# Vimal Rajput v. State of U.P

- **Citation:** (2024) 6 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-05
- **Case number:** Crl. Misc. Bail Application No. 3604 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimal-rajput-v-state-of-u-p-52175
- **Pages:** 17

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 439 - Bail - High
Court's' power - Narcotic Drugs and
Psychotropic Substances Act, 1985 - Ss.
36-A and 37 - S. 37 of the NDPS Act, does
not contain any provision saving the
special powers to grant bail conferred
upon the High Courts by Section 439 Cr.
P.C. - How far effect High Court's power
to grant bail - Held, the restrictions
contained in Section 37 of the NDPS Act
were meant to be applicable to Courts
other than the Constitutional Courts and
in view of the provision contained in
Section 36-A (3) of NDPS Act, those
restrictions
do
not
apply
to
the
Constitutional Courts. (Para 12 and 30)

B. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section
52-A
-
Narcotic
Drugs
and
Psychotropic
Substances
(Seizure,
Storage, Sampling and Disposal), Rules,
2022 - Rules 3(2) and 10 - Samples
were not drawn in presence of a
Magistrate - Non serial numbering of
packets
for
the
purposes
of
identification - Though 14 packets were
claimed to be seized, but sample has
been drawn from only one packet -
Effect - Held, the authorities themselves
have violated the mandatory provisions
contained in Rules of 2022 - High Court
found case for enlargement of applicant
on bail. (Para 38, 39, 41 and 42)

C. Interpretation of Statute - Harmonious
construction - Defect in the statutory
provision - Possibility of correction to be
done by the court - Held, if the makers of
the Act had themselves come across this
jumbling of the provisions in Sections 36A and 37 due to a copy-paste error, they
have surely have straightened it out by
reading Section 36-A(3) and Section 37 in
conjunction with each other - Therefore,
in order to correct the defect without
altering the provisions of the Statute, the
provisions of Sections 36-A and 37 have to
be
read
together
and
interpreted
harmoniously so that Section 36-A(3)
does not become redundant or otiose.
(Para 28)

Bail Application allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,820 of 51,571. This is a partial read: ask again with offset=39820 for what follows._

92 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Therefore, the present application
is
allowed
and
the
proceeding
of
Complaint Case No. 712 of 2023 (Brajesh
Kumar Singh Vs. Smt. Archana Singh
Gautam and others), under section 138 N.I.
Act, pending in the Court of Learned
Special Judicial Magistrate-II, Banda, is
hereby quashed.
----------
(2024) 6 ILRA 92
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.06.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Application No. 3604 of 2024

Vimal Rajput ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sumeet Tahilramani

Counsel for the Respondent:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 439 - Bail - High
Court's' power - Narcotic Drugs and
Psychotropic Substances Act, 1985 - Ss.
36-A and 37 - S. 37 of the NDPS Act, does
not contain any provision saving the
special powers to grant bail conferred
upon the High Courts by Section 439 Cr.
P.C. - How far effect High Court's power
to grant bail - Held, the restrictions
contained in Section 37 of the NDPS Act
were meant to be applicable to Courts
other than the Constitutional Courts and
in view of the provision contained in
Section 36-A (3) of NDPS Act, those
restrictions
do
not
apply
to
the
Constitutional Courts. (Para 12 and 30)

B. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section
52-A
-
Narcotic
Drugs
and
Psychotropic
Substances
(Seizure,
Storage, Sampling and Disposal), Rules,
2022 - Rules 3(2) and 10 - Samples
were not drawn in presence of a
Magistrate - Non serial numbering of
packets
for
the
purposes
of
identification - Though 14 packets were
claimed to be seized, but sample has
been drawn from only one packet -
Effect - Held, the authorities themselves
have violated the mandatory provisions
contained in Rules of 2022 - High Court
found case for enlargement of applicant
on bail. (Para 38, 39, 41 and 42)

C. Interpretation of Statute - Harmonious
construction - Defect in the statutory
provision - Possibility of correction to be
done by the court - Held, if the makers of
the Act had themselves come across this
jumbling of the provisions in Sections 36A and 37 due to a copy-paste error, they
have surely have straightened it out by
reading Section 36-A(3) and Section 37 in
conjunction with each other - Therefore,
in order to correct the defect without
altering the provisions of the Statute, the
provisions of Sections 36-A and 37 have to
be
read
together
and
interpreted
harmoniously so that Section 36-A(3)
does not become redundant or otiose.
(Para 28)

