Supreme Court overturns bail in NDPS case due to Section 37 restrictions: Narcotics Control Bureau vs. Mohit Aggarwal (19 July 2022)

Date of the Judgment: 19 July 2022

Citation: Criminal Appeal Nos. 1001-1002 of 2022 (Arising out of Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 of 2021)

Judges: N.V. Ramana (CJI), Krishna Murari, and Hima Kohli JJ.

Can a High Court grant bail to an accused in a narcotics case involving commercial quantities of drugs, despite the stringent conditions laid down in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985? The Supreme Court of India addressed this critical question in the case of Narcotics Control Bureau vs. Mohit Aggarwal. This judgment clarifies the limitations on granting bail under the NDPS Act, emphasizing that the restrictions under Section 37 are in addition to those under the Code of Criminal Procedure, 1973. The bench, comprising Chief Justice N.V. Ramana and Justices Krishna Murari and Hima Kohli, delivered a unanimous verdict, with the opinion authored by Justice Hima Kohli.

Case Background

On 9th January 2020, the Narcotics Control Bureau (NCB) received secret information about a parcel booked by Gaurav Kumar Aggarwal from Agra, intended for delivery to Manoj Kumar in Ludhiana, Punjab. The parcel, stored at a courier company’s godown in Delhi, was suspected to contain narcotic drugs. Upon searching the parcel in the presence of independent witnesses, NCB officials discovered 50,000 Tramadol tablets weighing 20 kgs. The tablets were mis-declared as “surgical items” and lacked a valid bill.

Gaurav Kumar Aggarwal, in his statement under Section 67 of the NDPS Act, disclosed that he had purchased the Tramadol tablets from the respondent, Mohit Aggarwal, without a bill or prescription. He also mentioned that Mohit Aggarwal had purchased these medicines from Promod Jaipuria, who had a godown in Agra. Based on this information, the NCB team, accompanied by Gaurav Kumar Aggarwal, proceeded to Mohit Aggarwal’s premises. Mohit Aggarwal, in his statement under Section 67 of the NDPS Act, admitted to illegally selling and purchasing tablets from Promod Jaipuria. Following this, a search was conducted at Promod Jaipuria’s godown, leading to the recovery of a large quantity of drugs including 6,64,940 tablets of different psychotropic substances weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms were recovered from the premises of co-accused, Manoj Kumar at Ludhiana.

Mohit Aggarwal was arrested on 11th January 2020. His bail applications were rejected by the Special Judge, NDPS. Subsequently, the High Court of Delhi granted him bail, which led to the NCB filing an appeal before the Supreme Court.

Timeline

Course of Proceedings

The respondent, Mohit Aggarwal, initially had his bail applications rejected by the Special Judge, NDPS. He then appealed to the High Court of Delhi under Section 439 of the Code of Criminal Procedure, 1973, which granted him bail. The Narcotics Control Bureau (NCB) then appealed to the Supreme Court, challenging the High Court’s decision to grant bail.

Legal Framework

The core legal provision in this case is Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. This section imposes stringent conditions for granting bail to individuals accused of offences involving commercial quantities of narcotic drugs. Specifically, it states:

“[37. 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 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] 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.]”

This provision makes it clear that bail cannot be granted unless the Public Prosecutor has been given an opportunity to oppose the application, and the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is unlikely to commit any offense while on bail. These conditions are in addition to those under the Code of Criminal Procedure, 1973.

Arguments

Appellant (Narcotics Control Bureau) Arguments:

• The High Court erred in observing that no incriminating material was recovered from the respondent’s residence.
• The High Court overlooked that the seizure of drugs from Promod Jaipuria’s godown was based on disclosures made by the respondent.
• The High Court failed to apply the restrictions under Section 37 of the NDPS Act, as the offense involved commercial quantities of drugs.
• The respondent was part of an organized gang involved in drug smuggling, thus having constructive/conscious possession of the contraband.
• Sufficient circumstantial evidence was available against the respondent to deny bail.

Respondent (Mohit Aggarwal) Arguments:

• The High Court rightly granted bail after the respondent had been in custody for a year and three months.
• The respondent has not violated any bail conditions.
• The respondent did not book the consignment of drugs.
• No recovery of drugs was made from the respondent, and nothing incriminating was found at his residence or shop.
• The respondent is a small-time shopkeeper with no connection to the other co-accused.
• The respondent’s name surfaced only through the statement of co-accused Gaurav Kumar Aggarwal under Section 67 of the NDPS Act.
• Both the respondent and Gaurav Kumar Aggarwal retracted their statements recorded under Section 67 of the NDPS Act.
• The Supreme Court’s ruling in Tofan Singh v. State of Tamil Nadu [2020 SCC Online SC 882] makes confessional statements under Section 67 of the NDPS Act inadmissible.
• The charge-sheet had been filed, and no other incriminating material was available besides the retracted confessional statements.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the court addressed was:

