Supreme Court Upholds Bail for Most Accused, Cancels Bail for One in NDPS Case (2022)

Date of the Judgment: 10 January 2022

Citation: Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021

Judges: N.V. Ramana (Chief Justice of India), Surya Kant J., Hima Kohli J. (Majority Opinion authored by Hima Kohli J.)

Can confessional statements made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) be the sole basis for denying bail? The Supreme Court of India recently addressed this crucial question while hearing multiple appeals related to bail granted under the NDPS Act. The court examined whether the High Court of Karnataka correctly applied the stringent conditions for granting bail under Section 37 of the NDPS Act. This judgment clarifies the evidentiary value of confessional statements and the criteria for bail in NDPS cases.

Case Background

On March 22, 2019, the Narcotics Control Bureau (NCB) received information about two individuals, Nausheer Mohammed [A-1] and Noushad Mannakkamvalli [A-2], planning to transport drugs to Doha via Oman Airways from Bengaluru International Airport. Upon searching their luggage, NCB officers seized 4.525 kg of Hashish, 965 grams of Amphetamine, and 30 grams of Cocaine. Following this, Pallulabid Ahamad Arimutta and Mohammed Majid Saleem were arrested as Accused Nos. 3 and 4 in NCB Case FN No. 48/01/03/2019/BZU (the first case).

Further investigation led to the arrest of Mohammed Afzal [A-6], based on call detail records (CDR) showing his communication with A-2 and Abu Thahir @ Abdu [A-5]. A-5’s statement under Section 67 of the NDPS Act indicated that he and A-6 had arranged the drugs for A-1 and A-2. Munees Kavil Paramabath [A-8] was also implicated through CDR analysis and A-5’s statement, which alleged A-8 financed the drugs. Abu Thahir @ Abdu [A-5] and Sabir Bayan [A-7] were arrested based on statements from other accused and the recovery of A-1’s flight tickets from A-5 and A-6’s residence.

In a separate incident, on June 15, 2019, NCB officers apprehended Abu Thahir @ Abdu and Mohammed Afzal, along with Khushboo Sharma and Mohammad Asif, at Bengaluru Airport for alleged drug trafficking to Doha. Khushboo Sharma was found with 510 grams of Methamphetamine concealed in sanitary napkins. A subsequent search of a flat occupied by A-1 and A-2 yielded substantial quantities of drugs, including 330 grams of Methamphetamine, 13.680 kg of Hashish, 2.850 kg of Hashish Oil, 9.050 kg of Ganja, and 4586 Lyrica capsules. Mohammed Afzal [A-2] was specifically implicated due to the drugs found at his residence and in Khushboo Sharma’s possession.

Munees Kavil [A-5] was also arrested in the second case based on A-1’s statement under Section 67 of the NDPS Act, alleging that A-5 had previously sent drugs to Doha and financed the drug business.

Timeline

Course of Proceedings

The High Court of Karnataka granted bail to the respondents in the connected cases through a series of orders. These orders, dated 16th September 2019, 14th January 2020, 16th January 2020, 19th December 2019, 8th January 2020 and 20th January 2020, released the accused on bail for offences under Sections 8(c), 8A read with Sections 20(b), 21, 22, 27A, 27B, 28 and 29 of the NDPS Act. The NCB challenged these orders, arguing that the High Court did not properly consider the restrictions on bail under Section 37 of the NDPS Act. The NCB contended that the High Court erroneously concluded that there were reasonable grounds to believe the accused were not guilty and that they would not commit further offences while on bail.

Legal Framework

The core legal issue revolves around the interpretation and application of Section 37 of the NDPS Act, which imposes stringent conditions for granting bail. This section states that a person accused of offences under the NDPS Act shall not be released on bail unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that they are not likely to commit any offence while on bail. The Supreme Court also considered the impact of Section 67 of the NDPS Act, which allows for the recording of statements of the accused. The admissibility of such statements as evidence was a key point of contention, particularly in light of the Supreme Court’s ruling in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1].

