Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 37 – At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15)

The Supreme Court observed that the expression “reasonable grounds” used in Section 37(1)(b) under NDPS Act would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence.

The court also said that, under Section 37 NDPS Act, bail cannot be granted merely on the ground that nothing was found from the possession of the accused.

The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act, a three judge bench comprising CJI NV Ramana, Justices Krishna Murari and Hima Kohli observed.

In this case, the High Court of Delhi granted bail to an accused who was facing trial for the offence under Sections 8/22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High Court, while granting bail noted that, there is not other material against the accused besides confessional statement recorded under Section 67 of NDPS Act

Before the Apex Court, ASG Jayant K. Sud, who represented the Narcotics Control Bureau, contended that the instant case falls under the category of recovery of commercial quantity of narcotic drugs and in the light of the embargo placed in Section 37 of the NDPS Act, the accused ought not to have been admitted to bail and that this is a case of constructive/conscious possession of the contraband substances as the accused was an active participant in a organized gang that was involved in smuggling of drugs. Advocate on Record P.K. Jain, who appeared for the accused- respondent contended that as besides the confessional statements of the accused recorded under Section 67 of the NDPS Act, no other incriminating material was forthcoming, the accused had been rightly admitted to bail.

The bench noted the following after referring to Section 37 of the NDPS Act :

It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act.
Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in.
The conditions imposed in subsection (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
Referring to earlier judgments on this point, the court observed:

To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
The court also clarified that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty.

“The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”, the bench said.
The court agreed with the High Court view that the admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside, in view of the dictum laid down in Tofan Singh v. State of Tamil Nadu AIR 2020 SC 5592. However, the court noted it was not the only material that the NCB had relied on to oppose the bail application. The bench said:

“Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage”
Therefore, the bench held that the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. While setting aside the bail order, the bench observed:

“At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act”

Case details

Narcotics Control Bureau vs Mohit Aggarwal | 2022 LiveLaw (SC) 613 | CrA 1001-1002 OF 2022 | 19 July 2022 | CJI NV Ramana, Justices Krishna Murari and Hima Kohli

Headnotes

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 37 – The expression “reasonable grounds” used in Section 37(1)(b) under NDPS Act would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. (Para 14)

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 37 – Bail considerations – The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act (Para 17-18)

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 37 – Bail – The admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside – Confessional statement recorded under Section 67 of the NDPS Act inadmissible in the trial of an offence under the NDPS Act – Referred to Tofan Singh v. State of Tamil Nadu AIR 2020 SC 5592. (Para 16)

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 37 – At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15)

Summary – NCB’s appeal against Delhi HC order granting bail to accused – Allowed – Even dehors the confessional statements, the other circumstantial evidence brought on record by the NCB ought to have dissuaded the High Court from exercising its discretion in favour of the accused – The observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage – Set aside Bail order.

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