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Narcotics Control Bureau v. Dilip Pralhad Namade .
Factual and Procedural Background
The Narcotics Control Bureau (NCB) received information that one Suresh Faturmal Jain was transporting 20,000 Mandrax tablets in a red Ford Escort. NCB officers intercepted the vehicle, arrested Jain along with Karakutti Karan Anthony and Rajeev Shirook, and seized 20 kg of Mandrax tablets. Subsequent searches led to the recovery of 650 kg of chemicals used for manufacturing the tablets.
The respondent, Dilip Pralhad Namade, was suspected of providing the technical know-how, establishing a plant, and manufacturing approximately eleven lakh Mandrax tablets on three occasions. He faced trial for offences under Section 29 read with Sections 8(c), 22, 28 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
His first bail application was rejected by the Special Judge on 27-8-2001. On 21-6-2002 the Special Judge directed the prosecution to supply copies of certain documents seized from the respondent’s residence. Alleging non-compliance with that direction, the respondent moved the Bombay High Court for bail on 27-8-2002. The High Court granted bail on 19-12-2002, primarily because copies of the documents had not been supplied. The NCB challenged that order before the Supreme Court.
Legal Issues Presented
- Whether the Bombay High Court could grant bail to an accused under the NDPS Act without satisfying the twin conditions mandated by Section 37(1)(b).
- Whether alleged non-compliance with an order directing supply of documents constitutes a valid ground to override the statutory bar on bail in Section 37.
- Whether the mere passage of time after grant of bail can justify refusal of interference by the Supreme Court.
Arguments of the Parties
Appellant (NCB)
- Section 37 of the NDPS Act imposes a statutory prohibition on bail unless both conditions in clause (b) are met; the High Court ignored these mandatory requirements.
- Non-supply of documents is not an enumerated exception under Section 37. The Bureau had offered inspection of the documents to avoid tampering and dissemination of the formula, which the respondent declined.
- The High Court erred in concluding that its earlier order on supply of documents remained unchallenged; privilege had in fact been claimed before the Special Judge.
Respondent
- The NCB’s claim of privilege was a pretext to cover its failure to obey the Special Judge’s order to supply copies.
- Since bail was granted on 19-12-2002 and the respondent had not misused his liberty for about 1½ years, the Supreme Court should not disturb the order. Reliance was placed on two instances—NCB v. Amar Pal Singh and NCB v. Hamida Sayyed Ali Shaikh—where this Court had not interfered due to lapse of time.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Thamisharasi (1995) 4 SCC 190 | Interprets Section 37 NDPS Act; sets out the two cumulative conditions for bail. | Relied on to emphasise the strict limitations on granting bail under the NDPS Act. |
| Union of India v. Jaipal Singh (2004) 1 SCC 121 | Dismissal of an SLP without reasons does not affirm the lower-court judgment or create precedent. | Cited to reject the respondent’s reliance on earlier SLP dismissals. |
| Kunhayammed v. State of Kerala (2000) 6 SCC 359 | Effect of dismissal of SLP at the threshold—no declaration of law, no binding precedent. | Applied to clarify that prior SLP dismissals do not bar interference. |
| Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani (2004) 1 SCC 497 | Same principle as above regarding SLP dismissals. | Used to reinforce the point that earlier SLP orders had no precedential value. |
| NCB v. Amar Pal Singh, SLP (Crl.) No. 1136 of 2002 | Interference declined owing to long passage of time; not a reported judgment. | Held not to lay down an invariable principle; therefore not a bar to current interference. |
| NCB v. Hamida Sayyed Ali Shaikh, SLP (Crl.) No. 434 of 2003 | Same as above. | Distinguished for the same reason. |
Court's Reasoning and Analysis
The Supreme Court reiterated that Section 37 of the NDPS Act creates a stringent, cumulative bar on bail: (i) the Public Prosecutor must be heard; and (ii) the court must be satisfied that the accused is not guilty and will not re-offend. “Reasonable grounds” require more than a prima facie case; they must constitute substantial, probable cause. The High Court’s order was found deficient because:
- It focused solely on alleged non-compliance with the order to supply document copies, an extraneous consideration under Section 37.
- It did not record any satisfaction—much less on “reasonable grounds”—that the respondent was not guilty or that he was unlikely to commit further offences.
- It ignored the confessional statement recorded under Section 67 of the NDPS Act and the serious nature of the allegations.
- Reliance on the passage of time, or on earlier SLP dismissals, was misplaced; such dismissals are not precedential.
Because the statutory conditions were not met, the High Court had “transgressed the limitations statutorily imposed” and its order lacked legal sanction.
Holding and Implications
HELD: The Bombay High Court’s order dated 19-12-2002 granting bail to Dilip Pralhad Namade is set aside; the respondent is directed to surrender to custody forthwith. The appeal is allowed.
Implications: The decision underscores the mandatory nature of Section 37 NDPS Act and clarifies that procedural lapses, such as non-supply of documents, cannot override the statutory bar on bail. It also reaffirms that dismissal of special-leave petitions without detailed reasons does not create binding precedent.
Arijit Pasayat, J.— Leave granted.
2. Grant of bail to the respondent by a learned Single Judge of the Bombay High Court is questioned by the Narcotics Control Bureau (in short “NCB”). The respondent is facing trial for alleged commission of offences punishable under Section 29 read with Sections 8(c), 22, 28 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”). The allegations against the respondent Dilip Pralhad Namade (hereinafter referred to as “the accused”) were that he was involved in the manufacturing of Mandrax tablets and he is the person who has supplied the technical know-how of preparation for the tablets.
