2008 (11) TMI 667 - SC - Customs

Whether an order of bail granted in favour of the appellant herein could have been directed to be cancelled on the basis of a report of analysis of the articles recovered from him containing heroin ?

Issues Involved:
1. Cancellation of bail based on the chemical analysis report.
2. Legality of sending the sample to a different laboratory.
3. Definition and role of "Chemical Examiner" under the Act.
4. Applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. Consideration of the percentage of heroin found in the sample.
6. Validity of the confessional statement under Section 67 of the Act.
7. Requirements for the cancellation of bail under Section 439(2) of the Code of Criminal Procedure.
8. Judicial principles regarding the cancellation of bail.

Issue-wise Detailed Analysis:

1. Cancellation of Bail Based on Chemical Analysis Report:
The core question was whether the bail granted to the appellant could be canceled based on the analysis report indicating the presence of heroin. Initially, the Government Opium and Alkaloid Works, Neemuch, reported no contraband substance. However, a subsequent report from the Central Revenue Control Laboratory, New Delhi, found 2.6% heroin in the sample. The court later canceled the bail based on this second report.

2. Legality of Sending the Sample to a Different Laboratory:
The prosecution's move to send the sample to another laboratory was contested. The court initially rejected this, stating no provision in the Act allowed for sending samples to different laboratories. Despite this, the prosecution sent another sample to the Central Revenue Control Laboratory, which found heroin.

3. Definition and Role of "Chemical Examiner" under the Act:
The appellant argued that the Central Revenue Control Laboratory was not a designated "Chemical Examiner" under the Narcotic Drugs and Psychotropic Substances Rules, 1985. The Rules define "Chemical Examiner" as officials from the Government Opium & Alkaloid Works, Neemuch or Ghazipur. The court noted this discrepancy, emphasizing that the authorized laboratory at Neemuch found no contraband.

4. Applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
Section 37 of the Act imposes stringent conditions for granting bail in cases involving commercial quantities of narcotics. The court highlighted that the quantity recovered (2.6% heroin) did not meet the threshold for "commercial quantity," thus questioning the applicability of Section 37's rigors.

5. Consideration of the Percentage of Heroin Found in the Sample:
The court noted that the 2.6% heroin found in the sample did not constitute a commercial quantity. The Act defines commercial quantity as greater than the specified amount in the notification. The quantity involved in this case was intermediate, not triggering the strict provisions of Section 37.

6. Validity of the Confessional Statement under Section 67 of the Act:
The appellant's confessional statement under Section 67 of the Act was contested, with claims of coercion and subsequent retraction. The court indicated that reliance on such a confession was questionable, especially when the initial laboratory report found no contraband.

7. Requirements for the Cancellation of Bail under Section 439(2) of the Code of Criminal Procedure:
The court emphasized that bail cancellation requires evidence of misuse of liberty, such as tampering with evidence, influencing witnesses, or risk of absconding. These conditions were not met in this case, making the cancellation of bail unjustified.

8. Judicial Principles Regarding the Cancellation of Bail:
The court reiterated that canceling bail involves reviewing a prior decision and should be based on supervening circumstances. The principle that a person's liberty should be protected under Article 21 of the Constitution was upheld, favoring the appellant when two views were possible.

Conclusion:
The Supreme Court set aside the order canceling the appellant's bail, emphasizing the lack of justification for the cancellation based on the second laboratory report and the failure to meet statutory requirements. The appeal was allowed, reinstating the bail granted to the appellant.

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