Supreme Court sets aside bail in NDPS case involving commercial quantity of Ganja: Union of India vs. Ajay Kumar Singh (2023)

Date of the Judgment: March 28, 2023

Citation: 2023 INSC 312

Judges: Justice V. Ramasubramanian and Justice Pankaj Mithal

Can an accused involved in large-scale drug trafficking be granted bail merely because other co-accused with lesser roles have been released? This question was at the heart of a recent Supreme Court case. The court addressed whether the High Court was justified in granting bail to an accused charged with offences under the NDPS Act, particularly when the stringent conditions of Section 37 of the NDPS Act were not met. The Supreme Court bench comprised of Justice V. Ramasubramanian and Justice Pankaj Mithal, with the judgment authored by Justice Pankaj Mithal.

Case Background

The case revolves around the seizure of a large quantity of ganja (3971.600 kg) from a truck in Uttar Pradesh on January 11, 2021. The Directorate of Revenue Intelligence (DRI), Varanasi, acted on a tip-off that a truck was transporting narcotics from Andhra Pradesh to Uttar Pradesh. The truck was intercepted near Raja Talab, and the driver, Om Prakash Yadav, and his helper, Amit Yadav, were arrested. Upon searching the truck, a substantial amount of ganja was discovered.

During the investigation, Om Prakash Yadav and Amit Yadav revealed that they were working for one Bittu Dada of Jamshedpur and that the respondent-accused, Ajay Kumar Singh @ Pappu, was the mastermind behind the illicit trade. They stated that Ajay Kumar Singh had provided them with the truck loaded with ganja for delivery in exchange for Rs. 50,000. The investigation also revealed that the respondent-accused was in constant contact with the other two accused via mobile phone.

The respondent-accused, Ajay Kumar Singh, evaded arrest for over a year before being apprehended in Raipur. It was also found that Ajay Kumar Singh had a history of involvement in similar crimes.

Timeline:

Course of Proceedings

The High Court of Judicature at Allahabad granted bail to the respondent-accused, Ajay Kumar Singh, primarily because the other two co-accused, Om Prakash Yadav and Amit Yadav, had already been granted bail. The High Court also cited Article 21 of the Constitution of India and the Supreme Court’s decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr., (2022) SCC online SC 825. However, the Supreme Court, upon hearing the appeal, suspended the High Court’s order, noting that the respondent-accused had not participated in the investigation and had avoided arrest for over a year.

Legal Framework

The case is primarily governed by the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), specifically Sections 8, 20, 27-A, 29, and 32. The central legal provision in question is Section 37 of the NDPS Act, which imposes stringent conditions for granting bail in cases 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 for offences involving commercial quantities of narcotics, bail cannot be granted unless the Public Prosecutor is given an opportunity to oppose the bail 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 offence while on bail. This provision is an exception to the general rule of “bail is the rule and jail is the exception”.

Arguments

Appellant (Union of India):

• The Additional Solicitor General, appearing for the Union of India, argued that the High Court erred in granting bail to the respondent-accused, Ajay Kumar Singh, by not considering the stringent conditions laid down in Section 37 of the NDPS Act.

• The Union of India contended that the High Court had overlooked the fact that the respondent-accused was the main person involved in drug trafficking, while the other two accused were merely his agents. The main submission was that the role of the respondent-accused was clearly different from that of the driver and the helper.

• It was emphasized that the High Court did not record any finding that the respondent-accused was not prima facie guilty of the offence or that he was not likely to commit the same offence if released on bail. The antecedents of the respondent-accused indicated that he was a regular offender.

• The Union of India pointed out that the quantity of ganja recovered was of commercial quantity, making the conditions under Section 37 of the NDPS Act applicable.

Respondent (Ajay Kumar Singh):

• The Advocate-on-Record, appearing for the respondent, argued that the High Court had correctly granted bail to the respondent-accused, as the other two co-accused had also been granted bail. The main submission was that parity should be maintained in granting bail to all the accused.

• The respondent-accused relied on the larger mandate of Article 21 of the Constitution of India, which protects personal liberty, and the decision of the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation and Anr., (2022) SCC online SC 825, to support the grant of bail.

• The respondent-accused did not specifically address the conditions of Section 37 of the NDPS Act and did not argue that he was not guilty of the offence or that he was not likely to commit the offence while on bail.

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-accused, Ajay Kumar Singh, without adhering to the conditions stipulated under Section 37 of the NDPS Act, especially considering his role as the main accused in the drug trafficking and the commercial quantity of narcotics involved.

