Judgment:
ORDER
1. This is an application made by Shri Brij Mohan Gupta, a Judge of the City Civil and Sessions Court, Greater Bombay, for expunging certain observations made by me in my Judgment dated 2nd July 1993 in Criminal Revision Application No. 37 of 1993, arising out of N.D.P.S. Special Case No. 284 of 1992 (for short, Kamruddin's case). In the said case, one Naushand Ali was accused No. 1. He was intercepted at the Sahar Airport, Bombay, on the 24th September 1992 and 9 kgms of mandrax tablets were recovered from him. The statement of Naushad Ali was recorded under S. 67 of the N.D.P.S. Act on 24th/25th September 1992, as also on the 4th November 1992. He implicated Respondent No. 1 - accused No. 2 Kamruddin as the exporter of mandrax tablets to foreign countries. The statement of one bag repairer, who was employed to stitch special bags to accommodate the mandrex tablets viz. Mohd. Shehzabe was also recorded on the 24th September 1992 and he also implicated Kamruddin - Respondent No. 1. The statement of the wife of Naushad Ali - Shamin - was also recorded on the 6th October 1992 and she also implicated Kamruddin. This was not the end of the story. The statement of Kamruddin himself was recorded in his own hand-writing in English on the 6th, 7th and 8th October 1992 and he categorically admitted that he was involved in the export of mandrax tablets. It was on this material that Kamruddin was arrested on the 8th October 1992 and complaint had been filed before the learned Judge on 10th December 1992. I have stated these facts in paras 3 and 4 of my Order dated 2nd July 1993. But since of Counsel for the applicant sought to question some of the observations on the ground that they were not justified, it is necessary to refer to them in brief.
2. The first respondent Kamruddin appears to be involved in the N.D.P.S. cases more than once. Criminal Revision Application No. 37 of 1993 arose out of N.D.P.S. Special Case No. 248 of 1992. There was an earlier case against the said Kamruddin viz. N.D.P.S. Special Case No. 1159 of 1990 in which bail was granted to Kamruddin. An application for cancellation of bail is pending in this Court. In N.D.P.S. Special Case No. 248 of 1992, on 19th February 1993, Kamruddin sent a letter from the jail, enclosing an application for discharge under S. 227 of the Code of Criminal Procedure. In the said application, in his own hand-writing in English, he pointed out the contradictions in the statement of accused No. 1 Naushad Ali and that of his wife Shemim. He referred to the fact that he had himself retracted his statement and, therefore, the evidentiary value of the statement recorded earlier was in doubt. To put it briefly, Kamruddin seems to be a knowledgeable person. He, however, did not apply for bail. He only applied for discharge. As against this, in the earlier case viz. N.D.P.S. Special Case No. 1139 of 1990, he had specifically applied for bail and though bail has been granted, the application for cancellation of bail is pending in this Court, as stated earlier.
3. In reply to the application for discharge filed before the learned Judge, the Intelligence Officer of the Narcotics Control Bureau, Bombay, filed his reply opposing the prayer for discharge. He pointed out that the prima facie material, which was convincing, was enough to frame a charge and proceed with the trial. A brief reference was made to the material collected against the first respondent by that date. In para 4 of the reply, it was pointed out that Kamruddin was previously involved in a similar case viz. N.D.P.S. Special Case No. 1159 of 1990, which has been wrongly referred to as N.D.P.S. Special Case No. 677 of 1990.
4. The learned Special Judge viz. the present applicant, dealt with the application for discharge on 23rd March 1993. In the very first Para he has categorically stated that the application was for discharge. In Paras 2 to 7 he referred to the statements of the various witnesses that were recorded during the course of the investigation. In Para 8 he referred to the law on the question of confessions and particularly, the value of a retracted confession. In para 9 of the Judgment, he referred to the fact that Kamruddin had himself voluntarily singed his own warrant for a minimum of 10 years R.I. and also a fine of Rs. One lakh for whatever reasons, spiritual or mundane. In para 10 he has referred to the reply of the Narcotics Control Bureau. In para 11 the applicant has given a sermon to the prosecutors that they should not only act fairly, but should also demonstrate that they have, in fact, acted fairly and that this rule was honoured more in its breach then in its observance. I am not concerned with these observations made by the applicant against the public prosecutors. Paras 12 and 13 deal with the arrest of the accused and the case regarding conspiracy. In para 14 the applicant has commented upon Shamim, wife of accused No. 1 for having involved her own husband. In para 15 it has been observed as under :-
'Be that as it may, his discharge at this stage is not called for. However, his internship in this jail on the basis of the material aforesaid is also not justifiable. I am of the opinion that he should be released on bail rather than discharged.'
