Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1001-1002 OF 2022

ARISING OUT OF

PETITIONS FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 6128-29 OF 2021

NARCOTICS CONTROL BUREAU ….. APPELLANT

VERSUS

MOHIT AGGARWAL ….. RESPONDENT

J U D G M E N T

Hima Kohli, J.

1.Leave granted.

2.The appellant-NCB is aggrieved by the judgment and order dated

16.03.2021 passed by the High Court of Delhi granting post-arrest bail to

the respondent-accused in Case No.SC/1334/2020, where the

respondent is facing trial for the offence under Sections 8/22 and 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985

1

.

3.The case set up by the prosecution is that on the basis of secret

information received by the officials of the Narcotic Control Bureau

2

on

1 For short ‘NDPS Act’

2 For short ‘NCB’

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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021

09.01.2020, that one parcel had been booked by a person from Agra

named Gaurav Kumar Aggarwal, to be delivered to one Manoj Kumar at

Ludhiana, Punjab and was stored at the godown of a courier company at

Village Samalkha, Kapasehra, New Delhi, suspected to contain NRX

tablets, being a narcotic drug, the NCB team reached the said godown

and conducted search proceedings. The suspected parcel was identified

and opened in the presence of two independent witnesses from amongst

the staff members of the courier company. The said parcel was opened

and 50,000 Tramadol tablets weighing 20 kgs were recovered. As the

tablets contained in the suspected parcel had been mis-declared and

were without any valid bill, seizure proceedings were initiated by the

officials of the NCB.

4.In the voluntary statement made by the accused, Gaurav Kumar

Aggarwal under Section 67 of the NDPS Act, he stated that he had

booked the parcel through a courier company to be delivered to Manoj

Kumar, resident of Ludhiana, Punjab and that he had purchased the

Tramadol tablets recovered during the search proceedings from the

respondent herein, without any bill or prescription. Rather, it was

mentioned on the parcel that it contained “surgical items”. The accused

Gaurav Kumar Aggarwal further stated that the respondent herein had

purchased the above medicines from one Promod Jaipuria alias

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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021

Davinder Khandelwal, a resident of Jaipur and the son-in-law of Promod

Jaipuria used to look after his business in Agra and that he had a

godown where the drugs were stored.

5.The prosecution further stated that Gaurav Kumar Aggarwal had

disclosed that he knew where the residence and the shop of the

respondent were located and he could identify them. Accordingly, the

said accused person accompanied the Raiding team to the premises of

the respondent herein. On the disclosure made by the respondent

herein, the Raiding team proceeded to the godown of Promod Jaipuria

and conducted a search during which a cache of drugs covered under

the NDPS Act, were recovered. The said drugs included 6,64,940 tablets

of different psychotropic substances including Tramadol, Zolpidem and

Alprazolam tablets/capsules 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 during the

search conducted by the NCB officials at the premises of the co-

accused, Manoj Kumar at Ludhiana.

6.In his statement recorded under Section 67 of the NDPS Act, the

respondent herein disclosed that he had been illegally selling and

purchasing the said tablets and capsules from Promod Jaipuria. The

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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021

respondent was taken into custody on 11

th

January, 2020. He moved

two applications for grant of bail before the learned Special Judge,

NDPS. Both the said applications were vehemently opposed by the

appellant-NCB and were rejected by the Special Judge, NDPS.

Aggrieved by the order dated 21

st

July, 2020, whereby his second bail

application was dismissed, the respondent filed a petition under Section

439 of the Code of Criminal Procedure, 1973

3

for grant of bail which has

been allowed by the impugned order passed by the learned Single Judge

of the High Court.