Bail Application allowed. (E-1)

List of Cases cited:

1. S.L.P. Crl. No. 8137 of 2022; State by the
Inspector of Police Vs B. Ramu; 2024 INSC 114
decided on 12.02.2024

2. U.O.I. Vs Ajay Kumar Singh, 2023 SCC
OnLine SC 346

3. Mohd. Muslim Vs State (NCT of Delhi); 2023
SCC OnLine SC 352

4. Ramji Singh Vs Enforcement Directorate;
2023 SCC OnLine All 831

5. Vijay Madanlal Choudhary Vs U.O.I.; 2022
SCC OnLine SC 929
6 All. Vimal Rajput Vs. State of U.P.
93
6. Rajendra Prasad Yadav Vs St. of M.P.; (1997)
6 SCC 678

7. St. of Pun. Vs Baldev Singh; (1999) 6 SCC
172

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Sumeet Tahilramani,
learned counsel for the applicant, Sri
Ranvijay Singh, learned A.G.A. for the
State and perused the records.

2. The instant application has been
filed seeking release of the applicant on
bail in Case Crime No. 0029 of 2024,
under Sections 8/20/23/29/68 of Narcotic
Drugs and Psychotropic Substances Act
(hereinafter referred to as 'the NDPS Act'),
registered at Police Station Purakalandar,
District Ayodhya.

3. The aforesaid case has been
registered on the basis of an F.I.R. lodged
on 28.01.2024 by the Station House Officer
against
five
persons,
including
the
applicant, stating that on the basis of
information received from a mukhbir a
team of police officers had intercepted a
four wheeler vehicle in which four persons,
including the applicant were travelling.
Different quantities of charas were being
carried by all the accused persons and 7
kgs. charas packed in 14 bags containing
500 grams each was recovered from a bag
being carried by the applicant.

4. The recovery memo states that a
single sample weighing 166 grams was
taken out from the 14 packets of charas
recovered from the possession of the
applicant.

5. In the affidavit filed in support of
bail application it has been stated that the
applicant is innocent, he has been falsely
implicated in the present case and he has no
criminal history.

6. The State has filed a counter
affidavit stating that samples have been
sent to the Forensic Science Laboratories
for being examined and as per the averment
made in the counter affidavit also a single
sample has been sent for examination.

7. The learned A.G.A. I has drawn
attention of the Court to the provisions
contained in Section 37 of the NDPS Act,
which is as follows: -

37. Offences to be cognizable
and non-bailable.-(1) Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-

(a) every offence punishable
under this Act shall be cognizable;

(b) no person accused of an
offence
punishable
for offences
under
Section 19 or Section 24 or Section 27-A
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 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 sub-section
94 INDIAN LAW REPORTS ALLAHABAD SERIES
(1) are in addition to the limitations under
the Code of Criminal Procedure, 1973 (2 of
1974), or any other law for the time being
in force on granting of bail.

8. The learned A.G.A.-I has relied
upon the judgments in the cases of State by
the Inspector of Police versus B. Ramu,
2024 INSC 114, S.L.P. Crl. No. 8137 of
2022, decided on 12.02.2024, Union of
India v. Ajay Kumar Singh, 2023 SCC
OnLine SC 346 and Mohd. Muslim v.
State (NCT of Delhi), 2023 SCC OnLine
SC 352.

9. In B. Ramu and Ajay Kumar
Singh (Supra), the Hon'ble Supreme
Court
has
reiterated
that
for
entertaining a prayer for bail in a case
involving recovery of commercial quantity
of narcotic drug or psychotropic substance,
the Court would mandatorily record the
satisfaction in terms of the rider contained
in Section 37 of the NDPS Act.

10. In Mohd. Muslim (Supra), the
Hon'ble Supreme Court held that: -

"20. A
plain
and
literal
interpretation of the conditions under
Section 37 (i.e., that Court should be
satisfied that the accused is not guilty
and would not commit any offence) would
effectively
exclude
grant
of
bail
altogether, resulting in punitive detention
and unsanctioned preventive detention as
well. Therefore, the only manner in which
such special conditions as enacted under
Section 37 can be considered within
constitutional parameters is where the
court is reasonably satisfied on a prima
facie look at the material on record
(whenever the bail application is made)
that the accused is not guilty. Any other
interpretation, would result in complete
denial of the bail to a person accused of
offences such as those enacted under
Section 37 of the NDPS Act.

