SUPREME COURT REITERATES PARAMETERS FOR GRANT OF BAIL UNDER NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT 1985

In a recent Special Leave Petition (Criminal), a three Judge Bench of the Supreme Court, comprising of Chief Justice N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli passed an Order and Judgement dated 19.07.2022 in ‘Narcotics Control Bureau v. Mohit Aggarwal, Special Leave Petition (Criminal) No. 6128-29 OF 2021’ and set aside the Order and Judgement dated 16.03.2021 passed by the High Court of Delhi, and held that the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence, before granting bail under Narcotic Drugs And Psychotropic Substances Act (NDPS) Act 1985.

In this case, the officials of the Narcotics Control Bureau (NCB) received a secret information on 09.01.2020 that one parcel had been booked by one, Gaurav Kumar Aggarwal, to be delivered to Mr. Manoj Kumar at Ludhiana, Punjab and was stored at the godown of a courier company at New Delhi, suspected to contain NRX Tablets, which is a narcotic drug. The NCB Team reached the said godown and conducted search proceedings. The suspected parcel was identified and opened in the presence of two independent witnesses from amongst the staff members of the courier company. The said parcel was opened and 50,000 Tramadol Tablets weighing 20 kgs were recovered. As the Tablets contained in the suspected parcel had been mis-declared and were without any valid bill, seizure proceedings were initiated by the officials of the NCB. The Accused Gaurav Kumar Aggarwal made a voluntary statement to NCB officials and stated that he had booked the parcel through a courier company to be delivered to Manoj Kumar and that he had purchased the Tramadol Tablets recovered during the search proceedings from one, Mohit Aggarwal (Respondent), without any bill or prescription. He further stated that the Respondent had purchased the above medicines from one, Promod Jaipuria alias Davinder Khandelwal, and that the son-in-law of Promod Jaipuria used to look after his business in Agra and that he had a godown where the drugs were stored. He also disclosed that he knew where the residence and the shop of the Respondent were located and he could identify them. Accordingly, the Accused, Gaurav Kumar Aggarwal accompanied the Raiding Team to the Respondent’s premises. The Raiding Team proceeded to the godown of Promod Jaipuria and conducted a search during which a number of drugs covered under the NDPS Act, were recovered.

The Respondent in a statement made under Section 67 of the NDPS Act (Power to call for information, etc) disclosed that he had been illegally selling and purchasing the said Tablets and capsules from Promod Jaipuria. Section 67 of the NDPS Act empowers the officials of NCB to call for information from any person suspected to have omitted an offence under the NDPS Act. The Respondent was thus taken into custody on 11.01.2020.

He moved two Applications for grant of bail before the learned Special Judge, NDPS. Both the Applications were rejected by the Special Judge, NDPS. Aggrieved by the Order dated 21.07.2020, whereby his second Bail Application was dismissed, the Respondent filed a Petition under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) (Special powers of High Court or Court of Session regarding bail) before the High Court of Delhi for grant of bail. The High Court vide Order dated 16.03.2021, granted bail to the Respondent.

The NCB filed an Appeal before the Supreme Court against the Order dated 16.03.2021, passed by the High Court of Delhi. The Apex Court considered Section 37 of the NDPS Act (Offences to be cognizable and non-bailable) which lays down certain limitations on the power of the Court to grant bail to an accused under the NDPS Act. The Supreme Court observed as follows:

“It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.”

The Apex Court, then discussed the expression “reasonable grounds” and held that reasonable grounds would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. The Supreme Court, further observed that in the present case, the narrow parameters of bail available under Section 37 of the NDPS Act, were not satisfied. Therefore, the Apex Court set aside the Order dated 16.03.2021, passed by the High Court and directed the Respondent to be taken into custody.

Anuradha Kumari

Associate

The Indian Lawyer & Allied Services

Edited by

Sushila Ram Varma

Chief Consultant and Editor

The Indian Lawyer & Allied Services