Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 – Code of Criminal Procedure, 1973 – s.436A – Appellant accused of committing offences punishable under NDPS Act has been in custody since 2015, if entitled to bail – Held: Recovery of ganja was made from the four co-accused – Appellant was arrested at the behest, and on the statement of one of the co-accused – Prosecution relied on that statement, as well as the confessional statement of the appellant – In addition, it also relied on the bank statements of one of the co-accused who allegedly disclosed that money used to be transferred to the appellant – As against this, the prosecution has not recovered anything else from the appellant – The allegation that he is a mastermind is not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced – Further, two co-accused persons have been enlarged on bail – Appellant has been in custody for over 7 years and 4 months – Progress of the trial has been at a snail’s pace wherein 30 witnesses have been examined, and 34 more have to be examined – Grant of bail on ground of undue delay in trial, cannot be said to be fettered by s.37, given the imperative of s.436A which is applicable to offences under the NDPS Act too – Thus, on facts, appellant enlarged on bail subject to such conditions as the trial court may impose – Bail.
Bail – Offences under Special Acts – Duty of Courts – Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 – Special conditions under – Interpretation of.
Words and Phrases – ‘Not guilty’ – Discussed – Bail. Allowing the appeal, the Court
HELD: 1.1 The recovery of ganja was made on 28.09.2015, from the four co-accused, including ‘NE’. The present appellant was arrested at the behest, and on the statement of this ‘NE’. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of ‘VS’ @ ‘B’, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not recovered anything else from the appellant; its allegation that he is a mastermind, is not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced. The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two co-accused persons (who also, were not present at the time of raid and from whom no contraband was recovered) - the accused (‘VS’ @ ‘B’) who allegedly transferred money to the appellant’s account as payment for the ganja, and the accused (‘NY’ @ ‘TP’) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered - have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail’s pace: 30 witnesses have been examined, whereas 34 more have to be examined. [Para 17][709-E; 710-A-D]
1.2 The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation. Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too. In the facts of this case, the appellant deserves to be enlarged on bail. The appellant is directed to be enlarged on bail, subject to such conditions as the trial court may impose. [Paras 18-20, 24][710-E-G; 711-A-H; 713-A]
Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 – followed.
Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC
731 : [1994] Supp. 4 SCR 386; Shaheen Welfare Association v. Union of India (1996) 2 SCC 616 : [1996]
2 SCR 1123; Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51; Union of India v. K. A. Najeeb (2021) 3 SCC 713 : [2021] 2 SCR 443; Vijay Madanlal Chaudhary v. Union of India 2022 SCC Online SC 929:[2022] 6 SCR 382 – relied on.
Hussainara Khatoon v. Home Secy., State of Bihar (1980) 1 SCC 81 : [1979] 3 SCR 1276; Kadra
Pahadiya & Ors. v. State of Bihar (1981) 3 SCC 671; Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC
225 : [1991] 3 Suppl. SCR 325; State of Madhya Pradesh v. Kajad (2001) 7 SCC 673 : [2001] Supp. 2 SCR 617; Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281 : [2008] 17 SCR 369; A Convict Prisoner v. State 1993 Cri LJ 3242 – referred to. National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/Exe cu t i v e _ n c r b_ Su m m a r y - 20 2 1 . p d f ; Do n a l d Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of Prisonisation’,
available at: https://www.tkp.edu.pl/wp- content/uploads/2020/12/Sobecki_sklad.pdf (accessed on 23rd March 2023) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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