D.P. Sengupta, J.@mdashThis is an application for bail in connection with NDPS Case No. 36/2000 arising out of Crime No. 6/NCB/Cal 2000
u/s 9A/25A/29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as NDPS Act).
2. The aforesaid case originated from the seizure of 158.1kg. of white crystalline substance believed to be Ephedrine Hydrochloride recovered
from inside room No. 5 of 109 Old China Bazar Street, Calcutta-1, which belonged to one Sirish Doshi and one Praying Chandra Mehta @
Pravin Bhai Mehta. On the same date, i.e., on 20.6.2000 some officers of the Narcotic Control Bureau searched the office-cum-godown of the
present petitioner at 59A Rash Behari Basu Road, Calcutta-1 and seized some purchase and sale vouchers relating to Ephedrine Hydrochloride.
3. The present petitioner, namely Sailesh R. Shah was arrested on 20.6.2000 along with two other accused persons namely Pravin Mehta and
Vinod Jain. All the three accused persons were produced before the learned Special Judge (NDPS Act), VIth Bench, City Sessions Court,
Calcutta and they were remanded to custody.
4. All the aforesaid three accused persons filed applications for bail before the learned Special Judge (NDPS Act) on 21.8.2000. The learned
Judge by his order dated 30.8.2000 allowed the prayer for bail of Vinod Kumar Jain in view of the provision of 167(2) Cr.PC since investigation
of the case could not be completed within the statutory period of 60 days. But the learned Judge by the same order rejected the prayer for bail of
Pravin Kumar Mehta and the present petitioner.
5. Thereafter challenging the aforesaid order rejecting the prayer for bail two separate applications for bail were preferred before this Court by the
said Pravin Mehta and the present petitioner. The said two applications for bail were allowed by this Court by two different orders passed on
different dates on the ground that the cases of Pravin Mehta and Sailesh R. Shah are similar to that of Vinod Kumar Jain, who was granted bail by
the learned Special Judge under the provision of Section 167(2) Cr.PC as the charge sheet/complaint could not be submitted within the statutory
period.
6. Challenging the aforesaid two orders passed by this Court SLP was preferred the Hon''ble Supreme Court being SDP (Crl) No. 2624-
2625/2001. From the order of the Hon''ble Supreme Court dated 7.12.2001 it appears that at the time of hearing it was submitted by the learned
counsel appearing for the Union of India that he had instruction not to press the SLP filed against Pravin Chandra Mehta as his case is similar to
that of Vinod Kumar Jain, who was granted bail by the Special Judge u/s 167(2) Cr.PC and on such submission the SLP against Pravin Mehta
was dismissed. Then on the prayer of the learned advocate the SLP against the present petitioner was directed to be listed on 10.12.2001.
7. Thereafter by an order dated 11.1.2002 the Hon''ble Supreme Court set aside the order passed by this Court and remitted the matter to this
Court for disposing of the bail petition of the present petitioner afresh in accordance with law, keeping in mind the provision of Section 37 of the
NDPS Act.
8. Mr. Basu, learned advocate appearing for the petitioner draws our attention to the amended provisions of Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 2001 (Act 9 of 2001) which came into force on 9.5.2001. Mr. Bose draws our attention to the provision of
Section 41 of the Amended Act of 2001, which runs as follows:-
41. Application of this Act to pending cases. (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the
Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as
amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before
such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the
commission of such offence:
Provided that nothing in this section shall apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which
would not have been so punishable if this Act has not come into force.
9. Referring to the aforesaid provision it is submitted by Mr. Bose that in view of the provision of Section 41 of the Amendment Act, which lays
down that notwithstanding anything contained in Sub-section (2) of Section 1 all cases pending before the Courts or under investigation shall be
disposed of in accordance with the provisions of the principal Act as amended by the Act of 2001, the present case is to be disposed of according
to the provisions of Amended Act of 2001 (Act 9 of 2001).
