Supreme Court Sets Aside Bail in NDPS Act Case Involving Commercial Quantity of Ganja: Union of India vs. Ajay Kumar Singh (2023)

Introduction

Date of the Judgment: March 28, 2023

Citation: Criminal Appeal No. of 2023 (Arising out of SLP(CRL.)No.2351 OF 2023)

Judges: V. Ramasubramanian, J., Pankaj Mithal, J.

Can an accused, allegedly the kingpin of a drug trafficking operation, be granted bail simply because other, less culpable co-accused have been? The Supreme Court of India recently addressed this crucial question while setting aside a High Court order that granted bail to an accused charged under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The court emphasized the stringent conditions for bail under Section 37 of the NDPS Act, particularly when commercial quantities of narcotics are involved. The judgment was delivered by a two-judge bench comprising Justices V. Ramasubramanian and Pankaj Mithal, with Justice Pankaj Mithal authoring the opinion.

Case Background

On January 11, 2021, the Directorate of Revenue Intelligence (DRI), Varanasi, received information about a large consignment of “ganja” being transported in a truck from Bhadrachalam (Andhra Pradesh) to Jaunpur (Uttar Pradesh) via Varanasi. The truck, bearing registration number AP-05-W-8699, was intercepted near Raja Talab. The driver, Om Prakash Yadav, and the helper, Amit Yadav, were in the truck. Initially, they claimed to be carrying cattle feed, but a search revealed 1005 packets containing 3971.600 kg of ganja.

Om Prakash Yadav stated that he was transporting the ganja for one Bittu Dada of Jamshedpur, and on the instructions of Shri Ram Pravesh Yadav. He also stated that the respondent-accused, Ajay Kumar Singh @ Pappu, had provided him with the truck and was involved in the illicit trade of ganja. Amit Yadav also corroborated this information, and stated that they were in constant contact with the respondent-accused. The investigation revealed that the respondent-accused was the main organizer of the drug trafficking operation. The respondent-accused had been evading arrest for over a year and was eventually arrested from a restaurant in Raipur.

Timeline

Course of Proceedings

The High Court of Judicature at Allahabad granted bail to the respondent-accused, Ajay Kumar Singh @ Pappu, citing the larger mandate of Article 21 of the Constitution of India and relying on the Supreme Court’s decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr. The High Court also considered that the main accused persons, Om Prakash Yadav and Amit Yadav, had already been granted bail.

The Supreme Court, upon hearing the Special Leave Petition filed by the Union of India, suspended the High Court’s bail order on February 13, 2023.

Legal Framework

The case primarily revolves around Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. This section imposes stringent conditions for granting bail to individuals accused of offenses involving commercial quantities of narcotics.

Section 37(1) of the NDPS Act 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.”

This provision makes it clear that bail cannot be granted unless 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.

Arguments

The appellant, Union of India, argued that the High Court erred in granting bail to the respondent-accused because the conditions stipulated in Section 37 of the NDPS Act were not met. The Union of India contended that the respondent-accused was the main organizer of the drug trafficking operation and that his role was significantly different from that of the other co-accused who were merely vicarious agents.

The respondent-accused, on the other hand, likely argued that since the other co-accused had been granted bail, he should also be granted bail, especially considering the mandate of Article 21 of the Constitution of India regarding personal liberty. The respondent may have relied on the decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr to argue for bail.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in the judgment. However, the core issue before the court was:

✓ Whether the High Court was justified in granting bail to the respondent-accused, considering the provisions of Section 37 of the NDPS Act, especially when the accused is alleged to be involved in the trade of commercial quantity of narcotics.

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

The Supreme Court set aside the High Court’s order granting bail to the respondent-accused. The Court held that the High Court had overlooked the provisions of Section 37 of the NDPS Act, which mandates that no person accused of an offense involving commercial quantity of narcotics shall be released on bail unless the twin conditions are met.

How each authority was viewed by the Court?

✓ Satender Kumar Antil v. Central Bureau of Investigation and Anr [(2022) SCC online SC 825]*: The Supreme Court distinguished this case, stating that it was not applicable to the facts of the present case. The High Court had misapplied the principles laid down in this case.

✓ Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985: The Supreme Court emphasized that the High Court had failed to consider the requirements of Section 37, which mandates that no person accused of an offense involving commercial quantity of narcotics shall be released on bail unless the twin conditions are met.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the stringent provisions of Section 37 of the NDPS Act and the respondent-accused’s role as the main organizer of the drug trafficking operation. The court emphasized that the High Court had failed to record any finding that the respondent-accused was not prima facie guilty and that he was not likely to commit the same offense while on bail. The court also took into consideration the respondent-accused’s past involvement in similar crimes.

The court’s reasoning can be summarized in the following logical flowchart:

The Supreme Court emphasized the importance of adhering to the strict conditions laid down in Section 37 of the NDPS Act. The court observed that the High Court had not recorded any finding that the respondent-accused was not prima facie guilty of the offense and that he was not likely to commit the same offense while on bail. The court noted that the respondent-accused had a history of similar offenses, which further weighed against granting bail.

The Supreme Court quoted:

“In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.”

“The quantity of “ganja” recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent -accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender.”

“In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent -accused on bail.”

There was no minority opinion in this case.

Key Takeaways

• The Supreme Court has reinforced the strict conditions for granting bail under Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotics.
• Bail cannot be granted simply because co-accused have been granted bail, especially when the role of the accused is significantly different.
• High Courts must record satisfaction that the accused is not prima facie guilty and is not likely to commit the same offense while on bail, before granting bail in NDPS cases involving commercial quantities.
• Past involvement in similar crimes is a relevant factor to be considered while deciding bail applications in NDPS cases.

Directions

The Supreme Court set aside the impugned final order dated 17.10.2022 passed by the High Court of Judicature at Allahabad and allowed the appeal.

Development of Law

The ratio decidendi of the case is that the High Court cannot grant bail to an accused in a case involving commercial quantity of narcotics under the NDPS Act without satisfying the twin conditions mentioned in Section 37 of the NDPS Act. This judgment reinforces the strict interpretation of Section 37 and clarifies that the mere fact that other co-accused have been granted bail does not automatically entitle an accused to bail, especially if the accused has a more significant role in the crime.

Conclusion

The Supreme Court’s decision in Union of India vs. Ajay Kumar Singh @ Pappu underscores the stringent legal framework governing bail in cases involving drug trafficking, particularly when commercial quantities are involved. The judgment serves as a reminder to High Courts to meticulously adhere to the conditions laid down in Section 37 of the NDPS Act before granting bail. The ruling reinforces the principle that the role of the accused and their past criminal history are crucial factors in determining bail applications.