NARCOTICS CONTROL BUREAU versus MOHIT AGGARWAL

[2022] 7 S.C.R.

NARCOTICS CONTROL BUREAU

MOHIT AGGARWAL

(Criminal Appeal Nos. 1001-1002 of 2022)

JULY 19, 2022

[N. V. RAMANA, CJI, KRISHNA MURARI ANDHIMA KOHLI, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.C8, 22, 29, 37 and 67 – Post-arrest bail – Not granted – Respondentmade statement u/s. 67 NDPS Act and disclosed that he was illegallyselling and purchasing the illegal drugs from ‘PJ’ – Based on it, asearch was conducted by NCB at the premise of co-accused-‘PJ’and drugs covered under NDPS were recovered in huge quantitiesD– Respondent was taken into custody – Respondent made applicationfor bail before Special Judge, NDPS which was rejected – HighCourt granted bail to respondent u/s 439 of Cr.PC – NCB filed anappeal before the Supreme Court and submitted that in light ofs.37 of NDPS Act, the High Court erred in granting bail to theErespondent – Respondent contended that any confessional statementrecorded u/s 67 NDPS Act is inadmissible in trial of offence underthe said Act – Held: In view of the Tofan Singh case, the admissionsmade by respondent u/s. 67 NDPS Act is inadmissible in the trialunder the NDPS Act – However, the disclosure statement made bythe respondent to NCB which led to the searching of premises of co-Faccused-‘PJ’ and recovery of huge amount of illicit drugs and thearrest of ‘PJ’, which was based on respondent’s information showsthat they were in touch with each other – As per s.37 of NDPS Act,only if the condition of reasonable grounds for believing that theperson accused is not guilty of such an offence is satisfied, thenGonly bail can be granted – Respondent have failed to demonstratethe same – Condition u/s. 37 NDPS Act was not satisfied – Order ofpost-arrest bail quashed and set aside – Code of Criminal Procedure,1973 – s.439.

Allowing the appeals, the Court

HELD:1. The Single Judge of the High Court cannot befaulted for holding that the appellant NCB could not have reliedon the confessional statements of the respondent and the otherco-accused recorded under Section 67 of the NDPS Act in thelight of law laid down by Three Judges Bench of this Court inTofan Singh case, wherein as per the majority decision, aconfessional statement recorded under Section 67 of the NDPSAct has been held to be inadmissible in the trial of an offenceunder the NDPS Act. Therefore, the admissions made by therespondent while in custody to the effect that he had illegallytraded in narcotic drugs, will have to be kept aside. However,this was not the only material that the appellant-NCB had reliedon to oppose the bail application filed by the respondent. Theappellant-NCB had specifically stated that it was the disclosuresmade by the respondent that had led the NCB team to arrive atand raid the godown of the co-accused, ‘PJ’ which resulted in therecovery of large haul of different psychotropic substances inthe form of tablets, injections and syrups. Counsel for theappellant-NCB had also pointed out that it was the respondentwho had disclosed the address and location of the co-accused,‘PJ’ who was arrested later on and the CDR details of the mobilephones of all co-accused including the respondent herein showedthat they were in touch with each other. [Para 16][608-G-H; 609-A-C]

2. Even dehors the confessional statement of therespondent and the other co-accused recorded under Section 67of the NDPS Act, which were subsequently retracted by them,the other circumstantial evidence brought on record by theappellant-NCB ought to have dissuaded the High Court fromexercising its discretion in favour of the respondent andconcluding that there were reasonable grounds to justify that hewas not guilty of such an offence under the NDPS Act. This Courtwas not persuaded by the submission made by counsel for therespondent and the observation made in the impugned order thatsince nothing was found from the possession of the respondent,

Ahe is not guilty of the offence for which he has been charged.Such an assumption would be premature at this stage. [Para17][609-D-E]

3. The Court held that the narrow parameters of bailavailable under Section 37 of the Act, have not been satisfied inBthe facts of the instant case. At this stage, it was not safe toconclude that the respondent had successfully demonstrated thatthere were reasonable grounds to believe that he was not guiltyof the offence alleged against him, for him to have been admittedto bail. The length of the period of his custody or the fact that theCcharge-sheet has been filed and the trial has commenced are bythemselves not considerations that can be treated as persuasivegrounds for granting relief to the respondent under Section 37 ofthe NDPS Act. [Para 18][609-F-G]

Tofan Singh v. State of Tamil Nadu 2020 SCC OnlineDSC 882; Collector of Customs, New Delhi v.Ahmadalieva Nodira (2004) 3 SCC 549 : [2004] 2 SCR1092; State of Kerala and Others v. Rajesh and Others(2020) 12 SCC 122 : [2020] 3 SCR 348 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1001-1002 of 2022.

