STATE OF KERALA ETC. versus RAJESH ETC.

[2020] 3 S.C.R.

ASTATE OF KERALA ETC.

RAJESH ETC.

(Criminal Appeal Nos. 154-157 of 2020)

JANUARY 24, 2020

[INDU MALHOTRA AND AJAY RASTOGI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37& ss.2(viia), (xxiiia), 20(b)(ii)(c), 29 – Scheme of s.37 – In CrimeNo.14/2018, accused persons (A1 to A3) were found in jointCpossession of 10.202 kgs of hashish oil and currency notes worthRs. 13,50,000/- – Allegation against the accused respondent-A5was that he entrusted hashish oil to A1 through A-2 for sale ininternational market – Additional Sessions Judge rejected A5’sapplication for post-arrest bail – Granted by High Court – Further,Din Crime No.19/2018, case of prosecution is that accused respondent-A1 (who is A5 in Crime No.14/2018) along with two other personsincluding A3 were found to be in possession of 1.800 kg of hashishoil – Post -arrest bail of both the accused was dismissed by SessionsJudge – Granted by High Court – On appeal, held: Hashish oil isshown at Sl. No. 13 in notification dtd. 19.10.01 issued by CentralEGovernment in exercise of power u/s.2(viia) & (xxiiia), NDPS Act –Hashish oil above 1 kg is commercial quantity – Jurisdiction ofCourt to grant bail is circumscribed by provisions of s.37, NDPSAct – Scheme of s.37 reveals that the exercise of power to grant bailis not only subject to the limitations contained u/s.439, CrPC, but isFalso subject to the limitation placed by s.37 which commences withnon-obstante clause – Operative part of the said section is in thenegative form prescribing the enlargement of bail to any personaccused of commission of an offence under the Act, unless twinconditions are satisfied – First condition is that the prosecutionmust be given an opportunity to oppose the application; and theGsecond, is that the Court must be satisfied that there are reasonablegrounds for believing that person accused is not guilty of suchoffence – High Court completely overlooked the underlying objectof s.37 that in addition to the limitations provided under the CrPC,or any other law for the time being in force, regulating the grant ofH

bail, its liberal approach in the matter of bail under the NDPS Actis indeed uncalled for – Single Judge failed to record findingmandated u/s.37, NDPS Act, sine qua non for granting bail to theaccused under NDPS Act – Further, the consideration that prevailedupon the Court to grant bail to the other accused persons (in CrimeNo.14/2018) will not absolve the act of the accused respondent-A5from the rigour of s.37, NDPS Act – Impugned order passed by theHigh Court releasing the respondents on bail is set aside – Code ofCriminal Procedure – s.482.

Allowing the appeals, the Court

HELD: Hashish oil is shown at Sl. No. 13 in the notificationdated 19th October, 2001 issued by the Central Government inexercise of power under Section 2(viia) and (xxiiia) of the NDPSAct. Hashish oil above 1 kg is commercial quantity. Thejurisdiction of the Court to grant bail is circumscribed by theprovisions of Section 37 of the NDPS Act. It can be granted incase there are reasonable grounds for believing that accused isnot guilty of such offence, and that he is not likely to commit anyoffence while on bail. It is the mandate of the legislature which isrequired to be followed. [Paras 17, 18][354-D-E]

Union of India v. Ram Samujh and Ors. 1999 (9) SCC429 : [1999] 2 Suppl. SCR 76 – relied on.

Satpal Singh v. State of Punjab (2018) 13 SCC 813 :[2018] 3 SCR 739 – referred to.

