R.S. Tripathi, J.@mdashThis is an application for cancellation of bail granted to the opposite party Nos. 1 and 2 by Addl. Sessions Judge (Special Judge N.D.P.S.) Varanasi vide order dated 1532003 in Bail Application Number44 of 2003 under Section 9A/25A of N.D.P.S. Act. According to the applicant, Union of India the opposite party Nos. 1 and 2 were found selling Acetic Anhydride, which is declared controlled substance under the provisions of the Section 2 (viia) of the said Act as the same can be used in manufacturing Heroine and Methaqualone. According to the Union of India, learned Sessions Judge while passing impugned order has not considered the gravity of the offence as well as statements of the opposite parties recorded under Section 67 of N.D.P.S. Act and has also ignored the provisions of Section 37 of the N.D.P.S. Act and has wrongly granted bail giving reason on the ground of illness, detention and running of business since long. This application for cancellation of bail is opposed on the ground that the learned Special Judge has committed no error in passing the order granting bail as the Court has satisfied itself with the contention raised from the side of the opposite parties and it is also contended from the side of the opposite parties that the grant of bail was discretionary matter and the learned Sessions Judge has exercised his discretion in favour of the opposite parties thus, there is no good ground for moving application for cancellation of bail.
2. I have heard Counsel for both the parties and have also gone through the records.
3. The facts giving rise in the instant case are that the opposite parties were running the business in the name and style of Gyan Scientific Agencies in Varanasi and they were selling apart from other things Acetic Anhydride which is a controlled substance and that the recovery of 4 Kgs. of Acetic Anhydride was made by the officials of the Narcotic Control Bureau, Varanasi from above place. After observing the formalities of preparation of recovery memo in presence of witnesses, the statement of the opposite parties were also recorded under Section 67 of N.D.P.S. Act and thereafter the opposite parties were challaned for the offences under Section 9A/25A/29/27A of the N.D.P.S. Act read with paragraph 3 (i) 4.5.7 of N.D.P.S. Act and (R.C.S. order) of 1993. An application for bail was moved on behalf of opposite parties before the learned Special Judge on the ground that the recovery of 4 Kgs. of Acetic Anhydride (Controlled Substance) is fake as there was no such recovery. They challenged the statements said to have been recorded under Section 67 of N.D.P.S. Act and pleaded that their firm was reputed firm dealing with chemicals and paying Income Tax every year. They have challenged the compliance of provisions of N.D.P.S. Act. According to them witnesses cited in the memo were pocket witnesses and that the both opposite parties were suffering from serious Heart ailments and were being treated by a team of reputed Doctors of Varanasi as well as of Delhi. Therefore, they should be granted bail. Bail application was opposed on the ground of gravity of the offence and quantum of recovery and non compliance of provisions of N.D.P.S. Act.
4. Learned Sessions Judge, while passing the impugned order granting bail, observed that opposite parties were members of reputed business family and they were having serious Heart ailments under the treatment of Doctors of Delhi, Chandigarh and Varanasi and that they had been doing their business since 1980 hence in absence of any criminal history they were entitled to be released on bail.
5. It is argued from the side of the applicant, Union of India that the order granting bail to the accusedpersons opposite parties is perverse as nonfulfilment of requirements of provisions of Section 37 of the N.D.P.S. Act has not at all been considered and also that statements recorded under Section 67 of N.D.P.S. Act have not been considered. Documents available in the form of memo of recovery and statements of opposite parties were wrongly not considered by the learned Sessions Judge hence bail should be cancelled. These arguments are opposed on the ground that learned Special Judge is considered each and every thing and once he has exercised the discretion which granting bail the same cannot be cancelled at this stage.
6. Having considered all above arguments, I have gone through the records. In the case reported as Puran etc. v. Rambilas & Anr., and Shekhar & Anr. v. State of Maharashtra & Anr., 2001(2) JIC 868 (SC) : 2001 (43) ACC 247, the Hon''ble Apex Court has observed as under:
�On such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected.�
7. Similar view has been expressed by Hon''ble Apex Court in the case reported as Union of India v. Ram Samujh & Ors., 1999(2) JIC 724 (SC) : 1999 (39) ACC 543, wherein Hon''ble Apex Court in case like present one has considered mandate of the legislature and its necessity to be adhered and followed, considering the provisions of Section 37 of N.D.P.S. Act. In this case Hon''ble Apex Court has observed, �It is to be born in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting deathblow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society ; they are hazard to the society, even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reasons may be large stake and illegal profit involved.� In the same judgment it has been observed that unless mandatory condition provided under Section 37 is satisfied, the accused cannot be released.
8. In the instant case when we go through the material available on the records we find that there is notification of the Ministry of Finance (Department of Revenue) Narcotic Control Bureau, New Delhi dated 2431993, S.O. 198(E) by which Acetic Anhydrate has been declared as (Controlled substances) for the purpose of Section 2 subclause (viia). Thus, there is no doubt that the acid in question recovered from the opposite parties was the controlled substance under the provisions of N.D.P.S. Act, when we perused the statement of opposite party No. 1 Sanjeev Chandra Agarwal recorded under Section 67 of then N.D.P.S. Act. He has admitted to have sold Acetic Anhydride to Shekh Rehman or to his son. Not only this he has further admitted to have found above acid in his shop at test by the officers of Narcotic Control Bureau after recovery. He has admitted to have sold this acid to several persons for consideration. Similar is the statement of Rajeev Shethi, opposite party No. 2 recorded under Section 67 of the N.D.P.S. Act before the authorities of Narcotic Control Bureau admitting that he had been getting the supply of above acid from Ghaziabad and have been selling the same from his above firm. There is absolutely nothing on the record to show that the provisions of Section 37 of the N.D.P.S. Act which laid down as under:
�Section 37.Offences to be cognizable and non bailable.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:
(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 or bail or on his own bound unless
(i) 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 limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on grating bail have been complied with.''''
9. The above entire evidence and provisions of law have not been considered by the learned Sessions Judge while granting bail to the opposite parties. He has mainly laid emphasis on Heart ailments and the reputation of the firm of the opposite parties observing that the witnesses of the public were pocket witnesses. Although, there was no material for holding the same. Under these circumstances, I am of the opinion that learned Special Judge has not considered evidence as well as provisions of law in the light of the gravity of the offence while granting bail to the opposite parties by passing impugned order, therefore, the bail, granted to the opposite parties, is cancelled. Let opposite parties No. 1 and 2 namely Sanjeev Chandra Agrawal and Rajeev Sethi be taken in to custody by the Court of Special Judge, N.D.P.S., Varanasi in connection with above offences and their trial be disposed off as expeditiously as possible.
10. Send a copy of this order to the concerned Court at once for compliance.
Application allowed.
