2024 Supreme(SC) 1264

SUPREME COURT OF INDIA
BELA M. TRIVEDI, SATISH CHANDRA SHARMA, JJ.
Narcotics Control Bureau – Appellant
Versus
Kashif – Respondent
Criminal Appeal No. 5544 of 2024 [Special Leave Petition (Crl.) No. 12120 of 2024]
Decided On : 20-12-2024

IMPORTANT POINTS
(1) In NDPS cases, where offence is punishable with minimum sentence of ten years, accused shall generally be not released on bail – Negation of bail is rule and its grant is an exception.
(2) Any lapse or delay in compliance of Section 52A by itself would neither vitiate trial nor would entitle accused to be released on bail.
(3) Interpretation of Statute – A statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided.

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Grant of bail – Parameters – In NDPS cases, where offence is punishable with minimum sentence of ten years, accused shall generally be not released on bail – Negation of bail is rule and its grant is an exception – While considering application for bail, court has to bear in mind provisions of Section 37 of NDPS Act, which are mandatory in nature – Recording of finding as mandated in Section 37 is a sine qua non for granting bail to accused involved in offences under the Act – Apart from granting opportunity of hearing to Public Prosecutor, other two conditions i.e. (i) satisfaction of court that there are reasonable grounds for believing that accused is not guilty of alleged offence and that (ii) he is not likely to commit any offence while on bail, are cumulative and not alternative conditions. (Para 8)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 52A and 37(1)(b) – Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 – Rule 29 – Grant of bail – Sustainability – Case filed by NCB for offences under Sections 8, 22(c), 23(c) and 29 of NDPS Act – Appellant-NCB having opposed bail application, it was obligatory on part of High Court to record satisfaction on cumulative conditions – High Court has released respondent-accused on bail solely on the ground that there was non-compliance of Section 52A of Act within reasonable time – Section 52A was inserted only for the purpose of early disposal of seized contraband drugs and substances – As per Section 54 of Act, courts are entitled to presume that accused had committed offence under the Act – Unless such statutory presumption is rebutted by accused during course of trial, there would be prima facie presumption that accused had committed offence under the Act – An anomalous situation would arise if a non-compliance or delayed compliance of Section 52A is held to be vitiating trial or entitling accused to be released on bail, though he is found to have possessed contraband substance, and even if statutory presumption is not rebutted by him – Such could not be intention of Legislature – Even evidence collected by illegal search or seizure could not be excluded or discarded. (Paras 11, 24, 25 and 26)

(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 52A and 37(1)(b) – Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 – Rule 29 – Grant of bail – Sustainability – Case filed by NCB for offences under Sections 8, 22(c), 23(c) and 29 of NDPS Act – Any procedural illegality in conducting search and seizure by itself, would not make entire evidence collected thereby inadmissible – Court would have to decide admissibility of evidence in context and manner in which evidence was collected and was sought to be used during course of trial – Evidence collected during course of investigation in legal and proper manner and sought to be used in course of trial with regard to seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity committed by concerned officer authorised in making application to Magistrate as contemplated under Section 52A of Act – Primary evidence within meaning of Section 62 of Evidence Act, with regard to Search and Seizure of contraband substance could not be overlooked merely because some lapse or non-compliance is found of Section 52A of Act – None of provisions in the Act prohibits sample to be taken on spot at the time of seizure, much less Section 52A of Act – Any lapse or delay in compliance of Section 52A by itself would neither vitiate trial nor would entitle accused to be released on bail – Impugned order based on inferences and surmises, in utter disregard of statutory provision of the Act and in utter disregard of mandate contained in Section 37 of Act, and granting bail to accused merely on the ground that compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside – Matter remanded for fresh consideration on merits. (Paras 31, 33, 35, 39, 40, 41 and 42)

(D) Interpretation of Statute – A statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided – Where plain and literal interpretation of statutory provision produces a manifestly absurd and unjust result, Court may modify language used by Legislature or even do some violence to it, so as to achieve obvious intention of Legislature and produce a rational construction and just result. (Para 38)

Facts of the case:

Instant Appeal arises out of impugned Order dated 18.05.2023 passed by High Court of Delhi at New Delhi in Bail Application No. 253 of 2023, granting bail to respondent. It assumes importance as said Bail Application has been allowed by High Court solely on the ground of belated compliance of Section 52A of Narcotic Drugs and Psychotropic Substances Act, 1985 misinterpreting said provision, and without recording findings as mandated in Section 37 of Act.

Findings of Court:

Since, High Court has not considered application of respondent on merits and has also not considered mandatory requirement under Section 37(1)(b) of the Act, it is appropriate to remand the case to High Court for deciding bail application of respondent afresh on merits and in accordance with law.

Result : Appeal allowed.