21. The
standard
to
be
considered therefore, is one, where the
court would look at the material in a
broad
manner,
and
reasonably
see
whether the accused's guilt may be
proved. The judgments of this court have,
therefore,
emphasized
that
the
satisfaction which courts are expected to
record, i.e., that the accused may not be
guilty, is only prima facie, based on
a reasonable reading, which does not call
for
meticulous
examination
of
the
materials collected during investigation
(as held in Union of India v. Rattan
Malik19). Grant of bail on ground of
undue delay in trial, cannot be said to be
fettered by Section 37 of the Act, given
the imperative of Section 436A which is
applicable to offences under the NDPS
Act too
(ref. Satender
Kumar
Antil supra). Having regard to these
factors the court is of the opinion that in
the facts of this case, the appellant
deserves to be enlarged on bail."

11. However, none of the cases
referred to above takes note of the
provision contained in Section 36-A of the
NDPS Act, which is as follows: -

"36-A.
Offences
triable
by
Special
Courts.-(1)
Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973-

(a) all offences under this Act
which are punishable with imprisonment
for a term of more than three years shall be
triable
only
by
the
Special
Court
constituted for the area in which the
offence has been committed or where there
6 All. Vimal Rajput Vs. State of U.P.
95
are more Special Courts than one for such
area, by such one of them as may be
specified in this behalf by the Government;

(b) where a person accused of or
suspected of the commission of an offence under
this Act is forwarded to a Magistrate under subsection (2) or sub-section (2-A) of Section 167 of
the Code of Criminal Procedure, 1973 (2 of
1974), such Magistrate may authorise the
detention of such person in such custody as he
thinks fit for a period not exceeding fifteen days
in the whole where such Magistrate is a Judicial
Magistrate and seven days in the whole where
such Magistrate is an Executive Magistrate:

Provided that in cases which are
triable by the Special Court where such
Magistrate considers-

(i) when such person is forwarded to
him as aforesaid; or

(ii) upon or at any time before the
expiry of the period of detention authorised by
him;

that the detention of such person is
unnecessary, he shall order such person to be
forwarded to the Special Court having
jurisdiction;

(c) the Special Court may exercise, in
relation to the person forwarded to it under
clause (b), the same power which a Magistrate
having jurisdiction to try a case may exercise
under Section 167 of the Code of Criminal
Procedure, 1973 (2 of 1974), in relation to an
accused person in such case who has been
forwarded to him under that section;

(d) a Special Court may, upon
perusal of police report of the facts
constituting an offence under this Act or
upon complaint made by an officer of the
Central Government or a State Government
authorised in his behalf, take cognizance of
that offence without the accused being
committed to it for trial.

(2) When trying an offence under
this Act, a Special Court may also try an
offence other than an offence under this Act
with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial.

(3) Nothing contained in this
section shall be deemed to affect the
special
powers
of
the
High
Court
regarding bail under Section 439 of the
Code of Criminal Procedure, 1973 (2 of
1974), and the High Court may exercise
such powers including the power under
clause (b) of sub-section (1) of that section
as if the reference to "Magistrate" in that
section included also a reference to a
"Special Court" constituted under Section
36.

(4) In respect of persons accused
of an offence punishable under Section 19
or Section 24 or Section 27-A or for
offences involving commercial quantity the
references in sub-section (2) of Section 167
of the Code of Criminal Procedure, 1973 (2
of 1974) thereof to "ninety days", where
they occur, shall be construed as reference
to "one hundred and eighty days":

Provided that, if it is not possible
to complete the investigation within the
said period of one hundred and eighty
days, the Special Court may extend the said
period up to one year on the report of the
Public Prosecutor indicating the progress
of the investigation and the specific reasons
for the detention of the accused beyond the
96 INDIAN LAW REPORTS ALLAHABAD SERIES
said period of one hundred and eighty
days.

(5)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offences
punishable
under
this
Act
with
imprisonment for a term of not more than
three years may be tried summarily."

12. Surprisingly, Section 37 of the
NDPS
Act,
which
contains
certain
restrictions on the Courts' power to grant bail,
does not contain any provision saving the
special powers to grant bail conferred upon
the High Courts by Section 439 Cr. P.C.,
whereas Section 36-A of the NDPS Act,
which confers jurisdiction for trial of offences
under the Act upon Special Courts and which
does not contain any provision which may
affect the powers of any Court regarding
grant of bail, provides that nothing contained
in Section 36-A shall affect the High Court's
special
powers
regarding
bail
under
Section 439 Cr. P.C. It appears that the
provision contained in Section 36-A (3) of
NDPS Act saving special powers of the High
Courts regarding grant of bail was meant to
be incorporated in Section 37 of the Act, but
it has erroneously been placed in the Section
preceding Section 37. This conclusion is
supported by a study of similar provisions
contained in other Statutes which are being
referred to in the following paragraphs.