5. It will be clear from para 15 quoted above that after rejecting the prayer for discharge, the applicant straightaway proceeded to grant bail to the first respondent accused without there being even an application for bail. I have stated in para 8 of my Order dated 2nd July 1993 that the Counsel for the accused was not able to justify before me the order of grant of bail. He did not dispute before me that the application was only for discharge. He also did not dispute before me that there was no application for bali. The fact that the Public Prosecutor had no opportunity of meeting any case for bail was also not disputed before me. S. 37 of the N.D.P.S. Act reads as under :-
'37. Offences to be cognizable and non-bailable - 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 a term of imprisonment of five years or more 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 oppose 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.'
6. A perusal of the above section shows that it opens with the non-obstante clause viz. 'Notwithstanding anything contained in the Code of Criminal Procedure ...................'. Therefore, it will even over-ride the provisions of S. 437 and 439 of the Code of Criminal Procedure. That apart, clause (b) of sub-section (1) of S. 37 categorically states that a person accused of an offence punishable for a term of imprisonment of 5 years or more, as in the case of the first respondent Kamruddin, could not be released on bail unless two conditions were satisfied -
i) the Public Prosecutors must be given an opportunity to oppose the application for bail; and
ii) where the Public Prosecutor opposes the application, the Court should be satisfied of two factors -
(a) that there are reasonable grounds for believing that the accused is not guilty of such an offence; and
(b) that he is not likely to commit any offence while on bail.
It was in this background that I had expressed some surprise at the order passed by the learned Special Judge, who is the applicant before me today.
7. In the present application, Mr. Naphade, the learned counsel who appears for the applicant, has prayed for expunging certain observations in Paras 1, 2 & 8 of my Judgment and Order dated 2nd July 1993. The relevant portion which is sought to be expunged is reproduced in para 6 at para 4 of the present Application as under :-
1. 'This is yet another extraordinary order passed by the same learned Sessions Judge whose order of discharge of the Accused in N.D.P.S. Special Case No. 159 of 1992 was set aside by me on 7th June, 1993 in Criminal Revision Application No. 58 of 1993. In that case all that the accused had applied for was return of the cash of Rs. 8,75,000/- along with the Car and while disposing of the said application for return of property, without there being even an application for discharge, the learned Judge had passed on order of discharge'.
2. In this case the same learned Sessions Judge has passed another extra ordinary order granting bail to respondent No. 1/original accused No. 2 in N.D.P.S. Special case No. 284 of 1992 without there being even an application for grant of bail presented before him ..............'
8. '............... the order granting bail is in gross violation of the provisions of S. 37 of N.D.P.S. Act. Unfortunately, the said order shows total non-application of mind and is wholly perverse in law ............'
8. I must at this stage, mention that the applicant had approached the Hon'ble Supreme Court by filing Criminal Misc. Petition No. 4307 of 1993 wherein he had raised several contentions, including those that have been raised here. However, the Supreme Court, by its Order dated 6th September 1993, directed the applicant to approach this Court first. A copy of the Order passed by the Supreme Court is annexed at Exhibit 'B' page 85. I have perused the said order.
