- (1.) R. S. Tripathi, J. This is an application for cancellation of bail granted to the opposite party Nos. 1 and 2 by Addl. Sessions Judge (Special Judge N. D. P. S.) Varanasi vide order dated 15-3-2003 in Bail Application Number-44 of 2003 under Section 9-A/25-A of N. D. P. S. Act. According to the applicant, Union of India the opposite party Nos. 1 and 2 were found selling Acetic Anhydride, which is declared controlled substance under the provisions of the Section 2 (viia) of the said Act as the same can be used in manufacturing Heroine and Methaqualone. According to the Union of India, learned Sessions Judge while passing impugned order has not considered the gravity of the offence as well as statements of the opposite parties recorded under Section 67 of N. D. P. S. Act and has also ignored the provisions of Section 37 of the N. D. P. S. Act and has wrongly granted bail giving reason on the ground of illness, detention and running of business since long. This application for cancellation of bail is opposed on the ground that the learned Special Judge has committed no error in passing the order granting bail as the Court has satisfied itself with the contention raised from the side of the opposite parties and it is also contended from the side of the opposite parties that the grant of bail was discretionary matter and the learned Sessions Judge has exercised his discretion in favour of the opposite parties thus, there is no good ground for moving application for cancellation of bail.
(2.) I have heard Counsel for both the parties and have also gone through the records. The facts giving rise in the instant case are that the opposite parties were running the business in the name and style of Gyan Scientific Agencies in Varanasi and they were selling apart from other things Acetic Anhydride which is a controlled substance and that the recovery of 4 Kgs. of Acetic Anhydride was made by the officials of the Narcotic Control Bureau, Varanasi from above place. After observing the formalities of preparation of recovery memo in presence of witnesses, the statement of the opposite parties were also recorded under Section 67 of N. D. P. S. Act and thereafter the opposite parties were challaned for the offences under Section 9-A/25-A/29/27-A of the N. D. P. S. Act read with paragraph 3 (i) 4. 5. 7 of N. D. P. S. Act and (R. C. S. order) of 1993. An application for bail was moved on behalf of opposite parties before the learned Special Judge on the ground that the recovery of 4 Kgs. of Acetic Anhydride (Controlled Substance) is fake as there was no such recovery. They challenged the statements said to have been recorded under Section 67 of N. D. P. S. Act and pleaded that their firm was reputed firm dealing with chemicals and paying Income Tax every year. They have challenged the compliance of provisions of N. D. P. S. Act. According to them witnesses cited in the memo were pocket witnesses and that the both opposite parties were suffering from serious Heart ailments and were being treated by a team of reputed Doctors of Varanasi as well as of Delhi. Therefore, they should be granted bail. Bail application was opposed on the ground of gravity of the offence and quantum of recovery and non- compliance of provisions of N. D. P. S. Act. Learned Sessions Judge, while passing the impugned order granting bail, observed that opposite parties were members of reputed business family and they were having serious Heart ailments under the treatment of Doctors of Delhi, Chandigarh and Varanasi and that they had been doing their business since 1980 hence in absence of any criminal history they were entitled to be released on bail.
(3.) IT is argued from the side of the applicant, Union of India that the order granting bail to the accused- persons opposite parties is perverse as non-fulfilment of requirements of provisions of Section 37 of the N. D. P. S. Act has not at all been considered and also that statements recorded under Section 67 of N. D. P. S. Act have not been considered. Documents available in the form of memo of recovery and statements of opposite parties were wrongly not considered by the learned Sessions Judge hence bail should be cancelled. These arguments are opposed on the ground that learned Special Judge is considered each and every thing and once he has exercised the discretion which granting bail the same cannot be cancelled at this stage. Having considered all above arguments, I have gone through the records. In the case reported as Puran etc. v. Rambilas and Anr. , and Shekhar and Anr. v. State of Maharashtra and Anr. , 2001 (2) JIC 868 (SC) : 2001 (43) ACC 247, the Hon'ble Apex Court has observed as under: "on such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected. ";