Supreme Court Cancels Bail in NDPS Case: Union of India vs. Md. Nawaz Khan (22 September 2021)

Introduction

Date of the Judgment: 22 September 2021

Citation: 2021 INSC 611

Judges: Dr. Dhananjaya Y Chandrachud, J., B.V. Nagarathna, J.

Can an accused, found traveling in a vehicle carrying a commercial quantity of narcotics, be granted bail simply because the contraband was not found on their person? The Supreme Court of India addressed this critical question in a recent judgment, overturning a High Court decision that had granted bail in such circumstances. This case delves into the interpretation of “conscious possession” under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and the stringent conditions for granting bail in NDPS cases. The judgment was authored by Justice Dr. Dhananjaya Y Chandrachud, with Justice B.V. Nagarathna concurring.

Case Background

On 16 September 2019, the Narcotics Control Bureau (NCB) filed a complaint stating that they received information that three individuals, including Md. Nawaz Khan (the respondent), were transporting heroin/morphine in a Maruti Ritz vehicle from Dimapur, Nagaland, to Rampur, Uttar Pradesh. The vehicle was expected to pass through Lucknow.

Acting on this information, NCB officers, along with the Uttar Pradesh Special Task Force (UP-STF), intercepted the vehicle near Babu Banarasi Das College in Lucknow. A search was conducted in the presence of a gazetted officer, as required under Section 50 of the NDPS Act. While no contraband was found on the persons of the accused, two polythene packets containing a total of 3.300 kg of heroin/morphine were discovered hidden in the car, under the wiper area of the front bonnet.

Since the occupants of the car were not fluent in Hindi or English, an official from the Sashastra Seema Bal (SSB), who knew Manipuri, was called to translate. The statements of the three accused were recorded in English and translated into Manipuri. However, while certifying the respondent’s statement, the SSB official mistakenly mentioned the name of Mohd. Arif Khan (a co-accused) instead of the respondent, Md. Nawaz Khan.

The seized samples were sent to the Central Revenues Control Laboratory (CRCL) for testing. The CRCL report, dated 25 April 2019, indicated that the samples tested positive for morphine but not for heroin.

Call detail records (CDR) obtained from mobile service providers revealed that the respondent was in regular contact with the co-accused and another individual suspected to be involved in drug trafficking.

The Seventh Additional District and Sessions Judge, Lucknow, rejected the respondent’s bail application on 27 June 2019, citing the large quantity of narcotics recovered and the seriousness of the crime. The respondent then appealed to the High Court.

Timeline:

Course of Proceedings

The respondent argued before the High Court that he was merely a passenger in the vehicle driven by a co-accused, Rafiuddin, and that he had no knowledge of the contraband hidden in the car. He also contended that the provisions of Sections 42 and 50 of the NDPS Act were not followed. The respondent further pointed out that the statement recorded under Section 67 of the NDPS Act was not properly explained to him, as the SSB official had certified that the translation was explained to Mohd. Arif Khan, not to him.

The High Court allowed the bail application, observing that the contraband was recovered from the wiper area of the vehicle, not from the respondent’s personal possession. The High Court also noted the discrepancy in the certification of the statement under Section 67, where the name of Mohd. Arif Khan was mentioned instead of the respondent. The High Court further highlighted that the respondent had no prior criminal record.

Legal Framework

The case primarily revolves around the interpretation and application of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Key provisions include:

• Section 8, NDPS Act: This section prohibits any person from possessing any narcotic drug or psychotropic substance.
• Sections 21, 27A, 29, 60(3), NDPS Act: These sections specify the punishments for offences under the NDPS Act, including those related to possession of narcotics.
• Section 37, NDPS Act: This section regulates the grant of bail for offences under the NDPS Act, particularly those involving commercial quantities of narcotics. It imposes stringent conditions for bail, requiring the court to be satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offense while on bail.

  “(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 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be
  released on bail or o n 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 believin g that he is not guilty of such offence and that
  he is not likely to commit any offence while on bail.”

• Section 42, NDPS Act: This section outlines the procedure for entry, search, seizure, and arrest without a warrant. It mandates that an officer, upon receiving information about an offense, must record it in writing and send it to a superior officer within 72 hours.