1.2 The scheme of Section 37 reveals that the exercise ofpower to grant bail is not only subject to the limitations containedunder Section 439 of the CrPC, but is also subject to the limitationplaced by Section 37 which commences with non-obstante clause.The operative part of the said section is in the negative formprescribing the enlargement of bail to any person accused ofcommission of an offence under the Act, unless twin conditionsare satisfied. The first condition is that the prosecution must begiven an opportunity to oppose the application; and the second,is that the Court must be satisfied that there are reasonablegrounds for believing that he is not guilty of such offence. If eitherof these two conditions is not satisfied, the ban for granting bail

Aoperates. The Single Judge failed to record finding mandatedunder Section 37 of the NDPS Act which is sine qua non forgranting bail to the accused under the NDPS Act. The impugnedorder passed by the High Court releasing the respondents onbail is set aside. The trial Court is directed to proceed andexpedite the trial. [Paras 20, 22 and 26][356-E-F; 357-B; 358-D]B

From the Judgment and Order dated 12.06.2019 of the High Courtof Kerala at Ernakulam in Crl. M. Appln. No. 2 of 2019 in Bail Appl.No. 2765 of 2019, Crl. M. Appln. No. 2 of 2019 in Bail Appl. No. 2996Dof 2019, Crl. M. Appln. No. 2 of 2019 in Bail Appl. No. 3229 of 2019.Ranjith Kumar, Sr. Adv., G. Prakash, Jishnu M.L., Ms. PriyankaPrakash, Ms. Beena Prakash, Advs. for the Appellants.

Basant R., Sr. Adv., Shinoj K. Narayanan, K. Rajeev, Advs. forthe Respondents.EThe Judgment of the Court was delivered by

AJAY RASTOGI, J.

1. Leave granted.

2. The appellant-prosecution has challenged the discretionFexercised by the learned Single Judge of the High Court of Kerala ingranting post-arrest bail to the accused respondents without noticing themandate of Section 37(1)(b)(ii) of the Narcotic Drugs and PsychotropicSubstances Act, 1985(hereinafter being referred to as “NDPS Act”)under the order impugned dated 10[th] May, 2019 followed with 12[th] June,G2019 rejecting the application filed by the appellant under Section 482 ofthe Code of Criminal Procedure(hereinafter being referred to as “CrPC”)for recalling the order of post-arrest bail dated 10[th] May, 2019.

3. It may be noticed that accused respondent Shajimon is (A-5) inCrime No. 14/2018 and (A-1) in Crime No. 19/2018 and another accusedrespondent Rajesh is (A-3) in Crime No. 19/2018.H

Facts of Crime No. 14/2018

4. The prosecution case is that on 25[th] May, 2018 at 5.30 p.m. inthe parking area of the Hotel Aquarock situated at Mannanthala, accusedA-1 to A-3 were found to be in joint possession of 10.202 kgs of hashishoil and currency notes worth Rs. 13,50,000/-. The Circle Inspector ofExcise, Thiruvananthapuram arrested all of three accused A-1 to A-3and seized the hashish oil, money and the vehicles which were used bythem for transporting oil. The allegation against the accused respondent(A-5) was that he entrusted hashish oil to A-1 through A-2 for sale in theInternational market and Crime No. 14/2018 was registered against himfor the offences punishable under Sections 20(b)(ii)(c) and Section 29of the NDPS Act and after investigation, charge-sheet was filed on 10[th]May, 2019.

5. On an application filed for post-arrest bail by accusedrespondent(A-5), learned Additional Sessions Judge while noticing themandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed thatthere was prima facie material to presume that the accused committedthe offence punishable under Section 20(b)(ii)(c) and Section 29 of theNDPS Act and rejected the application for post-arrest bail vide orderdated 21[st] February, 2019 which came to be challenged at the instanceof the accused respondent filing bail application before the High Court.6. Learned Judge of the High Court without even noticing Section37 of the NDPS Act and taking note of the fact that other accusedpersons in Crime No. 14/2018(A-1 to A-4) since have been released onbail, granted him post-arrest bail under the order impugned dated 10[th]May, 2019 which is subject matter of appeal before us.

Facts of Crime No. 19/2018

7. The accused respondents in Crime No. 19/2018 are registeredat excise circle office, Thiruvananthapuram alleging commission of theoffence punishable under Section 20(b)(ii)(c) of the NDPS Act. It maybe noticed that A-5 in Crime No. 14/2018 is A-1(Shajimon) in Crime No.19/2018 and other accused, i.e. Rajesh is A-3. The case of prosecutionis that on 25[th] October, 2018 at about 5.45 PM at Aristo Junction,Thiruvananthapuram, accused respondent (Shajimon-A1) along with twoother persons including A-3(Rajesh) were found to be in possession of1.800 kg of hashish oil. They were arrested on 25[th] October, 2018 foroffence punishable under Section 20(b)(ii)(c) of the NDPS Act. After