13. Section 12(1) and 12(2) of the AntiHijacking Act, 2016 contain a provision
similar to Section 45(1) and 45(2) of PMLA,
but a provision similar to Section 44(2) of
PMLA is also contained Section 12(3) of
the Anti-Hijacking
Act.
The
aforesaid
section reads thus:-

"12. Provision as to bail.-(1)
Notwithstanding anything contained in
the Criminal Procedure Code, 1973 (2 of
1974), no person accused of an offence
punishable under this Act shall, if in
custody, be released on bail or on his own
bond, unless,-

(a) the Public Prosecutor has
been given an opportunity to oppose the
application for such release; and

(b) where Public Prosecutor opposes
the application, the Designated 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 as specified in sub-section (1) are in
addition to the limitation under the Criminal
Procedure Code, 1973 (2 of 1974), or any other
law for the time being in force, on granting bail.

(3) Nothing
contained
in
this
section shall be deemed to affect the special
powers of the High Court regarding bail
under Section 439 of the Criminal Procedure
Code, 1973 (2 of 1974)."

(Emphasis added)

14. The High Courts' special powers for
grant of bail under Section 439 Cr. P.C. have
been saved even when the punishment for the
offence of hijacking provided in Section 4 is
upto death.

15. Similarly, the offences under
the Suppression of Unlawful Acts Against
Safety of Civil Aviation Act, 1982 carry a
punishment of imprisonment for life and
Section 6A of the Act provides that:-

"6-A. Provision as to bail.-(1)
Notwithstanding anything contained in
6 All. Vimal Rajput Vs. State of U.P.
97
the Criminal Procedure Code, 1973 (2 of
1974), no person accused of an offence
punishable under this Act shall, if in
custody, be released on bail or on his own
bond unless-

(a) the Public Prosecutor has
been given an opportunity to oppose the
application for such release; and

(b) 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 sub-section (1) are in
addition
to
the
limitations
under
the Criminal Procedure Code, 1973 (2 of
1974), or any other law for the time being
in force on granting of bail.

(3) Nothing contained in this
section shall be deemed to affect the
special
powers
of
the
High
Court
regarding
bail
under
Section 439 of
the Criminal Procedure Code, 1973 (2 of
1974)."
 (Emphasis added)

24. Section 3 of the Maritime AntiPiracy Act, 2022 provides that the offence
of
piracy
will
carry
a
maximum
punishment of imprisonment upto life and
in case the person committing piracy cause
death of any person or attempts to cause
death, he may be punished with death.
Section 12 of the aforesaid Act provides
that:-

"12. Provisions as to bail.-(1)
Notwithstanding anything contained in the
Code, no person accused of an offence
punishable under this Act shall, if in
custody, be released on bail or on his own
bond unless-

(a) the Public Prosecutor has
been given a reasonable opportunity to
oppose the application for such release;
and

(b) 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) Nothing contained in this
section shall be deemed to affect the
special
powers
of
the
High
Court
regarding grant of bail under section 439
of the Code."

(Emphasis added)

25. Offences under Suppression of
Unlawful
Acts
Against
Safety
of
Maritime
Navigation
and
Fixed
Platforms on Continental Shelf Act,
2002 carry punishment upto death and
Section 8 of the aforesaid Act provides
that:-

"8. Provision as to bail.-(1)
Notwithstanding anything in the Code, no
person accused of an offence punishable
under this Act shall, if in custody, be
released on bail or on his own bond unless
-

(a) the Public Prosecutor has
been given an opportunity to oppose the
application for such release; and

(b) where the Public Prosecutor
opposes the application, the court is
98 INDIAN LAW REPORTS ALLAHABAD SERIES
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 sub-section (1) are in
addition to the limitations under the Code
or any other law for the time being in force
on granting of bail.

(3) Nothing contained in this
section shall be deemed to affect the
special
powers
of
the
High
Court
regarding bail under Section 439 of the
Code."