9. In this application, the applicant has referred to the newspaper reports which appeared in different newspapers. He has made a reference to the fact that there was also a move in the Bar Association of the City Civil and Sessions Court, Bombay, to pass a resolution calling upon him to resign and in the alternative, to desist from appearing in his Court. He has then referred to the fact that by a letter dated 13th July 1993. at Exh. 'L'/page 52, the Registrar of the High Court has called for his explanation in respect of the observations made by me in the earlier case viz. Criminal Revision Application No. 58 of 1993, decided on 7th June 1993, arising out of an order of discharge in N.D.P.S. Special Case No. 159 of 1992 (for Short, 'Aslam Khan's case'). That was a case where the accused Mohd. Aslam Khan had merely applied for return of the cash of Rs. 3 lakhs and of the Car. Similarly, accused No. 2 Rukhsana Aslam Khan had applied for return of an amount of Rs. 5,75,000/-. There was no application for discharge. The applicant had granted discharge to both the accused and when the Collector of Customs challenged the said order of discharge before me, the Counsel for accused Mohd. Aslam Khan and Rukhsana Aslam Khan conceded that the order could not be sustained. The matter was, therefore, sent back considering the application for return of the cash and the car simplicitor. Rule was made absolute in view of the concessions made by the accused themselves that they had not even applied for discharge. In reply to the said letter - Exh. 'L' received from the Registrar of this Court in connection with the above case of Mohd. Aslam Khan and Rukhsana Aslam Khan, the applicant has given his reply on 16th July 1993 and the matter in pending before the learned Chief Justice and the learned Administrative Judges in their administrative capacity. I am not concerned with that aspect. It also appears that the notification appointing the applicant as a Special Judge under S. 36 of the N.D.P.S. Act was revoked by the State Government. The construction of Special Courts by the Government is with the concurrence of the learned Chief Justice of the High Court in accordance with the procedure laid down in S. 36 of the N.D.P.S. Act. The applicant has made a grievance of this fact also. I am really not concerned with these aspects of the matter.
10. I have heard Mr. Naphade for the applicant, Mr. Agrawal on behalf of the Narcotics Control Bureau and Mrs. Randive for the State of Maharashtra. When this matter was heard on the 29th October 1993, I had enquired with Mr. Naphade as to whether any of the two orders passed by me was challenged in the Supreme Court by the concerned accused. In Criminal Revision Application No. 58 of 1993 arising out of N.D.P.S. Special Case No. 159 of 1992 (Aslam khan's case) the order was for discharge of the accused when all that they had applied for was return of cash of Rs. 8,75,000/- along with the car used in the commission of the crime. In Criminal Revision Application No. 37 of 1993, arising out of N.D.P.S. Special Case No. 284 of 1992 (Kamruddin's case), the applicant had granted bail when all that was applied for was a discharge and there was no application for bail at all. Since Mr. Naphade expressed his inability to make a statement as to whether these two orders were challenged by the accused or not, the matter was adjourned on the 29th October 1993. Today, Mr. Naphade fairly stated that he had no indication as to whether any of these two orders were challenged before the Supreme Court. However, Mr. Agrawal appearing for the concerned Department, made a categoric statement that none of the two orders have been challenged before the Supreme Court and that the same has been accepted as final and binding by the accused involved in those two cases.
11. Be that as it may, Mr. Naphade has raised three contentions in support of his plea that certain observations made by no need to be expunged. He has characterised the observations as 'adverse strictures'. The three contentions are :-
(i) the adverse strictures were not justified;
(ii) they were not necessary in deciding the case before me; and
(iii) the applicant had no opportunity to explain his conduct.
Before considering these three contentions, it is necessary to once again have a look at the observations made by me in the light of the above mentioned three contentions. In para 1 of my order in Kamruddin's case, I have only referred to the fact that this was another extraordinary order passed by the same learned Special Judge, whose order of discharge in N.D.P.S. Special Case No. 59 of 1993 was set aside by me on 7th June 1993 while deciding Criminal Revision Application No. 58 of 1993. Since these matters appeared before me during the course of the same assignment and since the same Counsel Mr. Agrawal appeared in both the matters, he had placed reliance on my Order dated 7th June 1993 in Criminal Revision Application No. 58 of 1993 (Aslam Khan's case) in support of his contentions in Criminal Application No. 37 of 1993 (Kamruddin's case) which was decided on the 2nd July 1993. Mr. Agrawal had called for the papers is Aslam Khan's case from the Criminal Department. The papers along with the original Judgment was placed before me and it was pointed out by Mr. Agrawal that a somewhat casual approach has been exhibited in a serious offence punishable under the N.D.P.S. Act and it was necessary to not only correct the said Judgment, but that it was my duty to sound a word of caution in view of the repeated occurrence of such events. It was in this background that I made certain observations in the opening para of the judgment, which observations are sought to be expunged now. I may make it clear that I have not passed any 'adverse structures' against the applicant. I have only stated the facts which are not in dispute even on this day. The fact that both the orders were extraordinary could not be disputed viz. the one dated 7th June 1993 in Criminal Revision Application No. 58 of 1993 (Aslam khan's case) and the Order dated 2nd July 1993 in Criminal Revision Application No. 37 of 1993 (Kamruddin's case).