From the Judgment and Order dated 16.03.2021 of the High Courtof Delhi at New Delhi in Bail Appl. No. 2585 of 2020 & Crl. M. (B)8044 of 2020.

Jayant K. Sud, ASG, Varun Chugh, Kanu Agrawal, Ms. AniruddhaPurshotham, Randeep Sachdeva, Kartik J., A. K. Sharma, B. V. BalaramGDas, Advs. for the Appellant.

P. K. Jain, S. P. Singh Rathore, Saurabh Jain, P. K. Goswami,Advs. for the Respondent.

The Judgment of the Court was delivered by

HIMA KOHLI, J.

1. Leave granted.

2. The appellant-NCB is aggrieved by the judgment and orderdated 16.03.2021 passed by the High Court of Delhi granting post-arrestbail to the respondent-accused in Case No.SC/1334/2020, where therespondent is facing trial for the offence under Sections 8/22 and 29 ofthe Narcotic Drugs and Psychotropic Substances Act, 1985[1].

3. The case set up by the prosecution is that on the basis of secretinformation received by the officials of the Narcotic Control Bureau[2] on09.01.2020, that one parcel had been booked by person from Agranamed Gaurav Kumar Aggarwal, to be delivered to one Manoj Kumarat Ludhiana, Punjab and was stored at the godown of courier companyat Village Samalkha, Kapasehra, New Delhi, suspected to contain NRXtablets, being narcotic drug, the NCB team reached the said godownand conducted search proceedings. The suspected parcel was identifiedand opened in the presence of two independent witnesses from amongstthe staff members of the courier company. The said parcel was openedand 50,000 Tramadol tablets weighing 20 kgs were recovered. As thetablets contained in the suspected parcel had been mis-declared andwere without any valid bill, seizure proceedings were initiated by theofficials of the NCB.

4. In the voluntary statement made by the accused, Gaurav KumarAggarwal under Section 67 of the NDPS Act, he stated that he hadbooked the parcel through courier company to be delivered to ManojKumar, resident of Ludhiana, Punjab and that he had purchased theTramadol tablets recovered during the search proceedings from therespondent herein, without any bill or prescription. Rather, it wasmentioned on the parcel that it contained “surgical items”. The accusedGaurav Kumar Aggarwal further stated that the respondent herein hadpurchased the above medicines from one Promod Jaipuria alias DavinderKhandelwal, resident of Jaipur and the son-in-law of Promod Jaipuriaused to look after his business in Agra and that he had godown wherethe drugs were stored.

1 For short ‘NDPS Act’

2 For short ‘NCB’.

A5. The prosecution further stated that Gaurav Kumar Aggarwalhad disclosed that he knew where the residence and the shop of therespondent were located and he could identify them. Accordingly, thesaid accused person accompanied the Raiding team to the premises ofthe respondent herein. On the disclosure made by the respondent herein,Bthe Raiding team proceeded to the godown of Promod Jaipuria andconducted search during which cache of drugs covered under theNDPS Act, were recovered. The said drugs included 6,64,940 tablets ofdifferent psychotropic substances including Tramadol, Zolpidem andAlprazolam tablets/capsules weighing around 328.82 Kgs, 1400 PazincInjections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8Cltrs. Another 9,900 tablets weighing 990 gms. were recovered during thesearch conducted by the NCB officials at the premises of the co-accused,Manoj Kumar at Ludhiana.

6. In his statement recorded under Section 67 of the NDPS Act,the respondent herein disclosed that he had been illegally selling andDpurchasing the said tablets and capsules from Promod Jaipuria. Therespondent was taken into custody on 11[th] January, 2020. He movedtwo applications for grant of bail before the learned Special Judge, NDPS.Both the said applications were vehemently opposed by the appellant-NCB and were rejected by the Special Judge, NDPS. Aggrieved by theEorder dated 21[st] July, 2020, whereby his second bail application wasdismissed, the respondent filed petition under Section 439 of the Codeof Criminal Procedure, 1973[3] for grant of bail which has been allowedby the impugned order passed by the learned Single Judge of the HighCourt.F

7. Arguing for the appellant-NCB, Mr. Jayant K. Sud, learnedAdditional Solicitor General, submitted that while passing the impugnedorder granting bail to the respondent, the High Court has erred in observingthat no incriminating material was recovered by the NCB officials at hisresidence. He stated that the High Court has completely overlooked the

