HC overlooked crucial requirements while granting bail in NDPS case, simply because no contraband was found in possession of accused:SC

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

Pankaj Bajpai

New Delhi, September 23, 2021: The Supreme Court has observed that mere finding of the absence of possession of contraband is no basis to accord bail to the accused from the offence punishable under NDPS Act.

While referring to its earlier decisions, a Division Bench of Justice Dr. Dhananjaya Y. Chandrachud & Justice B.V. Nagarathna observed that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case and the standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.

The appeal by the UOI arose from the judgment of a Single Judge, whereby the Lucknow Bench of the High Court of Judicature at Allahabad while granting bail to the respondent- accused, adverted to two circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation of the statement u/s 67 of the NDPS Act.

After considering various precedents and relevant circumstances, the Division Bench opined that the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail.

Stating that section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS, the Division Bench observed that this Court in the case of Union of India v. Rattan Mallik has held that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b).

Therefore, in line with the decision of this Court in Rattan Mallik case (supra), the Bench was of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court does not absolve it of the level of scrutiny required u/s 37(1)(b)(ii) of the NDPS Act.

Further, the contention that Section 42 of the NDPS Act was not complied with, was prima facie misplaced and the High Court had 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, added the Bench.

Moreover, the Top Court also noted 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.

Thus, the Apex Court said that the High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do.

Accordingly, the appeal has been allowed by setting aside the judgment and order of the High Court and application for bail filed by the respondent stood dismissed, added the Bench.

The Top Court therefore directed that the respondent shall surrender forthwith.