Ainvestigation, charge-sheet was filed on 17[th] April, 2019. Both the accusedrespondents(A-1 and A-3) filed their respective post-arrest bail applicationbefore the Sessions Judge, Thiruvananthapuram which came to bedismissed after assigning cogent reasons under Order dated 21[st] February,2019 and both of them preferred their bail application before the HighCourt. The High Court vide its order dated 10[th] May, 2019 granted bailBto A-1 and A-3 in Crime No. 19/2018 and observed that both the accusedhave completed 195 days in judicial custody and their further detentionis not necessary as nothing remains to be investigated against them.Although Section 37 of NDPS Act has been referred to by the learnedSingle Judge in the impugned order not for the purpose of showing itsCcompliance, but to justify due application of mind in taking decision togrant post-arrest bail under Order dated 10[th] May, 2019.

8. It may also be noticed that respondent(A-5) was earlierconvicted under Section 55(a) of Abkari Act in S.C. 235/2005. At thesame time, for threatening witness in Crime No. 14/2018, separateDCrime No. 38/2018 has been registered against him.

9. Immediately after the post-arrest bail was granted by the learnedSingle Judge, miscellaneous application was filed by the appellant underSection 482 CrPC for recalling the orders of grant of post-arrest bail tothe accused respondents dated 10[th] May, 2019. The learned Single JudgeEafter noticing the submissions made in paragraph 16, that even if it wasan erroneous order and it did not involve application of mind, still it wasnot open for the Court to reconsider the facts invoking Section 482 CrPCand expressed its view that the remedy of the State lies in assailing theorders of the Court before the superior forum, if so advised, and dismissedthe application vide order dated 12[th] June, 2019 which is also subjectFmatter of challenge before us.

10. Mr. Ranjit Kumar, learned senior counsel for the appellantsubmits that the High Court has committed an apparent error in exercisingdiscretion in favour of the accused respondents in granting post-arrestbail to them without taking note of the mandate of Section 37(1)(b)(ii) ofGthe NDPS Act.

11. Learned senior counsel further submits that negation of bail isthe rule, and its grant is an exception under Section 37(1)(b)(ii) of theNDPS Act. For granting bail, the Court must, on the basis of the recordproduced before it, be satisfied that there are reasonable grounds forH

believing that the accused is not guilty of the offences with which he hasbeen charged, and further he is not likely to commit any offence whileon bail.

12. Learned senior counsel further submits that the conditions forgranting bail, specified in Section 37(1)(b)(ii) are in addition to thelimitations provided under the CrPC, or any other law for the time beingin force regulating the grant of bail. Liberal approach in the matter ofbail under the NDPS Act is uncalled for. In support of his submission,learned senior counsel has placed reliance on the judgment of the three-Judge Bench of this Court reported inSatpal SinghVs. State of Punjab2018(13) SCC 813.

13. Per contra, Mr. R. Basant, learned senior counsel for therespondents, while supporting the order passed by the High Courtimpugned in the proceedings submits that in Crime No. 14/2018, accusednos. 1 to 4 were granted post-arrest bail by the High Court vide Ordersdated 4[th] October, 2018, 20[th] February, 2019 and 25[th] February, 2019and the prosecution has not taken any steps to challenge the grant of bailto all other accused persons. In the given circumstances, the post-arrestbail which has been granted to respondent(A-5) in Crime No. 14/2018(Shajimon) does not call for any interference.

14. Learned senior counsel further submits that so far as CrimeNo. 19/2018 is concerned, they have been falsely implicated by thebatchmates of the excise official, Babu Varghese, who was convicted ina corruption case on the trap being laid down by respondent-Shajimonwho after trial, was convicted under Section 7 and Section 13(1)(d) readwith Section 13(2) of Prevention of Corruption Act vide judgment dated26[th] November, 2014 and later acquittal by the High Court may not be ofany significance.

