Punjab-Haryana High Court
Samdarsh Kumar Alias Joseph vs State Of U.T.,Chandigarh on 10 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
IOIN-CRM-M-21788-2022 -1-
IN CRM-M-21788-2022
In the High Court of Punjab and Haryana at Chandigarh
IOIN-CRM-M-21788-2022 IN
CRM-M No. 21788 of 2022
Reserved on: 30.8.2024
Date of Decision: 10.9.2024
Samdarsh Kumar @ Joseph ......Petitioner
Versus
State of U.T., Chandigarh ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Aashish Chopra, Senior Advocate (Amicus Curiae)
assisted by Mr. Gagandeep Singh, Advocate.
Mr. Rajeev Anand, Addl. APP for U.T., Chandigarh.
****
SURESHWAR THAKUR, J.
1. The present reference becomes generated from the order
pronounced by this Court on 1.12.2022 upon CRM-M-21788-2022,
wherebys given the thereins recovery of commercial quantity of the
psychotropic substance concerned, from the alleged conscious and exclusive
possession of the accused, therebys upon, the twin conditions prescribed in
Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short ‘the NDPS Act’), provisions whereof become extracted
hereinafter, rather becoming declared to become not satisfied. Resultantly,
vide order (supra), the bail petition (supra) became dismissed.
(b) no person accused of an offence punishable for offences
under section 19 or section 24 or section 27A 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
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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. Be that as it may, as discernible from a reading of the order
(supra), qua thereins an allusion becoming made to a verdict rendered by the
Apex Court in case titled as Dheeren Kumar Jaina versus Union of India
in Criminal Appeal No. 965 of 2021, and, in case titled as Nitish Adhikary
@ Bapan versus The State of West Bengal, to which SLP (Criminal) No.
5769-2022 becomes assigned, whereins, the Apex Court even when the twin
conditions (supra) became not satisfied, but for lack of expeditious trial
being made by the learned trial Judge concerned, upon, the charge relating to
the accused allegedly consciously and exclusively possessing the
commercial quantity of the prohibited contraband, thus granted the craved
for indulgence of bail to the bail applicant thereins.
3. Be that as it may, since the facts relating to the order made on
the bail petition (supra), rather revealed that the trial entered against the
petitioner was nearing completion, therebys the learned Coordinate Bench,
thus chose to not place reliance upon the verdict (supra) but yet proceeded to
make an order for expeditious conclusion of the trial. Therefore, the
question of law which is required to be answered relates to –
(a) Whether upon non-satisfaction of the twin conditions
(supra), as engrafted in Section 37(1)(b)(ii) of the NDPS Act,
especially when despite the makings of seizure of commercial
quantity of the narcotic drug(s) and psychotropic substance(s)
rather from the alleged conscious and exclusive possession of
the accused, whether therebys the accused is entitled to the
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indulgence of bail ?
(b) Whether the prolonged delay in the conclusion of trial
entered upon the accused charged for allegedly consciously and
exclusively possessing the commercial quantity of the relevant
narcotic drug(s) and psychotropic substance(s), thus relieves
the rigour of the said bar ?
(c) Whether the judgment made by the Apex Court (supra),
and, also the subsequently made verdicts wherebys for want of
expeditious conclusion of trial being made in respect of the
accused (supra), thus indulgence of bail became granted, does
require rigorous application theretos, even when the facts and
circumstances of the relevant case, thus unfold that there is a
likelihood of early completion of trial, or when a further
direction can be passed that the said trial be concluded at the
earliest, and/or therebys whether the mandate made by the
Apex Court in the verdict (supra) rather can be eased ?
4. The Apex Court in the relevant paragraphs of a verdict rendered
in case titled as Union of India through Narcotic Control Bureau,
Lucknow versus Md. Nawaz Khan reported in (2021) 10 SC 100, has held
as under:-
“20. Section 37 of the NDPS Act regulates the grant of bail in cases
involving offences under the NDPS Act. Section 37 reads as follows:
“(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 27A 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, and3 of 24
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(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.
21. Under Section 37(1)(b)(ii), the limitations on the grant of
bail for offences punishable under Sections 19, 24 or 27A
and also for offences involving a commercial quantity are :
(i) The Prosecutor must be given an opportunity to oppose
the application for bail; and
(ii) There must exist `reasonable grounds to believe’ that (a)
the person is not guilty of such an offence; and (b) he is not
likely to commit any offence while on bail.
22. The standard prescribed for the grant of bail is `reasonable
ground to believe’ that the person is not guilty of the offence.
Interpreting the standard of `reasonable grounds to believe’, a two-
judge Bench of this Court in Shiv Shanker Kesari (supra), held that:
“7. The expression used in Section 37(1)(b)(ii) is “reasonable
grounds”. The expression means something more than prima
facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence charged
and this reasonable belief contemplated in turn points to
existence of such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that the
accused is not guilty of the offence charged.
8. The word “reasonable” has in law the prima facie meaning
of reasonable in regard to those circumstances of which the
actor, called on to act reasonably, knows or ought to know. It
is difficult to give an exact definition of the word
“reasonable”.
“7. … In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states
that it would be unreasonable to expect an exact definition of
the word `reasonable’. Reason varies in its conclusions
according to the idiosyncrasy of the individual, and the times
and circumstances in which he thinks. The reasoning which
built up the old scholastic logic sounds now like the jingling
of a child’s toy.”
