@JUDGMENTTAG-ORDER
1. The State of Maharashtra has moved this Court for quashing orders dated April 19, 1995 and November 29, 1995 passed in N.D.P.S. Special Case No. 128 of 1994.
2. A brief reference to the relevant facts is necessary for disposing of this application.
On March 24, 1994 Shri Daljitsingh Darshansingh Parmar, Assistant Police Inspector attached to Narcotics Cell, Kandivali Unit, Bombay received a secret information that on March 24, 1994 at above 13.00 Hrs. three persons viz. (i) Raju Kamdar, (ii) Vinod Loke and (iii) Maksoom Shaikh who are dealing in narcotic drugs are likely to visit near Asiad S.T. Bus Stand, Dr. B.A. Road, Dadar, Bombay, in order to deliver mandrax tablets to some drug peddlers. The informant had also given the description of these persons. The A.P.I. recorded the information in the information book and passed on the same to his superiors. As per the directions of the superiors, a trap was arranged, a pre-paid panchanama was drawn and the raiding party along with the panch witnesses kept a watch at the above place. At about 13.05 Hrs. these three accused persons were seen coming along Dr. B.A. Road from the southern side and stood in between Sulabh Shouchalaya and Asiad S.T. Bus Stand on the eastern pavement. They were carrying plastic bags in their hands and waited for somebody to turn up. After keeping watch for considerable time when the accused started moving towards Sulabh Shouchalaya they were surrounded by the raiding party and were searched in the presence of the panch witnesses. The accused persons were found in possession of 7 Kgs., 5 Kgs. and 5 Kgs. of mandrax tablets and cash of Rs. 240/-, Rs. 160/- and Rs. 30/- respectively. The raiding party took samples of the packets and each sample packet and the cash were taken charge of under a panchanama and the accused were put under arrest. A case u/s 8(c) read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter the ''N.D.P.S. Act'', was registered vide C.R. No. 20/94.
3. Accused No. 1 viz. Rajendra Kamdar moved an application to this Court for granting him temporary bail as his sister has died in an accident. My learned brother M.S. Rane, J. vide order dated 25th October, 1994 allowed bail for a period of four weeks on humanitarian grounds. Vinod Loke, accused No.2, treating it as a precedent moved a bail application being Bali Application No. 104 of 1995 before the Special Judge for Greater Bombay constituted under N.D.P.S. Act. It was stated therein that his father Shri Sabaji Loke aged 56 years has an old cardiac history. Earlier he was admitted in the hospital for heart problems. On February 25, 1992 he was admitted in J.J. Hospital and was kept in I.C.C.U. and the doctors have opined that his condition is unstable because of the weak heart and was advised to undergo Angiography. It is further stated that his two other brothers who are stationed in Indore (M.P.) cannot attend to his father. Along with the application the certificates evidencing the medical treatment given to the father of the applicant were also annexed. In the application a reference was also made to the temporary bail granted by this Court to accused No. 1, Rajendra Kamdar. The Special Judge, after hearing the Counsel for the accused and the Special Public Prosecutor passed the following order.
"Applicant/Accused No.2 by name Vinod Sabaji Loke is temporarily released on bail for two weeks only with effect from the actual release on furnishing by way of cash surety of Rs. 75,000/- and on the following conditions :
IO PSI Wadhankar shall appoint a sufficient number of officers to keep vigilance on the movements of applicant/accused No.2 for 24 Hrs. during the period of two weeks of his interim bail at the costs of the applicant/accused No.2.
The applicant/accused No. 2 shall deposit the amount of Rs. 5,000/- with the Registrar, Sessions department, which may be used for the payment of "Bhatta" to the vigilance party. Mr. Wadhankar is directed to submit his bail to the Registrar in this respect after the period of two weeks.
Secondly, the applicant/accused No. 2 shall report to the N.M. Joshi Marg Police Station, twice a day i.e. in the morning before 11 a.m. and in the evening after 6 p.m.
The prosecution is directed to intimate to the Sr. Inspector of Police, N.M. Joshi Marg Police Station for taking attendance of the applicant/accused No.2."
On 25-4-1995 the Special Judge directed the Senior Inspector of N.M. Joshi Marg Police Station to co-operate with the Kandivali unit of Narcotic Cell in complying with the order dated 19-4-1995. The accused No.2 did not avail of the order.
