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2021 (9) TMI 1054 - SC - Indian LawsSeeking grant of Bail - smuggling - contraband item - Heroin - absence of recovery of the contraband from the possession of the respondent - wrong name in the endorsement of translation of the statement - Section 67 of the NDPS Act - HELD THAT - The principles that guide this Court while assessing an order of the High Court granting bail have been succinctly laid down in PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. 2010 (10) TMI 1199 - SUPREME COURT - In Prasanta Kumar, while the trial court dismissed several bail applications that were filed by the accused who was charged for the commission of an offence punishable under Section 302 of the Indian Penal Code 1860, the High Court allowed the bail application - The decision in Prasanta Kumar was referred to in a judgment of this Court in MAHIPAL VERSUS RAJESH KUMAR @ POLIA ANR. 2019 (12) TMI 1461 - SUPREME COURT , where the High Court had granted bail to an accused who was charged with the commission of an offence punishable under Section 302 of the IPC. 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 - What amounts to conscious possession was also considered in DHARAMPAL SINGH VERSUS STATE OF PUNJAB 2010 (9) TMI 1005 - SUPREME COURT , 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. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, it is noted that in UNION OF INDIA VERSUS RATTAN MALLIK @ HABUL 2009 (1) TMI 844 - SUPREME COURT , 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. The High Court has clearly overlooked crucial requirements and glossed over the circumstances which were material to the issue 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. The application for bail filed by the respondent shall stand dismissed.
Issues Involved:
1. Grant of bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Compliance with procedural requirements under Sections 42 and 50 of the NDPS Act. 3. Admissibility and impact of statements under Section 67 of the NDPS Act. 4. Evaluation of the High Court’s decision to grant bail in light of Section 37 of the NDPS Act. 5. Consideration of the respondent's behavior post-bail. Detailed Analysis: 1. Grant of Bail under the NDPS Act: The appeal arises from a judgment of the High Court granting bail to the respondent, who was accused under Sections 8, 21, 27A, and 29 of the NDPS Act. The High Court allowed the bail application despite the recovery of a substantial quantity of morphine (3.300 kg) from the vehicle in which the respondent was traveling. The Supreme Court scrutinized whether the High Court judiciously exercised its discretion in granting bail, particularly considering the stringent conditions under Section 37 of the NDPS Act. 2. Compliance with Procedural Requirements under Sections 42 and 50 of the NDPS Act: The respondent contended non-compliance with Sections 42 and 50 of the NDPS Act. Section 42 mandates that any information received by the officer must be recorded in writing and sent to a superior officer within 72 hours. The Supreme Court noted that the information was indeed reduced to writing and sent to the Zonal Director, suggesting prima facie compliance. The Court emphasized that whether there was substantial compliance with Section 42 is a fact to be determined during the trial. 3. Admissibility and Impact of Statements under Section 67 of the NDPS Act: The High Court relied on the inclusion of the wrong name in the translation endorsement of the respondent’s statement under Section 67 of the NDPS Act. The Supreme Court referenced the decision in Tofan Singh v. State of Tamil Nadu, which held that confessional statements under Section 67 are inadmissible in evidence. The Additional Solicitor General (ASG) did not rely on the respondent’s statement under Section 67, focusing instead on other material evidence. 4. Evaluation of the High Court’s Decision to Grant Bail in Light of Section 37 of the NDPS Act: Section 37 of the NDPS Act imposes stringent conditions for granting bail, requiring reasonable grounds to believe that the accused is not guilty and will not commit an offense while on bail. The Supreme Court found that the High Court overlooked crucial factors: - The respondent was traveling with co-accused from Dimapur to Rampur. - The CDR analysis showed regular communication between the respondent and co-accused. - A commercial quantity of contraband was found concealed in the vehicle. The High Court’s observation that no contraband was recovered from the respondent’s personal possession was deemed insufficient to satisfy the conditions under Section 37(1)(b)(ii). 5. Consideration of the Respondent's Behavior Post-Bail: The respondent avoided appearing before the Sessions Judge after being released on bail, leading to the issuance of a non-bailable warrant. The Supreme Court noted that this behavior should have been considered by the High Court when assessing the bail application. Conclusion: The Supreme Court allowed the appeal, setting aside the High Court’s order granting bail. The application for bail by the respondent was dismissed, and the respondent was directed to surrender forthwith. The Court emphasized the necessity of adhering to the stringent conditions under Section 37 of the NDPS Act when considering bail applications in cases involving commercial quantities of narcotic substances.
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