| CITATION | AIRONLINE 2002 SC 329 |
| DATE OF JUDGEMENT | 19 July, 2002 |
| COURT | Supreme Court of India |
| APPELLANT | Union of India |
| RESPONDENT | Ashok Kumar Jaiswal |
| BENCH | Justice H.K. Sema |
INTRODUCTION
The case of Union of India vs. Ashok Kumar Jaiswal is related to the legal procedures of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act) and its practicality with heavy legal standards. The form of charges made against the respondent – Ashok Kumar Jaiswal were under Sections 8 and 21 of the Act as these pertain to offences involving the trade and possession of narcotic drugs and psychotropic substances. The core legal issue surrounds the bail granted to the respondent by the High Court and against which the Union of India protested on the bearing of Section 37 of the NDPS Act. This section holds severe conditions for the granting of bail with the intent of minimizing the rate of drug-associated offenses. Chief Justice’s intervention proves that these statutory requirements must be followed and become the turning judicial signal of the strict regulatory regime of the bails under the NDPS Act.
Facts of the Case:
1. The respondent Ashok Kumar Jaiswal was prosecuted under sections 8 & 21 of the Narcotic Drugs & Psychotropic 1985. These sections relate to the acts that are considered to be criminal about the traffic and use of narcotic drugs and psychotropic substances.
2. The respondent was granted a bond by the High Court. The relevant part of the High Court’s order stated: Thus, for the offence of recovery and detection it is a fit case for bail.” The order did not also consider the provisions of section 37 of the Act as obligatory for compliance.
3. Pursuant to Section 37 of the Act, several conditions must be complied with before a person can be released on bond for an offence falling under the provision of the Act attract imprisonment of not less than five years. The court must be satisfied that there are reasonable grounds for believing that: 50% of the accused are not guilty of the offence; the Majority of the accused are not likely to commit an offence pending the hearing of their cases.
4. The Supreme Court noted that the High Court granted bail rather carelessly while coming up with no justifiable explanation. The order did not meet the procedures of section 37 as they were when bail was granted to the appellant. Earlier decisions of the Apex court had always laid stress on the necessity to strictly follow the provision of Section 37 in NDPS Act.
5. The respondent’s counsel pointed out, concerning section 37 of the Act, an amendment that came into force on the 9th of May, 2001. The order impugned was passed by the High Court on 2nd March 2001 thus before the coming into force of the amendment. The respondent’s counsel agreed that the High Court order could not be legally warranted before the Section 37 amendment. The council said that since the provision had been amended, a new bail application might be made.
6. As for the authority of the High Court the Supreme Court quashed the order which has granted bail to the respondent. All the bail bonds were withdrawn and the respondent was ordered to be arrested right from that moment. As to the amended Section 37 of the Act, the Supreme Court did not lay down its ruling of whether it is appropriate for the respondent but reserved such a decision for another hearing.
Key Issue
Whether the High Court was wrong in allowing bail to Ashok Kumar Jaiswal in absence of compliance of the provisions under Section 37 of the NDPS Act 1985?
Appellant’s Arguments
1. The prime contention of the appellant, namely Union of India, was the non-adherence by the High Court for compliance to the provisions of Section 37 of the NDPS Act which mandates conditions of high rigor. According to Section 37, before giving bail, reasonable suspicion has to be made that the accused is not guilty of the offense and is not likely to commit an offense while on bail.
2. The appellant also argued that bail was granted by the High Court without due consideration and in a perfunctory manner without articulating valid reasons and merits of the respondent’s application. The order only said, “Given the recovery and detention, it is a proper case under the provisions of the law to grant bail to” which according to the appellant did not meet the statutory provisions in the application of the bail law.
3. There is no elaboration by the High Court as to why it granted bail and the test used when assessing the applicants’ collusion in the crime. The appellant further pointed out that when fundamental justice is so divisorial violated, such minimal substantiation of a decision does not take into account the gravity of the allegations made against the accused or the legislative objectives behind Section 37’s restrictive provisions.