3. Officers of the appellant Bureau, Mumbai Zonal Unit, got information that one Suresh Faturmal Jain was travelling in a red Ford Escort car and was carrying 20,000 Mandrax tablets to be delivered to two persons at a particular place. Acting on the information, two officers of the Bureau went to the vicinity of the place where the tablets were to be delivered. Two persons were called to act as panchas. They found that there were three persons travelling in the car. The officers searched the car and arrested all the three occupants. One of them was Suresh Faturmal Jain and others were Karakutti Karan Anthony and Rajeev Shirook. From the bags, 20 kg of Mandrax tablets were recovered. Statements of all the three accused persons were recorded and on the basis of certain facts disclosed in the statements, a search was taken up by the officers and 650 kg of chemicals used for manufacturing Mandrax tablets were recovered. During the course of investigation, other persons were also searched and enquiries were made. The case against the respondent-accused was that he was instrumental in helping the other accused persons in setting up a plant and machinery for manufacture of methaqualone powder and Mandrax tablets. With the help of others, the respondent along with Accused 10 manufactured eleven lakh Mandrax tablets on three occasions for other accused persons. He had also visited the factory of Accused 13 for the purpose of procurement of the Mandrax-tableting machineries, etc.
4. A bail application was filed by the respondent-accused, which was rejected on 27-8-2001 by the Special Judge. Subsequently, an application was filed on 21-6-2002 before the Special Judge for direction to the prosecuting agency to supply copies of certain documents purported to have been recovered from his house. The Special Judge directed the prosecution to furnish the copies.
5. Subsequently, an application for bail was filed by the respondent-accused before the Bombay High Court on 27-8-2002. By the impugned order dated 19-12-2002, the High Court granted bail to the respondent-accused primarily on the term that the direction given by the Special Judge for supply of copies of documents was not complied with, though the bail application was opposed.
6. In support of the appeal Mr L. Nageswara Rao, learned Additional Solicitor General submitted that while granting bail the provisions of Section 37 of the Act were not kept in view. There is a prohibition on the grant of bail in terms of Section 37 of the NDPS Act and only under the specified conditions bail can be granted. Non-supply of documents pursuant to the court's order is not one of the grounds on which bail can be granted. In fact the High Court recorded a wrong conclusion by observing that the order was not complied with and there was also no challenge to the order directing supply of documents. As a matter of fact, claiming privilege the Bureau had filed an application before the Special Judge clearly indicating that it would not be in the interest of justice to grant copies, and prayer was made to the court that instead of granting copies the accused, if he so desires, could inspect the documents in presence of officials of the Bureau. That offer was not accepted by the respondent-accused. The Bureau wanted to avoid the possibility of any tampering with the original documents and also further dissemination of the formula in public and that is why inspection, as indicated above, was offered. The accused having not chosen to inspect the documents could not have made a grievance about non-supply of copies or alleged non-compliance with the directions of the learned Special Judge.
7. Per contra, Mr E.C Agarwala, learned counsel appearing for the respondent-accused submitted that stand taken by the appellant Bureau is nothing but a camouflage to hide its inaction and non-compliance with the orders of the Special Judge. There was a specific direction for supply of copies and there is no ground indicated to substantiate the claim of privilege. In any event, the order granting bail was passed on 19-12-2002 and this Court was approached in May 2003 and in the meantime nearly 1 ½ years have elapsed without any allegations of the respondent-accused having misused his liberties. He submitted that in two cases i.e N.C.B v. Amar Pal Singh SLP (Criminal) No. 1136 of 2002 and N.C.B v. Hamida Sayyed Ali Shaikh SLP (Criminal) No. 434 of 2003 this Court did not interfere with order granting bail on the sole ground of long passage of time. Therefore, it is submitted that liberty granted to the respondent-accused should not be withdrawn.
8. It would be appropriate to take note of a few provisions which have relevance i.e Section 2(xxiii) defining “psychotropic substances” and Section 37 dealing with bail. They read as follows:
“2. (xxiii) ‘psychotropic substance’ means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;
37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”
9. As observed by this Court in Union of India v. Thamisharasi (1995) 4 SCC 190, JT (1995) 4 SC 253 clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court 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.
10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent-accused is concerned, are: (1) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessities of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.
11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance with the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.
12. The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied.
13. Coming to the plea regarding long passage of time, it is to be noted that the two orders passed by this Court in SLPs (Crl.) Nos. 1136 of 2002 SLP (Criminal) No. 1136 of 2002 and 434 of 2003 SLP (Criminal) No. 434 of 2003 referred to above do not lay down any principle of law of invariable nature to be universally applied. Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (See Union of India v. Jaipal Singh (2004) 1 SCC 121, (2003) 7 Supreme 676.) This Court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. (See Kunhayammed v. State of Kerala (2000) 6 SCC 359 and Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani (2004) 1 SCC 497, (2003) 8 Supreme 208.)
14. The inevitable conclusion is that the judgment has no legal sanction. We, therefore, set aside the impugned judgment of the High Court granting bail to the respondent. The respondent-accused is directed to surrender to custody forthwith.
15. Appeal is allowed.
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