The relevant sections of the NDPS Act are:

• Section 8(c): Prohibits certain operations related to narcotic drugs and psychotropic substances.
• Section 8A: Deals with the liability of a person for contravention of provisions of the Act.
• Section 20(b): Relates to punishment for contravention in relation to cannabis plant and cannabis.
• Section 21: Deals with punishment for contravention in relation to manufactured drugs and preparations.
• Section 22: Deals with punishment for contravention in relation to psychotropic substances.
• Section 27A: Deals with punishment for financing illicit traffic and harboring offenders.
• Section 27B: Deals with punishment for contravention of provisions relating to essential narcotics.
• Section 28: Deals with punishment for attempts to commit offences.
• Section 29: Deals with punishment for abetment and criminal conspiracy.
• Section 37: Imposes restrictions on the grant of bail in NDPS cases.
• Section 67: Empowers officers to record statements of persons during an investigation.

Arguments

The Additional Solicitors General, Mr. S.V. Raju and Mr. K. M. Nataraj, appearing for the petitioner-NCB, argued that the High Court had erred in not applying the restrictions of Section 37 of the NDPS Act. They contended that the High Court incorrectly presumed there were reasonable grounds to believe that the respondents were not guilty. They argued that there were sufficient reasons to reject the bail applications, given the seriousness of the allegations and the evidence collected during the investigation. The NCB heavily relied on the voluntary statements of the accused and co-accused recorded under Section 67 of the NDPS Act, as well as Call Detail Records (CDR) showing communication between the accused. They also highlighted that some of the accused had prior criminal records.

The NCB’s main submissions can be broken down as follows:

• Non-Compliance with Section 37 of the NDPS Act: The NCB argued that the High Court failed to adhere to the stringent conditions stipulated in Section 37 of the NDPS Act, which requires the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
• Reliance on Confessional Statements: The NCB emphasized the voluntary statements made by the accused and co-accused under Section 67 of the NDPS Act as key evidence to establish their involvement in drug trafficking.
• Call Detail Records (CDR): The NCB presented CDRs as evidence to prove that the accused were in constant communication with each other and with the individuals who were caught with drugs at the airport.
• Prior Antecedents: The NCB pointed out that some of the accused had prior criminal records, which, according to them, should have been taken into account while considering their bail applications.
• Possession of Commercial Quantities: The NCB highlighted that in the case of Mohammed Afzal [A-2] in SLP (Crl.) No. 1569/2021, substantial commercial quantities of drugs were recovered from his rented premises, which should have been a significant factor in denying bail.

Arguments Table

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the High Court was correct in granting bail to the respondents, considering the restrictions imposed by Section 37 of the NDPS Act.
2. Whether the confessional statements recorded under Section 67 of the NDPS Act could be the basis for denying bail, especially in light of the ruling in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1].
3. Whether the High Court correctly applied the principle of parity in granting bail to Mohammed Afzal [A-2] in SLP (Crl.) No. 1569/2021, despite the recovery of commercial quantities of drugs from his premises.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1] – Supreme Court of India: This case held that confessional statements recorded under Section 67 of the NDPS Act are inadmissible in the trial of an offence under the NDPS Act.
• Section 37 of the NDPS Act: This section imposes stringent conditions for granting bail in cases involving offences under the NDPS Act.
• Section 67 of the NDPS Act: This section empowers officers to record statements of persons during an investigation.

Authorities Table

Judgment

The Supreme Court upheld the High Court’s decision to grant bail to most of the respondents, except for Mohammed Afzal [A-2] in SLP (Crl.) No. 1569/2021. The court found that the High Court had correctly considered that the voluntary statements of the accused and co-accused under Section 67 of the NDPS Act could not be the sole basis for denying bail, in light of the ruling in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1]. The court noted that, apart from the confessional statements, there was no substantial material to connect most of the respondents with the alleged drug trafficking.