(Emphasis added)

26. Offences under the Drugs and
Cosmetics Act, 1940 carry a punishment of
imprisonment upto life and Section 36AC of the Drugs and Cosmetics Act,
1940 provides that:-

"36-AC.
Offences
to
be
cognizable and non-bailable in certain
cases.-(1)
Notwithstanding
anything
contained in the Criminal Procedure Code,
1973 (2 of 1974),-

(a) every offence, relating to
adulterated
or
spurious
drug
and
punishable under clauses (a) and (c) of
sub-section (1) of Section 13, clause (a) of
sub-section (2) of Section 13, sub-section
(3) of Section 22, clauses (a) and (c) of
Section 27, Section 28, Section 28-A,
Section 28-B and sub-sections (1) and (2)
of Section 30 and other offences relating to
adulterated drugs or spurious drugs, shall
be cognizable.

(b) no person accused, of an
offence punishable under clauses (a) and
(c) of sub-section (1) of Section 13, clause
(a) of sub-section (2) of Section 13, subsection (3) of Section 22, clauses (a) and
(c) of Section 27, Section 28, Section 28-A,
Section 28-B and sub-sections (1) and (2)
of Section 30 and other offences relating to
adulterated drugs or spurious drugs, 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 grounds
for believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail:

Provided that a person, who, is
under the age of sixteen years, or is a
woman or is sick or infirm, may be released
on bail, if the Special Court so directs.

(2) The limitation on granting of
bail specified in clause (b) of subsection (1)
is in addition to the limitations under
the Criminal Procedure Code, 1973 (2 of
1974) or any other law for the time being in
force on granting of bail.

(3) Nothing contained in this
section shall be deemed to affect the special
powers of the High Court regarding bail
under Section 439 of the Criminal Procedure
Code, 1973 (2 of 1974) and the High Court
may exercise such powers including the
power under clause (b) of sub-section (1) of
that
section
as
if
the
reference
to
"Magistrate" in that section includes also a
reference to a "Special Court" designated
under Section 36-AB."
6 All. Vimal Rajput Vs. State of U.P.
99

(Emphasis added)

27. The aforesaid Acts deal with
heinous offences like hijacking of aero
planes, unlawful acts against safety of civil
aviation, maritime piracy, unlawful acts
against safety of maritime navigation and
fixed platforms on continental shelf, and
offences relating to manufacture and sale of
adulterated or spurious drugs, which would
affect a very large number of population,
and the offences carry punishment upto
death. All the Acts contain restrictions of
Courts' power to grant bail to an accused
person, which are similar to the restriction
provided in Section 37 of NDPS Act.

28. Section 45 of Prevention of
Money Laundering Act (PMLA) also
contains restrictions for grant of bail, which
are similar to Section 37 of NDPS Act and
it reads as follows:-

"45. Offences to be cognizable
and non-bailable.-

(1)
Notwithstanding
anything
contained in the Criminal Procedure Code,
1973 (2 of 1974), no person accused of an
offence under this Act 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 grounds
for believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail:

Provided that a person, who, is
under the age of sixteen years, or is a
woman or is sick or infirm or is accused
either on his own or along with other coaccused of money-laundering a sum of less
than one crore rupees, may be released on
bail, if the Special Court so directs:

Provided further that ...

* * *

(2) The limitation on granting of
bail specified in sub-section (1) is in
addition
to
the
limitations
under
the Criminal Procedure Code, 1973 (2 of
1974) or any other law for the time being in
force on granting of bail.

* * *"

(Emphasis supplied)

29. It is relevant to note that Section
44 of the PMLA contains the following
provision:-

"44. Offences triable by Special
Courts.-(1)
Notwithstanding
anything
contained in the Criminal Procedure Code,
1973 (2 of 1974),-

(a) an offence punishable under
Section 4 and any scheduled offence
connected to the offence under that section
shall be triabl

Provided that the Special Court,
trying a scheduled offence before the
commencement of this Act, shall continue
to try such scheduled offence; or

(b) a Special Court may, upon a
complaint made by an authority authorised
in this behalf under this Act take
cognizance of offence under Section 3,
100 INDIAN LAW REPORTS ALLAHABAD SERIES
without the accused being committed to it
for trial.

Provided that after conclusion of
investigation, if no offence of moneylaundering is made out requiring filing of
such complaint, the said authority shall
submit a closure report before the Special
Court; or

(c) if the court which has taken
cognizance of the scheduled offence is
other than the Special Court which has
taken cognizance of the complaint of the
offence of money-laundering under subclause (b), it shall, on an application by the
authority authorised to file a complaint
under this Act, commit the case relating to
the scheduled offence to the Special Court
and the Special Court shall, on receipt of
such case proceed to deal with it from the
stage at which it is committed.