10. Mr. Bose next refers to the provision of Section 37 of the amended Act which is as follows:-
37. Offence to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) *****
(b) no person accused of an offence punishable for (offences u/s 19 or Section 24 or Section 27A and also for offences involving commercial
quantity) shall be released on bail or on 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 opposes the application, the Court is satisfied that there are reasonable ground for believing that he is not guilty of
such offence and that he is not likely to commit any offence while on bail.
(2) *****
11. Referring to the aforesaid amended provision of Section 37 Mr. Bose submits that the rigors of Section 37 applies only to the offences u/s 19,
Section 24 or Section 27A and also to the offences involving ""Commercial Quantity"". ""Commercial Quantity"" has been defined in Section (2) (VII-
a) and it relates to only Narcotic Drugs and Psychotropic Substances. Mr. Bose points out that in the present case the article seized is a
Controlled Substance"" as defined in Section (2) (VII-d) of the Act. Such ""Controlled Substance"" does not find place in the schedule which
specifies the ""small quantity"" and ""Commercial Quantity"". According to Mr. Bose since the seized article is a ""Controlled Substance"" and not
Narcotic drug or Psychotropic Substance and since such controlled substance does not find place in the schedule, specifying ""small quantity"" and
Commercial quantity"", the provision of Section 37 of the Act is not at all applicable in the present case.
12. In reply to the aforesaid argument of Mr. Bose, it is submitted by Mr. Sengupta, learned advocate appearing for the N.C.B. that the rigors of
Section 37 of the NDPS Act is very much applicable in the present case. Mr. Sengupta points out the serial No. 152 and 159 of the schedule,
which refers to ""Amfetamine"" and ""Methamphetamines"" respectively, and submits that these two items are manufactured from Ephedrine, which
has been seized from the possession of the accused persons. But Mr. Sengupta at the same time admits that these two items are the end product of
Ephedrine, which is not included in the schedule. Mr. Sengupta further submits that although Ephedrine is not included in the schedule, it can very
well come within the ambit of serial No. 239 of the schedule. But we are unable to accept such contention. Serial No. 239 of the schedule refers to
any mixture or preparation that of with or without a neutral material, of any of the above drugs"". A reading of the said serial No. 239 makes it
clear that the articles described there are the mixture of any of the drugs mentioned in the schedule. In our considered view by no stretch of
imagination Ephedrine can be included in the said serial No. 239 of the schedule.
13. Mr. Sengupta also submits that in case it is held by this Court that Section 37 is not applicable in the present case, this Court should not grant
bail to the petitioner considering the grave nature of the offence.
14. In view of the discussions made above, we find sufficient merit in the submission of Mr. Bose, learned advocate of the petitioner. In view of the
amended provision of Section 37, it is clear that the rigors of Section 37 of the Act is only applicable in the offence u/s 19, Section 24 or Section
27A and also to the offences involving ""commercial quantity"". Now, a reading of the definition of ""commercial quantity"" makes it clear that it refers
to only Narcotic Drugs and Psychotropic substances. The seized commodity (Ephedrine) is admittedly a ""Controlled Substance"". It is neither a
Narcotic Drug nor a Psychotropic Substance. So it cannot come within the purview of ""commercial quantity"". Apart from this, the seized article,
namely Ephedrine is not included in the schedule of Narcotic Drugs and Psychotropic Substance. All these, in our opinion suggest that the
provision of Section 37 of the Act is not applicable in the present case.
15. Now, let us take up the question of applicability of Section 167(2) Cr.PC in the present case. At the very outset, Mr. Sengupta raises a
preliminary objection to this and submits that the Hon''ble Supreme Court has remitted the matter back to this Court for fresh disposal of the bail
application of the petitioner afresh, keeping in mind the provision of Section 37 of the NDPS Act. In such circumstances, it is submitted by Mr.
