Even In Case Of Non-Recovery Of Contraband From Person Of The Accused, Rigor Of 37(1)(b) Of NDPS Act Will Apply: Supreme Court

An appeal was preferred before the Supreme Court against the impugned judgment passed by a Single Bench of the Lucknow Bench of the Allahabad High Court which had allowed the application for bail of the Respondent, who is accused of offence under Sections 8, 21, 27A, and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985.

Three accused were arrested for having contraband in their possession namely Md. Arif Khan, Rafiuddin, and Md. Nawaz Khan (Respondent). All of them were traveling via car from Dimapur in Nagaland to Rampur in Uttar Pradesh. When confronted, a search of the car under section 50 of the NDPS Act revealed 2 packs of morphine hidden under the place where the wiper is connected to the bonnet of the car.

While certifying the statement of the Respondent, the official mentioned the name of Mohd. Arif Khan in place of Md. Nawaz Khan, the Respondent.

An application was filed before the 7^th Additional and District & Sessions Judge, Lucknow, which, after giving due regard to the seriousness and gravity of the crime committed refused to grant bail to the accused. Aggrieved, the Respondent moved to the High Court, which allowed the bail application.

The Respondent had contended before the High Court that he was not in possession of the contraband and was merely traveling in the car with the other co-accused and also had no knowledge of the contraband present in the vehicle. The accused had also argued that there was no compliance with Sections 42 & 50 of the NDPS Act and statement under section 67 of the Act was not explained to him, which was evident since the official who signed it had certified that the translation had been explained in Manipuri to Mohd. Arif Khan (co-accused). Considering these observations and contentions the High Court had granted bail to the Respondent.

The Appellant before the Court conceded that the confessional statement under section 67 of the NDPS act is not admissible as evidence. It was argued that the High Court had ignored three crucial circumstances, namely –

1)Recovering contraband of morphine from the vehicle;

2)Respondent was traveling all the way from Nagaland to Uttar Pradesh;

3)Call records of the Respondent prove that he was in constant touch with the other two accused.

The counsel appearing on behalf of the Appellant also argued that provisions of Section of 42 have duly been complied with by the officials and a presumption under section 54 of the Act would arise in respect of the possession of a narcotic drug which is found to be in the conscious possession of the accused. Considering this and the provisions of Section 37(1)(b)(ii) of the NDPS Act the bail to the accused should be denied, asserted the Appellant, the prosecuting agency.

While the Respondent contended that the contraband was not found in the possession of the accused. Thus, it cannot be stated that the Respondent was in conscious possession of the contraband.

The Supreme Court after considering the contentions of the parties dealt with the three issues involved in the case, which were i) absence of recovery of the contraband from the possession of the respondent, ii) the wrong name in the endorsement of translation of the statement under Section 67 of the NDPS Act and iii) non-compliance of procedural requirement under Section 42.

Regarding the first issue, the Court relied upon the precedent, Union of India v. Rattan Malik, and held, "We are 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."

Regarding the second issue, the Bench relied upon Tofan Singh v. State of Tamil Nadu and held that the statement under section Section 67 of the NDPS Act is inadmissible.

With respect to the third issue, the court found that the contention regarding non-compliance of Section 42 is prima facie misplaced and that it is a question of fact and a matter for trial.

The Court held that the High Court had failed to notice the circumstances and facts of the case which come under the purview of Section 37 apart from observing that no contraband was found from the personal search of the respondent.

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, observed the Court.

Accordingly, the Court allowed the Appeal and set aside the impugned order of the High Court and dismissed the bail application of the Respondent with a direction to surrender immediately.