However, the court made an exception for Mohammed Afzal [A-2] in SLP (Crl.) No. 1569/2021. The court noted that substantial commercial quantities of drugs were recovered from his rented accommodation. The court held that his case could not be treated on par with the other accused who were granted bail. The court cancelled his bail and directed him to surrender before the Sessions Court/Special Judge (NDPS) within two weeks.

The court clarified that its observations were limited to examining the cancellation of bail and did not comment on the merits of the case pending before the trial court.

Treatment of Submissions

Treatment of Authorities

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the inadmissibility of confessional statements under Section 67 of the NDPS Act, as established in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1]. The court emphasized that, for most of the accused, there was no substantial evidence other than these statements to connect them with drug trafficking. However, the court made an exception for Mohammed Afzal [A-2] due to the recovery of commercial quantities of drugs from his residence. This demonstrated a strong emphasis on the factual evidence of drug possession, which outweighed the reliance on inadmissible confessional statements.

The court’s reasoning also highlighted the importance of adhering to the stringent conditions for bail under Section 37 of the NDPS Act. The court noted that the High Court had not properly applied these conditions in the case of Mohammed Afzal [A-2], leading to the cancellation of his bail.

Sentiment Analysis

Fact:Law Ratio

Logical Reasoning

The Supreme Court’s reasoning was primarily based on the legal precedent set in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1], which rendered confessional statements under Section 67 of the NDPS Act inadmissible. This decision significantly impacted the court’s assessment of the evidence against the accused. The court emphasized that the prosecution’s case against most of the accused relied heavily on these inadmissible statements, and there was no other substantial evidence to justify denying them bail. The court also considered the stringent conditions for bail under Section 37 of the NDPS Act, highlighting that these conditions were not met in the case of Mohammed Afzal [A-2], who was found in possession of commercial quantities of drugs. The court rejected the argument that Mohammed Afzal [A-2] could be granted bail on the basis of parity with other accused, as his case stood on a different footing due to the recovery of drugs from his premises.

The court’s decision reflects a commitment to upholding the principles of fair trial and due process, ensuring that individuals are not denied bail based on inadmissible evidence. The court’s reasoning also underscores the importance of considering the specific facts and circumstances of each case, rather than applying a blanket approach.

The Supreme Court quoted the following from the judgment:

• “It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act.”
• “In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail.”
• “We are of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act.”

Key Takeaways

• Confessional statements recorded under Section 67 of the NDPS Act cannot be the sole basis for denying bail. Independent evidence is necessary to establish an accused’s involvement in drug trafficking.
• The stringent conditions for bail under Section 37 of the NDPS Act must be strictly applied. Courts must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
• The principle of parity cannot be applied if there are significant differences in the factual circumstances of the accused, such as the recovery of commercial quantities of drugs.
• The judgment emphasizes the importance of due process and fair trial, ensuring that individuals are not denied bail based on inadmissible evidence.

Directions

The Supreme Court directed Mohammed Afzal [A-2] to surrender before the Sessions Court/Special Judge (NDPS) within two weeks for being taken into custody.

Specific Amendments Analysis

There is no discussion about any specific amendment of the NDPS Act in the judgment.

Development of Law

The ratio decidendi of this case is that confessional statements recorded under Section 67 of the NDPS Act are inadmissible as evidence and cannot be the sole basis for denying bail. The judgment reinforces the importance of independent evidence and the strict application of Section 37 of the NDPS Act. This ruling clarifies the legal position on the admissibility of confessional statements and ensures that individuals are not denied bail based on inadmissible evidence, which is a significant development in the interpretation of the NDPS Act.

Conclusion

The Supreme Court’s judgment in this case clarifies the evidentiary value of confessional statements under Section 67 of the NDPS Act and the application of Section 37 for granting bail. While upholding the High Court’s decision to grant bail to most of the accused, the court cancelled the bail of Mohammed Afzal [A-2] due to the recovery of commercial quantities of drugs from his premises. The judgment emphasizes the need for independent evidence and strict adherence to the conditions for bail under the NDPS Act, ensuring fair trial and due process.