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 legal provision:

• Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985: This section outlines the conditions for granting bail in cases involving offences under the NDPS Act, particularly those involving commercial quantities of narcotics. The court emphasized that the conditions under Section 37 must be strictly adhered to before granting bail.

The Supreme Court also considered the following case:

• Satender Kumar Antil v. Central Bureau of Investigation and Anr. (2022) SCC online SC 825: The High Court had relied on this case to grant bail. However, the Supreme Court distinguished this case, stating that it does not override the specific conditions stipulated under Section 37 of the NDPS Act.

Judgment

How each authority was viewed by the Court?

• Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985: The Court emphasized the mandatory nature of the conditions stipulated in this section and held that the High Court erred in not adhering to these conditions.
• Satender Kumar Antil v. Central Bureau of Investigation and Anr., (2022) SCC online SC 825: The Court distinguished this case, stating that it does not override the specific conditions stipulated under Section 37 of the NDPS Act.

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. The Court emphasized that when dealing with offences involving commercial quantities of narcotics, the conditions for granting bail are not merely procedural but are substantive and must be strictly adhered to. The Court was also swayed by the fact that the respondent-accused was the main person in drug trafficking, and his role was significantly different from the other co-accused who were merely his agents. The court also took into account the fact that the respondent-accused had a history of similar offences.

Logical Reasoning:

The Supreme Court considered the alternative interpretation that the High Court’s decision was in line with the principles of personal liberty and parity with other co-accused. However, the Court rejected this interpretation, holding that the specific conditions under Section 37 of the NDPS Act could not be overlooked. The Court reasoned that the respondent-accused was the main person in drug trafficking, and the stringent provisions of the NDPS Act were specifically designed to address such cases. The final decision was reached by emphasizing the mandatory nature of Section 37 and the need to deter drug trafficking.

The Court’s decision was based on the following reasons:

• The High Court failed to consider the mandatory conditions laid down in Section 37 of the NDPS Act.
• The High Court did not record any finding that the respondent-accused was not prima facie guilty of the offence or that he was not likely to commit the same offence while on bail.
• The respondent-accused was the main person in drug trafficking, and his role was different from that of the other co-accused.
• The quantity of ganja recovered was of commercial quantity, making the conditions under Section 37 of the NDPS Act applicable.

The Supreme Court quoted the following from the judgment:

“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. The judgment was delivered by a bench of two judges, with Justice Pankaj Mithal authoring the opinion.

The Supreme Court’s decision reinforces the strict interpretation of Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotics. It emphasizes that the conditions for bail under this section are not mere formalities but are substantive requirements that must be met. This decision has implications for future cases involving drug trafficking, as it clarifies that bail cannot be granted merely on the basis of parity with other co-accused or on general principles of personal liberty, without adhering to the specific conditions under Section 37 of the NDPS Act.

Key Takeaways

• Bail in cases involving commercial quantities of narcotics under the NDPS Act is subject to stringent conditions under Section 37.
• Courts must record a finding that the accused is not prima facie guilty and is unlikely to commit the same offence while on bail before granting bail.
• Parity with other co-accused is not a sufficient ground for granting bail if the conditions under Section 37 of the NDPS Act are not met.
• The role of the accused in drug trafficking is a significant factor in determining bail applications.
• The decision reinforces the strict interpretation of Section 37 of the NDPS Act and its importance in deterring drug trafficking.

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, thereby cancelling the bail granted to the respondent-accused, Ajay Kumar Singh.

Development of Law

The ratio decidendi of this case is that in cases involving commercial quantities of narcotics under the NDPS Act, the conditions for granting bail under Section 37 are mandatory and must be strictly adhered to. The court has clarified that bail cannot be granted merely on the basis of parity with other co-accused or on general principles of personal liberty, without adhering to the specific conditions under Section 37 of the NDPS Act. This judgment reinforces the strict interpretation of Section 37 and its importance in deterring drug trafficking.

Conclusion

In Union of India vs. Ajay Kumar Singh @ Pappu, the Supreme Court overturned the High Court’s decision to grant bail to an accused involved in drug trafficking of commercial quantity of ganja. The Supreme Court emphasized the stringent conditions for bail under Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotics. The Court clarified that bail cannot be granted merely on the basis of parity with other co-accused or on general principles of personal liberty, without adhering to the specific requirements of Section 37 of the NDPS Act. This decision underscores the importance of strict adherence to the law in cases involving drug trafficking and reinforces the need to deter such crimes.