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar
[(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water
Supply and Sewerage Board v. Unique Erectors (Gujarat)
(P) Ltd. [(1989) 1 SCC 532]
[…]
10. The word “reasonable” signifies “in accordance with
reason”. In the ultimate analysis it is a question of fact,
whether a particular act is reasonable or not depends on the
circumstances in a given situation. (See Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with
reference to Section 37 of the Act is not called upon to record
a finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that
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the court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty and
records its satisfaction about the existence of such grounds.
But the court has not to consider the matter as if it is
pronouncing a judgment of acquittal and recording a finding
of not guilty.”
(emphasis supplied)
23. Based on the above precedent, the test which the High Court
and this Court are required to apply while granting bail is whether
there are reasonable grounds to believe that the accused has not
committed an offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences punishable under
the NDPS Act and in order to curb the menace of drug-trafficking in
the country, stringent parameters for the grant of bail under the
NDPS Act have been prescribed.
24. In the present case, the High Court while granting bail to the
respondent adverted to two circumstances, namely (i) absence of
recovery of the contraband from the possession of the respondent
and (ii) the wrong name in the endorsement of translation of the
statement under Section 67 of the NDPS Act.
25. We shall deal with each of these circumstances in turn. The
respondent has been accused of an offence under Section 8 of the
NDPS Act, which is punishable under Sections 21, 27A, 29, 60(3) of
the said Act. Section 8 of the Act prohibits a person from possessing
any narcotic drug or psychotropic substance. The concept of
possession recurs in Sections 20 to 22, which provide for
punishment for offences under the Act. In Madan Lal and Another v.
State of Himachal Pradesh, (2003) 7 SCC 465 this Court held that
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The facts
which can be culled out from the evidence on record are that
all the accused persons were travelling in a vehicle and as
noted by the trial court they were known to each other and it
has not been explained or shown as to how they travelled
together from the same destination in a vehicle which was not
a public vehicle.
20. Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in Chapter IV of the Act which
relates to offences for possession of such articles. It is
submitted that in order to make the possession illicit, there
must be a conscious possession.
21. It is highlighted that unless the possession was coupled
with the requisite mental element i.e. conscious possession
and not mere custody without awareness of the nature of such
possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It may
carry different meanings in contextually different
backgrounds. It is impossible, as was observed in Supdt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja
[(1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : AIR 1980 SC
52] to work out a completely logical and precise definition of
“possession” uniform[ly] applicable to all situations in the
context of all statutes.
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23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is deliberate or
intended.
x x x x
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it,
because how he came to be in possession is within his special
knowledge. Section 35 of the Act gives a statutory recognition
of this position because of the presumption available in law.
Similar is the position in terms of Section 54 where also
presumption is available to be drawn from possession of
illicit articles.”
26. What amounts to “conscious possession” was also considered
in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608, where it
was held that the knowledge of possession of 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 Mohan Lal v.
State of Rajasthan, (2015) 6 SCC 222, this Court also observed that
the term “possession” could mean physical possession with animus;
custody over the prohibited substances with animus; exercise of
dominion and control as a result of concealment; or personal
knowledge as to the existence of the contraband and the intention
based on this knowledge.
27. We have referred to the above precedents to reiterate the
governing principles. At this stage of the proceedings, it needs only
to be clarified that the trial is to take place this Court where
evidence will be adduced.
28. As regards the finding of the High Court regarding absence of
recovery of the contraband from the possession of the respondent,
we note that in Union of India v. Rattan Mallik, (2009) 2 SCC 624,
a two-judge Bench of this Court cancelled the bail of an accused
and reversed the finding of the High Court, which had held that as
the contraband (heroin) was recovered from a specially made cavity
above the cabin of a truck, no contraband was found in the
`possession’ of the accused. The Court observed that merely making
a finding on the possession of the contraband did not fulfil the
parameters of Section 37(1)(b) and there was non-application of
mind by the High Court.
29. In line with the decision of this Court in Rattan Mallik
(supra), we are of the view 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.
30. With regard to the statement under Section 67 of the NDPS
Act, the High Court has placed abundant reliance on the inclusion
of Mohd. Arif Khan’s name in place of the respondent’s name in the
endorsement of translation on the statement of the respondent. In
Tofan Singh (supra), a three judge Bench of this Court held that a
statement under Section 67 of the NDPS Act is inadmissible. The
ASG submitted that independent of the statement, there are valid
reasons to deny bail on the basis of the material which has emerged
at this stage.
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31. Another submission that has been raised by the counsel for
the respondent both before the High Court and this Court is that due
to non-compliance of the procedural requirement under
Section 42 of the NDPS Act[20*], the respondent should be granted
bail. Section 42 provides that on the receipt of information of the
commission of an offence under the statute, the officer will have to
write down the information and send it to a superior officer with 72
hours. It has been submitted by the respondent that though the
information was received by the Zonal Director, the information
was put down in writing by an officer who was a part of the team
constituted on the receipt of the information. The written
information was then sent to the Zonal Director. This Court Karnail
Singh v. State of Haryana, (2009) 8 SCC 539 held that though the
writing down of 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:
[“42. Power of entry, search, seizure and arrest without
warrant or authorisation: (1) Any such officer (being an
officer superior in rank to a peon, sepoy or constable) of the
departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central
Government including para-military forces or armed forces
as is empowered in this behalf by general or special order by
the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government, if
he has reason to believe from persons knowledge or
information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence
punishable under this Act [..];
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.”]
