BHARAT CHAUDHARY versus UNION OF INDIA

[2021] 9 S.C.R. 551

BHARAT CHAUDHARY

UNION OF INDIA

(Petition for Special Leave to Appeal (Crl.) No. 5703 of 2021)

DECEMBER 13, 2021

[N.V. RAMANA, CJI, SURYA KANTAND HIMA KOHLI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985: ss.8(c), 22(c), 25, 28, 29, 67 – Seizure of psychotropic substances –Prosecution case that large number of tablets seized by Directorateof Revenue Intelligence from different locations believing to bepsychotropic substances – A-1 to A-3 arrested under variousprovisions of NDPS Act for alleged export of psychotropicsubstances – Arrest of A-4 on the basis of statements of A-1 and A-3 for contravening provisions of NDPS Act – Grant of bail to A-4by NDPS Court – However, the High Court cancelled the bail infavour of A-4 – High Court also rejected the bail application of A-1 – On appeal, held: Held: In absence of clarity on quantitativeanalysis of samples, prosecution cannot state at the preliminary stagethat the accused were found to be in possession of psychotropicsubstances – Large number of tablets seized by DRI admittedlycontain herbs/medicines meant to enhance male potency, and doesnot attract provision of NDPS Act – No tablets seized during searchof office and residence of A-4 – WhatsApp messages from devicesseized not sufficient to establish link between 4 and A1 to A3 –Furthermore, scientific reports is still awaited – No consciouspossession of psychotropic substances proved against A-4 – Ordersetting aside the bail of A-4 on mere reliance on statements of A-1to A-3 u/s. 67 cannot be sustained – Thus, the order of the HighCourt qua A-4 is quashed and set aside – Also it is appropriate torelease A-1 on bail.

Disposing of the Special Leave Petitions, the Court

HELD: 1.1. The impugned order cancelling the bail grantedin favour of A-4, is not sustainable in view of the fact that therecords sought to be relied upon by the prosecution show that

CDEF

Aone test report dated 6[th] December, 2019, two test reports dated17[th] December, 2019 and one test report dated 21[st] December,2019 in respect of the sample pills/tablets drawn and sent fortesting by the prosecuting agency conclude with note appendedby the Assistant Commercial Examiner at the foot of the reportsstating that “quantitative analysis of the samples could not beBcarried out for want of facilities”. In the absence of any clarity sofar on the quantitative analysis of the samples, the prosecutioncannot be heard to state at this preliminary stage that thepetitioners have been found to be in possession of commercialquantity of psychotropic substance as contemplated under theCNDPS Act. [Para 10][558-B-D]

1.2. large number of the tablets that have been seized bythe DRI admittedly contain herbs/medicines meant to enhancemale potency and they do not attract the provisions of the NDPSAct. Most importantly, none of the tablets were seized by theDprosecution during the course of the search conducted, either atthe office or at the residence of A-4. Reliance on printouts ofWhatsApp messages downloaded from the mobile phone anddevices seized from the office premises of A-4 cannot be treatedat this stage as sufficient material to establish live link betweenhim and A-1 to A-3, when even as per the prosecution, scientificEreports in respect of the said devices is still awaited.[Para 10][558-D-F]

2. In the absence of any psychotropic substance found inthe conscious possession of A-4, mere reliance on the statementmade by A-1 to A-3 under Section 67 of the NDPS Act is tooFtenuous ground to sustain the impugned order. The impugnedorder qua A-4 is quashed and set aside and the order passed bythe Special Judge, EC and NDPS Cases, is restored. As for A-1,since the charge sheet has already been filed and by now the saidaccused has remained in custody for over period of two years,Git is deemed appropriate to release him on bail, subject to thesatisfaction of the trial court. [Para 11][558-F-H; 559-A]Sanjeev Chandra Agarwal vs. Union of India CriminalAppeal No. 1273 of 2021 decided on 25th October,2021; Tofan Singh v. State of Madras (2021) 4 SCC 1– referred to.H

BHARAT CHAUDHARY v. UNION OF INDIA

Case Law Refernce

(2021) 4 SCC 1referred to.

Para 5

EXTRAORDINARY APPELLATE JURISDICTION : PetitionFor Special Leave To Appeal (Crl.) No.5703 of 2021.

From the Judgment and Order dated 15.07.2021 of the High Courtof Judicature at Madras in Crl. O.P. No.18450 of 2020.

With

Petition For Special Leave to Appeal (Crl.) No.8919 of 2021.