Sengupta that the scope of this Court is very limited and it should confine itself only to the question of applicability of the provision of Section 37 of
the NDPS Act. But we are unable to accept such contention. It is clear from the order of the Hon''ble Supreme Court that this Court has been
directed to dispose of the bail application of the petitioner afresh in accordance with law keeping in view the provision of Section 37 of the Act.
So, in our considered view, when the Hon''ble Supreme Court has directed this Court to dispose of the bail petition in accordance with law, this
Court is not debarred from considering the legality and correctness of the order of the learned Special Judge, who denied the benefit of Section
167(2) Cr.PC to the present petitioner, although such benefit was given to other accused persons, who were granted bail u/s 167(2) Cr.PC for
non-submission of chargesheet within the statutory period.
16. Mr. Bose, learned advocate of the petitioner submits that in the present case all the three accused persons were arrested on the same date,
i.e., on 20.6.2000. They were produced before the learned Judge, Special Court on 21.6.2000. It further appears that on 21.8.2000 the present
petitioner along with other two accused persons namely Pravin Mehta and Vinod Kumar Jain filed bail petition before the learned Special Judge,
who fixed 28.8.2000 for hearing of the said bail applications. On 28.8.2000 the matter was adjourned till 29.8.2000 on the prayer of the
prosecution. On 29.8,2000 the applications for bail were taken up for hearing by the learned Judge. After hearing the learned advocate of the
accused persons, the matter was again adjourned on the prayer of the learned senior Public Prosecutor for making his submission. On 30.8.2000
the Officer of the Narcotic Control Bureau submitted the complaint. By an order dated 30.8.2000 the learned Judge, Special Court (NDPS Act)
granted statutory ball to the accused Vinode Kumar Jain in view of the provision of Section 167(2) Cr.PC, but he rejected the prayers for bail of
the present petitioner and Pravin Chandra Mehta, who were also arrested on the same date, i.e., on 20.6.2000.
17. The reason given by the learned Special Judge in his order dated 30.8.2000, while allowing the prayer for bail of Vinod Jain was that in the
bail petition filed by Venod Jain there was a specific averment that the accused had a statutory right to be released on bail. But since there was no
such averment in the bail petitions filed by the other two accused persons namely Pravin Mehta and the present petitioner, the learned Judge was
of the view that they should not have any indefeasible right to be released on bail. Mr. Bose points out that such an observation of the learned
Judge was proved to be incorrect in the case of Pravin Mehta when the SLP against him was not pressed in the Supreme Court and it was
submitted by the learned counsel of the NCB that the case of Pravin Mehta is similar to that of Vinod Jain, who was granted statutory bail by the
learned Special Judge.
18. In so far as the present petitioner is concerned, it is submitted by Mr. Bose, he is also entitled to the same benefit, which was given to other
two accused persons. It is pointed out by Mr. Bose that there was a specific averment in the bail petition filed by the present petitioner that in
connection with the said case the petitioner was arrested on 20.6.2000. Mr. Bose further points out that on 21.8.2000 an application was filed by
the Narcotic Control Bureau praying for remanding the accused persons, including the petitioner, to jail custody. In the said petition also it was
specifically mentioned by the NCB that the date of first production was 21.6.2000 and the date of next production was 21.8.2000. So, it was very
much within the knowledge of the learned Judge that all the three accused persons were arrested and produced on the same date. Mr. Bose also
explains the circumstances for which specific averment could not be made by the petitioner that he was statutory entitled to get bail. The
petitioner''s applications for bail was served upon the NCB on 18.8.2000, which was the 59th day of the petitioner''s arrest and for that reason if
any statement was made in the ball petition that the petitioner was entitled to statutory bail that would have been a untrue statement by the
petitioner. Mr. Bose submits that in any event the petitioner was entitled to statutory bail and that is evident from a reading of the application filed
by the Narcotic Control Bureau on 21.8.2000, which was fixed on 62nd day of petitioners'' custody.
