- (1.) MAITHLI Sharan, J. The Union of India has filed the instant application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail granted to the accused-Opposite Party Devi Saran on 10-1-1994 by the I Addl. Sessions Judge, Barabanki for the offence under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act' ).
(2.) SRI I. E. Singh, the learned Counsel for the applicant, has vehemently argued that the bail application of the accused-Opposite Party Devi Saran was allowed by the learned Additional Sessions Judge, Barabanki in utter disregard of the man datory provisions engrafted under Section 37 of the Act, and therefore, the said order, prima facie, deserves to be set aside. For a proper appraisal of the case in hand it is but appropriate to have a glance on its factual aspects which may be sum marised thus; on 6-9-1993 on receipt of a secret information to the effect that the accused Devi Saran and one of his as sociate Ram Milan would be coming from their village carrying illicit narcotic drugs to the bus stand via Satrikh Naka, the concerned officers of the Narcotics Department reached near Petrol Pump be hind the old State Bank Building at Barabanki-Faizabad Road. The accused Devi Saran and his associate Ram Milan came over there at about 8. 05 p. m. and on being pointed out by the informant the Officers intercepted and on a search being made 80 grams heroin was recovered from the possession of accused-Opposite Party Devi Saran. After completing formalities required under the Act the accused Devi Saran was arrested; chemical test of the recovered substance and heroin was got done, and it was found to be positive. The accused Devi Saran was prosecuted under Sections 8/21 of the Act. He moved the bail application which was allowed by the Addl. Sessions Judge, Barabanki, as aforesaid. Undisputedly, the settled legal position is that for granting bail the conditions and limitations engrafted under Section 37 of the Act have got to be followed. Thus, it is but appropriate to get down here the man datory provisions of Section 37 of the Act which run as below: "37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything con tained 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 a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (1) 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 limitation 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. " (italicised supplied by me) Looking to the above provisions it is but clear that at the time of deciding the bail application of the accused under the Act the Court must satisfy itself on two points, namely, (i) that the Public Prosecutor has been given proper oppor tunity to oppose the bail application, and (ii) that there are reasonable grounds for believing that he is not guilty of the offence he has been prosecuted, and further that he is not likely to commit any offence while on bail. Sub-section (2) of the Act further goes to indicate that the limitations on granting of bail specified in Clause (b) are in addition to the limitations provided under the Code of Criminal Procedure. Thus, firstly the, Court has got to be satis fied that, in ordinary manner, case for bail is made out, and it has further got to be satisfied that the mandatory provisions of Section 37 of the Act have been complied with, i. e. there are reasonable grounds for believing that the accused is not guilty of the offence he has been prosecuted, and further that he is not likely to commit any offence while on bail.
(3.) I am of the view that under Section 437 of the Code of Criminal Procedure the burden is on the prosecution to show the existence of the reasonable ground for believing that the accused is guilty, but the mandatory provisions of Section 37 of the Act provide otherwise, and the burden under these provisions is on the accused to show the existence of reasonable grounds for believing that he is not guilty of the offence, and further that if he is released on bail, he is not likely to abuse it by commit ting any offence. My above view is fortified by the view taken by Hon'ble the Supreme Court in Union of India v. Thani Sharasi and others, 1995 ACC (32) 503; wherein it has been held that the power to release on bail under Section 437 of the Code of Criminal Procedure is in the nature of restrictions but under Section 37 of the Act the same is condition precedent for the exercise of that power. It another case, Narcotic Con trol Bureau v. Kishan Lal, 1991 ACC 162; JIC 1991 (SC) 275, Hon'ble the Supreme Court has held that Section 37 of the Act clearly provides that no person can be released on bail under the Act unless and until the mandatory provisions engrafted therein have been complied with. It has been held that non-obstiante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the power to grant bail, and in case of any inconsistency between Section 439, Cr. PC. and Section 37 of the Act, Section 37 prevails. In another case, State of Punjab v. Dharminder Kumar alias Kaka, 1996 (V) EFR 483, Hon'ble the Supreme Court allowed the special leave petition against the order of granting bail under the Act and cancelled the same because the bail order was passed in utter disregard of the mandatory provisions of Section 37 of the Act.;