Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 56

SUPREME COURT OF INDIA
(From the High Court of Karnataka at Bengaluru)
N.V. RAMANA, CJI., SURYA KANT, HIMA KOHLI, JJ.
State By (NCB) Bengaluru – Appellant
Versus
Pallulabid Ahmad Arimutta & Anr. – Respondents
Petition For Special Leave To Appeal (Crl.) No.242 of 2022 Arising Out Of Diary No. 22702 of 2020
With
Union Of India - Petitioner
Versus
Mohammed Afzal - Respondent
Alongwith Petition For Special Leave To Appeal (Crl.) No. 1569 of 2021
With
Union Of India, Narcotics Control Bureau, Bengaluru – Appellant
Versus
Mohammed Afzal - Respondent
Petition For Special Leave to Appeal (Crl.) 1454 of 2021
with
State By Intelligence Officer, Narcotics Control Bureau – Appellant
Versus
Munees Kavil Paramabath @ Munees KP - Respondent
Petition For Special Leave to Appeal (Crl.) 1465 of 2021
with
State Of Karnataka – Appellant
Versus
Munees Kavil Paramabath - Respondent
Petition For Special Leave To Appeal (Crl.) 2080 of 2021
With
State By Intelligence Officer (Ncb) Bengaluru Zonal Unit, Bengaluru – Appellant
Versus
Abu Thahir @ Abdu & Etc. - Respondents
Petition For Special Leave To Appeal (Crl.) No. 1773-74 of 2021
Decided on : 10-01-2022

Advocates appeared:
For the Petitioner(s): In D.No.22702/20 : Mr. K.M. Nataraj, ASG Mr. B.K. Satija, Adv. Ms. Rekha Pandey, Adv. Mr. Rajat Nair, Adv. Mr. O.P. Shukla, Adv. Mr. Arvind Kumar Sharma, Adv. Mr. B. V. Balaram Das, AOR(NP)
In SLP(Crl.)1454/21 & 1465/21 : Mr. S.V. Raju, ASG Ms. Sairica Raju, Adv. Mr. Annam Venkatesh, Adv. Mr. Rahul Mishra, Adv. Mr. Arvind Kumar Sharma, Adv.
In SLP(Crl.)2080/21 & 1773-1774/21 : Mr. K.M. Natraj, ASG Ms. Seema Bengani, Adv. Ms. Swarupma Chaturvedi, Adv. Ms. Vimla Sinha, Adv. Mr. Vatsal Joshi, Adv. Mr. B. V. Balaram Das, AOR(NP)
For the Respondent(s): For R-1 & 2 in D.No.22702/20 : Mr. Rajesh Mahale, AOR
In SLP(Crl)1465/21 & 2080/21 : Mr. P. V. Dinesh, AOR Mr. Ashwini Kumar Singh, Adv. Mr. Bineesh K., Adv.

IMPORTANT POINTS
(1) Confessional statement recorded under Section 67 of NDPS Act will remain inadmissible in trial of an offence under NDPS Act – Arrests made by petitioner-NCB, on the basis of confession/voluntary statements of respondents or co-accused under Section 67 of NDPS Act, cannot form basis for overturning impugned orders releasing them on bail.
(2) There can be no misplaced parity in matter of grant of bail.

Headnote:
(A) Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 67 – Grant of bail – Challenge as to – No substantial material was available with prosecution at the time of arrest to connect respondents with allegations levelled against them of indulging in drug trafficking – Confessional statement recorded under Section 67 of NDPS Act will remain inadmissible in trial of an offence under NDPS Act – Arrests made by petitioner-NCB, on the basis of confession/voluntary statements of respondents or co-accused under Section 67 of NDPS Act, cannot form basis for overturning impugned orders releasing them on bail – CDR details of some of accused or allegations of tampering of evidence on part of one of respondents is an aspect that will be examined at stage of trial – Impugned orders upheld and Special Leave Petitions filed by petitioner-NCB seeking cancellation of bail granted to respective respondents, dismissed. (Paras 9 and 10)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Grant of bail – Challenge as to – There are specific allegations levelled against respondent(A-2) regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested – This aspect has been completely overlooked while passing order wherein, only reason that appears to have weighed with High Court for releasing him on bail is that his case stands on same footing as A-1, A-3 and A-4 who had been enlarged on bail – A-2 cannot seek parity with co-accused and no such benefit could have been extended to him in view of Section 37 of Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under NDPS Act – Bail granted to respondent-A-2 cancelled forthwith. (Para 11)
Facts of the case:
Petitioner-Narcotic Control Bureau, Bengaluru Zonal Unit, is aggrieved by an order dated 16th September, 2019 passed in Criminal Leave Petition No. 4462/2019 (subject matter of SLP(Crl.) Diary No. 22702/2020), order dated 14th January, 2020 passed in Criminal Leave Petition No. 8603/2019 (subject matter of SLP (Crl.) No. 1454/2021), order dated 16th January, 2020 passed in Criminal Petition No. 7861/2019 (subject matter of SLP (Crl.) No. 1465/2021), order dated 19th December, 2019 passed in Criminal Petition No. 7624/2019 c/w Criminal Petition No. 6609/2019 (subject matter of SLP (Crl.) Nos. 1773-1774/2021), order dated 08th January, 2020 passed in Criminal Petition No. 7714/2019 (subject matter of SLP (Crl.) No. 1569/2021) and order dated 20th January, 2020 passed in Criminal Petition No. 7897/2019 (subject matter of SLP (Crl.) No. 2080/2021). By the aforesaid orders, High Court of Karnataka has released respondents on bail for the offences punishable under Sections 8(c), 8A read with Sections 20(b), 21, 22, 27A, 27B, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, as the case may be.
Findings of Court:
A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act. That being the position, petitioner-NCB succeeds in SLP (Crl.) No. 1569/2021. The bail granted to respondent-Mohmmed Afzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.
Result : Special Leave Petitions dismissed.