(d) a Special Court while trying the
scheduled offence or the offence of moneylaundering shall hold trial in accordance
with
the
provisions
of
the Criminal
Procedure Code, 1973 (2 of 1974), as it
applies to a trial before a Court of Session.

Explanation.-For the removal of
doubts, it is clarified that,-

(i) the jurisdiction of the Special
Court while dealing with the offence under
this Act, during investigation, enquiry or
trial under this Act, shall not be dependent
upon any orders passed in respect of the
scheduled offence, and the trial of both sets
of offences by the same court shall not be
construed as joint trial;

(ii) the complaint shall be deemed
to include any subsequent complaint in
respect of further investigation that may be
conducted to bring any further evidence,
oral or documentary, against any accused
person involved in respect of the offence,
for which complaint has already been filed,
whether named in the original complaint or
not.]

(2) Nothing contained in this
section shall be deemed to affect the
special powers of the High Court
regarding
bail
under
Section 439 of
the Criminal Procedure Code, 1973 (2 of
1974) and the High Court may exercise
such powers including the power under
clause (b) of sub-section (1) of that
section
as
if
the
reference
to
"Magistrate" in that section includes also
a reference to a "Special Court"
designated under Section 43."

(Emphasis supplied)

30. In Ramji Singh v. Enforcement
Directorate, 2023 SCC OnLine All 831,
this Court took into consideration the
aforesaid provisions of various Statutes and
held that: -

"45. From the aforesaid study
of pari materia provisions contained in
several Statutes dealing with heinous
offences
carrying
punishment
upto
death, the only irresistible conclusion
that can be drawn is that the provision
contained in Section 44 (2) of PMLA
saving special powers of the High
Courts regarding grant of bail was
meant to be incorporated in Section 45
of the Act, but it has erroneously been
placed just above Section 45. In present
times of use of computers, such errors
are commonly referred to as the "copypaste errors".
6 All. Vimal Rajput Vs. State of U.P.
101

31. In paragraph 274 of the judgment
in the case of Vijay Madanlal Choudhary
versus Union of India: 2022 SCC OnLine
SC 929, the Hon'ble Supreme Court
referred to a King's Bench judgment in the
case of Seaford Court Estates ld., which is
as follows:-

"274. We may profitably advert
to the judgment in Seaford Court Estates
ld. [1949] 2 K.B. 481, which states:

"...A judge, believing himself to
be fettered by the supposed rule that he
must look to the language and nothing
else, laments that the draftsmen have not
provided for this or that, or have been
guilty of some or other ambiguity. It
would certainly save the judges trouble if
Acts of Parliament were drafted with
divine prescience and perfect clarity. In
the absence of it, when a defect appears a
judge cannot simply fold his hands and
blame the draftsman. He must set to work
on the constructive task of finding the
intention of Parliament, and he must do
this not only from the language of the
statute, but also from a consideration of
the social conditions which gave rise to it,
and of the mischief which it was passed to
remedy, and then he must supplement the
written word so as to give "force and life"
to the intention of the legislature. That
was clearly laid down by the resolution of
the judges in Heydon's case, (1584) 3 Co.
Rep. 7a, and it is the safest guide today.
Good practical advice on the subject was
given about the same time by Plowden in
his second volume Eyston v. Studd (1574) 2
Plowden 465. Put into homely metaphor it
is this : A judge should ask himself the
question : If the makers of the Act had
themselves come across this ruck in the
texture of it, how would they have
straightened it out? He must then do as
they would have done. A judge must not
alter the material of which it is woven, but
he can and should iron out the creases."

(Emphasis added)

32.

In Rajendra
Prasad
Yadav v. State of M.P.: (1997) 6 SCC
678, the Hon'ble Supreme Court reiterated
the
well
established
principle
of
interpretation of Statutes that "all the
provisions
should
be
harmoniously
interpreted to give effect to all the
provisions and no part thereof rendered
surplusage or otiose."

