The 3-Judge Bench of N. V. Ramana, CJ., Krishna Murari in the case of Narcotics Control Bureau vs Mohit Aggarwal, and Hima Kohli reversed the impugned order of the Delhi High Court releasing the respondent-accused on post-arrest bail in a case involving a drug ring operating in three States—U.P., Punjab, and Rajasthan. The Court found other evidence against the respondent sufficient to show his involvement in the alleged crime, even though it reiterated that a confessional statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is inadmissible.
The Delhi High Court's contested order granting the respondent post-arrest bail was challenged by the Narcotics Control Bureau (NCE) in the current appeal. For the offences listed in Sections 8/22 and 29 of the NDPS Act, the respondent is currently being tried.
Based on top-secret information, the NCB was able to track down a package containing 50,000 Tramadol tablets weighing 20 kg that had been ordered by Gaurav Kumar Aggarwal in Agra for delivery to Manoj Kumar (hereafter referred to as the respondent) in Ludhiana, Punjab. According to the defendant, Promod Jaipuria, a resident of Jaipur, the accused, Gaurav Kumar Aggarwal, revealed that the respondent had purchased the drug from him. Notably, the respondent twice applied for bail to the Special Judge at NDPS, and both times the Special Judge rejected the applications. But in a petition brought under Section 439 of the 1973 Criminal Procedure Code, the High Court approved the respondent's request for bail.
According to NCB, the High Court made a serious mistake by failing to apply the terms and conditions imposed by Section 37 of the NDPS Act because it completely ignored the fact that vast quantities of narcotic drugs and injections were taken from the godown of the co-accused, Promod Jaipuria, who was later arrested by the Department, based on disclosures made by the respondent himself.
The respondent, on the other hand, claimed that he had no connection to the other co-accused and that the consignment in question was neither booked by him nor for him. Additionally, nothing was recovered from him, and neither his home nor shop was searched.
The Court observed that not only are the limitations imposed under Section 439 CrPC to be kept in mind while considering a bail application under NDPS Act but also the restrictions placed under Section 37 (1) (b) of NDPS Act to be factored in. Section 37 (1) (b) of NDPS Act states:
“(i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused 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.”
Relying on Collector of Customs v. Ahmadalieva Nodira, the Court stated that the expression “reasonable grounds” in Section 37 (1) (b) would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence.
The Court clarified that the entire exercise that a court is expected to undertake at the stage of bail under Section 37 of the NDPS Act is to see the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail.
The Court opined that the High Court could not be faulted for holding that 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 in Tofan Singh v. State of T.N., wherein 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. The Court decided that the respondent's admission while in detention that he had illegally traded in narcotic drugs would have to be set aside.
Calling the observation made in the impugned order that since nothing was found in the possession of the respondent, he is not guilty of the offence he had been charged with a premature assumption, the Court stated that the narrow parameters of bail available under Section 37 of the Act have not been satisfied in the instant case. Further, the Court stated,
“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.”
As a result of the aforesaid discussion, the appeals were allowed and the impugned order releasing the respondent on post-arrest bail was quashed and set aside. The bail bonds of the respondent were cancelled, and he was directed to be taken into custody forthwith.