Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 508

SUPREME COURT OF INDIA
Dhananjaya Y Chandrachud, B V Nagarathna, JJ.
Union of India through Narcotics Control Bureau, Lucknow - Appellant
Versus
Md. Nawaz Khan - Respondent
Criminal Appeal No. 1043 of 2021 (Arising out of SLP (Crl) No.1771 of 2021)
Decided On : 22-09-2021

Advocates appeared:
For the Appellant(s) :S.V. Raju, Sairica Raju, Annam Venkatesh, Sunita Sharma, B. V. Balaram Das, Anshuman Singh, Advocates
For the Respondent(s):Rakesh Dahiya, Advocate

IMPORTANT POINTS
(1) Standard prescribed for grant of bail is ‘reasonable ground to believe’ that person is not guilty of offence.
(2) Given seriousness of offences punishable under NDPS Act and in order to curb menace of drug-trafficking in country, stringent parameters for grant of bail under NDPS Act have been prescribed.
(3) Finding of absence of possession of contraband on person of respondent by High Court in impugned order does not absolve it of level of scrutiny required under Section 37(1)(b)(ii) of NDPS Act.

Headnote:
Criminal Procedure Code, 1973 – Section 439 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 read with Sections 8, 21, 27A, 29 and 42 – Bail – Grant of – Sustainability – Seizure of Heroin – Standard prescribed for grant of bail is reasonable ground to believe that person is not guilty of offence – Test which High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that accused has not committed an offence and whether he is likely to commit any offence while on bail – Given seriousness of offences punishable under NDPS Act and in order to curb menace of drug-trafficking in country, stringent parameters for grant of bail under NDPS Act have been prescribed – Finding of absence of possession of contraband on person of respondent by High Court in impugned order does not absolve it of level of scrutiny required under Section 37(1)(b)(ii) of NDPS Act – High Court has clearly overlooked crucial requirements and glossed over circumstances which were material issue as to whether a case for grant of bail was established – In failing to do so, order of High Court becomes unsustainable – Moreover, it has emerged, during course of hearing that after respondent was enlarged on bail he has consistently remained away from criminal trial resulting in issuance of a non-bailable warrant against him – High Court ought to have given due weight to seriousness and gravity of crime which it has failed to do – Impugned judgment and order of High Court set aside and application for bail filed by respondent dismissed. (Paras 19, 20, 25, 32, 33 and 34)
Facts of the case:
Present appeal arises from a judgment of a Single Judge at the Lucknow Bench of the High Court of Judicature at Allahabad dated 1 October 2020. NCB Case Crime No 14 of 2019 registered at Police Station, NCB, Lucknow for alleged offences under Sections 8, 21, 27A, 29 of Narcotic Drugs and Psychotropic Substances Act 1985. The High Court has allowed an application for bail.
Findings of Court:
In the complaint that was filed on 16th October 2019 it is alleged that at about 1400 hours on 26th March 2019, information was received that between 1500-1700 hours on the same day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial.
Result : Appeal allowed.

JUDGMENT :

Dhananjaya Y Chandrachud, J.

1. This appeal arises from a judgment of a Single Judge at the Lucknow Bench of the High Court of Judicature at Allahabad dated 1 October 2020. NCB Case Crime No 14 of 2019 registered at Police Station, NCB, Lucknow for alleged offences under Sections 8, 21, 27A, 29 of the Narcotic Drugs and Psychotropic Substances Act 1985¹[“NDPS Act”]. The High Court has allowed an application for bail.

2. The complaint was filed on 16 September 2019 through the Intelligence Officer at the Lucknow Zonal Unit of the Narcotics Control Bureau²[“NCB”]. The allegation is that the NCB, Zonal Unit received information at 1400 hours that three persons namely Md. Arif Khan, Rafiuddin and Md. Nawaz Khan (the respondent), who are residents of Manipur were proceeding with heroin/morphine in a Maruti Ritz vehicle bearing registration No. UK 06 AA 25823 from Dimapur in Nagaland to Rampur in Uttar Pradesh and that the vehicle would be passing through Banarasi Das College, Lucknow. The information was reduced into writing and was produced before the Zonal Director, NCB Lucknow. A team of NCB officers was formed and it was directed to liaise with the team of the Uttar Pradesh Special Task Force, Lucknow³[“UP-STF”]. A surveillance was conducted in the area around Babu Banarasi Das College and at 1600 hours, the car in which the respondent was travelling with the other two co-accused was intercepted. A search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered in the course of the personal search. However, a search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car. The first packet weighed 1.740 kg, while the second packet weighed 1.750 kg. Samples were taken and upon testing with the drug detection kit, the samples tested positive for heroin.

3. Since the occupants of the car were not well-versed with Hindi or English, an official belonging to the Shasastra Seema Bal⁴[“SSB”] was summoned at the spot for the purpose of translation as he hailed from Manipur and was conversant with the Manipuri language. The statements of the three accused persons were recorded in English and were translated in Manipuri by the official from the SSB and the accused were placed under arrest. However, while certifying the statement of the respondent, the official of the SSB mentioned the name of Mohd. Arif Khan in place of the respondent (Md. Nawaz Khan).

4. The sample packets marked as P1S1 and P2S1 were sent to the Chief Examiner, Central Revenues Control Laboratory, New Delhi⁵[“CRCL”] on 27 March 2019. A chemical examination report dated 25 April 2019 was prepared by CRCL which stated that the samples did not test positive for diacetylmorphine that is heroin, however, it tested positive for morphine.

5. Letters dated 10 July 2019 were sent to Airtel Private Limited, Lucknow; Vodafone Idea Limited, Lucknow; and Reliance JIO Info Communication Limited Lucknow, to obtain certified copies of call detail records⁶[“CDR”] and customer application forms⁷[“CAF”] relating to certain mobile numbers. The CDR analysis of the said mobile numbers indicates that the respondent was regularly corresponding with the co-accused and one Anish @ Abbas, who is a resident of Dimapur and is also suspected to be involved in drug trafficking.

6. The application for bail moved by the respondent was rejected by the Seventh Additional District and Sessions Judge, Lucknow on 27 June 2019, observing that a huge quantity of heroin weighing 3.300 kg was recovered and that having regard to the seriousness and gravity of the crime, no case for the grant of bail was established. The respondent moved the High Court and by the impugned order dated 1 October 2020, the application for bail was allowed.

7. The submission of the respondent before the High Court was that he was only a companion in the vehicle which was dri