33. After referring to the aforesaid
cases, this Court held in Ramji Singh
(Supra) that: -

"48. In case we look at the bare
language of Sections 44 and 45 of PMLA,
the defect of misplacement of the provision
contained
in
Section
44(2)
becomes
manifest. Section 44 does not contain any
restriction on the powers of any Court
regarding grant of bail, yet Section 44(2)
provides that nothing contained in this
section shall affect the Special powers of
the
High
Courts
under
Section 439 Cr.P.C. reading Section 44(2)
with Section 44(1) only would render
Section 44(2) of PMLA redundant and
otiose, but this Court cannot chose an
interpretation
which
will
render
the
provision contained in Section 44 (2) of the
PMLA redundant or otiose.

49. Apparently, Section 44(2) was
inserted by the Parliament with the
intention to save the special power of the
High Courts under Section 439 Cr. P.C.,
which intention cannot be fulfilled due to
an erroneous placement of the provision as
pointed above. This Court has to interpret
102 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions contained in Sections 44 and
45 of PMLA collectively so as to give
"force and life" to the intention of the
legislature behind inserting Section 44(2)
in the Act. Undoubtedly, if the makers of
the Act had themselves come across this
jumbling of the provisions in Sections 44
and 45 due to a copy-paste error, they have
surely have straightened it out by reading
Section 44(2) and Section 45 in conjunction
with each other. Therefore, in order to
correct the defect without altering the
provisions of the Statute, the provisions of
Sections 44 and 45 have to be read
together and interpreted harmoniously so
that Section 44(2) does not become
redundant or otiose.

50. The
only
irresistible
conclusion that can be drawn from the
foregoing discussion, is that the intention of
the Legislature was clear and unambiguous
while making the provisions contained in
Sections 44 and 45 of PMLA and it was
that
the
Special
Courts
will
have
jurisdiction to try the offences under the
Act and no Court shall grant bail to an
accused person 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:

Provided that a person, who, is
under the age of sixteen years, or is a
woman or is sick or infirm or is accused
either on his own or along with other coaccused of money-laundering a sum of less
than one crore rupees, may be released on
bail, if the Special Court so directs:

(2) The limitation on granting of
bail specified in sub-section (1) is in
addition
to
the
limitations
under
the Criminal Procedure Code, 1973 (2 of
1974) or any other law for the time being in
force on granting of bail.

Nothing contained in sections 44
or 45 shall be deemed to affect the special
powers of the High Court regarding bail
under
Section 439 of
the Criminal
Procedure Code, 1973 (2 of 1974) and the
High Court may exercise such powers
including the power under clause (b) of
sub-section (1) of that section as if the
reference to "Magistrate" in that section
includes also a reference to a "Special
Court" designated under Section 43.

51. In view of the aforesaid
discussion, I am of the considered view that
the restrictions contained in Section 45 of
the PMLA were meant to be applicable to
Courts other than the Constitutional Courts
and in view of the provision contained in
Section 44 (2) of PMLA, those restrictions
do not apply to the Constitutional Courts."

(Emphasis added)

34. As Sections 36-A (3) and 37 of
NDPS Act contain provisions which are pari
materia to the provisions contained in
Sections 44 and 45 of the PMLA, the
aforesaid principles of interpretation applied
by this Court while interpreting Sections 44
and 45 of the PMLA would apply to
interpretation of the provisions of Section 36A(3) and 37 of the NDPS Act also.

35. In case we look at the bare
language of Sections 36-A and 37 of NDPS
Act, the defect of misplacement of the
6 All. Vimal Rajput Vs. State of U.P.
103
provision contained in Section 36-A(3)
becomes manifest. Section 36-A does not
contain any restriction on the powers of any
Court regarding grant of bail, yet Section
36-A(3) provides that nothing contained in
this Section shall affect the Special powers
of
the
High
Courts
under
Section 439 Cr.P.C. reading Section 36A(3) with the other parts of Section 36-A
only would render Section 36-A(3) of
NDPS Act redundant and otiose, but this
Court cannot choose an interpretation
which will render the provision contained
in Section 36-A (3) of the NDPS Act
redundant or otiose.

36. Apparently, Section 36-A(3) was
inserted by the Parliament with the
intention to save the special power of the
High Courts under Section 439 Cr. P.C.,
which intention cannot be fulfilled due to
an erroneous placement of the provision as
pointed above. This Court has to interpret
the provisions contained in Sections 36-A
and 37 of NDPS Act collectively so as to
give "force and life" to the intention of the
legislature behind inserting Section 36A(3) in the Act. Undoubtedly, if the makers
of the Act had themselves come across this
jumbling of the provisions in Sections 36-A
and 37 due to a copy-paste error, they have
surely have straightened it out by reading
Section 36-A(3) and Section 37 in
conjunction with each other. Therefore, in
order to correct the defect without altering
the provisions of the Statute, the provisions
of Sections 36-A and 37 have to be read
together and interpreted harmoniously so
that Section 36-A(3) does not become
redundant or otiose.