“35. […](c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard to writing
down the information received and sending a copy thereof to
the superior officer, should normally precede the entry,
search and seizure by the officer. But in special
circumstances involving emergent situations, the recording of
the information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period,
that is, after the search, entry and seizure. The question is
one of urgency and expediency.
(d) While total non-compliance with requirements of
subsections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about the
delay will be acceptable compliance with Section 42. To
illustrate, if any delay may result in the accused escaping or
the goods or evidence being destroyed or removed, not
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recording in writing the information received, before
initiating action, or non-sending of a copy of such
information to the official superior forthwith, may not be
treated as violation of Section 42. But if the information was
received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to
record in writing the information received, or fails to send a
copy thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation of
Section 42 of the Act. Similarly, where the police officer does
not record the information at all, and does not inform the
official superior at all, then also it will be a clear violation of
Section 42 of the Act. Whether there is adequate or
substantial compliance with Section 42 or not is a question of
fact to be decided in each case. The above position got
strengthened with the amendment to Section 42 by Act 9 of
2001.”
32. Further, it was held that the issue of whether there was
compliance of the procedure laid down under Section 42 of the
NDPS Act is a question of fact. The decision in Karnail Singh
(supra) was recently followed by this Court in Boota Singh v. State
of Haryana, 2021 SCC OnLine SC 324.
33. In the complaint that was filed on 16 October 2019 it is
alleged that at about 1400 hours on 26 March 2019, information
was received that between 1500-1700 hours on the same day, the
three accused persons would be reaching Uttar Pradesh. The
complaint states that the information was immediately reduced to
writing. Therefore, the contention that Section 42 of the NDPS Act
was not complied with is prima facie misplaced. The question is one
that should be raised in the course of the trial.
34. The following circumstances are crucial to assessing whether
the High Court has correctly evaluated the application for bail,
having regard to the provisions of Section 37:
34.1 The respondent was travelling in the vehicle all the way from
Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-
accused;
34.2 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;
34.3 The quantity of contraband found in the vehicle is of a
commercial quantity; and
34.4 The contraband was concealed in the vehicle in which the
respondent was travelling with the co-accused.
35. The impugned order of the High Court, apart from observing
that no contraband was found from the personal search of the
respondent has ignored the above circumstances. The High Court
has merely observed that
“”10. In view of the above, the twin conditions contained
under Section 37(1)(b) of the NDPS Act stand satisfied.
This Court is of the view that if there is reasonable ground,
the applicant is entitled to be released on bail.”
36. The High Court has clearly overlooked crucial requirements
and glossed over the circumstances which were material to the issue
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as to whether a case for the grant of bail was established. In failing
to do so, the order of the High Court becomes unsustainable.
Moreover, it has emerged, during the course of the hearing that
after the respondent was enlarged on bail he has consistently
remained away from the criminal trial resulting in the issuance of a
non-bailable warrant against him. The High Court ought to have
given due weight to the seriousness and gravity of the crime which it
has failed to do.
37. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court dated 1 October
2020 in Mohd. Nawaz Khan v. Union of India.
38. The application for bail filed by the respondent shall stand
dismissed. The respondent shall accordingly surrender forthwith.
Pending application(s) if any, stand disposed of.”
5. In a verdict rendered by the Apex Court in case titled as State
of Kerala and others versus Rajesh and others, reported in (2020) 12
Supreme Court Cases 122, it has been held as under:-
“18. This Court has laid down broad parameters to be followed
while considering the application for bail moved by the accused
involved in offences under NDPS Act. In Union of India v. Ram
Samujh and Ors. 1999(4) RCR (Criminal) 93 : 1999(9) SCC 429, it
has been elaborated as under:-
“7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It should
be borne in mind that in a murder case, the accused commits
murder of one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in causing death
or in inflicting death-blow to a number of innocent young
victims, who are vulnerable; it causes deleterious effects and
a deadly impact on the society; they are a hazard to the
society; even if they are released temporarily, in all
probability, they would continue their nefarious activities of
trafficking and/or dealing in intoxicants clandestinely.
Reason may be large stake and illegal profit involved. This
Court, dealing with the contention with regard to punishment
under the NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v. Chief
Secy., Union Territory of Goa [1989(2) RCR (Criminal)
505 : (1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised
activities of the underworld and the clandestine smuggling of
narcotic drugs and psychotropic substances into this country
and illegal trafficking in such drugs and substances have led
to drug addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes and
the menace has assumed serious and alarming proportions in
the recent years. Therefore, in order to effectively control and
eradicate this proliferating and booming devastating menace,
causing deleterious effects and deadly impact on the society
as a whole, Parliament in its wisdom, has made effective
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mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the
market, Parliament has provided that the person accused of
offences under the NDPS Act should not be released on bail
during trial unless the mandatory conditions provided in
Section 37, namely,
(i) there are reasonable grounds for believing that the
accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail
are satisfied. The High Court has not given any justifiable
reason for not abiding by the aforesaid mandate while
ordering the release of the respondent-accused on bail.
Instead of attempting to take a holistic view of the harmful
socio-economic consequences and health hazards which
would accompany trafficking illegally in dangerous drugs,
the court should implement the law in the spirit with which
Parliament, after due deliberation, has amended.”
