By TIOL News Service

NEW DELHI, JULY 03, 2018: THE appellant challenges the order dated 04.10.2017 passed by the High Court of Punjab and Haryana rejecting his application for anticipatory bail.

The appellant is an accused in FIR dated 11.06.2017 under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Though it was argued that a coordinate Bench of the High Court had granted anticipatory bail to the co-accused, namely, Beant Singh and Gurwinder Singh, who are brothers of the appellant, as per order dated 21.09.2017, the Court in the appellant's case viewed that it was not inclined to accept this contention as there was no question of parity and in view of the fact that the Coordinate Bench had not taken note of the limitations under Section 37 of the NDPS Act.

The Supreme Court viewed that the Judge was perfectly right in his approach and in declining the protection under Section 438 of the Code of Criminal Procedure, 1973.

Extracting Section 37 of the NDPS Act, the Supreme Court remarked –

++ It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court.

Noticing that 'apparently a wrong order has been passed by the coordinate Bench of the High Court', the Supreme Courtdirected the State to verify whether any steps had been taken for challenging the orders granting anticipatory bail to the co-accused.

After adjourning the matter to 15.12.2017 and thereafter to 17.01.2018, the Supreme Court passed an order on 18.01.2018 and a further order directing the Additional Chief Secretary, Home Affairs and Justice, to conduct an appropriate inquiry as to who are the officials/officers involved in taking such a lackadaisical attitude despite the High Court in the impugned order pointing out that the order granting bail to the co-accused was not proper.

It appeared that thereafter the State became alert and steps were taken to challenge the anticipatory bail granted to Beant Singh and Gurwinder Singh and that is the subject matter of Crl. Appeal No. 463 of 2018.

Upon perusing the order dated 31.10.2017 passed by the Sessions Court, the Supreme Court observed that it was unfortunate that the Sessions Court did not take note of the final order passed by the High Court.

It was further observed –

"15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so."

Consequently, the order dated 31.10.2017 passed by the Sessions Court was also set aside and all the three accused were directed to surrender before the trial court.

It was also made clear that the accused were free to apply for regular bail.

The Supreme Court also mentioned –

"…Before parting with the Judgment, we also painfully note that even in the inquiry conducted pursuant to the orders passed by this Court, there was no reference to the regular bail granted to Beant Singh and Gurwinder Singh and that too, on production of an interim order passed by the High Court. Had the same been noticed, the State would have certainly taken steps much earlier. This is once again to remind the police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act.”