Gfact that it was on the basis of the disclosures made by the respondenthimself that huge quantities of narcotic drugs and injections were seizedfrom the godown of the co-accused, Promod Jaipuria who wassubsequently arrested by the Department; that the High Court hascommitted grave error by not applying the terms and conditions imposed

H3 For short ‘Cr.P.C.’

under Section 37 of the NDPS Act; that the offence committed by therespondent falls under the category of recovery of commercial quantityof narcotic drugs and in the light of the embargo placed in Section 37 ofthe NDPS Act, the respondent ought not to have been admitted to bailand that this is case of constructive/conscious possession of thecontraband substances as the respondent was an active participant in aorganized gang that was involved in smuggling of drugs. Lastly, it wasstated that there was sufficient circumstantial evidence available againstthe respondent which would disentitle him for being admitted to bail.8. On the other hand, Mr. P.K. Jain, learned Advocate-on-Recordappearing for the respondent vehemently opposed the present appealand submitted that the High Court has rightly admitted the respondent tobail after he remained in custody for period of one year and threemonths. He submitted that the impugned order was passed after grantinga hearing to the counsel for the appellant-NCB and the respondent andthe respondent has not violated any of the terms and conditions of bailimposed on him. On merits, it was urged that in the alleged incident,neither was the consignment of the narcotic drugs booked by or for therespondent. No recovery was made from the respondent and nothingwas found from the search conducted at his residence and shop.Describing the respondent as small-time shopkeeper selling medicinesat Agra, learned counsel submitted that he had no connection with theother co-accused persons and that his name had cropped up in the courseof the statement of the co-accused, Gaurav Kumar Aggarwal underSection 67 of the NDPS Act, which was partly recorded at Agra andpartly at Delhi. Though Gaurav Kumar Agarwal had taken the officialsof the NCB team to the respondent’s shop which was duly searched,nothing incriminating was recovered from there. Besides the above, boththe co-accused, Gaurav Kumar Aggarwal and the respondent hereinhad at the first opportunity, retracted from their statements recordedunder Section 67 of the NDPS Act and in view of law laid-down by thisCourt in Tofan Singh v. State of Tamil Nadu4, any confessionalstatement recorded under Section 67 of the NDPS Act, is inadmissiblein the trial of an offence under the said Act. Urging that the High Courthas followed the aforesaid judicial dicta and after noting the fact that thecharge-sheet had already been filed and besides the confessional

Astatements of the accused recorded under Section 67 of the NDPS Act,no other incriminating material was forthcoming, the respondent hadbeen rightly admitted to bail. Thus, learned counsel for the respondentcontended that there is no infirmity in the impugned order that deservesinterference.

9. We have carefully considered the arguments advanced bylearned counsel for the parties and have perused the records.

10. The provisions of Section 37 of the NDPS Act read as follows:

“[37. Offences to be cognizable and non-bailable.–(1)CNotwithstanding 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 [offencesunder section 19 or section 24 or section 27A and also forDoffences 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 the application, thecourt is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that he isnot likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) ofFsub-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.]

11. It is evident from plain reading of the non-obstante clauseinserted in sub-section (1) and the conditions imposed in sub-section (2)Gof Section 37 that there are certain restrictions placed on the power ofthe Court when granting bail to person accused of having committedan offence under the NDPS Act. Not only are the limitations imposedunder Section 439 of the Code of Criminal Procedure, 1973 to be kept inmind, the restrictions placed under clause (b) of sub-section (1) of Section37 are also to be factored in. The conditions imposed in sub-section (1)Hof Section 37 is that (i) the Public Prosecutor ought to be given anopportunity to oppose the application moved by an accused person forrelease and (ii) if such an application is opposed, then the Court must besatisfied that there are reasonable grounds for believing that the personaccused is not guilty of such an offence. Additionally, the Court must besatisfied that the accused person is unlikely to commit any offence whileon bail.

12. The expression “reasonable grounds” has come up fordiscussion in several rulings of this Court. In “Collector of Customs,New Delhi v. Ahmadalieva Nodira”[5], decision rendered by ThreeJudges Bench of this Court, it has been held thus :-

“7. The limitations on granting of bail come in only when thequestion of granting bail arises on merits. Apart from the grant ofopportunity to the Public Prosecutor, the other twin conditionswhich really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court thatthere are reasonable grounds for believing that the accused is notguilty of the alleged offence and that he is not likely to commitany offence while on bail. The conditions are cumulative and notalternative. The satisfaction contemplated regarding the accusedbeing not guilty has to be based on reasonable grounds. Theexpression “reasonable grounds” means something morethan prima facie grounds. It contemplates substantialprobable causes for believing that the accused is not guiltyof the alleged offence. The reasonable belief contemplatedin the provision requires existence of such facts andcircumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the allegedoffence.” [emphasis added]