19. The scheme of Section 37 reveals that the exercise of power to
grant bail is not only subject to the limitations contained under
Section 439 of the CrPC, but is also subject to the limitation placed
by Section 37 which commences with non-obstante clause. The
operative part of the said section is in the negative form prescribing
the enlargement of bail to any person accused of commission of an
offence under the Act, unless twin conditions are satisfied. The first
condition is that the prosecution must be given an opportunity to
oppose the application; and the second, is that the Court must be
satisfied that there are reasonable grounds for believing that he is
not guilty of such offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
20. The expression “reasonable grounds” means something more
than prima facie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are sufficient
in themselves to justify satisfaction that the accused is not guilty of
the alleged offence. In the case on hand, the High Court seems to
have completely overlooked the underlying object of Section 37 that
in addition to the limitations provided under the CrPC, or any other
law for the time being in force, regulating the grant of bail, its
liberal approach in the matter of bail under the NDPS Act is indeed
uncalled for.”
6. In the verdicts (supra), it becomes explicitly propounded, that
the twin conditions enshrined in the statutory provisions (supra), and, as
relate to (i) whether there are reasonable grounds to believe that the accused
has not committed an offence, and (ii) that whether he is likely to commit
the offence while on bail, thus are required to be satisfied from the evidence
existing on record before the Court concerned. Imperatively also before
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indulgence of bail being granted to the accused concerned, thus the Public
Prosecutor but has to be imperatively assigned an opportunity to oppose the
application for regular bail. Emphasizingly upon apposite objective
satisfaction being made vis-a-vis the apposite twin conditions, but only after
an incisive scrutiny of the relevant records becoming embarked upon,
therebys, thus upon the said scrutinized records, but candidly demonstrating
that the twin conditions (supra) rather do become favourably satisfied qua
the accused. Therefore, only in the event of the twin conditions (supra)
becoming satisfied, thereupon, even in respect of the accused allegedly
consciously and exclusively possessing the commercial quantity of narcotic
drug(s) and psychotropic substance(s), thus may become assigned the craved
for indulgence qua his being released on regular bail. In sequel, therebys the
rigour of the statutory bar created against the accused concerned, who
allegedly consciously and exclusively possesses the commercial quantity of
any narcotic drug(s) and psychotropic substance(s), thus becomes eased.
7. The apposite objective satisfaction being made vis-a-vis the
twin conditions (supra), thus at the instance of the accused becomes
engendered from seriousness of offence punishable under the NDPS Act,
and, also from the necessity to curb the menace of drug-trafficking in the
country.
8. The hereinabove underlined expressions, as occur in the Union
of India through Narcotic Control Bureau’s case (supra) candidly expound
the connotation of the statutory coinage “reasonable grounds”. The
connotation to be assigned to the said statutory coinage is stated thereins to
be more than prima facie, besides connotes a substantial probable cause for
believing, that the accused is not guilty of the alleged offence charged, and,
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thus the reasonable belief contemplated in the provisions is required to be
pointing to a situation of such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is not guilty of the alleged
offence charged.
9. Though, it has been also stated thereins, that though it would be
unreasonable to expect the assigning of an exact definition of the word
‘reasonable’. “Reason” is stated thereins to be varying in its conclusions
according to the idiosyncrasy of the individual and the times and
circumstances in which he thinks. Therefore, as such the signification to be
assigned to the word ‘reasonable’, has been stated to be a question of fact
but depending upon the facts and circumstances in the situation. However, it
has been stated thereins, that while the Courts decide the satisfaction being
meted to the twin conditions (supra), they are not called upon to record a
finding of not guilty but the satisfaction made in favour of the accused rather
is limited or confined to the question of releasing the accused on bail.
10. Furthermore, in the hereinabove underlined expressions, as
occur in paragraphs sub-paras No. 19, 20, 21, 22, 23 and 26 of paragraph 25
in Union of India through Narcotic Control Bureau’s case (supra), it
becomes abundantly clarified that possession is to be coupled with the
requisite mental element i.e. conscious possession and not mere custody
without awareness of the nature of such possession, is the requisite penal
ingredient for thus concluding, that the accused concerned, was allegedly
consciously and exclusively possessing the commercial quantity of the
relevant narcotic drug(s) and psychotropic substance(s). In short, the word
‘conscious’ has been described to be awareness about a particular fact and it
is a state of mind which is deliberate or intended. The above underlined
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expressions, as exist in the paragraphs (supra), thus do earmark the level of
scrutiny as is required to be made by the Courts while making a conclusion
whether the accused has favourably proven the twin conditions (supra), or
qua the said twin conditions becoming prima facie proven by the prosecution
to be satisfied against him.
11. Be that as it may, the necessity of statutory compliances being
made by the Public Prosecutor vis-a-vis the provisions embodied in Section
42 of the NDPS Act, becomes also highlighted in the verdict (supra). The
absence of strict compliances being made to the apposite mandatory
statutory provisions but obviously prima facie makes the accused to become
entitled to claim the indulgence of bail, irrespective of the fact that from his
purported conscious and exclusive possession, thus takes place the relevant
seizure of the commercial quantity of the relevant narcotic drug(s) and
psychotropic substance(s).