Gopal Sankaranarayanan, Anand Grover, Sr. Advs., R. C. PaulKanagaraj, Karuppaiah Meyyappan, Raghunatha Sethupathy B., Ms.Kanika Kalaiyarasan, Shrutanjaya Bhardwaj, Abhishek Kalaiyarasan,Ms. Pariksha, Nirnimesh Dube, Ms. Tripti Tandon, Satbir Singh Pillania,Vivekanand Rana, Sandiv Kalia, Nand Ram, Somvir Deswal, Ms. ReenaRao, Dr. Sushil Balwada, Advs. for the Petitioner.

Ms. Aishwarya Bhati, ASG, Rupesh Kumar, Ms. Archna PathakDave, Rajat Nair, Ms. Deepabali Dutta, Mukesh Kumar Maroria, Advs.for the Respondent.

The Order of the Court was passed by

HIMA KOHLI J.

1. By this common order, we propose to dispose of two Petitionsfor Special Leave to Appeal filed against the common judgment andorder dated 15[th] July, 2021 passed by the learned Single Judge of theHigh Court of Madras. SLP(Crl) No. 5703/2021 has been filed by BharatChaudhary [A-4] who is aggrieved by the reversal of the bail orderdated 02[nd] November, 2020 granted in his favour by the learned SpecialJudge, EC & NDPS Cases, Chennai whereas Raja Chandrasekharan[A-1] has challenged the dismissal of the bail application filed by himunder Section 439 of the Criminal Procedure Code.

2. The case set up by the prosecution is that on specific informationreceived by the Directorate of Revenue Intelligence, Chennai Zonal Unit[1],Officers of DRI had seized about 1,37,665 tablets of different typescollectively weighing 90Kgs. (approx.) described as psychotropicsubstances from the following four locations, all situated in Chennai:

1 For short ‘the DRI’

A(i)Office of M/s. Aviation Star Express, Ekkattuthangal, aFranchisee

of M/s DHL Express India Private Limited;

(ii)2 Destination, Franchisee of M/s S.T. Courier;

(iii)residence of Raja Chandrasekharan [A-1]; and

(iv)office premises of M/s. DHL Express India Private Limited.

3. Believing the tablets seized from the aforesaid premises to becomposed of psychotropic substances covered under the provisions ofthe Narcotic Drugs and Psychotropic Substances Act, 1985[2] read withCthe Customs Act, the DRI conducted investigation and summoned M.V.Srinivasan [A-2] – Director of M/s 2 Destination and Propreitor of M/sS.T. Courier; Raja Chandrasekharan [A-1] – Proprietor of Ascure PureHerbals; M. Ashok Kumar [A-3] - employee of A-1 and after recordingtheir statements, booked them for the offences under Section 8(c)Dpunishable under Sections 22(c), 25, 28 and 29 of the NDPS Act andarrested them on 18[th] October, 2019. Based on the statements made byA-1 and A-3 that they had colluded with suppliers in Nagpur and Rajasthanand procured tablets composed of psychotrophic substances for exportingand sending through courier service to customers in USA under theguise of herbal tablets, on orders received from Bharat Chaudhary [A-E4], officers of DRI, Jaipur Unit conducted search at his residence atJaipur on 16[th] March, 2020 and seized some incriminating material.Thereafter, he was arrested on 17[th] March, 2020 for contravening theprovisions of Section 8(c) punishable under Sections 22(c), 24 and 29 ofthe NDPS Act. On being granted transit bail by the learned ChiefFMetropolian Magistrate, Jaipur, A-4 was produced before the NDPSCourt at Chennai on 19[th] March, 2020 and remanded on the same day.4. Vide order dated 2[nd] November, 2020, the learned Special Judge,EC & NDPS Cases, Chennai granted bail to Bharat Chaudhary[A-4].The reasons that weighed with the said Court for granting bail to A-4were that :-G

(i)he was not found to be in possession of any psychotropicsubstance and no contraband was recovered from hisresidence or office during the search;

H2 For short ‘the NDPS Act’

(ii)the electronic gagets/devices that were seized from theoffice of A-4 had been sent for obtaining scientific reportwhich was still awaited;

(iii)while 1,37,665 tablets were seized from four differentlocations in Chennai between 15[th] October, 2019 and 18[th]October, 2019, officers of the DRI had gone to Jaipur toBarrest A-4 after five months, solely on the basis of thestatement made by A-1 under Section 67 of the NDPS Act;

(iv)there was no live link established against A-4, resident ofJaipur of having connived with the other accused, A-1 toA-3 who were all residing in Chennai and arrested fromCthere.

