation mostly completed and A.5 of the crime was granted bail by the High Court though very order speaks the learned Public Prosecutor opposes the bail and also contended the Court is bound to consider the rigour of Section 37 of the NDPS Act for grant of bail. Suffice to say irrelevant considerations taken note of and relevant considerations ignored in granting the bail that is liable to be cancelled.
17. In fact, it is also opt to refer another expression of the two judge [53] Bench in Thana Singh Vs. Central Bureau of Narcotics where directions are given for speed disposal of the NDPS cases by constitution of sufficient number of Courts and also admissibility of the chemical analysis report under Section 293 of Cr.P.C. and appointment of nodal officers to monitor the progress and ensure speedy trial and it was observed with reference to the provisions of the Act as per the international conventions that once there is offence attracting Section 37 of the NDPS Act, it is difficult for the accused to secure bail and therefrom the accused could languish in jail during trial that effects their personal liberty and they are entitled to be released if undergone not less than half of the period of imprisonment without trial(Section 436(A) Cr.P.C.) that was there not considered despite the mandate of the Apex Court [54] expression in Legal Aid Committee Vs.Union of India in this regard.
18. It is also important to note in this context that in considering rigour of Section 37 of the NDPS Act of subject to satisfaction of existence of reasonable grounds for believing that accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail concerned, besides something more than prima facie grounds to be made out for a substantial cause to believe that accused is not guilty of the offence charged, for that the Court must keep in mind that in such examination of material that whether prosecutions statements if believed would result in conviction or not and if it could not give an answer in negative, bail could not be granted vide decisions Babue Vs. State of [55] [56] Orissa , Intelligence Officer, NCB Vs. Shambu Shankar , State of MP Vs. Khajeed [57] , D.Sarojini Vs. State of AP [58] , Union of India [59] Vs. Shiva Shankar Kesari and Union of India Vs. Lathan Malik @Habu [60] , Ratan Kumar Viswas Vs. State of UP [61] and Union of [62] India Vs. Ratan Malik
19. Having regard to the above, the trial Court is bound to follow the said expressions of the Apex court and the directions therein to make every endeavour to give expeditious disposal and thereby the contention of the respondent/A.1 that there will be delay in conducting trial and the bail order cannot be cancelled by invoking Section 439(2) or Section 482 Cr.P.C. is also not tenable but for to say the Courts are bound to follow the guidelines for expeditious disposal. The bail order is liable to be cancelled by invoking Section 439(2) Cr.P.C. under which provision the application is originally filed and even the Registry returned in directing to file as revision for its so filing even if a prayer for cancellation of bail and not a revision against even the order dismissing the application for cancellation of bail, the same within the inherent power of the Court under Section 482 Cr.P.C. be taken as filed under correct provision for cancellation of bail under Section 439(2) Cr.P.C. In this regard, the apex Court in the latest expression in Surya Baksh Singh V. State of U.P. in Crl.Appeal No.1680 of 2013 also held that Section 482 Cr.P.C. power is saved similar to Section 151 C.P.C. At para 13 it was held that, “when the High Court notices that there has been failure of Justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities. Inherent powers of the High Court is not one conferred by the code; but one which the High Court already has in it and it is preserved by the Court. Section 482 Cr.P.C. inherent power of the High Court stands in solitary splendour. It preserves inherent powers of the High Court. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. Accordingly, Point No.1 is answered.
Point No.2:
20. Accordingly and in the result, the Criminal Revision Case is allowed by cancelling the bail granted through the impugned order by the learned in-charge Metropolitan Sessions Judge, Ranga Reddy district at L.B.Nagar in Crl.M.P.No.1091of 2014,dated 20.05.2014, in the interest of justice by invoking Section 439(2) by considering the revision under Section 439(2) Cr.P.C. as per Section 482 Cr.P.C., with a direction to the respondent/A.1 to surrender by his submission to judicial custody within one week from today and meanwhile not to leave the city and failing which the learned Sessions Judge is directed to issue non-bailable warrant for arrest and remanding of the respondent/A.1 to judicial custody. It is made clear that this order no way prejudice any future right of the respondent/A.1 to seek for bail afresh to decide on its own merits. Consequently, miscellaneous petitions, if any, pending in this revision shall stand closed.
Dr. B.SIVA SANKARA RAO J, Date: 15.09.2014, Note: L.R.copy to marked : Yes/No B/o vvr
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