12. To the similar effect are the judgments rendered by the Apex
Court in case titled as (i) Customs, New Delhi versus Ahmadalieva Nodira
reported in 2004(2) RCR (Criminal) 192, (ii) Narcotics Control Bureau
versus Dilip Prahlhad Namade, reported in (2004) 3 SCC 549, and, (iii)
Union of India and another versus Sanjeev V. Dheshpande reported in
2014(13) SCC 1. The relevant paragraphs of the verdicts supra are extracted
hereinafter.
“(i) Customs, New Delhi versus Ahmadalieva Nodira
reported in 2004(2) RCR (Criminal) 192
7. The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the grant of
opportunity to the public prosecutor, the other twin conditions
which really have relevance so far the present accused-respondent
is concerned, are (1) the satisfaction of the Court that there are
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reasonable grounds for believing that the accused is not guilty of
the alleged offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not alternative.
The satisfaction contemplated regarding the accused being not
guilty has to be based for reasonable grounds. The expression
“reasonable grounds” means something more than prima
facie grounds. It contemplates substantial probable causes for
believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence
of such facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged
offence. In the case at hand the High Court seems to have
completely overlooked the underlying object of Section 37. It did not
take note of the confessional statement recorded under Section 67 of
the Act. Description Serial No. 43 of the Schedule which reads as
follows has not been kept in view.
Sr. No. International non- Other non- Chemical name
proprietary proprietary
43 Diazepam 7-Choloro-1, 3-dihydro-1-
methyl-5-phenyl-2II-1 4-
benzondiazepin-2-one
In addition, the report of the Central Revenue Control Laboratory
was brought to the notice of the High Court. The same was lightly
brushed aside without any justifiable reason.
8. In the aforesaid background, this does not appear to be a case
where it could be reasonably believed that the accused was not
guilty of the alleged offence. Therefore, the grant of bail to the
accused was not called for. The impugned order granting bail is set
aside and the bail granted is cancelled. The accused-respondent is
directed to surrender to custody forthwith. Additionally it shall be
open to the Trial Court to issue notice to the surety and in case the
accused does not surrender to custody, as directed, to pass
appropriate orders so far as the surety and the amount of security
are concerned. It is made clear that no final opinion on the merit of
the case has been expressed in this judgment, and whatever has
been stated is the background of Section 37 of the Act for the
purpose of bail.
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The appeal is allowed.”
(ii) Narcotics Control Bureau versus Dilip Prahlhad
Namade, reported in (2004) 3 SCC 549
9. The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the grant of
opportunity to the public prosecutor, the other twin conditions
which really have relevance so far the present accused-respondent
is concerned, are (1) the satisfaction of the Court that there are
reasonable grounds for believing that the accused is not guilty of
the alleged offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not alternative.
The satisfaction contemplated regarding the accused being not
guilty has to be based for reasonable grounds. The expression
“reasonable grounds” means something more than prima
facie grounds. It contemplates substantial probable causes for
believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence
of such facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged
offence and he is not likely to commit any offence while on bail. This
nature of embargo seems to have been envisaged keeping in view
the deleterious nature of the offence, necessitates of public interest
and the normal tendencies of the persons involved in such network
to pursue their activities with greater vigour and make hay when, at
large. In the case at hand the High Court seems to have completely
overlooked the underlying object of Section 37 and transgressed the
limitations statutorily imposed in allowing bail. It did not take note
of the confessional statement recorded under Section 67 of the Act.
10. A bare reading of the impugned judgment shows that the scope
and ambit of Section 37 of the Narcotic Drugs and Psychotropic
Substances Act was not kept in view by the High Court. Mere non-
compliance of the order passed for supply of copies, if any, cannot
as in the instant case entitle an accused to get bail notwithstanding
prohibitions contained in Section 37.
11. The circumstances under which the bail can be granted in the
background of Section 37 have been indicated above. The case is
not one to which the exceptions provided in Section 37 can be
applied.
12. Coming to the plea regarding long passage of time it is to be
noted that the two orders passed by this Court in SLP (Crl.) Nos.
1136/2002 and 434/2003 referred to above do not lay down any
principle of law of invariable nature to be universally applied.
Furthermore, disposal of SLP against a judgment of the High Court
does not mean that the said judgment is affirmed by such dismissal.
The order passed in any SLP at threshold without detailed reasons
does not constitute any declaration of law or constitute a binding
precedent. (See Union of India and others v. Jaipal Singh, 2003(7)
Supreme 676). This court cannot and does not reverse or modify the
decree or order appealed against while deciding the petition for
special leave to appeal and that too when the SLP was being
dismissed. What is impugned before this Court can be reversed or
modified only after granting leave and then assuming appellate
jurisdiction over it. If the order impugned before this Court cannot
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be reversed or modified at the SLP stage obviously that order
cannot also be affirmed at the SLP stage (see Kunhayammed and
others v. State of Kerala and another, 2000(6) SCC 359 and Sri
Ramnik Vallabhdas Madvane and others v. Taraben Pravinlal
Madhvani, 2003(8) Supreme 208).
13. The inevitable conclusion is that the judgment has no legal
sanction. We, therefore, set aside the impugned judgment of the
High Court granting bail to the respondent.
The respondent-accused is directed to surrender to custody
forthwith.”
(iii) Union of India and another versus Sanjeev V.
