S.S.GREWAL, J. - (1.) MR . K. S. Ahluwalia, learned counsel for Dhanna respondent stated at the bar that his client does not want to file any reply concerning the notice sent to him as to why bail already granted to Dhanna by the Additional Sessions Judge, Patiala, be not cancelled and on his request this application has been heard today.
(2.) IN brief facts of the case are that the police party headed by SI Kuldip Singh, S.H.O. Police Station, Bhadson was holding Nakabandi and vehicle checking at the Canal bridge in the area of Kalar Majri. On 16th of August, 1993 at about 7.30 P.M. truck bearing registration No. PCL 9945 came there from the side of Bhadson. Dhanna respondent who was sitting on the left side was recognised by ASI Maghar Singh. Dhanna, however, taking the advantage of darkness was able to escape whereas his co-accused Mangal Singh who was driving the truck was taken into custody. According to the prosecution the truck was searched after complying with the formalities under the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the Act) and 45 bags each containing 35 Kgs. of poppy husk were recovered. Additional Sessions Judge, Patiala, granted bail to Dhanna vide his order dated 26th October, 1993 without making any reference whatsoever to Section 37 of the Act. From the perusal of the impugned order, it is clear that the learned Additional Sessions Judge, while granting bail did not even mention either that he was satisfied that there are reasonable grounds for believing that Dhanna respondent was not guilty of any offence under the Act or that he was not likely to commit any offence while on bail. It was obligatory for the learned Additional Sessions Judge to consider these mandatory provisions before granting bail. Mere observations of the learned Additional Sessions Judge, in the impugned order granting bail that the report of the Chemical Examiner was yet to be received or that petitioner is in judicial custody for more than two months or that it would be inequitable to keep the accused in jail till he is committed to the Court of Sessions for trial, or, that Kaka Singh-Ex-Sarpanch and Lal Singh member Panchayat furnished affidavits to the effect that nothing was recovered from the possession of the accused and he never indulged in smuggling of poppy husk or opium and is not a habitual offender or dealer in contraband goods, cannot be considered to fulfil the mandatory provisions mentioned under Section 37 of the Act. Rather from the allegations in the first information report it is apparent that it was a case of heavy recovery of contraband poppy husk and also points that such a heavy recovery was meant for sale out of greed of money and would be hazardous to public health.
(3.) FACED with this situation the learned counsel for Dhanna placed reliance on the authority of the apex Court in Aslam Babalal Desai v. State of Maharashtra, 1993(1) Recent Criminal Report 600, wherein it was observed as under :- "Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purposes of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken in custody merely on the filing of a charge sheet but there must exist special reasons for so doing besides the fact that the charge sheet reveals the commission of an non-bailable crime. The ratio of Rajnikant's case (1990 Crl.L.J. 62) to the extent it is inconsistent herewith does not, with respect, state the law correctly." There is no dispute with the proposition of law that once accused has been released on bail his liberty cannot be interfered with lightly and cancellation of the bail has to be for strong and cogent reasons as contemplated under sub-section (5) of Section 437 of sub-section (2) of Section 439 of the Criminal Procedure Code.;