19. Mr. Bose relies on a judgment of the Hon''ble Supreme Court reported in Hussainara Khatoon and Others Vs. Home Secretary, State of
Bihar, Patna, . In the said judgment it was held by the Hon''ble Supreme Court as follows:-
It is difficult, to believe that on each of the countless occasions on which these under trial prisoners were produced before the Magistrates and the
Magistrates made orders of remand, they must have applied their mind to the necessity of remanding those under trial prisoners to judicial custody.
We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial
prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of Sub-section (2) of Section 167. When an
undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may, the Magistrate must,
before making an order of further remand to judicial custody, point out to the under trial prisoner that he is entitled to be released on bail.
20. The next judgment relied upon by Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, In the said judgment the Hon''ble
Supreme Court, relying upon the judgment of Hussainara Khatoon (supra), held as follows:-
With the amendment of Clause (b) of Sub-section (4) of Section 20 read with the proviso to Sub-section (2) of Section 167 of Cr.PC an
indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against
him in accordance with law u/s 173 Cr.PC. An obligation, in such a case, is cast upon the Court, when after the expiry of the minimum period
during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by Clause (bb) of
Section 20(4). There is yet another obligation also which is cast on the Court and that is to Inform the accused of his right of being released on bail
and enable him to make an application in that behalf. (Hussainara Khatoon case). This legal position has been very ably stated in Aslam Babalal
Desai v. State of Maharashtra where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel
v. Intelligence Officer, Narcotic Control Bureau, New Delhi wherein it was held that: (SCC p. 299, para 9).
The right to bail u/s 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court''s discretion. If the investigating agency fails to
file chargesheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of
the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days.
He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.
21. Mr. Bose submits that the aforesaid two judgments of the Hon''ble Supreme Court was also followed in a later decision of the Hon''ble
Supreme Court reported in Uday Mohanlal Acharya Vs. State of Maharashtra, .
22. Relying upon the aforesaid judgment of the Hon''ble Supreme Court it is submitted by Mr. Bose that on the expiry of the statutory period of 60
days or 90 days, a duty is cast upon the Court to inform the accused of his valuable right of being released on bail and to enable him to make an
application. It is further submitted by Mr. Bose that in the present case all the three accused persons were arrested on the same date, i.e., on
20.6.2000 and were produced before the learned Judge on the same date i.e. on 21.6.2000. In their application for bail which was filed on
21.6.2000 it was specifically mentioned that the present petitioner was arrested on 20.6.2000. In the petition filed by the NCB praying for remand
of the accused, the date of first production was specifically mentioned as 21.6.2000. It was very much within the knowledge of the learned Special
Judge that the present petitioner was in custody since 20.6.2000. But surprisingly the learned Judge, although he granted statutory bail to one of
the accused namely, Vinod Jain, denied such benefit to the other accused person although his date of arrest was the same. There was no special
reason for the learned Special Judge to deny such statutory right to the present petitioner u/s 167(2) Cr.PC.
23. We have heard the learned advocates of the respective parties. We have also perused all the relevant papers and documents. In our
considered view, the order passed by the learned Special Judge denying the statutory right of the present petitioner to be released on bail in view
of the provision of Section 167(2) Cr.PC, suffers from serious illegality. The learned Judge should have considered that the present petitioner
namely. Sailesh R. Shah was equally entitled to the same benefit of the provision of Section 167(2) Cr.PC as it was in the case of Vinod Jain.
24. In view of the discussion made above we find sufficient merit in the submission of Mr. Bose, learned advocate of the petitioner. Accordingly
we allow the present application and direct the present petitioner to surrender before the learned Special Judge (NDPS) Act, VIth Bench, City
Sessions Court within a period of 7 days. After such surrender the petitioner shall be taken into custody and, if any, prayer for bail is thereafter
made on his behalf, the learned Judge shall grant him bail in view of the provision of Section 167(2) Cr.PC.
The present application is accordingly disposed of.
M.K. Basu, J.
I agree.