Whether grant of bail can be established, when contraband is not recovered from the possession of accused |LAWMANIA

The Supreme Court of India cancelled the bail of the Respondent, in an appeal filed by Narcotics Control Bureau, Lucknow against the impugned judgment and order of the  High Court of Judicature at Allahabad granting bail, who was accused of an offence under Section 8 of Narcotic Drugs and Psychotropic Substances Act, 1985, which is punishable  under Sections 8,21,27A, 29 and 60(3) of the said Act.  

Justice Dr. Dhananjaya Y. Chandrachud and Justice B. V Nagarathna, rejecting the grant of bail of the respondent  viewed  that the High Court ought to have given due weightage to the seriousness and gravity of the crime in order to curb the menace of drug-trafficking in the country. The High Court has failed to note that the  stringent parameters have been given in NDPS Act  prescribed for the grant of bail.

It is pertinent to note here that  the High Court has erred in granting  bail to the accused/respondent only on the basis of two  circumstances:-

First,  that the contraband was not recovered from the possession of the respondent/accused.

Second, the wrong name in endorsement of translaton of the statement under Section 67 of the NDPS Act.

 

As regard the finding of the High Court regarding absence of contraband from the possession of accused/respondent, the Hon’ble  Court took help from the case of Union of India vs. Rattan Mallik (2009) 2 SCC 624 wherein it was held that not finding of contraband from the possession of accused is ground to grant bail  but  merely making a finding on the possession of contraband do not fulfill the parameters of section 37(1)(b).  There was non-applicability of mind on the part of  High Court.

Before coming to the conclusion regarding possession of contraband, the Court opined  that we must know   what actually amounts to conscious possession. For this the Court relied the decision of the Dharampal Singh vs. State of Punjab  (2010) 9 SCC 608 wherein it was held that the knowledge of possession contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.

In the present case after reiterating the view of Rattan Mallik’s case, the Court viewed that a “finding  of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act”.

 

With regard to the second circumstance under which the accused/respondent was granted bail by the High Court, the Hon’ble Supreme Court relied on the recent case of Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 where it was held that a confessional statement under Section 67 of the NDPS Act will not be admissible in evidence .

The Respondent submitted that due to non-compliance of the procedural requirement under Section 42 of the NDPS Act and hence should be granted bail. Section 42 says that on information of the commission of offence, the officer will have to write down the information and send it to the superior officer within 72 hours.

But in the case, the information was put down in writing by an officer who was part of the team, constituted on the receipt of the information and was then sent to the zonal officer. Therefore the respondent should be granted bail.

The Apex Court took help from the decision of Karnail Singh vs. State of Haryana (2009) 8 SCC 539 and the recent case of Boota Singh vs. State of Haryana (2021) that though writing down information on the receipt of it should normally precede the search and seizure by the officer, in exceptional circumstances that warrant immediate and expedient action, the information shall be written down later along with the reason for the delay. The question is one of urgency and expediency.

The Court reiterating to the decision of Karnail Singh’s case said that while total non-compliance with requirements of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.

It is for this reason that the delay may result in the accused escaping or the goods or evidence being destroyed or removed. So, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the superior officer  forthwith, may not be treated a violation of Section  42.

 

According to the Supreme Court,  the High Court has gravely erred in considering the crucial requirement and glossed over the other circumstances apart from the above two circumstances under which respondent was set on bail. The crucial circumstances are:

 

(i) The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused;

(ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him;

(iii) The quantity of contraband found in the vehicle is of a commercial quantity; and

(iv) The contraband was concealed in the vehicle in which the respondent was travelling with the co-accused.

 

Therefore the Supreme Court held that  impugned judgment and order of the High Court has lost its sustainability which is liable to be set aside. And accordingly directed the respondent/accused to surrender forthwith 

 

Apart from reiterating to the above case laws, the Court has also put emphasis on the principle to be followed by courts while  granting bail by relying on the plethora of decisions like the case of Prasanta Kumar Sarkar vs. Ashis Chatterjee (2010) 14 SCC 496,  Prabhakar Tewari vs. State of Uttar Pradesh (2020) 11 SCC 648 and Mahipal vs Rajesh Kumar @ Polla & Anr. (2020) 2 SCC 118. The Hon’ble Court reiterated that ordinarily the Apex Court does not interfere with the order of the High Court granting bail, however when the High Court granted bail without due application or in contravention of the directions of the Apex Court, such an order of granting bail is liable to be set aside.

 

As regard to the granting of bail under the NDPS Act,  the Court reiterated to the  case of Union of India vs. Shiv Shanker Kesari (2007) 7 SCC 798 and recent case Union of India vs. Prateek Shukla (2021) 5 SCC 430 and  observed that bail may be cancelled if it has been granted without adhering to the parameters of Section 37 of the NDPS, i.e if the bail has been granted without giving the Public Prosecutor an opportunity to oppose the application for such release and bail has been granted without ‘reasonable ground to believe’ that the person is guilty of offence and is likely to commit any offence while on bail.

Case:

 Union of India through Narcotics Control Bureau vs. Md. Nawaz Khan (Criminal Appeal No. 1043 of 2021)

DOJ: 22.09..2021