4. The roznama of the Special Judge dated May 5, 1995 reveals that the learned Special Judge stayed the operation of the order dated April 19, 1995. This order appears to have been passed on the application moved by P.S.I. Wadhankar. Thereafter the learned Special Judge disposed of the application for cancelling the order dated April 19, 1995 on November 29, 1995. The order reads thus :
"Heard both sides. This is an application moved by P.S.I./I.O. in the case praying that the order passed on 19-4-1995 be revoked by which the applicant/accused No.2 was allowed to remain temporarily enlarged on bail for two weeks on furnishing cash surety of Rs. 75,000/- which IO PSI Wadhankar to appoint sufficient number of officers to keep vigilance during the period of two weeks while the accused No.2 to report to N. M. Joshi Marg twice a day at 11 a.m. and 6 p.m. on all the dates of with two weeks and with other conditions.
This application was pending for one reason or the other and on 29-11-95 reply to the application came to be filed by the applicant/accused No.2 through his advocate wherein the stay of the order passed on application (Extn. 1,3) is prayed to be vacated.
Perused the appln. and reply and after considering the rival contentions advanced in support of arguments, find that along with appln. itself, a reply to the query is filed wherein Dr. Anilkumar to Q.No.3 has replied that patient i.e. the applicant No.2''s father will require hospitalization. Whereas while replying to Q.No.4 he has relied that the patient is advised regular medical check up as is normally advised to cardiac patients. All the medical records pertaining to father of accused No.2 is perused. It is seen that about the time when the appln. was moved he has admitted in ICCU. During the pendency of that appln. he was removed to general ward and while the order granting 2 weeks bail was pending, he was discharged from hospital. From the record itself it seems that father of accused No. 2 is a cardiac patient and his movements may be restricted. The only objection which is taken in the appln. marked Exh. 13 is that the ground on which the appln. was moved being non existent, the order is sought to be revoked. Considering the replies of the doctor filed by prosecution, the claim that the ground has become non-existent cannot sustain and on humanitarian ground the order which was passed on 19-4-95 is again brought into force while the stay granted below Exh. 13 on 5-5-95 is vacated and the applicant No. 2 can avail of the order passed below Exh. marked Ex.ii.
Consequently the appln. Exh. 13 is rejected.
Case adj. to
29-11-95.
This order is under challenge in this application.
5. My learned brother Vishnu Sahai, J. on November 30, 1995 stayed the operation of the orders dated April 19, 1995 and November 29, 1995 and this interim order is continued till today.
6. Learned Counsel for the accused-respondent submitted that the learned Special Judge has passed the order granting interim bail on humanitarian grounds and he took note of the order passed by this Court granting bail to accused No. 1 for a period of four weeks. Learned Counsel further submitted that the accused has to arrange for funds for the Angiography test which the accused''s father has to undergo. Learned Additional Public Prosecutor for the State submitted that there is no justification for granting bail on alleged humanitarian grounds, inter alia, for the response :
(i) that the accused has two brothers who are stationed in Indore (M.P.) as per his own assertions. They can conveniently look after their father and (ii) Section 37 of the N.D.P.S. Act says that notwithstanding the provisions contained in the Code of Criminal Procedure, the offences which are cognizable under this Act, bail can only be granted if the Court is satisfied that there is reasonable ground for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. He further submits that these limitations are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force for granting bail.
7. Admittedly, accused No. 2 could not avail of the order dated April 19, 1995 passed by the Special Judge. This order was interdicted on May 5, 1995 by the learned Special Judge. There is no material placed before the Special Judge or before this Court that the condition of the father of accused No. 2 has deteriorated and that he is the only male member who can attend to his father at this juncture. Even otherwise on the undisputed facts I am satisfied that the learned Special judge has over-stepped his jurisdiction in granting the concession of interim bail to the accused No.2. As per the accused''s own saying he has two brothers who are stationed at Indore (M.P.). There is no mention in the application that those two brothers are unable to attend to the father in the situation. The accused''s brothers could very well attend to their father if the father''s health condition has been deteriorated. As is suggested the so called humanitarian grounds for which accused No. 1 was granted bail are non-existent in the instant case. In fact, the Special Judge has overstepped his jurisdiction in allowing the concession of bail on the allegations made in the application.
8. I am not inclined to express any opined with regard to the merit of the order passed by my learned brother M. S. Rane, J. in Criminal Appeal No.2682 of 1994 on October 25, 1994. My learned brother for compelling reasons mentioned in the order allowed interim bail for four weeks. That judgment is not a precedent for granting interim bail in every eventuality, even for the assumed humanitarian ground.
9. Section 37 of the N.D.P.S. Act envisages that the accused can be released on bail only on fulfilment of condition mentioned in the Section. This section expressly says that the provisions regarding grant of bail contained in Code of Criminal Procedure stand superseded by the provisions contained in this Section.
10. For the reasons stated above, criminal application No.3047 of 1995 succeeds and is allowed. The orders of the learned Special Judge dated April 19, 1995 and November 29, 1995 are set aside.
11. Application allowed.
