Union of India through Narcotics Control Bureau, Lucknow vs Md. Nawaz Khan

HELD: 1. This Court has referred to the precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court where evidence will be adduced. [Para 23][833G-H; 834-A] Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12 SCR 1165; Mahipal v. Rajesh Kumar @ Polla & Anr. (2020) 2 SCC 118 : [2019] 14 SCR 529; Union of India v. Shiv Shanker Kesar (2007)

7 SCC 798 : [2007] 9 SCR 964; Madan Lal and Another v. State of Himachal Pradesh (2003) 7 SCC 465 : [2003]

2 Suppl. SCR 716 – relied on.

Prabhakar Tewari v. State of Uttar Pradesh (2020) 11 SCC 648; Union of India v. Prateek Shukla (2021) 5 SCC 430; Mohan Lal v. State of Rajasthan1 (2015) 6 SCC 222 : [2015] 5 SCR 435 – referred to.

2. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. [Para 24][834-A-C]

3. In line with the decision of this Court in Rattan Mallik, this Court is of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of ‘AK’s name in place of the respondent’s name in the endorsement of translation on the statement of the respondent. In Tofan Singh, a three judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage. [Paras 25-26][834-C-F]

4. In the complaint that was filed on 16 October 2019 it is alleged that at about 1400 hours on 26 March 2019, information was received that between 1500-1700 hours on the same day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. Therefore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial. [Para 29][836-C-E]

5. The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37: (i) The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused; (ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him; (iii) The quantity of contraband found in the vehicle is of a commercial quantity; and (iv) The contraband was concealed in the vehicle in which the respondent was travelling with the coaccused. [Para 30][836-E-H]

6. The High Court has clearly overlooked crucial requirements and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Moreover, it has emerged, during the course of the hearing that after the respondent was enlarged on bail he has consistently remained away from the criminal trial resulting in the issuance of a non-bailable warrant against him. The High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do. [Para 32][837C-D] Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1; Dharampal Singh v. State of Punjab (2010) 9 SCC 608 : [2010] 10 SCR 1160; Union of India v. Rattan Mallik (2009) 2 SCC 624 : [2009] 1 SCR 533; Karnail Singh v. State of Haryana (2009) 8 SCC 539 : [2009] 11 SCR 470; Boota Singh v. State of Haryana (2021) SCC OnLine SC 324 – referred to.