(v)the test reports in respect of the seized material wereawaited and it was not established whether the tabletswhich, as per the accused were sexual enhancement tablets,would qualify either as narcotic or psychotrophic substanceDso as to fall within the ambit of the NDPS Act;

(vi)The first test report received by the DRI on 21[st] November,2019, revealed that the tablets were actually sexualenhancement drugs and not covered under the NDPS Actand the test report in respect of 26 tablets sent to CFSL,Hyderabad, was still awaited.

5. Being mindful of the recent verdict of Three Judge Bench ofthis Court in Tofan Singh v. State of Madras[3] where in as per themajority decision, confessional statement recorded under Section 67of the NDPS Act has been held to be inadmissible in the trial of anFoffence under the NDPS Act, the learned Special Judge, EC & NDPSCases, Chennai granted bail to Bharat Chaudhary [A-4]. On the DRIchallenging the aforesaid order before the High Court of Madras, thebail order granted in favour of A-4 has been cancelled by the learnedSingle Judge with scathing remarks made against the learned SpecialJudge. Citing the same reasons as have been given in the case of A4,Gthe bail application moved by A1 has also been rejected.

6. The learned Single Judge has faulted the Special Judge, EC &NDPS Cases] for having conducted roving enquiry to grant bail to A-

A4. It has been held that the ruling in Tofan Singh’s case, does not barthe Prosecuting Agency from recording the statement of the co-accusedfor the purpose of apprehending the other accused in the offence.Observing that it was not on the basis of the statement of A-4 that hehas been arrested and detained, but rather on the basis of the informationfurnished by A-1 to A-3 who have implicated him as person involved inBthe offence and for arranging supply of contraband, it was held thatabsence of any evidence to establish link between A-1, A-3 and A-4could not form the basis for granting any relief to A-4. As for theobservation of the Special Judge, EC & NDPS Cases that the test reportsreceived by the prosecuting agency on 22[nd] November, 2019 revealedCthat many of the tablets were sexual enhancement drugs and not coveredunder the NDPS Act, the High Court opined that the test reports did nottotally negate the fact that the seized contraband goods were not narcoticsubstances. Much emphasis was laid on the total quantity of thecontraband seized and it was held that once the test reports showed thatsome of the tablets contained narcotic substances, it was sufficient toDrefuse bail to A-4. Critical of the approach of the trial Court that heldthat since the test reports were not filed by the prosecuting agency alongwith the complaint, the benefit ought to enure in favour of A-4, the HighCourt observed that, by the time the Special Judge, EC & NDPS Caseshad pronounced the order on 2[nd] November, 2020, test reports wereEavailable and ought to have been taken into consideration.7. Appearing for Bharat Chaudhary [A-4], Mr. GopalShankaranarayanan, learned Senior Advocate has assailed the impugnedorder contending that there was no good reason for the High Court tohave cancelled the bail granted to A-4 by the learned Special Judge, ECF& NDPS cases. He submitted that grave error has been committed bythe High Court by completely overlooking the fact that not single tabletwas recovered from the possession of A-4; that the tablets were seizedfrom the premises of A-1 to A-3 and some of the extracted samples sentfor testing showed that large number of the seized pills were sexenhancement drugs and not contraband; that the seized contraband hadGnot been produced or sampled before the Magistrate and that A4 hasbeen dragged into the matter solely on the basis of the confession/statements made by Raja Chandrasekaran [A-1] under Section 67 ofthe NDPS Act, despite the fact that in recent judgment of this Court inTofan Singh (supra), the majority view is that confessional statementHis not admissible in evidence which view has been followed inCriminal

Appeal No. 1273 of 2021titled “Sanjeev Chandra Agarwal vs.Union of India”, decided on 25[th] October, 2021.