  “42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an
  officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs,
  revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer
  (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any
  other department of a State Government as is empowered in this behalf by general or special order of the State
  Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or cont rolled substance in respect of which an offence
  punishable under this Act [..];
  (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief
  under the proviso thereto, he shall within seventy -two hours send a copy thereof to his immediate official superior. ”

• Section 50, NDPS Act: This section stipulates the conditions for personal searches of individuals suspected of carrying narcotics.
• Section 54, NDPS Act: This section establishes a presumption of guilt in cases where a person is found to be in possession of a narcotic drug.
• Section 67, NDPS Act: This section empowers officers to record statements of individuals suspected of committing offenses under the NDPS Act.

Arguments

Appellant (Union of India) Arguments:

• The Additional Solicitor General (ASG), appearing for the appellant, conceded that the confessional statement made under Section 67 of the NDPS Act is inadmissible as evidence, as held in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1].
• However, the ASG argued that the High Court had overlooked crucial circumstances while granting bail:
  • A large quantity of morphine (3.300 kg) was recovered from the vehicle.
  • The respondent was traveling in the vehicle from Dimapur to Rampur.
  • Call data records (CDR) indicated that the respondent was in contact with the co-accused.
• The ASG contended that compliance with Section 42 of the NDPS Act is required when searching a private vehicle in a public place and that the complaint indicates such compliance.
• It was argued that whether the provisions of Section 42 of the NDPS Act have been complied with is a matter of trial.
• A presumption under Section 54 of the NDPS Act arises regarding the possession of a narcotic drug found in the conscious possession of the accused.
• The ASG submitted that bail should not have been granted, especially considering the provisions of Section 37(1)(b)(ii) of the NDPS Act, which imposes stringent conditions for bail.
• The ASG also pointed out that the respondent had been avoiding court appearances after being released on bail, leading to the issuance of a non-bailable warrant.

Respondent (Md. Nawaz Khan) Arguments:

• The respondent’s counsel argued that the contraband was concealed in the vehicle and not in the respondent’s conscious possession.
• The respondent was neither the driver nor the owner of the vehicle.
• The counsel contended that the High Court’s order granting bail should not be faulted.
• It was argued that there was non-compliance of the procedural requirement under Section 42 of the NDPS Act. The information was received by the Zonal Director, but the information was put down in writing by an officer who was part of the team constituted on the receipt of the information, and then it was sent to the Zonal Director.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was justified in granting bail to the respondent, particularly when a commercial quantity of contraband was recovered from the vehicle in which the respondent was traveling.
2. Whether the High Court had correctly applied the principles governing the grant of bail under Section 37 of the NDPS Act.
3. Whether the High Court correctly interpreted the concept of “conscious possession” under the NDPS Act.
4. Whether the High Court should have considered the fact that the respondent had been avoiding court appearances after being released on bail.

Treatment of the Issue by the Court:

Authorities

The Supreme Court relied on the following authorities:

Judgment

How each authority was viewed by the Court?

• Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]*: The Court accepted this authority and held that the statement under Section 67 of the NDPS Act is inadmissible.
• Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496]*: The Court relied on this authority to reiterate the factors to be considered while granting bail.
• Mahipal v. Rajesh Kumar @ Polla & Anr. [(2020) 2 SCC 118]*: The Court followed the dual test propounded in this case for assessing bail applications.
• Prabhakar Tewari v. State of Uttar Pradesh [(2020) 11 SCC 648]*: The Court followed this authority to emphasize the dual test for assessing bail applications.
• Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798]*: The Court referred to this authority to reiterate that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act.
• Union of India v. Prateek Shukla [(2021) 5 SCC 430]*: The Court cited this authority to underscore that non-application of mind by the High Court is a ground for cancellation of bail.
• Madan Lal and Another v. State of Himachal Pradesh [(2003) 7 SCC 465]*: The Court referred to this authority to explain the concept of “conscious possession.”
• Dharampal Singh v. State of Punjab [(2010) 9 SCC 608]*: The Court referred to this authority to explain the concept of “conscious possession.”
• Mohan Lal v. State of Rajasthan [(2015) 6 SCC 222]*: The Court referred to this authority to explain the concept of “possession.”
• Union of India v. Rattan Mallik [(2009) 2 SCC 624]*: The Court followed this authority to emphasize that the absence of possession on the person of the accused does not absolve the court from the required level of scrutiny under Section 37(1)(b)(ii) of the NDPS Act.
• Karnail Singh v. State of Haryana [(2009) 8 SCC 539]*: The Court followed this authority to explain that delayed compliance with Section 42 of the NDPS Act is acceptable in certain circumstances.
• Boota Singh v. State of Haryana [2021 SCC OnLine SC 324]*: The Court followed this authority to explain that the issue of compliance of Section 42 is a question of fact.