12. In reply to Mr. Naphade's contentions, my attention has been invited by Mr. Agrawal to a judgment of the Supreme Court in the case of Miss Maneck Gustedji Burjarji v. Sarafazali Nawabali Mirza, reported in : AIR1976SC2446 . Para 6 of the judgment at page 2449 of the Report, dealing with an Order passed by the High Court, it has been observed as under :-
'6. It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which files in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Art. 227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Art. 227 of the Constitution and Vaidya J., entertained the Special Civil Application and granted relief to the respondent casting to the winds the well-settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Art. 227 of the Constitution where an adequate alternative legal remedy is available to the applicant'.
13. Mr. Agrawal has also invited my attention to another Judgment of the Supreme Court in the case of D. H. Maniar v. Waman Laxman Kudev, reported in : [1977]1SCR403 . In para 2 of the said judgment at page 2341 of the Report it has been observed as under :-
'2. This Court does, as it ought to, act with restraint and is loathe to pass any harsh or unpalatable remark concerning the judgment of a High Court. But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make some strong observations when it finds the judgment of the High Court running galore with gross and palpable mistakes of law almost amounting to judicial imbalance in the approach to the case. We regret to say that this is one such case'.
Relying upon the above two decisions, Mr. Agrawal justified the observations made by me in the opening para of the Order dated 2nd July 1993 in kamruddin's case.
14. I am aware of the wide powers of the Supreme Court and of the limitations on the powers of this Court. One can never equate the powers of this Court with the powers of the Supreme Court. But what Mr. Agrawal contends is that if the approach adopted by the subordinate court is extraordinary, then there is nothing wrong on the part of this Court saying so. In fact, his argument is that while dealing with the subordinate courts it is the duty of the High Court to point out to them the mistakes in their approach and to sound them a word of caution. In para 6 of its judgment in the case of Miss Maneck Custodji Surjarji reproduced in para 12 above, the Supreme Court found that the High Court's reasoning was extraordinary and which files in the face of law and judicial procedure. It was further observed that the learned Judge has cast to the winds the well-settled principle of law. Similarly, in the case of D. M. Maniar (supra - para 13 above), the Supreme Court observed that sometimes constraint outweighs restraint and compels the Court in discharge of its duties to make strong observations. I am in respectful agreement with the above quoted observations of the Supreme Court and Mr. Agrawal is perfectly justified in placing reliance on the above mentioned two judgments.
15. Coming to the observations in para 2 of my Order in Kamruddin's case, what is sought to be expunged is already reproduced in para 7 above. All that I have said is that the order was extraordinary. As stated earlier, in both the cases viz.
(i) Criminal Revision Application No. 58 of 1993, dated 7th June 1993 (Aslam Khan's case); and
(ii) Criminal Revision Application No. 37 of 1993, dated 2nd July 1993 (Kamruddin's case) -
Counsel for the accused found it difficult to sustain the orders granted in favour of the accused. In none of the two cases has my orders been challenged in the Supreme Court by any of the accused. Even today, Mr. Naphade did not dispute the fact that the accused - respondent No. 1 kamruddin Shaikh had not made any application for bail. Apart from the above, there are no adverse strictures passed by me against the applicant in either of the two paras quoted above viz. para 1 or para 2.
16. Coming to the last quotation sought to be expunged, which occurs in para 8 of my Order in Kamruddin's case, what the applicant has done is to extract two sentences from the said para, without their true context being appreciate. Hence, it has become necessary for me to extract a part of para 8 below to appreciate the applicant's grievance. Para 8 runs as under :-
'8. Shri Mundergi for the first respondent has not been able to justify the order of grant of bail. He does not dispute that the application was for only discharge simplicitor. He does not dispute that there was no application for bail. He does not dispute that the State had no opportunity of meeting any case for bail. In my view, the order granting bail is in gross violation of the provisions of S. 37 of the N.D.P.S. Act. Unfortunately the said order shows total non-application of mind and is wholly preserve in law'.