15. Learned senior counsel further submits that charge-sheet hasbeen filed in both the cases, i.e. Crime No. 14/2018 and Crime No. 19/2018 and the matter is fixed for framing of charge. No furtherinvestigation is required from the accused respondents, and the learnedSingle Judge under the impugned judgment has put stringent conditionswhile granting post-arrest bail to the respondents, which has neither beenmisused nor violated and after affording due opportunity of hearing andnoticing Section 37 of the NDPS Act, satisfaction has been recordedthat the accused respondents deserve post-arrest bail. Once the discretion

Ahas been exercised by the learned Single Judge based on the facts onrecord, interference with the discretion exercised in favour of the accusedrespondents is not warranted.

16. Learned senior counsel further submits that the High Courtwas cognizant of the fact that the respondents had initiated prosecutionBunder the Prevention of Corruption Act against the batchmate of thedetecting officer and that such batchmate was convicted of the offenceunder the Prevention of Corruption Act. The High Court was obviouslycognizant of the fact that it could be case of false implication on accountof prior animosity of the detecting officer-colleagues convicted underthe Prevention of Corruption Act on the complaint of the respondent.CThere being no prior case against the respondent under the NDPS Act,except these two cases, and the judicial discretion having been exercised,no interference is called for by this Court.

17. It may be noticed that Hashish oil is shown at Sl. No. 13 in thenotification dated 19[th] October, 2001 issued by the Central GovernmentDin exercise of power under Section 2(viia) and (xxiiia) of the NDPS Act.Hashish oil above 1 kg is commercial quantity.

18. The jurisdiction of the Court to grant bail is circumscribed bythe provisions of Section 37 of the NDPS Act. It can be granted in casethere are reasonable grounds for believing that accused is not guilty ofEsuch offence, and that he is not likely to commit any offence while onbail. It is the mandate of the legislature which is required to be followed.At this juncture, reference to Section 37 of the Act is apposite. Thatprovision makes the offences under the Act cognizable and non-bailable.It reads thus:-F“37. Offences to be cognizable and non-bailable.—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

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

(b) no person accused of an offence punishable for [offencesGunder section 19 or section 24 or section 27A and also foroffences involving commercial quantity] shall be released onbail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(ii) where the Public Prosecutor opposes theapplication, the court is satisfied that there arereasonable grounds for believing that he is not guiltyof such offence and that he is not likely to commit anyoffence while on bail.

(2) The limitations on granting of bail specified in clause (b) ofsub-section (1) are in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974), or any other law for thetime being in force on granting of bail.”

(emphasis supplied)

19. This Court has laid down broad parameters to be followedwhile considering the application for bail moved by the accused involvedin offences under NDPS Act. In Union of IndiaVs. Ram Samujh andOrs.1999(9) SCC 429, it has been elaborated as under:-

“7. It is to be borne in mind that the aforesaid legislative mandateis required to be adhered to and followed. It should be borne inmind that in murder case, the accused commits murder of oneor two persons, while those persons who are dealing in narcoticdrugs are instrumental in causing death or in inflicting death-blowto number of innocent young victims, who are vulnerable; itcauses deleterious effects and deadly impact on the society;they are hazard to the society; even if they are releasedtemporarily, in all probability, they would continue their nefariousactivities 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 theNDPS Act, has succinctly observed about the adverse effect ofsuch activities in Durand Didier v. Chief Secy., Union Territoryof Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the organisedactivities of the underworld and the clandestine smuggling ofnarcotic drugs and psychotropic substances into this countryand illegal trafficking in such drugs and substances have led todrug addiction among sizeable section of the public,particularly the adolescents and students of both sexes and themenace has assumed serious and alarming proportions in therecent years. Therefore, in order to effectively control and

eradicate this proliferating and booming devastating menace,causing deleterious effects and deadly impact on the societyas whole, Parliament in its wisdom, has made effectiveprovisions by introducing this Act 81 of 1985 specifyingmandatory minimum imprisonment and fine.