What weighed in the mind of the Court?

The Supreme Court’s decision to cancel the bail was influenced by a combination of factors, primarily focusing on the stringent requirements of Section 37 of the NDPS Act and the seriousness of the offense. The Court emphasized the following points:

• Commercial Quantity of Narcotics: The recovery of 3.300 kg of morphine, a commercial quantity, was a significant factor. The Court noted that this indicated a serious offense that could not be overlooked.
• Travel with Co-accused: The fact that the respondent was traveling with the co-accused from Dimapur to Rampur was considered crucial. This suggested a level of involvement and knowledge that could not be ignored.
• Call Data Records (CDR): The CDR analysis showing regular contact between the respondent and the co-accused further strengthened the prosecution’s case and undermined the respondent’s claim of innocence.
• Conscious Possession: The Court reiterated the concept of “conscious possession” and stated that once possession is established, the onus is on the accused to prove that it was not a conscious possession. The Court emphasized that the standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.
• Non-compliance with Bail Conditions: The respondent’s consistent absence from court proceedings after being granted bail, leading to the issuance of a non-bailable warrant, was a critical factor that the High Court failed to consider.
• Stringent Bail Conditions: The Court emphasized that Section 37 of the NDPS Act imposes stringent conditions for granting bail, requiring the court to be satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offense while on bail.

Fact:Law Ratio

The Supreme Court’s decision was significantly influenced by the factual circumstances of the case, particularly the recovery of a commercial quantity of narcotics, the respondent’s travel with co-accused, and the CDR analysis. While legal considerations, especially the interpretation of Section 37 of the NDPS Act, were also important, the factual aspects of the case played a more dominant role in the Court’s reasoning.

Logical Reasoning:

Final Order

The Supreme Court set aside the order of the High Court dated 1 October 2020, which had granted bail to the respondent. The Court directed the respondent to surrender to custody within a period of one week from the date of the order. The Court also directed the trial court to expedite the trial and conclude it within a period of six months from the date of the order.

Key Legal Principles

The Supreme Court’s judgment in this case clarifies several important legal principles related to the NDPS Act and the grant of bail:

• Stringent Bail Conditions under Section 37 NDPS Act: The Court reiterated that Section 37 of the NDPS Act imposes stringent conditions for granting bail, particularly in cases involving commercial quantities of narcotics. The court must be satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offense while on bail.
• Concept of “Conscious Possession”: The Court clarified that “conscious possession” is not limited to physical possession on the person of the accused. It can also include possession of narcotics in a vehicle where the accused is traveling, especially when there is evidence of knowledge and involvement. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.
• Importance of Factual Matrix: The Court emphasized that the concept of “conscious possession” has to be determined with reference to the factual backdrop.
• Admissibility of Statements under Section 67 NDPS Act: The Court reaffirmed that statements recorded under Section 67 of the NDPS Act are inadmissible as evidence, following the ruling in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1].
• Compliance with Section 42 NDPS Act: The Court clarified that whether there was compliance with Section 42 of the NDPS Act is a question of fact to be decided in each case. Delayed compliance with a satisfactory explanation is acceptable, especially in emergent situations.
• Cancellation of Bail: The Court reiterated that bail can be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act or if the accused has violated the conditions of bail.

Implications

The Supreme Court’s decision in Union of India vs. Md. Nawaz Khan has significant implications for future cases involving offenses under the NDPS Act. The judgment serves as a reminder to lower courts that:

• Stringent Application of Section 37: Courts must strictly adhere to the stringent conditions for granting bail under Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotics.
• Broad Interpretation of “Conscious Possession”: The concept of “conscious possession” must be interpreted broadly to include situations where narcotics are found in a vehicle in which the accused is traveling, especially when there is evidence of knowledge and involvement.
• Factual Analysis: Courts must not only focus on the recovery of contraband from the person of the accused but also consider the factual matrix of the case, including the circumstances of the recovery, the accused’s association with other individuals involved, and any other relevant evidence.
• Seriousness of NDPS Offenses: Courts must recognize the seriousness of NDPS offenses and the need to prevent the release of accused persons who may be involved in drug trafficking.
• Adherence to Bail Conditions: Courts must take a serious view of instances where accused persons violate the conditions of bail, such as by failing to appear in court.

This judgment reinforces the strict approach that the Supreme Court takes towards drug-related offenses and emphasizes the importance of adhering to the stringent requirements of the NDPS Act. It also clarifies the concept of “conscious possession,” making it clear that it is not limited to physical possession on the person of the accused.