What is sought to be expunged is the underlined portion. At the cost of repetition, I must say that the opening portion of Para 8 makes it clear beyond doubt that the Counsel for the accused was not able to justify the order of grant of bail. He did not dispute that there was no application for bail, nor was the public prosecutor given an opportunity of meeting the case for grant of bail. Having quoted S. 37 in para 2 of my Order dated 2nd July 1993, I, therefore, observed in para 8 of the Order that the order of grant of bail was in gross violation of the provisions of S. 37 of the N.D.P.S. Act and that the order clearly showed non-application of mind and was wholly perverse in law. In my view, these observations are perfectly justified in the facts of the said case. In the subsequent portion of pars 8, reproduced above, I have again referred to the requirement of S. 37(b)(ii) of the N.D.P.S. Act. The fact that the accused Kamruddin was involved in a similar case earlier was relevant to the question of grant of bail. This is clear from the concluding portion of sub-clause (ii) of clause (b) of sub-section (1) of S. 37 of the said Act.
17. The above discussion would show that as far as the factual aspects are concerned, there is no controversy even today about the facts stated in the entire judgment dated 2nd July 1993 in Kamruddin's case. Since I was dealing with Criminal Applications for bail during the course of the said assignment, I had occasion to come across more than one order passed by the applicant. In the first case of Aslamkhan - I made no such observations as in Kamruddin's case. But when the Counsel for the Narcotic Control Bureau, Mr. Agrawal, made a grievance of the illegal orders passed by the applicant repeatedly, which were characterised as perverse in law, I thought it was my duty to point out the error in the approach of the learned Judge in dealing with serious matters involving grave consequences under the provisions of the N.D.P.S. Act. In the first contention of Mr. Naphade that the observations were not justified, I, therefore, find no merit whatsoever. While I maintain that I have not passed any adverse strictures against the applicant, in my view, the observations made against him are perfectly justified.
18. The second contention of Mr. Naphade is that it was not necessary for me to make these observations for deciding the case. Having regard to the detailed facts set out above, I think that it was not only necessary for me to make these observations since I was setting aside the order of the learned Judge, but it was my duty to point out how the order was erroneous, extraordinary and contrary to the provisions of S. 37 of the N.D.P.S. Act. If a Judge of this Court, while dealing with the orders of subordinate Courts comes across such a feature, in my view, he is not only justified in making such observations, but indeed, it would be his duty to make certain observations. In this connection, Mr. Agrawal has rightly invited my attention to the two unreported decisions of the Division Bench of M. L. Pendse & M. S. Saldenha, JJ. of this Court. in Criminal Writ petition No. 312 of 1993 decided on 7th September 1993, M. L. Pendse, J. while disapproving the manner in which bail was granted while dealing with the detenu detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 observed as under :-
'Before concluding, we must express our surprise at the manner in which Chief Metropolitan Magistrate has passed order releasing the detenu of bail on February 2, 1993. The Chief Metropolitan Magistrate was fully conscious that the detenu was detained under a valid order passed under S. 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Magistrate was also conscious that the detenu was a foreign national and has smuggled contraband at least on sixteen occasions and there was every likelihood that the detenu will jump the bail. In spite of these facts, it is really unfortunate that the Chief Metropolitan Magistrate should have exercised powers to release detenu on bail by demanding cash bail of Rs. 5,00,000/- and of being fully aware that the order of bail cannot be executed unless the order of detention is set aside. We hope and trust that the Chief Metropolitan Magistrate will be more careful in passing orders of bail in matters involving foreigners and where the foreigner has smuggled goods on numerous occasions. We direct the Registrar to send the copy of this judgment to each and every Metropolitan Magistrate who are dealing with cases arising out of prosecution filed by customs and Directorate of Revenue Intelligence'.
