The Hyderabad High Court has made it clear that it is the duty of the Court to recall its own order granting bail, within the parameters of law more particularly by invoking Section 482 CrPC, if it did not draw its attention to the confession or disclosure statement of the accused in considering for granting bail under Section 37 of the NDPS Act.
Justice B Siva Sankara Rao allowed the petition filed by the prosecution agency, represented by the Intelligence Officer of Narcotics Control Bureau, Hyderabad, seeking for cancellation of bail granted in favour of an accused by the High Court (another bench).
The counsel for prosecution agency contended that the Court did not properly advert to the scope of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 which prohibits grant of bail to the accused Krishna in the case.
Section 37 of the Act speaks that every offence punishable under this Act shall be cognizable and that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose the application for such release and when 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.
The counsel for prosecution placed reliance upon various judgments of the Supreme Court wherein it was held that the Court should examine whether prosecution statements, if believed would result in conviction if it could not given an answer in negative, bail could not be granted and that the Court’s satisfaction under Section 37(1)(b)(ii) about the accused being not guilty must be arrived based on the record. He contended that the bail was granted without proper consideration of Section 37 of the Act which does not able the accused to the concession.
On the other hand, the counsel for the respondent-accused contended that there are no grounds to cancel the bail and that the bail granted is valid within the scope of Section 37 of the Act.
After hearing both the parties and perusing the material on record, the judge opined that there must be something more than prima facie grounds for believing that the accused is not guilty of such offence and another requirement of satisfaction of the Court is that he is not likely to commit any offence while on bail; and in the absence of showing the material the accused is not entitled to the concession of bail by virtue of rider under Section 37 of the Act.
“It is so to exercise apart from the inherent powers that are preserved by Section 151 of the Civil Procedure Code, 1908 to all the civil Courts, equally to the High Courts by Section 482 of CrPC to sub-serve the ends of justice, to render complete justice or to prevent abuse of injustice, to recall an order passed when not correct,’’ the judge added.
The judge said that the contraband, involved in the present case is a commercial quantity, which is undisputedly a psychotropic substance either in one category or the other very nearer to it. Besides, the confession or disclosure statement made by the respondent-accused at his pre-arrest stage is prima facie to hold as relevant for consideration and the same is corroborated by the statement of the owner of the premises where from the contraband seized covered by panchanama.
While allowing the petition under Section 482 read with 439(2) CrPC read with Section 37 of the NDPS Act by recalling the bail order, the judge directed the respondent-accused to surrender before the authorities concerned.
The judge made it clear that the observations made in the bail application of the accused shall no way influence much less prejudice the mind of either trial judge or for any other forum for any remedy to invoke by the petitioner, if otherwise entitled.