Dheshpande reported in 2014(13) SCC 1
30. On examination of the scheme of Rules 53 to 63 which appear in
Chapter VI, we are of the opinion that Rule 53[12]* reiterates an
aspect of the larger prohibition contained in Section 8(c) i.e., the
prohibition of import into and export out of India of the narcotic
drugs and psychotropic substances specified in Schedule-I to the
Rules. The proviso thereto however enables the import into and
export out of India on the basis of an import certificate or export
authorisation issued under the provisions of Chapter VI. The
subsequent Rules stipulate the conditions subject to which and the
procedure to be followed by which some of the narcotic drugs and
psychotropic substances could be imported into India or exported
out of India. For example, opium is a narcotic drug by definition
under Section 2(xiv) of the Act whose export and import is
prohibited under Section 8(c). But Rule 54[13]* authorizes the
import of opium by Government opium factory. The construction
such as the one placed on Rule 53 in Rajesh Kumar Gupta’s case
would in our opinion be wholly against the settled canons of
statutory interpretation that the subordinate legislation cannot make
stipulation contrary to the parent Act.
*[12] 53. General prohibition – Subject to the other
provisions of this Chapter, the import into and export out of
India of the narcotic drugs and psychotropic substances
specified in Schedule I is prohibited.
Provided that nothing in this rule shall apply in case the drug
substance in imported into or exported out of India subject to
an import certificate or export authorisation issued under the
provision of this Chapter and for the purpose mentioned in
Chapter VIIA.
*[13] 54. Import of opium, etc. – The import of –
(i) opium, concentrate of poppy straw, and
(ii) morphine, codeine, thebaine, and their salts is prohibited
save by the Government Opium Factory;
Provided that nothing in this rule shall apply to import of
morphine, codeine, thebaine and their salts by manufacturers
notified by the Government, for use in manufacture of
products to be exported or to imports of small quantities of
morphine, codeine and thebaine and their salts not exceeding
a total of 1 kilogram during a calendar year for analytical
purposes by an importer, after following the procedure under
rule 55 and subject to such conditions as may be specified in
the import certificate issued in Form No. 4A.
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31. Chapter VII deals with psychotropic substances. No doubt Rule
64[14] once again purports to prohibit various operations other
than import into or export out of India in psychotropic substances
specified in Schedule-I for the obvious reason that import and
export operations are already covered by Rule 53. Rule 65
authorizes the manufacture of psychotropic substances other than
those specified in Schedule-I to the Rules subject to and in
accordance with the conditions of a licence granted under the 1945
Rules. The rule also provides for various other incidental matters.
Rule 65A prohibits the sale, purchase, consumption or use of any
psychotropic substances except in accordance with the 1945 Rules.
[14] Rule 64. General Prohibition.No person shall
manufacture, possess, transport, import inter-State, export
inter-State, sell, purchase, consume or use any of the
psychotropic substances specified in Schedule-I.
32. Rule 66 prohibits any person from having in possession any
psychotropic substance even for any of the purposes authorised
under the 1945 Rules unless the person in possession of such a
psychotropic substance is lawfully authorised to possess such
substance for any of the purposes mentioned under the 1985 Rules.
Persons who are authorised under the 1985 Rules, and the
quantities of the material such persons are authorised to possess,
are specified under Rule 66(2). They are –
(1) any research institution or a hospital or dispensary
maintained or supported by Government etc. – Rule 66(2).
(2) individuals where such possession is needed for personal
medical use subject of course to the limits and conditions
specified – the two provisos to Rule 66(2).
33. Rule 66 reads as follows
Rule 66. Possession, etc., of psychotropic substances.(1) No
person shall possess any psychotropic substance for any of
the purposes covered by the 1945 Rules, unless he is lawfully
authorised to possess such substance for any of the said
purposes under these rules.
(2) Notwithstanding anything contained in sub-rule (1), any
research institution or a hospital or dispensary maintained or
supported by Government or local body or by charity or
voluntary subscription, which is not authorised to possess
any psychotropic substance under the 1945 Rules, or any
person who is not so authorised under the 1945 Rules, may
possess a reasonable quantity of such substance as may be
necessary for their genuine scientific requirements, or both
for such period as is deemed necessary by the said research
institution or, as the case may be, the said hospital or
dispensary or person:
Provided that where such psychotropic substance is in
possession of an individual for his personal medical use the
quantity thereof shall not exceed one hundred dosage units at
a time:
Provided further than an individual may possess the quantity
of exceeding one hundred dosage units at a time but not
exceeding three hundred dosage units at a time for his
personal long term medical use if specifically prescribed by a
Registered Medical Practitioner.
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to in sub-rule (2) shall maintain proper accounts and records
in relation to the purchase and consumption of the
psychotropic substance in their possession.
34. On the above analysis of the provisions of chapters VI and VII of
the 1985 Rules, we are of the opinion, both these Chapters contain
Rules permitting and regulating the import and export of narcotic
drugs and psychotropic substances other than those specified in the
Schedule-I to the 1985 Rules subject to various conditions and
procedure stipulated in Chapter VI. Whereas Chapter VII deals
exclusively with various other aspects of dealing in psychotropic
substances and the conditions subject to which such dealing in is
permitted. We are of the opinion that both Rules 53 and 64 are
really in the nature of exception to the general scheme of Chapters
VI and VII respectively containing a list of narcotic drugs and
psychotropic substances which cannot be dealt in any manner
notwithstanding the other provisions of these two chapters. We are
of the clear opinion that neither Rule 53 nor Rule 64 is a source of
authority for prohibiting the DEALING IN narcotic drugs and
psychotropic substances, the source is Section 8. Rajesh Kumar
Gupta’s case in our view is wrongly decided.