8. Mr. Anand Grover, learned Senior counsel appearing on behalfof Raja Chandrasekharan [A-1] has argued that the High Court hasfallen into an error by rejecting the bail application of A-1 withoutconsidering the submission made that no commercial quantity of thepsychotropic substance had been proved so far. The test reports producedby the prosecution showed that the Ayurvedic/herbal medicines seizedwere meant for sex enhancement which do not fall under the ambit ofthe NDPS Act and that Standing Order 1/89 issued by the Governmentof India under Section 52A of the NDPS Act has been completelydisregarded inasmuch as the samples were not drawn on the spot and/orrecovered from the premises of A-1, nor were the samples drawn in theoffice of DRI in the presence of the accused and the Panchas. It wascanvassed that the sanctity and integrity of the seizure made is highlydoubtful on account of failure on the part of the prosecuting agency tofollow the procedure prescribed in Sections 42 and 52 of the NDPS Act.It was also argued that the information received and recorded in thepresent case, was in respect of the alleged export of the psychotropicsubstances from the premises of M/s Aviation Star Express, franchiseeof M/s. DHL Express Limited and there is no mention of A-1 or hispremises in the information referred to under Section 42 of the NDPSAct.

9. Per contra, Ms. Aishwarya Bhati, learned Additional SolicitorGeneral appearing for DRI has supported the impugned judgment andvehemently argued that A-4 is the mastermind behind the entire criminalconspiracy and he, in connivance with A-1, has been supplying contrabandto A-1 to A-3, for being illegally exported abroad under the garb of sexenhancement tablets. She alluded to the 71 samples sent for testing andthe test report of CRCL, Chennai dated 18[th] December, 2019 confirmingthe presence of narcotic substances along with male potency incrementdrugs and strenuously argued that the nexus between A-4 and A-1 to A-3 is not only established through the statements of A-1 to A-3 recordedunder Section 67 of the NDPS Act, but also from the documents in theform of printouts of the data downloaded from the moblie phone andlaptop of A-4, in particular, the Whatsapp chats and bank transactionsbetween A-1 and A-4. Submitting that since the twin tests laid downunder Section 37 of the NDPS Act in respect of commercial quantity for

Agrant of bail have not been satisfied, the impugned order does not deserveinterference.

10. After carefully examining the arguments advanced by learnedcounsel for the parties and having cursorily glanced at the records, weare of the opinion that the impugned order cancelling the bail granted inBfavour of Bharat Chaudhary [A-4], is not sustanabile in view of the factthat the records sought to be relied upon by the prosecution show thatone test report dated 6[th] December, 2019, two test reports dated 17[th]December, 2019 and one test report dated 21[st] December, 2019 in respectof the sample pills/tablets drawn and sent for testing by the prosecutingagency conclude with note appended by the Assistant CommercialCExaminer at the foot of the reports stating that “quantitative analysisof the samples could not be carried out for want of facilities”. In theabsence of any clarity so far on the quantitative analysis of the samples,the prosecution cannot be heard to state at this preliminary stage thatthe petitioners have been found to be in possession of commercial quantityDof psychotropic subtances as contemplated under the NDPS Act. Further,a large number of the tablets that have been seized by the DRI admittedlycontain herbs/medicines meant to enhance male potency and they donot attract the provisions of the NDPS Act. Most importantly, none ofthe tablets were seized by the prosecution during the course of the searchconducted, either at the office or at the residence of A-4 at Jaipur, onE16[th] March, 2020. Reliance on printouts of Whatsapp messagesdownloaded from the mobile phone and devices seized from the officepremises of A-4 cannot be treated at this stage as sufficient material toestablish live link between him and A-1 to A-3, when even as per theprosecution, scientific reports in respect of the said devices is still awaited.F

11. In the absence of any psychotropic substance found in theconscious possession of A-4, we are of the opinion that mere reliance onthe statement made by A-1 to A-3 under Section 67 of the NDPS Act istoo tenuous ground to sustain the impugned order dated 15[th] July, 2021.This is all the more so when such reliance runs contrary to the ruling inGTofan Singh (supra). The impugned order qua A-4 is, accordingly,quashed and set aside and the order dated 2[nd] November, 2020 passedby the learned Special Judge, EC & NDPS Cases, is restored. As forRaja Chandrasekharan [A-1], since the charge sheet has already beenfiled and by now the said accused has remained in custody for over

BHARAT CHAUDHARY v. UNION OF INDIA[HIMA KOHLI J.]

period of two years, it is deemed appropriate to release him on bail,subject to the satisfaction of the trial Court.

12. Before parting with the cases, it is clarified that the primafacie observations made hereinabove are limited to considering the reliefof regular bail prayed for by the petitioners and nothing expressedhereinabove shall be treated as an observation on the merits of the case,i.e., CC No.0000037/2020, pending trial. The petitions for special leaveto appeal are disposed of in the above terms.

Nidhi Jain

Petitions special leave disposed.