1. Bail to accused under NDPS Act challenged; recovery of heroin, possession disputed. (Para 2 )
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2000 Supreme(SC) 646
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
Supdt., Narcotics Control Bureau, Chennai
Versus
R.Paulsamy
Case No. : 312 of 2000
Date of Decision : 3/30/00
Bail under Section 37 of the NDPS Act requires the court to record satisfaction that the accused is not guilty and unlikely to re-offend. Procedural lapses under Sections 52 and 57 cannot be pre-judged at the bail stage due to the presumption of regularity of official acts.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 37, 52 and 57 - Bail - Conditions for grant of bail - Under Section 37, no accused can be released on bail when opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing the accused is not guilty and not likely to commit any offence while on bail - Such finding is sine qua non for granting bail (Paras 6, 7).
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 52 and 57 - Compliance with procedural requirements - Allegations regarding non-compliance with the requirement to inform the ground of arrest or reporting to official superiors cannot be pre-judged at the stage of bail - Factual presumption that official acts have been regularly performed applies and can be rebutted only during evidence, not merely by the absence of documents produced during the bail stage (Para 6).
(C) Indian Penal Code - Sections 120B and 193 - Prosecution for conspiracy and fabricating evidence.
Facts of the case:
The respondent and his spouse were prosecuted for offences involving the recovery of 2 kg of heroin from a room in the possession of the respondent. The respondent and his spouse both held senior official positions in customs and excise departments. The High Court granted bail to the respondent on the grounds of prima facie non-compliance with Section 52 (not informing the ground of arrest) and Section 57 (failure to send a report to the official superior within forty-eight hours) of the NDPS Act.
Findings of Court:
The High Court erred by pre-judging matters of procedural compliance that could only be established during the trial. The High Court failed to follow the parameters for granting bail under the NDPS Act and did not record the mandatory finding required under Section 37 regarding the likelihood of the accused's innocence and conduct while on bail.
Issues: Whether the High Court was justified in granting bail based on prima facie procedural violations of Sections 52 and 57 of the NDPS Act without adhering to the mandatory requirements of Section 37 of the same Act.
Ratio Decidendi: For the grant of bail under Section 37 of the NDPS Act, the court must be satisfied that the accused is not guilty and is unlikely to commit any offence while on bail. Matters of procedural compliance under Sections 52 and 57 should not be decided at the bail stage, as official acts are presumed to have been performed regularly unless rebutted by evidence during trial.
Result: Appeal allowed and the impugned order set aside.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Respondent argued prima facie violation of Sections 52 and 57 of NDPS Act. (Para 3 , 4 )
3. High Court prejudged compliance with Sections 52 and 57; ignored presumption of official acts. (Para 5 , 6 )
4. Bail under Section 37 NDPS Act requires findings of non-guilt and no offence while on bail. (Para 7 )
5. Appeal allowed; impugned bail order set aside. (Para 9 )
6. What are the parameters for granting bail under Section 37 of the NDPS Act?
The court must be satisfied there are reasonable grounds the accused is not guilty and will not commit an offence while on bail. (Para 5 , 6 , 7 )
7. Can compliance with Sections 52 and 57 of the NDPS Act be presumed at the bail stage?
Yes, factual presumption regarding regular performance of official acts applies; rebuttal requires evidence at trial. (Para 6 )
8. What must a court record for granting bail under Section 37 of the NDPS Act?
A specific finding in terms of Section 37 is a sine qua non for granting bail. (Para 7 )
(1) LEAVE granted.
(2) RESPONDENT and his wife are now facing a prosecution for offences under Sections 8C, 21, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 193 and 120B Indian Penal Code. The case against them is that 2 kg. heroin had been recovered from a room which was in the possession of the respondent. At the relevant time he himself was a Superintendent. Customs, Preventive Unit Madurai. His wife was Superintendent of Central Excise and Customs at Thanjavur. First respondent moved for enlarging him on bail. A learned Single Judge of the High Court of Madras passed an order releasing him on bail on executing a bond in a sum of Rs. 10,000.00 with two solvent sureties. Appellant (Superintendent of Narcotic Control Bureau, South Zonal Unit, Chennai) has filed this appeal by special leave in challenge of the said order of the Madras High Court.
(3) LEARNED Single Judge of the High Court did countenance only two points for adopting the exceptional course of granting bail to an accused involved in the offence under NDPS Act. They are: there was prima fade violation of Section 52 and there was prima fade non-compliance with Section 57 of the Act. Dealing with the former aspect learned Single Judge has stated thus;
"WHEN we consider Section 52 it is clear from the records available that the ground of arrest was not informed to the petitioner herein. Such fact has not been stated either in the mahazar or in the remand report or in the complaint or in other documents filed in this case."
(4) DEALING with the second aspect learned Single Judge has observed thus:
"NO document shows that such a report has been sent to the immediate official superior within forty eight hours, as contemplated under the said Section"
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(5) THIS Court has laid down the parameters to be followed while considering the application for bail moved by accused involved in offences under NDPS Act vide Union of India v. Ram Samajh & Anr. [JT (1999) (6) SC 397]. It is unnecessary for us to repeat those parameters over again. We have no doubt that learned Single Judge has not followed the aforesaid parameters in this case.
(6) IN the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the Compliance of the formalities mentioned in those two sections.
(7) WE may also observe that learned Single Judge has not recorded a finding in terms of Section 37 of the Act which is sinequa-non for granting bail to an accused involved in the offence under the Act.
(8) SHRI U.R. Lalit, learned senior Counsel arguing for the respondent made an endeavour to argue on points which have not been raised before the High Court. We refrain from considering those points so that any observations which we may make may possibly prejudice either of the sides. But we make it clear that this order will not stand in the way of respondent satisfying the trial court or the High Court, on any fresh application, of any other valid ground by which he would fall within the parameters contemplated in Section 37 of the Act.
(9) AS we are not unable to concur with the rationale adopted by the learned Single Judge we have to i