19. The same learned Judges made further observations on 27-10-1993 while deciding Criminal Writ petition No. 1093 of 1993. Dealing with the casual manner in which bail was being granted to persons involved in economic offences, M. L. Pendse, J. observed in para 7 of the judgment as under :-
'7. Before parting with this judgment, it is necessary to issue directions to the Chief Metropolitan Magistrate and to other Magistrates who are dealing with serious cases instituted by the Director of Enforcement. it has repeatedly come to our notice that the accused involved in crimes of serious proportion which affects the revenue of this country are released on bail in an extremely causal manner and by fixing the bail amount which is entirely inadequate and insufficient. The Magistrates dealing with cases of such serious nature should be alive to the fact that in large number of cases by securing bail and that too by depositing cash amount which is extremely negligible, accused are left to indulge in prejudicial activities affecting the economy of the country. The accused are thereafter not traceable, not being required to remain present in Court on date of remand. The Magistrates are entitled to release the accused on bail but it is necessary to take more prosecution before exercising the power. It has also come to our notice that when the application is filed by the Enforcement Directorate for revocation of the bail order because the accused is not traceable an almost unintelligible order is issued by the Magistrates that the notice of the application should be served on the accused. The Magistrates should appreciate the fact that the application for cancellation of bail is filed because the accused is not traceable and the Magistrates should not blindly issue order that notice should be served of the said application on accused. No Judicial Officer who will peruse the application for revocation of bail on the ground that the accused is not traceable can ever direct that the notice of such application should be served on the accused. To expect the Officer to serve notice of application is in other words, to inform officer that the application will not be considered and examined. It is impossible for the officer to serve notice of such application because if that was possible then there was no difficulty at all to serve order of detention. We hope and trust that the Magistrates hereafter will pass appropriate order on such applications and in case, the Chief Metropolitan Magistrate and other Magistrates who are dealing with such cases and such application, fail to discharge their duty properly then serious notice will have to be taken. We hope and trust that this warning is suffice for all the officers who are dealing with such matters'.
The warning sounded by the Division Bench in the concluding portion of para 7 reproduced above is significant.
20. It is true that the above mentioned two Division Bench Judgments were delivered in cases dealing with economic offences. I was dealing with the menace of Narcotic Drugs and Psychotropic Substances. The consequences are equally disastrous, S. 37 of the N.D.P.S. Act has been specially enacted to make a departure from the usual approach in the matter of grant of bail in serious offences. It opens with the non obstante clause and, therefore, overrides the provisions of the Code of Criminal Procedure. The facts in Kamruddin's case were glaring. The conduct of the accused was gross. There was no application for bail. The Counsel before me could not justify the order for grant of bail. The accused has not challenged the said order in the Supreme Court. Despite this, I have restrained myself and I have not passed any adverse strictures against the learned Judge. I have expressed my disapproval by making observations in a restrained manner. I do not think that what I have said and what is sought to be expunged was unnecessary for deciding the case. In fact, having regard to the approach of the Division Bench of M. L. Pendse and M. P. Saldnaha, JJ., in the above mentioned two cases, it was my duty to correct the Judge of the subordinate Court if if was found repeatedly that his approach was wrong and was in violation of the mandate of S. 37 of the N.D.P.S. Act. This is all that I have done while referring to the earlier order in Allam Khan's case in para 1 of my Order dated 2nd July 1993 and I termed the order in Kamruddin's case as extraordinary. Since I was setting aside the order, in the facts of the case, it was necessary for me to say so. There is thus no merit in the second contention of Mr. Naphade.
21. Mr. Naphade's third and the last contention was that the applicant had no opportunity of explaining his conduct before this Court made the observations against him. Here again, Mr. Naphade proceeds on the assumption that what has been stated is by way to adverse strictures. It is not so. The applicant is based by the fact that the newspapers have reported something adverse against him. I am not concerned with that in this application. It is significant to note that after I passed the first order in Aslam khan's case on 7th June 1993, nothing appeared in the Press in that behalf. It was only after the second order was passed on the 2nd July 1993 in kamruddin's case that the Press seems to have taken up the matter, consequent upon which the Bar of the Bombay City Civil and Sessions Court felt agitated. In this application, I am not concerned either with the newspaper reporting or with the section that was sought to be taken by the Bar Association of the Bombay City Civil and Sessions Court. I am told that the Bar has dropped the action now. Similarly, if the learned Chief Justice and the administrative Judges thought it fit to call for the explanation of the applicant regarding the observations made by me in the first case viz. Aslam khan's case, that is also a matter with which I am not concerned in the present case. No explanation has been called for from the applicant in respect of the observations made by me in Kamruddin's case, which are sought to be expunged. The applicant has given his reply to the letter of the Registrar regarding the observations in Aslam Khan's case and, with respect, I am not concerned with the said proceedings in any manner whatsoever.