4. Concerning the legislative history of Section 37, the appellant placed much reliance on the purpose of the section as passing conditions for bale due to the increasing menace of drug trafficking and use. Decisions made in earlier cases by the Supreme Court of India including; Union of India v. Ram Samujh and Supdt. In similar vein, the Narcotics Control Bureau, the Madras case of R. Paulsamy v. State have upheld the legal provision, stressing adherence to Section 37 in NDPS matters.
5. While observing this, the appellant stressed that the High Court order was passed on 2nd March, 2001, when the new Section 37 had not yet come into force on 9th May, 2001. Therefore, the High Court was operating under pre-amendment Section 37 provisions which were stricter in nature. The appellant urged this court to hold that the order made by the High Court was unsustainable under the law when the order was made.
Respondent’s Arguments
1. The respondent noted that the High Court uses its judicial discretion to grant bail in each case depending on the details. The respondent explained that the decision made by the High Court, it viewed the recovery and detention as worth making it a proper case to grant bail.
2. The respondent’s counsel directed attention to the amendment of Section 37 of the NDPS Act which took effect from 9th May, 2001. However, as already mentioned, the impugned order was passed before the amendment, on 2nd March 2001, yet the respondent pointed towards the amendment as a possibility of its providing a gracious guideline for granting of bail.
3. In light of the above, the respondent’s counsel was forced to admit that the order of the High Court, as passed, cannot be justified legally and under the pre-amendment provisions only of Section 37 of the Act. This concession entailed the finding by the appellant’s legal team that the government had not complied with provisions of the law as existed at the time of placing the concession.
4. The respondent’s counsel stated the desire to apply for bail under the newly enacted Section 37 whilst still in prison. It was as much a concern that a new bail application would be entertained in a new legal landscape as post-amendment which may be more benevolent to the respondent.
5. In response, the respondent’s counsel submitted that the court should not make any comment on the applicability of the amended Section 37 as it may give the appellants false hope or change the respondent’s defence strategy. This argument was intended to preserve the respondent’s rights to apply for bail under the new provisions without being impacted by observations made by the Supreme Court.
Court’s Judgment
The bail decision was sought to be altered by the Supreme Court and that is why the Supreme Court quashed the order passed by the High Court in the case of Ashok Kumar Jaiswal. The Court noted that the High Court failed to meet the mandatory provisions of Section 37 of the NDPS Act as applied before the bail. The Supreme Court observed and remarked that the High Court was even granting bail in a very routine manner without any plausible explanation. It did not meet and comply with the requirements of Section 37 in which the court has to be persuaded that the accused person isn’t guilty of the offense that he/she is being charged for nor likely to offend while on bond. Earlier, the bail bonds of the respondent were cancelled. The Supreme Court ordered as to Ashok Kumar Jaiswal that he be arrested now. Pertinently, the respondent has mentioned the amendment to Section 37 made with effect from 9th May 2001. However, the said order was passed on 2nd March, 2001 hence the Court pointed out that that the order could not be justified under the pre-amendment provisions. The Supreme Court put it on record that the respondent’s counsel wanted to move a new application for bail under the changes in Section 37.
On the applicability of the amended provisions towards the respondent, the Court adopted an audacious position that it was not saying something on that aspect at all, thus leaving it open to be decided at some other date. Because of these reasons, the appealing made by the Union of India was accepted. Thus, the High Court’s order was quashed by reversing its observation on the provisions of Section 37 with a clarification that every bail application should strictly adhere to the legalities it imposes under the NDPS Act.
Conclusion
The case of Union of India vs. Ashok Kumar Jaiswal regularly explains the importance of dealing strictly according to provision 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 in the bail for serious narcotic offenders. This means that to avoid casual grant of bail to persons charged with severe narcotic offenses, Courts need to provide reasons and follow the law as laid down in the statute to have adequate legal justification for granting persons’ influential bail. Therefore, setting aside the High Court order and directing the respondent’s immediate custody the Supreme Court has stood by the legislative provision of the NDPS Act and their intention of eradicating the menace of drug trafficking and use in India. This case is a clear illustration of the first instance where the court affirms the stringency of the legal bail laws about narcotic offenses and should serve as a yardstick of a call for vigilance to judges.
REFERENCE
This Article is written by Priyal Saxena student of SVKM’S NMIMS Deemed-to-be-University; Intern at Legal Vidhiya.
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