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2009 N.C.C. 117
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac Joseph
Criminal Appeal No. 1748 of 2008
SAMI ULLAHA – Appellant
Versus
SUPERINTENDENT, NARCOTIC CENTRAL BUREAU – Respondent
Decided on : 07.11.2008
(B) Criminal Procedure Code, 1973, Sec. 439 and Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 37 — Grounds for cancellation of Bail — The N.D.P.S. Act although is a self contained code, application of the provisions of the Criminal Procedure Code however have not been excluded — A distinction exists between the appeal from an order granting bail and an order directing cancellation of bail — While entertaining an application for cancellation of bail — It must be found that the accused had misused the liberty granted to him as a result whereof — (a) he has attempted to tamper with evidence — (b) he has attempted to influence the witnesses — (c) there is a possibility of the accused to abscond and, therefore, there is a possibility that the accused may not be available for trial. (Para 10)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 2(c) — Expression — "Chemical Examiner" — It has been defined in Rule 2(c) to mean "the Chemical Examiner or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government Opium & Alkaloid Works, Neemuch or, as the case may be, Ghazipur."
(Paras 14, 15)
¼v½ Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&37 & tekur dk fujLr gksuk & vkSfpR; dk iz'u & lg&vfHkqDr ds c;ku ds vk/kkj ij vfHk;qDr fxj¶rkj gqvk Fkk ftlds ikl ls 2 fddxzkd otu dk fuf"k) inkFkZ cjken gksuk crk;k x;k Fkk & mDr vfHk;qDrksa ds mijksDr c;kuksa ds vfrfjDr i=koyh esa ,slk vU; dksbZ lk{; miyC/k ugha Fkk ftlls fd mlds fo#) yxk;s x;s vkjksi dks dk;e j[kk tk ldrk & tCr fd;s x;s inkFkZ dks jklk;fud tk¡p gsrq Hkstk x;k Fkk & uewus esa tk¡pksijkUr dksbZ fuf"k) inkFkZ ugha ik;k x;k & vr% ml vfHk;qDr dks tekur ij fjgk dj fn;k x;k & vfHk;kstu }kjk mlds mijkUr nwljk uewuk vU; jklk;fud ijh{kd ds ikl Hkstk x;k tks fd fu;ekuqlkj vf/kdr ugha Fkk & bl uewus esa fuf"k) inkFkZ dk gksuk ik;k x;k & vfHk;qDr dh tekur ckn okys jklk;fud ijh{kd ds vk/kkj ij fujLr dj nh xbZ & fu.kZ; esa dgk x;k fd tekur dk fujLr fd;k tkuk U;k;ksfpr ugha FkkA ¼izLrj 2] 10] 12] 19½ ¼c½ n.M izfd;k lafgrk] 1973] /kkjk&439 vkSj Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&37 & tekur fujLr fd;s tkus dk vk/kkj & ;|fi Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e vius vki esa iw.kZ lafgrk gS rks Hkh n.M izfd;k lafgrk ds izkfo/kkuksa dk ykxw fd;k tkuk Hkh NksM+k ugha x;k gS & tekur Lohdr fd;s tkus ds vkns'k ds fo#) vihy vkSj fdlh tekur dks [kkfjt fd;s tkus ds vkns'k esa fHkérk gS & tcfd tekur [kkfjt djkus ds izkFkZuk i= ij fopkj fd;k x;k gks & ;g fofnr gksxk fd vfHk;qDr }kjk mldks feyh Lora=rk dk nq#i;ksx fd;k x;k Fkk & tgk¡ ij (a) mlds }kjk lk{; [kqnZcqnZ djus dk iz;kl fd;k x;k gS (b) mlds }kjk xokgksa dks izHkkfor djus dk iz;kl fd;k x;k gS (c) vfHk;qDr ds Qjkj gks tkus dh laHkkouk gS vkSj blhfy, ;g Hkh laHkkouk gS fd vfHk;qDr dsl dh lquokbZ ds nkSjku gkftj u gks ldsA ¼izLrj 10½ ¼l½ Lokid vkS"kf/k vkSj eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk&2(c) & jklk;fud ijh{kd dh ifjHkk"kk fu;e 2(c) esa djrs gq, rkRi;Z fdlh jklk;fud ijh{kd vFkok mi eq[; jklk;fud vFkok f'k¶V dSfeLV vFkok lgk;d jklk;fud ijh{kd & 'kkldh; vQhe vkSj vYdksgy dkj[kkuk uhep vFkok xkthiqj tSlk Hkh dsl gksA ¼izLOrj 14] 15½
S.B. Sinha, J. — 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 leveled 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 committe
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