37. The only irresistible conclusion
that can be drawn from the foregoing
discussion, is that the intention of the
Legislature was clear and unambiguous
while making the provisions contained in
Sections 36-A and 37 of NDPS Act and it
was that the Special Courts will have
jurisdiction to try the offences under the
Act and:-

(1) No person accused of an
offence
punishable
for offences
under
Section 19 or Section 24 or Section 27-A
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 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 sub-section
(1) are in addition to the limitations under
the Code of Criminal Procedure, 1973 (2 of
1974), or any other law for the time being
in force on granting of bail.

(3) Nothing contained in this section
shall be deemed to affect the special powers of
the High Court regarding bail under Section
439 of the Code of Criminal Procedure, 1973 (2
of 1974), and the High Court may exercise
such powers including the power under clause
(b) of sub-section (1) of that section as if the
reference to "Magistrate" in that section
included also a reference to a "Special Court"
constituted under Section 36."

38. In view of the aforesaid
discussion, I am of the considered view that
104 INDIAN LAW REPORTS ALLAHABAD SERIES
the restrictions contained in Section 37 of
the NDPS Act were meant to be applicable
to Courts other than the Constitutional
Courts and in view of the provision
contained in Section 36-A (3) of NDPS
Act, those restrictions do not apply to the
Constitutional Courts

39. Now I proceed to examine the
provision for collection of samples etc. has
been laid down in Section 52 A of the
NDPS Act, which provides as follows: -

"52-A.
Disposal
of
seized
narcotic
drugs
and
psychotropic
substances.--

(1) The Central Government may,
having regard to the hazardous nature,
vulnerability
to
theft,
substitution,
constraint of proper storage space or any
other relevant consideration, in respect of
any
narcotic
drugs,
psychotropic
substances,
controlled
substances
or
conveyances, by notification in the Official
Gazette, specify such narcotic drugs,
psychotropic
substances,
controlled
substances or conveyance or class of
narcotic drugs, class of psychotropic
substances, class of controlled substances
or conveyances, which shall, as soon as
may be after their seizure, be disposed of
by such officer and in such manner as that
Government may, from time to time,
determine after following the procedure
hereinafter specified.

(2) Where any narcotic drugs,
psychotropic
substances,
controlled
substances or conveyances has been seized
and forwarded to the officer-in-charge of
the nearest police station or to the officer
empowered under section 53, the officer
referred to in sub-section (1) shall prepare
an inventory of such narcotic drugs or
psychotropic substances containing such
details relating to their description, quality,
quantity, mode of packing, marks, numbers
or such other identifying particulars of the
narcotic drugs or psychotropic substances
or the packing in which they are packed,
country of origin and other particulars as
the officer referred to in sub-section (1)
may consider relevant to the identity of the
narcotic drugs or psychotropic substances
in any proceedings under this Act and make
an application, to any Magistrate for the
purpose of-

(a) certifying the correctness of
the inventory so prepared; or

(b) taking, in the presence of such
Magistrate, photographs of such drugs,
substances or conveyances and certifying
such photographs as true; or
(c)
allowing
to
draw
representative
samples of such drugs or substances, in the
presence of such Magistrate and certifying
the correctness of any list of samples so
drawn.

(3) Where an application is made
under sub-section (2), the Magistrate shall,
as soon as may be, allow the application.

(4)
Notwithstanding
anything
contained in the Indian Evidence Act, 1872
(1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat
the inventory, the photographs of narcotic
drugs, psychotropic substances, controlled
substances or conveyances and any list of
samples drawn under subsection (2) and
certified by the Magistrate, as primary
evidence in respect of such offence."

40. In exercise of powers conferred
by Section 76 read with Section 52-A of
6 All. Vimal Rajput Vs. State of U.P.
105
NDPS Act, the Central Government has
framed Narcotic Drugs and Psychotropic
Substances (Seizure, Storage, Sampling
and Disposal), Rules, 2022 (which shall
hereinafter be referred to as 'the 2022
Rules').

41. Chapter II of the 2022 Rules deals
with seizure and storage of seized material.
Rule 3 falling in Chapter II of the aforesaid
Rules provide as follows: -

"3.
Classification
of
seized
material. -