Important Matters Related To NDPS Act & Anticipatory Bail Listed Before The Constitution Bench

The Constitution Bench of the Supreme Court comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and Ravindra Bhat would start hearing in cases referred to it, from tomorrow, 15th October 2019, to settle the conflicting interpretations given to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. It will also hear the following cases as well.

Legislative Competence Of A State To Provide Appeal To Supreme Court

Rajendra Diwan vs. Pradeep Kumar Ranibala

In this case, the question for consideration before the constitution bench is whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature?

Section 13(2) of the Chhattisgarh Rent Control Act, 2011 provides for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh.

A bench of Justice Kurian Joseph and Justice R. Banumathi, in 2017, doubted the maintainability of one such appeal and opined that the legislature of the State of Chhattisgarh lacks competence to provide appeals directly to this Court. While Entry 77 of List 1 expressly recognizes the authority of the Parliament to deal with the constitution and organization of this Court, the other two Entries recognize the legislative competence of the State Legislatures to deal with the jurisdiction of all Courts except the Supreme Court, the court had noted.

Observing that this issue involves a substantial question of law as to the interpretation of the Constitution, the bench referred the matter to Constitution bench under Article 145(3) of the Constitution of India.

Recently, another bench comprising Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Aniruddha Bose dealt with the same issue, while considering an appeal from Rent Control Tribunal from Chhattisgarh. Latest Record of Proceedings reveals that a two judge bench comprising Justice Deepak Gupta and Justice Surya Kant heard the matter and reserved it for judgment.

Should Anticipatory Bail Protection Be For A Limited Period?

Sushila Aggarwal vs. State (NCT of Delhi)

In 2018, a three-judge bench of the Supreme Court headed by Justice Kurian Joseph referred to the Constitution bench the following two questions in the matter of pre-arrest bail:

· Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail.

· Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The bench had, in fact, doubted the correctness of a constitution bench judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, which held that anticipatory bail should not be for a limited period. We are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever, it observed in the order.

These observations were made by the constitution bench in Sibbia (Supra):Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.”

NDPS: Will Trial Be Vitiated If IO and Complainant Were the Same?

Mukesh Singh vs. State (NCT of Delhi)

In this case, the question for consideration is whether in cases under Narcotic Drugs and Psychotropic Substances Act, 1985, the fact that the complainant had himself conducted the investigation would vitiate the trial itself?

In Mohan Lal vs. State of Punjab where it held that that the accused is entitled to acquittal if informant and the investigator in NDPS cases is the same person. Later, in Mukesh (Supra), a two judge bench doubted this proposition and opined that where the complainant himself had conducted investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction. The issue was then heard by a three judge bench, which referred it to constitution bench.

Significantly, another three judge bench in Varinder Kumar vs. State of Himachal Pradesh has observed that all pending criminal prosecutions, trials and appeals prior to the law laid down in the judgment in Mohan Lal vs. State of Punjab (acquittal if investigator-informant is the same person), shall continue to be governed by the individual facts of the case.

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