1. Whether the High Court was justified in granting bail to the respondent under Section 439 of the Code of Criminal Procedure, 1973, despite the restrictions imposed by Section 37 of the NDPS Act, considering the commercial quantity of drugs involved and the circumstances of the case.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• Collector of Customs, New Delhi v. Ahmadalieva Nodira [2004 3 SCC 549]: The Court relied on this case to emphasize that “reasonable grounds” under Section 37 of the NDPS Act require more than prima facie grounds.
• State of Kerala and others Vs. Rajesh and others [2020 12 SCC 122]: The Court used this case to reinforce the interpretation of “reasonable grounds” as requiring substantial probable causes to believe the accused is not guilty.
• Tofan Singh v. State of Tamil Nadu [2020 SCC Online SC 882]: The Court acknowledged that confessional statements under Section 67 of the NDPS Act are inadmissible, but noted that other evidence existed against the respondent.
• Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985: The Court interpreted and strictly applied the conditions for granting bail under this section, emphasizing its restrictive nature.
• Section 439 of the Code of Criminal Procedure, 1973: The Court clarified that the limitations of Section 37 of the NDPS Act are in addition to the limitations under Section 439 of the Code of Criminal Procedure, 1973.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the stringent requirements of Section 37 of the NDPS Act. The Court emphasized that the conditions for granting bail under this section are cumulative and not alternative. The court was persuaded by the fact that the respondent’s disclosures led to the recovery of a large quantity of drugs from the godown of the co-accused, Promod Jaipuria. This was considered a crucial piece of circumstantial evidence that implicated the respondent in the drug trafficking network. Despite the inadmissibility of the confessional statement under Section 67 of the NDPS Act, the Court found that other circumstantial evidence, such as the respondent’s disclosure leading to the drug recovery and the CDR details, were sufficient to conclude that there were no reasonable grounds to believe that the respondent was not guilty.

Logical Reasoning:

The Court considered the arguments that the respondent was a small-time shopkeeper and that no drugs were recovered from his possession. However, it was not persuaded by these arguments. The Court emphasized that the restrictions under Section 37 of the NDPS Act are in addition to those under the Code of Criminal Procedure, 1973, and that the High Court’s approach was too liberal in the matter of bail under the NDPS Act. The Supreme Court also clarified that at the stage of examining an application for bail, the court is not required to record a finding that the accused person is not guilty, but it must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offense.

The Court stated:

“The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”

The Court also noted:

“Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act.”

The Supreme Court explicitly rejected the High Court’s conclusion that the respondent was not guilty because no drugs were found in his possession, stating:

“We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.”

Key Takeaways

• Stringent application of Section 37 of the NDPS Act is crucial for granting bail in cases involving commercial quantities of narcotics.
• The conditions under Section 37 are cumulative, requiring both an opportunity for the Public Prosecutor to oppose bail and the court’s satisfaction that there are reasonable grounds to believe the accused is not guilty.
• Retracted confessional statements under Section 67 of the NDPS Act are inadmissible but do not negate the impact of other circumstantial evidence.
• The court must focus on the availability of reasonable grounds to believe the accused is not guilty, not on whether the accused is ultimately proven guilty.
• The length of custody and the filing of a charge sheet are not persuasive grounds for granting bail under Section 37 of the NDPS Act.

Directions

The Supreme Court directed that the impugned order releasing the respondent on post-arrest bail is quashed and set aside. The bail bonds of the respondent were cancelled, and he was directed to be taken into custody forthwith.

Development of Law

The ratio decidendi of this case is that the stringent conditions for bail under Section 37 of the NDPS Act must be strictly applied, especially in cases involving commercial quantities of narcotics. The Supreme Court clarified that the limitations under Section 37 are in addition to those under the Code of Criminal Procedure, 1973, and that the court must be satisfied that there are reasonable grounds to believe the accused is not guilty. This judgment reinforces the strict approach to bail in NDPS cases and emphasizes the importance of considering all circumstantial evidence, even if confessional statements are inadmissible.

Conclusion

The Supreme Court’s decision in Narcotics Control Bureau vs. Mohit Aggarwal underscores the stringent nature of Section 37 of the NDPS Act. The Court overturned the High Court’s decision to grant bail, emphasizing that the conditions under Section 37 must be strictly adhered to. This judgment serves as a reminder of the strict approach to bail in cases involving commercial quantities of narcotics and highlights the importance of considering all circumstantial evidence, even if confessional statements are inadmissible. The Supreme Court’s decision reinforces that the court must be satisfied that there are reasonable grounds to believe the accused is not guilty, and not on whether the accused is ultimately proven guilty.