35. In view of our conclusion, the complete analysis of the
implications of Section 80[15]* of the Act is not really called for in
the instant case. It is only required to be stated that essentially the
Drugs & Cosmetics Act, 1940 deals with various operations of
manufacture, sale, purchase etc. of drugs generally whereas
Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a
more specific class of drugs and, therefore, a special law on the
subject. Further the provisions of the Act operate in addition to the
provisions of 1940 Act.
*[15] Section 80. Application of the Drugs and Cosmetics
Act, 1940 not barred.The provisions of this Act or the rules
made thereunder shall be in addition to, and not in
derogation of, the Drugs and Cosmetics Act, 1940 (23 of
1940) or the rules made thereunder.
36. In the light of our above conclusion the correctness of the orders
impugned in all the Criminal Appeals is normally required to be
considered by the Bench of appropriate strength. However, in view
of the fact that most of these matters are old matters [pertaining to
years 2006 to 2013], we deem it appropriate to remit all these
matters to the concerned High Courts for passing of appropriate
orders in the light of this judgment.
37. Ordered accordingly. Appeals stand disposed of.”
13. Be that as it may, the Apex Court in a verdict rendered in case
titled as Union of India versus K.A. Najeeb reported in (2021) 3 Supreme
Court Cases 713, has made the underlined hereinafter extracted
expostulation of law.
“15. This Court has clarified in numerous judgments that the
liberty guaranteed by Part III of the Constitution would cover within
its protective ambit not only due procedure and fairness but also
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IN CRM-M-21788-2022access to justice and a speedy trial. In Supreme Court Legal Aid
Committee Representing Undertrial Prisoners v. Union of India,
(1994) 6 SCC 731, it was held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is established before a
neutral arbiter. However, owing to the practicalities of real life
where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial,
Courts are tasked with deciding whether an individual ought to be
released pending trial or not. Once it is obvious that a timely trial
would not be possible and the accused has suffered incarceration
for a significant period of time, Courts would ordinarily be
obligated to enlarge them on bail.
16. As regard to the judgment in NIA v. Zahoor Ahmad Shah
Watali (supra), cited by learned ASG, we find that it dealt with an
entirely different factual matrix. In that case, the High Court had
reappreciated the entire evidence on record to overturn the Special
Court’s conclusion of their being a prima facie case of conviction
and concomitant rejection of bail. The High Court had practically
conducted a mini-trial and determined admissibility of certain
evidences, which exceeded the limited scope of a bail petition. This
not only was beyond the statutory mandate of a prima facie
assessment under Section 43-D(5), but it was premature and
possibly would have prejudiced the trial itself. It was in these
circumstances that this Court intervened and cancelled the bail.
17. It is thus clear to us that the presence of statutory restrictions
like Section 43-D (5) of UAPA per-se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part
III of the Constitution. Indeed, both the restrictions under a Statue
as well as the powers exercisable under Constitutional Jurisdiction
can be well harmonised. Whereas at commencement of proceedings,
Courts are expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will melt down
where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone
has exceeded a substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of provisions like
Section 43-D (5) of UAPA being used as the sole metric for denial
of bail or for wholesale breach of constitutional right to speedy
trial.
18. Adverting to the case at hand, we are conscious of the fact
that the charges levelled against the respondent are grave and a
serious threat to societal harmony. Had it been a case at the
threshold, we would have outrightly turned down the respondent’s
prayer. However, keeping in mind the length of the period spent by
him in custody and the unlikelihood of the trial being completed
anytime soon, the High Court appears to have been left with no
other option except to grant bail. An attempt has been made to
strike a balance between the appellant’s right to lead evidence of its
choice and establish the charges beyond any doubt and
simultaneously the respondent’s rights guaranteed under Part III of
our Constitution have been well protected.”
14. The expostulations of law relevant to the instant case become
carried in para 17 and 18 of the verdict (supra), paras whereof become
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underlined. An incisive scrutiny of the above paragraphs unfolds the factum,
that irrespective of the Public Prosecutor succeeding in establishing the twin
conditions rather against the bail applicant concerned, yet therebys the
accused bail applicant would not per se become disentitled to the craved for
indulgence of bail becoming granted to him.
15. The reason(s), as become set-forth thereins, are embedded in
the factum, that when the right to speedy trial is the cornerstone of Article 21
of the Constitution of India, therebys the exacting rigour of the statutory
provision (supra) becomes whittled down or becomes melted. Therefore,
keeping in mind the length of the period spent by the accused in custody in
case (supra), and, the unlikelihood of the earliest completion of trial,
thereupon, the Apex Court but irrespective of the twin conditions (supra)
becoming satisfied against the accused, thus proceeded to grant the
indulgence of bail to the accused-bail petitioner thereins. The above line of
legal philosophy emanates from the necessity to safeguard the guaranteed
right of speedy trial vis-a-vis the accused, thus within the four corners of
Article 21 of the Constitution of India. As such, upon emergence of evidence
qua there being every likelihood of a tardy progress being made in respect of
the trial entered upon qua the accused, qua a charge relating to his allegedly
consciously and exclusively possessing the commercial quantity of the
relevant narcotic drug(s) and psychotropic substance(s), thereupon, the bail
petitioner-accused may become entitled to the indulgence of bail becoming
granted to him.