13. The expression “reasonable ground” came up for discussionin “State of Kerala and others Vs. Rajesh and others”6 and this Courthas observed as below:

“20. The expression ”reasonable grounds” means something morethan prima facie grounds. It contemplates substantial probable

5 (2004) 3 SCC 549

6 (2020) 12 SCC 122

Acauses for believing that the accused is not guilty of the allegedoffence. The reasonable belief contemplated in the provisionrequires existence of such facts and circumstances as aresufficient in themselves to justify satisfaction that theaccused is not guilty of the alleged offence. In the case onBhand, the High Court seems to have completely overlooked theunderlying object of Section 37 that in addition to the limitationsprovided under the CrPC, or any other law for the time being inforce, regulating the grant of bail, its liberal approach in the matterof bail under the NDPS Act is indeed uncalled for.” [emphasisadded]C

14. To sum up, the expression “reasonable grounds” used in clause(b) of Sub-Section (1) of Section 37 would mean credible, plausible andgrounds for the Court to believe that the accused person is not guilty ofthe alleged offence. For arriving at any such conclusion, such facts andcircumstances must exist in case that can persuade the Court to believeDthat the accused person would not have committed such an offence.Dove-tailed with the aforesaid satisfaction is an additional considerationthat the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an applicationfor bail in the context of the Section 37 of the Act, the Court is notErequired to record finding that the accused person is not guilty. TheCourt is also not expected to weigh the evidence for arriving at findingas to whether the accused has committed an offence under the NDPSAct or not. The entire exercise that the Court is expected to undertakeat this stage is for the limited purpose of releasing him on bail. Thus, theFfocus is on the availability of reasonable grounds for believing that theaccused is not guilty of the offences that he has been charged with andhe is unlikely to commit an offence under the Act while on bail.16. Coming back to the facts of the instant case, the learned SingleJudge of the High Court cannot be faulted for holding that the appellant-GNCB could not have relied on the confessional statements of therespondent and the other co-accused recorded under Section 67 of theNDPS Act in the light of law laid down by Three Judges Bench of thisCourt in Tofan Singh(supra), wherein as per the majority decision, aconfessional statement recorded under Section 67 of the NDPS Act hasH

been held to be inadmissible in the trial of an offence under the NDPSAct. Therefore, the admissions made by the respondent while in custodyto the effect that he had illegally traded in narcotic drugs, will have to bekept aside. However, this was not the only material that the appellant-NCB had relied on to oppose the bail application filed by the respondent.The appellant-NCB had specifically stated that it was the disclosuresmade by the respondent that had led the NCB team to arrive at and raidthe godown of the co-accused, Promod Jaipuria which resulted in therecovery of large haul of different psychotropic substances in the formof tablets, injections and syrups. Counsel for the appellant-NCB hadalso pointed out that it was the respondent who had disclosed the addressand location of the co-accused, Promod Jaipuria who was arrested lateron and the CDR details of the mobile phones of all co-accused includingthe respondent herein showed that they were in touch with each other.

17. Even dehors the confessional statement of the respondentand the other co-accused recorded under Section 67 of the NDPS Act,which were subsequently retracted by them, the other circumstantialevidence brought on record by the appellant-NCB ought to have dissuadedthe High Court from exercising its discretion in favour of the respondentand concluding that there were reasonable grounds to justify that hewas not guilty of such an offence under the NDPS Act. We are notpersuaded by the submission made by learned counsel for the respondentand the observation made in the impugned order that since nothing wasfound from the possession of the respondent, he is not guilty of the offencefor which he has been charged. Such an assumption would be prematureat this stage.

18. In our opinion the narrow parameters of bail available underSection 37 of the Act, have not been satisfied in the facts of the instantcase. At this stage, it is not safe to conclude that the respondent hassuccessfully demonstrated that there are reasonable grounds to believethat he is not guilty of the offence alleged against him, for him to havebeen admitted to bail. The length of the period of his custody or the factthat the charge-sheet has been filed and the trial has commenced are bythemselves not considerations that can be treated as persuasive groundsfor granting relief to the respondent under Section 37 of the NDPS Act.

19. As result of the aforesaid discussion, the present appealsare allowed and the impugned order releasing the respondent on post-

[2022] 7 S.C.R.

Aarrest bail, is quashed and set aside. The bail bonds of the respondentare cancelled and he is directed to be taken into custody forthwith.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.