1. Appeal against grant of bail for alleged possession of 400 kg poppy straw under NDPS Act. (Para 1 , 2 )
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SUPREME COURT OF INDIA
Arijit Pasayat, D.K. Jain, JJ
Union of India – Appellant
Versus
Shiv Shanker Kesari – Respondent
Appeal (crl.) 1223 of 2007 | SLP (Crl.) No. 5621 of 2005
Advocates:
SUSHMA SURI
SUSHMA SURI
Bail under Section 37 of the NDPS Act can only be granted if the court records satisfaction on two mandatory conditions: that there are reasonable grounds to believe the accused is not guilty and that they are unlikely to commit any offence while on bail.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act - Grant of Bail - Section 37 - Statutory Conditions - For granting bail under Section 37, the court must be satisfied of two mandatory conditions: (i) there are reasonable grounds for believing that the accused is not guilty of such offence, and (ii) the accused is not likely to commit any offence while on bail. Both conditions must be satisfied for the bar to be lifted. (Para 6)
(B) Statutory Interpretation - 'Reasonable Grounds' - Meaning - The expression 'reasonable grounds' signifies something more than prima facie grounds; it connotes substantial probable causes based on facts and circumstances sufficient to justify the satisfaction that the accused is not guilty. (Para 7, 10)
(C) Procedural Requirement - Recording of Satisfaction - The court is not required to pronounce a judgment of acquittal but must record its satisfaction regarding the existence of reasonable grounds for believing the accused is not guilty and that they are unlikely to commit further offences. (Para 11, 12)
Issues: Whether the High Court was justified in granting bail without recording satisfaction on the mandatory parameters prescribed under Section 37 of the NDPS Act.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Appellant argued bail conditions under Section 37 NDPS Act were not met; respondent argued lack of exclusive possession and no criminal history. (Para 3 , 4 )
3. High Court did not record satisfaction that accused was not guilty or not likely to reoffend as required by Section 37. (Para 13 )
4. Under Section 37(1)(b)(ii), both conditions—reasonable grounds for believing accused not guilty and not likely to reoffend—must be satisfied for bail. (Para 6 )
5. Bail set aside; High Court to reconsider afresh after accused surrenders to custody, applying Section 37 parameters. (Para 14 , 15 )
6. What are the conditions for granting bail under Section 37 of the NDPS Act?
Both conditions must be satisfied: reasonable grounds for believing the accused is not guilty and that the accused is not likely to commit any offence while on bail. (Para 5 , 6 )
7. What does 'reasonable grounds' mean in the context of Section 37 of the NDPS Act?
'Reasonable grounds' means something more than prima facie grounds, connoting substantial probable causes for believing the accused is not guilty of the offence charged. (Para 7 )
8. Is the court required to record a finding of not guilty when considering bail under Section 37 of the NDPS Act?
No, the court is not called upon to record a finding of not guilty; it is only to see if there are reasonable grounds for believing the accused is not guilty. (Para 11 )
9. What additional finding must the court record when granting bail under Section 37 of the NDPS Act?
The court must also record a finding that while on bail the accused is not likely to commit any offence, and there must be some materials to support that conclusion. (Para 12 )
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 1223 OF 2007
(Arising out of SLP (Crl.) No. 5621 of 2005)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the grant of bail by a learned Single Judge of the Allahabad High Court to the respondent who was charged for alleged commission of offence punishable under Sections 8, 15, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Allegation was that he was found to be in possession of huge quantity of poppy straw. It is the case of the prosecution that the raiding party seized nearly 400 Kg. of poppy straw from the possession of the accused-respondent. The prayer for bail made by the respondent was rejected by learned Special Judge (NDPS Act), Varanasi. The High Court by the impugned order accepted the prayer for bail on the ground that the recovery was not from the exclusive possession of the accused-respondent and other members of the family were involved in the case. It was noted that the respondent has been acquitted in certain criminal trials. Accordingly, the prayer for grant of bail was allowed.
3. According to learned counsel for the appellant the parameters of Section 37 of the Act have not been kept in view. It was pointed out that huge quantity of poppy straw was recovered from the possession of the respondent from house No.K-63/121, Gola Deena Nath, Varanasi. It is submitted that the prayer for bail made by the respondent was rejected by the Special Judge. It is submitted that Section 37 of the Act specifically dealing with the background facts. Bail can only be granted on fulfilment of two conditions i.e. (i) where there are reasonable grounds for believing that he is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail. It is pointed out that while accepting the prayer for bail has not recorded any finding that there are reasonable grounds for believing that the accused was not guilty. Further, no finding has been recorded that he is not likely to commit any offence while on bail.
4. Learned counsel for the respondent on the other hand submitted that the prosecution has failed to establish exclusive possession and the applicant-respondent had no criminal history. Therefore, it was submitted that the order of the High Court does not suffer from any infirmity.
5. Section 37 of the Act reads as follows:
"Offences to be cognizable and non-bailable-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
6. As the provision itself provides no person shall be granted bail unless the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not fulfilled, the bar operates and the accused cannot be released on bail.
7. The expression used in Section 37 (1) (b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and