22. Mr. Naphade sought to place reliance on the Supreme Court decision in the case of S. K. Viswambaran v. E. Koyakunju reported in : 1987CriLJ1175 . The Supreme Court has reviewed the earlier decisions in the case of :-
(i) State of U.P. v. Mohd. Naim, reported in : [1964]2SCR363 ,
(ii) R. K. Lakshmanan v. A. K. Srinivasan, reported in : [1976]1SCR204 , and
(iii) Niranjan Patnaik v. Sashibhushan Kar, reported in : 1986CriLJ911 and laid down that it was judicially recognised that in the matter of making disparaging remarks against a person or authority whose conduct comes into consideration before the Courts of law in cases to be decided by them, it is relevant to consider :-
(a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself;
(b) whether there is evidence on record bearing on the conduct justifying the remarks;
(c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
There can be no doubt about the position of law laid down by the Hon'ble Supreme Court. I must say in fairness to Mr. Naphade that as for as point (b) above is concerned, Mr. Naphade has not disputed the fact that there was evidence on record justifying the observations. However, in my view, the ratio of the supreme Court decision in Viswambaran's case can have no application whatsoever to the facts of the present case. Viswambaran's was a case where the husband was charged with the murder of his wife. The Sessions Judge had made some remarks against two witnesses viz. the Inspector of Police - P.W. 16 and Head Constable - D.W. 2. It was observed by the Sessions Judge that when can wing of the police establishment tried to investigate properly and to book the culprit, P.W. 16 and D.W. 2 were trying to nautralise all the work that had been done by the Crime Department and to help the accused to get acquittal. This was stated to be a serious situation, of which the higher authorities in the Police Department had to take serious note. These observations are to be found in para 7 of the Supreme Court judgment at page 1437. Aggrieved by these strictures passed by the Sessions Judge, the Inspector of Police - P.W. 16 and the Head Constable - D.W. 2 moved the High Court of Kerala for expunging the 'adverse remarks' against them. The Supreme Court observed that the learned Judge of the High Court, without making any examination of the conduct of the petitioners before him and without considering the elaborate features of the case went at tangent and made certain remarks against P.W. 17, the Dy. S.P. It was this P.W. 17, the Dy. S.P., who appealed to the Supreme Court for expunging those remarks. The 'remarks' made by the High Court against P.W. 17 - Dy.S.P. - were to the effect that he had purposely concealed the material which was favourable to the accused. He was average to the scientific methods being made use of in the investigation of crime. His attempt was only to see that the accused was convicted. It was observed by the High Court that the life and liberty of innocent person should not be placed at he mercy of unscrupulous officers and it would be proper for higher officers in the Department to look into this matter and take corrective measures. These strong observations condemning P.W. 17 Dy. S.P. as an unscrupulous officer, who was purposely concealing the material, are to be found in para 8 of the Supreme Court judgment at page 1438. It was in this context that the Supreme Court has made the above observations on which Mr. Naphade places reliance. The Supreme Court has summed up the Law in pare 14 of the Judgment at page 1440 of the Report. With respect, I do not think that I have made any such observations against the applicant.
23. As stated above, I have passed no adverse strictures against the applicant. What the Press has done or what the Bar Association wanted to do is not a matter with which I am concerned in this application. On the material that was placed before me. I came to the conclusion that the approach of the applicant was extraordinary in the matter of grant of bail, particularly in view of the mandate of S. 37 of the N.D.P.S. Act. It was this disturbing feature which compelled me to make the observations which I have made. Indeed, this is also a case where constraint outweighed my restraint.
24. Having given my anxious consideration to the contentions raised by Mr. Naphade, it is not possible to accept any of the three contentions raised by him. In the result, the Application is rejected.
25. Certified copy to be expedited
26. Order accordingly.