7.Arguing for the appellant-NCB, Mr. Jayant K. Sud, learned

Additional Solicitor General, submitted that while passing the impugned

order granting bail to the respondent, the High Court has erred in

observing that no incriminating material was recovered by the NCB

officials at his residence. He stated that the High Court has completely

overlooked the fact that it was on the basis of the disclosures made by

the respondent himself that huge quantities of narcotic drugs and

injections were seized from the godown of the co-accused, Promod

Jaipuria who was subsequently arrested by the Department; that the

High Court has committed a grave error by not applying the terms and

conditions imposed under Section 37 of the NDPS Act; that the offence

3 For short ‘Cr.P.C.’

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committed by the respondent falls under the category of recovery of

commercial quantity of narcotic drugs and in the light of the embargo

placed in Section 37 of the NDPS Act, the respondent ought not to have

been admitted to bail and that this is a case of constructive/conscious

possession of the contraband substances as the respondent was an

active participant in a organized gang that was involved in smuggling of

drugs. Lastly, it was stated that there was sufficient circumstantial

evidence available against the respondent which would disentitle him for

being admitted to bail.

8.On the other hand, Mr. P.K. Jain, learned Advocate-on-Record

appearing for the respondent vehemently opposed the present appeal

and submitted that the High Court has rightly admitted the respondent to

bail after he remained in custody for a period of one year and three

months. He submitted that the impugned order was passed after

granting a hearing to the counsel for the appellant-NCB and the

respondent and the respondent has not violated any of the terms and

conditions of bail imposed on him. On merits, it was urged that in the

alleged incident, neither was the consignment of the narcotic drugs

booked by or for the respondent. No recovery was made from the

respondent and nothing was found from the search conducted at his

residence and shop. Describing the respondent as a small-time

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shopkeeper selling medicines at Agra, learned counsel submitted that he

had no connection with the other co-accused persons and that his name

had cropped up in the course of the statement of the co-accused,

Gaurav Kumar Aggarwal under Section 67 of the NDPS Act, which was

partly recorded at Agra and partly at Delhi. Though Gaurav Kumar

Agarwal had taken the officials of the NCB team to the respondent’s

shop which was duly searched, nothing incriminating was recovered from

there. Besides the above, both the co-accused, Gaurav Kumar Aggarwal

and the respondent herein had at the first opportunity, retracted from

their statements recorded under Section 67 of the NDPS Act and in view

of law laid-down by this Court in Tofan Singh v. State of Tamil Nadu

4

,

any confessional statement recorded under Section 67 of the NDPS Act,

is inadmissible in the trial of an offence under the said Act. Urging that

the High Court has followed the aforesaid judicial dicta and after noting

the fact that the charge-sheet had already been filed and besides the

confessional statements of the accused recorded under Section 67 of the

NDPS Act, no other incriminating material was forthcoming, the

respondent had been rightly admitted to bail. Thus, learned counsel for

the respondent contended that there is no infirmity in the impugned order

that deserves interference.

4 2020 SCC Online SC 882

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9.We have carefully considered the arguments advanced by learned

counsel for the parties and have perused the records.

10.The provisions of Section 37 of the NDPS Act read as follows:

“[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.]

11.It is evident from a plain reading of the non-obstante clause

inserted in sub-section (1) and the conditions imposed in sub-section (2)

of Section 37 that there are certain restrictions placed on the power of

the Court when granting bail to a person accused of having committed

an offence under the NDPS Act. Not only are the limitations imposed

under Section 439 of the Code of Criminal Procedure, 1973 to be kept in

mind, the restrictions placed under clause (b) of sub-section (1) of

Section 37 are also to be factored in. The conditions imposed in sub-

section (1) of Section 37 is that (i) the Public Prosecutor ought to be

given an opportunity to oppose the application moved by an accused

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person for release and (ii) if such an application is opposed, then the

Court must be satisfied that there are reasonable grounds for believing

that the person accused is not guilty of such an offence. Additionally, the

Court must be satisfied that the accused person is unlikely to commit any

offence while on bail.

12.The expression “reasonable grounds” has come up for discussion

in several rulings of this Court. In “Collector of Customs, New Delhi v.

