By TIOL News Services

HYDERABAD, JULY 24, 2014 : AN application under Section 437 (5) of CrPC {instead of under Section 439 (2)} read with Section 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985 was filed by the Intelligence officer, NCB, to cancel the order in Crl.P.No.2204/2014 dated 03.03.2014 granting bail in favour of the respondent. The application was filed on the ground that the learned Judge did not properly advert to the scope of Section 37 of NDPS Act, which prohibits the grant of bail.

It was contended on behalf of NCB that Section 37 of NDPS Act is a special provision and it starts with the non-obstante clause in showing irrespective of what is contained in Chapter XXXIII of Criminal Procedure Code, Section 37 of the Act prevails in case of conflict to override and in case of no conflict and reconcilability, to consider as additional consideration. Here the cancellation of bail sought for is not by raising any subsequent or supervening circumstance or violation of conditions, to say said principle of law has no application to the facts, when the contention is the bail granted without proper consideration of Section 37 of the Act.

The respondent to this application, raised the contention that there are no grounds to cancel the bail and that the bail granted is valid within the scope of Section 37 of the Act supra.

After hearing both sides, the High Court held:

It is important to note the fact that the contraband,involved in this case is a commercial quantity, which is undisputedly a psychotropic substance either in one category or the other very nearer to it. The provisions that to be kept in mind are Section 35- mensrea a reverse onus clause putting burden on accused to rebut the presumption the Court shall draw till rebutted of the culpable mental state; similarly under Section 54 regarding possession, which needless to say includes a conscious possession - whether physical or constructive as suffice of awareness about a particular fact from State of mind is criteria.

The intelligence officers of the Narcotic Control Bureau, whether come within the purview of the Police Officer, for any statement made by accused is by self-incrimination, from Article 20 of the Constitution of India, protects the testimonial compulsion; needless to say if it is voluntary by waiver of the constitutional privilege is saved from the rider of Article 20 a bar under Section 25 of the Evidence Act or not. In this regard, the Apex Court in Kanhaiyalal v. Union of India 2008-TIOL-06-SC-NDPS, held that confession of offence other than to a police officer, of an officer governed by the provision of Narcotics Act is not hit by Section 25 of the Indian Evidence Act. It is to say if it is voluntarily, it is as good as a confession under Section 24 of the Evidence Act .

Here from this perspective, there is a disclosure statement made by the respondent to this application-A.5, which is prima facie (for purpose of the bail application scope) to hold as relevant for consideration in considering the said disclosure since what is discussed supra admissible, prohibits for the entitlement to the concession of bail under Section 37 of the Act.

In the result, the application is allowed under Section 482 R/W. 439(2) Cr.P.C. R/W. 37 NDPS Act by recalling the bail order and for all purposes by cancelling the bail forthwith by directing the respondent No.5 - accused to surrender before the authorities within 5 days, failing which it is left open to the officials concerned to apprehend him and submit to judicial custody.

Can the Bench cancel a bail already given by another Bench ? The High Court observed,

"It is needless to say virtually the scope for cancellation sought is for recalling of the order passed by the Court based on the cardinal principle governed by the Latin maxim “Actus Curiae NeminemGravabit”, i.e. “An act of the Court not sanctioned by law shall prejudice no one". It is needless to say for such recall, the inherent power of the Court which inheres in every Court from its very constitution, subject to the saving and unless denied by way of statutory interdiction with all breadth and length is to the necessity, to apply to meet the ends of justice, including to undo a wrong or irregular thing as no Court can perpetrate an illegality or even an irregularity generally, when necessary facts brought to its notice. It is so to exercise apart from the inherent powers that are preserved by Section 151 of Civil Procedure Code, 1908 to all the Civil Courts; equally to the High Courts by Section 482 of Cr.P.C. to sub-serve the ends of justice, to render complete justice or to prevent abuse of injustice to recall an order passed when not correct. It is practically the petition that has to be considered within the above scope of Section 482 read with 439 (2) of Cr.P.C. read with Section 37 of NDPS Act."

The Court held: it is the duty of the court to recall its own order granting bail, within the parameters of law more particularly by invoking Section 482 Cr.P.C.

(See 2014-TIOL-1216-HC-AP-NDPS)