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2008(8) Supreme 12
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Sami Ullaha — Appellant
versus
Superintendent, Narcotic Central Bureau — Respondent
Criminal Appeal No. 1748 of 2008
[Arising out of SLP (Crl.) No. 2175 of 2008]
Decided on : 07-11-2008
[2006] UKPC 13 : [2006] 2 WLR 1330 – Referred.
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 2(viia) and 2(xxiiia) – There is a distinction between commercial quaantity and a small quantity for grant of bail. (Para 12)
(c) Narcotic Drugs and Psychotropic Substances Act, 1985– Section 37 – When the quantity is small or intermediate, the rigours of the provisions of section 37 relating to grant of bail may not be justified. (Para 13)
(2004) 4 SCC 446; (2008)5 SCC 161 – Relied upon.
(d) Narcotic Drugs and Psychotropic Substances Rules – Rule 2(c) – Court below cannot be said to have committed any illegality in relying upon the report of the authorized laboratory. (Para 15)
(e) Narcotic Drugs and Psychotropic Substances Act, 1985– Section 37 – The two laboratories differed in their opinion effect whereof can be gone in only at trial – However, when two views are possible, the view which leans in favour of an accused must be favoured. (Para 15)
(f) Narcotic Drugs and Psychotropic Substances Act, 1985– Section 37 – When the prosecution itself had failed to show that the seized substance contained any narcotic substance or psychotropic substance, the question of reliance on the confession of the accused does not arise; at least at this stage. (Para 16)
2008 (9) SCALE 681 – Relied upon.
(g) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – For the purpose of cancellation of bail, the statutory requirements must be satisfied – Appellant has failed to do so. (Para18)
(1978) 2 SCC 411 – Relied upon.
Facts of the case :
1. On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain, who were traveling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statement was made by the said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him.
2. On the basis of the said statement, the appellant was arrested on 15.08.2004. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance.
3. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory.
4. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail.
5. The prosecution, however, sent another sample to the Central Revenue Control Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the sample under reference was tested positive for Diacetyl-morphine (Heroin).
6. Thereafter, an application for cancellation of bail was filed on 4.02.2005. By an order dated 15.03.2005, the bail granted to the appellant was cancelled.
7. A revision application filed thereagainst by the appellant before the High Court was dismissed by reason of the impugned judgment.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
Based on the provided legal document, the key points relevant to the issue of bail cancellation under the NDPS Act are as follows:
Statutory Requirements for Bail Cancellation: The cancellation of bail must strictly satisfy the statutory criteria outlined in the relevant provisions. The court must find that the accused misused the liberty granted, such as tampering with evidence, influencing witnesses, or attempting to abscond (!) (!) .
Special Provisions under the NDPS Act: The NDPS Act has specific provisions that restrict the grant of bail, especially for offences involving commercial quantities. The Act mandates that no person accused of such offences shall be released on bail unless certain conditions are met, including the opportunity for the Public Prosecutor to oppose the application and the court's satisfaction that the accused is unlikely to commit further offences (!) (!) (!) (!) .
Definition of Quantities: The Act distinguishes between small, intermediate, and commercial quantities, with the latter being subject to more stringent restrictions on bail. The quantity recovered and the classification under the notification are crucial in determining whether bail should be granted or revoked (!) (!) (!) .
Contradictory Laboratory Reports: When two laboratories provide differing opinions regarding the presence of narcotic substances, the court should favor the view that leans in favor of the accused. The reliance on laboratory reports must be carefully scrutinized, especially when the reports are contradictory (!) (!) (!) (!) .
Relevance of Confessional Statements: Confessional statements made by the accused, particularly if retracted, cannot solely form the basis for conviction or for the cancellation of bail unless supported by substantive evidence. The prosecution's failure to establish the presence of narcotic substances in the seized material weakens the grounds for bail cancellation (!) (!) .
Legal Principles for Bail and Its Cancellation: Granting bail is a matter of judicial discretion, but its cancellation requires clear supervening circumstances indicating misuse. Mere change of circumstances or the fact that witnesses have turned hostile does not automatically justify bail cancellation unless there is evidence of influence or tampering (!) (!) .
Application of the NDPS Act’s Provisions: The provisions are designed to prevent the accused from committing further offences and to ensure the integrity of the trial process. The court must balance individual liberty with the need to prevent misuse of the law, especially in cases involving serious charges under the NDPS Act (!) (!) .
Procedural Aspects: The court must ensure that the procedures laid down in the Act and the Rules are followed, including the proper examination of laboratory reports and adherence to the criteria for bail and its cancellation. The court's reliance on reports from authorized laboratories is appropriate, but contradictory findings must be carefully weighed (!) (!) .
In summary, the decision to cancel bail under the NDPS Act hinges on whether the statutory conditions are met, the nature and quantity of the seized substance, the credibility of laboratory reports, and whether there is evidence of misuse of liberty by the accused.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. 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’ is the core question involved herein.
3. Before, however, we advert to the said question, we may notice the factual matrix involved in the matter.
On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain, who were traveling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statement was made by the said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). Appellant contends that he was tortured and the statement was obtained forcibly from him on some blank documents. He later on retracted therefrom. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail, stating:
“Accordingly, as mentioned above, there is no ground that by accepting the application of the complainant and order be passed for sending the second sample for examination to another laboratory. If the investigating officer so desires, then in accordance with the ruling expounded as above, he is free to send the second sample to any of the laboratories for its examination at his own level. On the basis of the abovementioned observations, the application of the complainant is rejected.”
4. The prosecution, however, sent another sample to the Central Revenue Control Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the sample under reference was tested positive for Diacetyl-morphine (Heroin), which according to the said report was found to be 2.6% of the sample tested.
5. Thereafter, an application for cancellation of bail was filed on 4.02.2005. By an order dated 15.03.2005, the bail granted to the appellant was cancelled relying on or on the basis of the second report obtained by the respondent from the Central Revenue Control Laboratory, New Delhi stating:
“While receiving guidance from the abovementioned citations, I arrive at the conclusion that under the present facts, the second sample which was sent for examination and according to its receipt the seized substance was heroine, and on the basis of which charges have been levelled against the accused persons, and the prosecution has right to send second sample for chemical examination, and as such there are charges of serious nature against the accused persons in which there provisions (sic) to award punishment of imprisonment of the term of at least ten years and fine of rupees one lakh, as well as under Section 37 of the Act, in case of recovery of psychotropic substances in the quantity of commerce & trade, bail cannot be granted until the court does not arrive at the conclusion to the effect that the accused is not guilty of such an offence, and in case of granting him bail such an offence will not be committed by hi
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