16. Now the expectations of a speedy trial being made qua the
accused concerned, may be thus an over expectation(s) from the trial
Court(s) concerned, especially given the existence thereins of a heavy docket
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of subjudice cases of various genres. As such the blame is not only to be
assigned to the trial Courts concerned, but any purported blame relating to
delays in trials as made with respect to the above genre of cases, is also
required to be vicariously shared by the prosecution as well as by the
accused.
17. If the heavy docket of subjudice litigations of every genre
becomes the deterrent for the learned trial Judges concerned, thus ensuring
the makings of expeditious trials vis-a-vis the apposite charges drawn vis-a-
vis the accused, especially the one relating to the accused concerned
allegedly consciously and exclusively possessing the commercial quantity of
the relevant narcotic drug(s) and psychotropic substance(s). Therefore, to the
considered objective mind of this Court, there is also dire necessity of
making Special NDPS Courts in the States of Punjab, Haryana and in the
Union Territory, Chandigarh. As such, this Court humbly requests the
Hon’ble Chief Justice to take up the matters (supra), thus with the State
Government(s) concerned, so that Special Courts rather for trying the NDPS
offences become created in the State of Punjab, Haryana and Union
Territory, Chandigarh, so that therebys there may be an expeditious
conclusion of trial relating to the charges qua the accused concerned
allegedly consciously and exclusively possessing the commercial quantity of
the relevant narcotic drug(s) and psychotropic substance(s). Resultantly
therebys, the parameters (supra) enshrined in the verdict made by the Apex
Court in Union of India through Narcotic Control Bureau, Lucknow’s
case (supra) may humbly not become applicable to the relevant case.
Contrarily, the underlined parameters (supra), as borne in the judgment
rendered by the Apex Court in Union of India versus K.A. Najeeb’s case
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(supra) rather would require the apposite application.
18. It is also normally seen that even the accused through filing
exemption applications, thus choose to delay the trial, but only for seeking
the benefits of the parameters (supra) enshrined in the hereinabove
underlined paragraphs, as, carried in the verdict rendered by the Apex Court
in Union of India versus K.A. Najeeb’s case (supra). To preempt the
accused to ill-avail the benefit of the above underlined expostulations of law,
as carried in the verdict (supra), thus a stringent duty is cast upon the learned
trial Judges concerned, to discover the truth or otherwise vis-a-vis the
reasons set-forth in the exemption applications filed by the accused. If the
reasons set-forth in the exemption applications are found to be frivolous,
thereupon the trial Judges may reject the applications, and, may proceed to
make an expeditious trial vis-a-vis the cases of the instant genre.
19. Moreover, the prosecution agencies are encumbered with the
necessity of ensuring that prompt service of summons becomes made upon
the prosecution witnesses concerned. In case, the prosecution witnesses are
promptly served, thereupon, the trial would proceed at an expeditious pace.
However, even after the apposite service being made, rather the prosecution
witnesses may not choose to, on the specified date appear before the learned
trial Judges concerned. In the said event, the learned trial Judges concerned,
may draw such processes including drawings of bailable warrants, so that,
the prosecution witnesses who earlier omitted to appear before them, for
theirs making their respective depositions, rather make their appearances
before the learned trial Judge concerned, so that therebys occurs an
expeditious conclusion of the trial. Resultantly therebys the accused may
become disabled to contend that on the above parameters, the indulgence of
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bail be granted to him.
20. Insofar as the official prosecution witnesses are concerned, who
may be on account of transfers become positioned at stations rather much
distant from the Courts wherebefore whom they are to record their
depositions, therebys yet the learned trial Judges concerned, may choose to
record their evidence through video conferencing but with the consent of the
learned defence counsel.
21. To the considered mind of this Court, the above would ensure
the makings of speedy and expeditious trials of the relevant charges being
made against the accused. Moreover therebys the accuseds’ may become
disabled to contend, that irrespective of the twin conditions enshrined in the
above extracted statutory provisions, rather thus becoming proven against
them yet on account of delay in the conclusion of trail, theirs yet being
entitled to seek the indulgence of bail.
22. The Courts of law are also required to while applying the above
expostulations of law consider the facts of each case, inasmuch as, the
imperative facts relating to the number of the prosecution witnesses and the
time which would be consumed in the recording of their depositions. If the
relevant status report makes echoings that given the number of the
prosecution witnesses, besides the tardy time schedule set-forth for the
makings of trials against the accused, therebys also the Courts concerned
rather than proceeding to record a finding viz-a-vis the twin conditions
becoming satisfied against the accused, thus may proceed to order for the
making of an expeditious conclusion of trial, so that therebys, the
Constitutional right of speedy and expeditious trial quartered within the
domain of Article 21 of the Constitution of India, thus becomes endowed
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upon the accused. Moreover therebys rather no decision on merits
adversarial to the accused becomes made.
23. Importantly charges are to be also expeditiously drawn, as
thereafters only trial opens. Therefore, derelict non-expedition in the framing
of charges, thus may also bestow a well leverage in the accused to espouse
for indulgence of bail, irrespective of no finding being recorded qua the twin
conditions (supra) rather becoming satisfied in favour of or against the
accused.
Final order
24. In view of the observations (supra), IOIN stands disposed of.
25. Reference is answered accordingly.
26. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
September 10th, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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