ORDER :

HIMA KOHLI, J.

Delay condoned in SLP (Crl.) … Diary No. 22702 of 2020.

1. As the facts of the present petitions are intertwined, having arisen from two connected cases registered as NCB Case FN No. 48/01/03/2019/BZU and NCB Case FN No. 48/01/07/2019/BZU, it is proposed to dispose them by a common order. The petitioner-Narcotic Control Bureau, Bengaluru Zonal Unit¹[In short ‘NCB’], is aggrieved by an order dated 16th September, 2019 passed in Criminal Leave Petition No. 4462/2019 (subject matter of SLP(Crl.) Diary No. 22702/2020), order dated 14th January, 2020 passed in Criminal Leave Petition No. 8603/2019 (subject matter of SLP (Crl.) No. 1454/2021), order dated 16th January, 2020 passed in Criminal Petition No. 7861/2019 (subject matter of SLP (Crl.) No. 1465/2021), order dated 19th December, 2019 passed in Criminal Petition No. 7624/2019 c/w Criminal Petition No. 6609/2019 (subject matter of SLP (Crl.) Nos. 1773-1774/2021), order dated 08th January, 2020 passed in Criminal Petition No. 7714/2019 (subject matter of SLP (Crl.) No. 1569/2021) and order dated 20th January, 2020 passed in Criminal Petition No. 7897/2019 (subject matter of SLP (Crl.) No. 2080/2021). By the aforesaid orders, the High Court of Karnataka has released the respondents on bail for the offences punishable under Sections 8(c), 8A read with Sections 20(b), 21, 22, 27A, 27B, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985²[In short ‘NDPS Act’], as the case may be.

2. The facts leading to registering of the aforesaid cases against the respondents are that on 22nd March, 2019, the petitioner-NCB had received information that two persons i.e., Nausheer Mohammed [A-1] and Noushad Mannakkamvalli [A-2] were going to carry drugs and travel to Doha by Oman Airways from Bengaluru International Airport. Immediately on receiving such information, a team of NCB officers arrived at the airport and on searching the luggage of A-1 and A-2, seized 4.525 Kgs of Hashish, 965 Grams of Amphetamine and 30 Grams of Cocaine. Both the respondents in SLP(Crl) @ Diary No. 22702/2020 i.e. Pallulabid Ahamad Arimutta and Mohammed Majid Saleem were arraigned as Accused Nos. 3 and 4 in NCB Case FN No. 48/01/03/2019/BZU³[Hereinafter referred to as the ‘first case’] and arrested for the offences stated above. Similarly, Mohammed Afzal[A-6], respondent in SLP (Crl.) No. 1454/2021 was arrested on an allegation that his Call details record⁴[For short ‘CDR’] revealed that he was in constant conversation with A-2 and one Abu Thahir @ Abdu [A-5]. Additionally, reliance was placed by the Department on the statement of A-5 recorded under Section 67 of the NDPS Act which purportedly revealed that both of them had arranged the drugs that were delivered to A-1 and A-2 on 22nd March 2019, who were going to carry the same in their luggage while flying to Doha.

3. Munees Kavil Paramabath [A-8], respondent in SLP (Crl.) No. 1454/2021 was purportedly found to be in conversation with A-2, A-6, A-7 and A-8 as per the CDR of A-5 on the date of the seizure. The petitioner-NCB claims that apart from the statement of A-5 recorded under Section 67 of the NDPS Act, he had also voluntarily stated during his examination that he was paid money by A-8 for financing the drugs. Abu Thahir @ Abdu [A-5] and Sabir Bayan [A-7], respondents in SP (Crl.) No. 1773-1774/2021 were similarly arrested on the statement of the co-accused, namely, A-2, A-6 and A-8 and on an allegation that flight tickets of A-1 were recovered from the house of A-5 and A-6.

4. After registering the first case and in the course of conducting an investigation officers of the petitioner-NCB claimed to have gathered credible information that Abu Thahir @ Abdu and Mohammed Afzal arraigned as [A-1] and [A-2] in NCB Case FN No. 48/01/07/2019/BZU⁵[Hereinafter referred to as the ‘second case’], were going to reach Bengaluru Airport alongwith persons named Khushboo Sharma and Mohammad Asif for trafficking drugs to Doha. The said accus

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