B8. To check the menace of dangerous drugs flooding the market,Parliament has provided that the person accused of offences underthe NDPS Act should not be released on bail during trial unlessthe mandatory conditions provided in Section 37, namely,

(i)there are reasonable grounds for believing that the accusedCis not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail aresatisfied. The High Court has not given any justifiable reasonfor not abiding by the aforesaid mandate while ordering therelease of the respondent-accused on bail. Instead ofDattempting to take holistic view of the harmful socio-economic consequences and health hazards which wouldaccompany trafficking illegally in dangerous drugs, the courtshould implement the law in the spirit with which Parliament,after due deliberation, has amended.”

E20. The scheme of Section 37 reveals that the exercise of powerto grant bail is not only subject to the limitations contained under Section439 of the CrPC, but is also subject to the limitation placed by Section 37which commences with non-obstante clause. The operative part of thesaid section is in the negative form prescribing the enlargement of bail toany person accused of commission of an offence under the Act, unlessFtwin conditions are satisfied. The first condition is that the prosecutionmust be given an opportunity to oppose the application; and the second,is that the Court must be satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence. If either of these twoconditions is not satisfied, the ban for granting bail operates.

G21. The expression “reasonable grounds” means something morethan prima facie grounds. It contemplates substantial probable causesfor believing that the accused is not guilty of the alleged offence. Thereasonable belief contemplated in the provision requires existence ofsuch facts and circumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the alleged offence. In theH

case on hand, the High Court seems to have completely overlooked theunderlying object of Section 37 that in addition to the limitations providedunder the CrPC, or any other law for the time being in force, regulatingthe grant of bail, its liberal approach in the matter of bail under the NDPSAct is indeed uncalled for.

22. We may further like to observe that the learned Single Judgehas failed to record finding mandated under Section 37 of the NDPSAct which is sine qua non for granting bail to the accused under theNDPS Act.

23. The submission made by learned counsel for the respondentsthat in Crime No. 14/2018, the bail has been granted to the other accusedpersons(A-1 to A-4), and no steps have been taken by the prosecutionto challenge the grant of post-arrest bail to the other accused persons, isof no consequence for the reason that the consideration prevailed uponthe Court to grant bail to the other accused persons will not absolve theact of the accused respondent(A-5) from the rigour of Section 37 of theNDPS Act.

24. The further submission of the learned counsel for therespondents that they have been falsely implicated in Crime No. 19/2018 for the reason that the batchmates of the excise official, BabuVarghese was convicted in the corruption case on the trap being laiddown by the respondent-Shajimon(A-1) is only conjecture of self-defence, and no inference could be drawn of false implication, more sowhen in Crime No. 19/2018 and 14/2018, charge-sheets have been filedafter investigation and the matter is listed before the learned trial Judgefor framing of the charge where the accused respondents certainly havean opportunity to make their submissions.

25. That apart, in the application which was filed before the learnedSingle Judge of the High Court by the appellant under Section 482 CrPC,the learned Single Judge has also prima facie accepted that error hasbeen committed in granting bail to the accused respondents as observedin para 16 of the impugned judgment as under:-

“On going through the orders granted on 10.5.2019 allowing bailapplications of A1 and A3 on the one hand and 5[th] accused on theother hand in NDPS crime Nos. 19/2018 and 14/2018 respectively,I find that the bail was granted by the Court after being cognizantof the principles laid down in Section 37 of the Act whether it

Aultimately turned out to be right or wrong. May be as regards 3[rd]accused was concerned, order was passed under misconceptionof facts. Likewise, the criminal antecedents concerning the firstaccused did not fall to the notice of this Court. What could at themost be said of the order passed by this Court is that it waserroneous or it did not involve application of mind. But then theBquestion arises is whether the same court could under lawreconsider the facts invoking Section 482 of the Code. I am ofthe opinion that the remedy of the State lay in challenging theorders of this Court, if it was really aggrieved, before superiorforum and not before the same court.Therefore, accepting theCargument of the learned counsel for the accused, I hold that noneof the applications seeking to recall the order of this Court ismaintainable under law.”

(emphasis supplied)

26. In the result, the appeals are allowed and the impugned orderDpassed by the High Court releasing the respondents on bail is hereby setaside. Bail bonds of the accused respondents stand cancelled and theyare directed to be taken into custody. The trial Court is directed to proceedand expedite the trial.

27. Pending application(s), if any, stand disposed of.E

Divya Pandey

Appeals allowed.