TIBREWAL, J. - (1.) THE petitioners have filed the above applications u/s 438 Cr. P. C. in criminal cases registered against them u/s. 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to 'as the Act' ). In both the applications, common question of law and fact are involved and they may be conveniently disposed of by one order.
(2.) THE facts of the case reveal as to how the ingenuity of law- brakers design various means to do prohibited illegal acts, but trying to save them from the clutches of law. THE unscrupulous greedy businessmen can go to any extent being unmindful to the injury they cause to the life and health of innocent persons by their illegal acts. The facts of the case are that a news item was published on Feb. 6, 1993 in the widely circulated daily newspaper 'rajasthan Patrika' that toffees having printed wrappers 'rum', 'whisky' and 'brand' were being sold in Jaipur in large quantity. The wrappers also contained an imprint 'for adults only'. Publication of the above news item put the Excise Department in motion and the District Excise Officer, Jaipur City, Jaipur vide his letter dated Feb. 6, 1993 to Excise Inspector, Circle Jaipur South, directed to get chemical examination of the toffees after obtaining samples in accordance with law. On receipt of the above letter, the Excise Inspector visited the shops of the applicants and seized some toffees containing wrappers labelled as 'rum', 'brandy' and 'whisky'. These toffees were sent to the State Forensic Laboratory, Rajasthan for chemical examination. On chemical examination, it was found that they contained 'methaqua-lone' drug, which is a psychotropic substance as per the schedule appended to the Act. S. 22 of the Act provides punishment of rigorous imprisonment for a term not less than 10 years but which may extend to 20 years and also to fine not less than Rs. one Lac but which may extend to Rs. Two Lacs for contravention of any provision in relation to psychotropic substances. Mr. S. R. Bajwa, learned Senior Advocate, with his usual eloquence and perseverance contended that the petitioners cannot be presumed to have the knowledge that the toffees contained Methaqualone drug as they were only vendors and not manufacturers. It was also contended that a small number of toffees were seized from the possession of the petitioners which indicates the absence of mens rea to commit the offence. It was also contended that the record does not indicate that the requisite tests were made for the identification of Methaqualone drug in the toffees. It was then contended that the petitioner Kishan Chand in Bail Application No. 2021/93 had no connection with the firm M/s. Nagdev Medicals. Mr. R. S. Rathore, appearing for the petitioner Mst. Maina Silani, while adopting the arguments made by Mr. Bajwa, further contended that the petitioner is a woman and her case should be sympathetically considered for granting anticipatory bail. On the other hand, learned Public Prosecutor vehemently opposed the grant of anticipatory bail to the petitioners. It was contended that the Act has been enacted to curb transit traffic in illicit drugs and deterrent punishments have been provided under the Act for drug trafficking offences, which may extend to rigorous imprisonment for 20 years and a fine of Rs. One Lac or more. It was then contended that S. 37 of the Act has been substituted by Act No. 2 of 1989 to put a check so that offenders may not be released on bail on technical grounds. Mr. Sharma also contended that such nefarious activities should be checked with an iron hand as they are causing immense injury to the society. I have given my careful consideration to the above submissions. It cannot be disputed that India is facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction. It is also a matter of common knowledge that the victims of addiction are young boys and girls. The Act provides the deterrent punishment for drug trafficking offences. Then Act No. 2 of 1989 has substituted S. 37 which reads as under: - "s. 37 - Offences to be cognizable and non bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail on or his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose 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 while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. "
(3.) THE object and reason behind passing the amendments was to make stringent provisions of bail as it was thought that such powers should not be used to defeat the object of the Act and a technical plea should not be a ground for under-serving liberty under the Act. THE non-obstante clause in S. 37 (1) of the Act makes it clear that the accused of an offence under the Act is to be severally dealt with and that he should not be allowed to be released on bail unless the conditions contained in S. 37 are satisfied. Though the Act specifically does not prohibit the grant of anticipatory bail under section 438 Cr. P. C. , but the legislative intent can be gathered from S. 37 of the Act which restricts the bail even after the arrest of the offender. The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special enactment and was enacted with a view to making stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances. The under lying object of the Act and the stringent provisions of bail introduced by Act No. 2 of 1989 make it clear that anticipatory bail should not be granted in such cases unless the court is satisfied that the investigating agency was abusing the provisions of the Act with malafide object to arrest any person. In such cases, the law should be allowed to have its own course. On examination of the petitioners' case in the above background, it cannot be said that the investigating agency was abusing the provisions of the Act with a malafide intention to arrest the petitioners. The report of the State Forensic Science Laboratory prima facie establishes that the toffees contained Methaqualone drug. This report can be used as evidence in an inquiry or trial in a criminal case as per. S. 293 Cr. P. C. At this stage, it cannot be said that the requisite tests were not gone through by the Director of the State Forensic Science Laboratory for identification of Methaqualone drug in the toffees. It may be stated that the trial court may, if it thinks fit, summon and examine any such expert as to the subject matter of report as per sub-s. (2) of S. 293 Cr. P. C. Similarly, the argument of the learned counsel for the petitioners cannot be accepted that the petitioners had no mens rea to commit the offence simply because they are vendors. S. 35 of the Act raises a presumption of culpable mental state of the accused, and it is for the accused to prove the fact that he had no such mental stage with respect to the act charged as on offence. The explanation to S. 35 further makes it clear that culpable mental stage includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. The petitioners are traders and they were selling the toffees containing Methaqualone drug, having wrappers of 'rum', 'brandy' and 'whisky' to misguide Narcotic Department and other agencies involved to detect the offences. The seizure of a small number of toffees may be due to several reasons. It is usually seen that such contraband articles are not kept in bulk at a place by the vendors and the bulk of contraband articles is kept at a concealed place. The petitioner Kishan Chand was found selling articles on the Medical Store when it was visited by the Excise Inspector. His complicity in the crime is prima facie established. The argument of Mr. Bajwa has also no substance that no offence u/s. 22 of the Act is made out if psychotropic substance is used in the manufacture of any other article. The argument of Mr. Rathore cannot be accepted that Mst. Maina Silani should be given the benefit of anticipatory bail because she happens to be a woman. As already stated earlier, the benefit of anticipatory bail should be given in rare cases and that too where the court is satisfied that the investigating agency was abusing the provisions of the Act with malafide object to arrest a person. The offenders under the Act should be dealt with severally and with an iron-hand to curb their nefarious activities. ;