Bherulal Versus Central Government

Madhya Pradesh High Court (Single Judge)

MISC. CRL, 43856 of 2021, Judgment Date: Sep 23, 2021

Law laid down - 

Applicability of bar as provided under Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 in case of application under Section 438 of the Code of Criminal Procedure, 1973.

Admittedly, the provisions of the Act have harsher provisions for sentencing and even harsher when it comes to bail, as has been provided under Section 37 of the Act. In the case of Murleedharan v. State of Kerala, while dealing with a similar provision, Section 41-A of the Kerala Abkari Act, the Supreme Court has held, that :-

“According to the Sessions Judge “no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused”.

The above provision is in pari materia with Section 37 of the Narcotic Drugs and Psychotropic Substances Act. This Court has held, time and again, that no person who is involved in an offence under that Act shall be released on bail in contravention of the conditions laid down in the said Section. (vide Union of India v. Ram Samujh [ 1999 (9) SCC 429]. If the position is thus in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the court for pre-arrest bail knowing that he would also be implicated as an accused. Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy.

Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime.”

So far as the case of Toofan Singh (supra) is concerned, on which the counsel for the applicant has also relied upon, in the considered opinion of this Court, the facts of the aforesaid case cannot be applied in a pre-arrest bail application and thus, the said decision is distinguishable.

Judgment relied upon: Murleedharan v. State of Kerala reported as 2001 SCC (Criminal) 795 by distinguishing the latest judgment of the Supreme Court in case of Toofan Singh v State of Tamil Nadu reported as 2020 SCC Online SC 882, which was relied upon by the counsel for the applicant.

Bherulal Versus Central Government