Ahmadalieva Nodira”

5

, a decision rendered by a Three Judges Bench of

this Court, it has been held thus :-

“7.The limitations on granting of bail come in only when the question

of granting bail arises on merits. Apart from the grant of opportunity to

the Public Prosecutor, the other twin conditions which really have

relevance so far as the present accused-respondent is concerned, are:

the satisfaction of the court that there are reasonable grounds for

believing that the accused is not guilty of the alleged offence and that

he is not likely to commit any offence while on bail. The conditions are

cumulative and not alternative. The satisfaction contemplated

regarding the accused being not guilty has to be based on reasonable

grounds. The expression “reasonable grounds” means something

more than prima facie grounds. It contemplates substantial

probable causes for believing that the accused is not guilty of the

alleged offence. The reasonable belief contemplated in the

provision requires existence of such facts and circumstances as

are sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence.” [emphasis added]

13.The expression “reasonable ground” came up for discussion in

“State of Kerala and others Vs. Rajesh and others”

6

and this Court

has observed as below:

5 (2004) 3 SCC 549

6 (2020) 12 SCC 122

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“20. The expression ”reasonable grounds” means something

more than prima facie grounds. It contemplates substantial probable

causes for believing that the accused is not guilty of the alleged

offence. The reasonable belief contemplated in the provision

requires existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the accused is

not guilty of the alleged offence. In the case on hand, the High

Court seems to have completely overlooked the underlying object of

Section 37 that in addition to the limitations provided under the CrPC,

or any other law for the time being in force, regulating the grant of

bail, its liberal approach in the matter of bail under the NDPS Act is

indeed uncalled for.” [emphasis added]

14.To sum up, the expression “reasonable grounds” used in clause (b)

of Sub-Section (1) of Section 37 would mean credible, plausible and

grounds for the Court to believe that the accused person is not guilty of

the alleged offence. For arriving at any such conclusion, such facts and

circumstances must exist in a case that can persuade the Court to

believe that the accused person would not have committed such an

offence. Dove-tailed with the aforesaid satisfaction is an additional

consideration that the accused person is unlikely to commit any offence

while on bail.

15.We may clarify that at the stage of examining an application for bail

in the context of the Section 37 of the Act, the Court is not required to

record a finding that the accused person is not guilty. The Court is also

not expected to weigh the evidence for arriving at a finding as to whether

the accused has committed an offence under the NDPS Act or not. 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

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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.

16.Coming back to the facts of the instant case, the learned Single

Judge of the High Court cannot be faulted for holding that the appellant-

NCB could not have relied on the confessional statements of the

respondent and the other co-accused recorded under Section 67 of the

NDPS Act in the light of law laid down by a Three Judges Bench of this

Court in Tofan Singh (supra), wherein as per the majority decision, a

confessional statement recorded under Section 67 of the NDPS Act has

been held to be inadmissible in the trial of an offence under the NDPS

Act. Therefore, the admissions made by the respondent while in custody

to the effect that he had illegally traded in narcotic drugs, will have to be

kept aside. However, this was not the only material that the appellant-

NCB had relied on to oppose the bail application filed by the respondent.

The appellant-NCB had specifically stated that it was the disclosures

made by the respondent that had led the NCB team to arrive at and raid

the godown of the co-accused, Promod Jaipuria which resulted in the

recovery of a large haul of different psychotropic substances in the form

of tablets, injections and syrups. Counsel for the appellant-NCB had

also pointed out that it was the respondent who had disclosed the

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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021

address and location of the co-accused, Promod Jaipuria who was

arrested later on and the CDR details of the mobile phones of all co-

accused including the respondent herein showed that they were in touch

with each other.

17.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. 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.

18.In our opinion the narrow parameters of bail available under

Section 37 of the Act, have not been satisfied in the facts of the instant

case. At this stage, it is not safe to conclude that the respondent has

successfully demonstrated that there are reasonable grounds to believe

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that he is not guilty of the offence alleged against him, for him to have

been admitted to bail. The length of the period of his custody or the fact

that the charge-sheet has been filed and the trial has commenced are by

themselves not considerations that can be treated as persuasive

grounds for granting relief to the respondent under Section 37 of the

NDPS Act.

19.As a result of the aforesaid discussion, the present appeals are

allowed and the impugned order releasing the respondent on post-arrest

bail, is quashed and set aside. The bail bonds of the respondent are

cancelled and he is directed to be taken into custody forthwith.

.................................CJI.

[N. V. RAMANA]

...................................J.

[KRISHNA MURARI]

...................................J.

[HIMA KOHLI]

New Delhi,

July 19, 2022

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