Date of Judgement:
22.09.2021
Coram:
Justice Dr Dhananjaya Y. Chandrachud
Justice B V Nagarathna
Parties:
Appellant – Union of India Through Narcotics Control Bureau.
Respondents – Md. Nawaz Khan.
Subject
Absence of contraband cannot be a solitary reason for granting bail. The Court should also consider the conscious possession of the substance by examining the facts and circumstances of the case.
Legal Provisions
- Section 8 of theNarcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – Prohibition of certain operation.
- Section 21 of the NDPS Act, 1985 - Punishment for contravention in relation to manufactured drugs and preparations.
- Section 27A of the NDPS Act, 1985 - Punishment for financing illicit traffic and harbouring offenders.
- Section 42 of the NDPS Act, 1985 - Power of entry, search, seizure and arrest without warrant or authorisation.
- Section 37 of the NDPS Act, 1985 - Offences to be cognizable and non-bailable.
Overview
- The facts of the case are that the Narcotics Control Bureau (NCB) intercepted a car in which the respondent and two others were travelling,under suspicion of transporting morphine/heroin. When the car was searched, nothing objectionable was found but two polythene bags weighing 2 kgs were recovered hidden under the place where the bonnet was connected to the wiper. Upon using the drug detection kit, it was confirmed to be heroin. When the bags were sent for examination, it was reported that it was not heroin but tested positive for morphine. After obtaining the call records, it was found that the respondent was in constant touch with other co-accused.
- When the respondent approached the Sessions Judge for bail, it was rejected. The respondent preferred an appeal before the High Court. The main contention of the respondent before the High Court was that he was only a companion and was not aware of the substance in the car. The High Court granted bail and held that nothing was recovered from the respondent herein and the substance was only found hidden in the space where the wire was connected to the bonnet.
- Aggrieved by the High Court judgement, an appeal was made to the Supreme Court. The counsel for appellant contended that the High Court,without application of mind, passed the judgement by losing sight on critical facts. It was submitted that a large contraband weighing 3 kgs was found and the respondent was in constant contact with other accomplices.
- Further, it was submitted that after the respondent was granted bail by the High Court,he has been avoiding appearing before the Sessions Court as result of which it was difficult to frame charge and a non-bailable warrant was issued against him.
- The counsel for respondent contended that the respondent was not found with conscious possession of substance and he was not the owner of the vehicle, nor the driver of the vehicle, he was only accompanying them.
Issue
- Whether the bail granted by High Court is sustainable?
Judgement Analysis
- This Court, referring to Prasanta Kumar Sarkar v. Ashis Chatterjee (2010), wherein a guideline was summarized for High Court to grant bail, noted that the Court must be convinced that there is no prima facie case against the bail applicant or there must not be grounds to believe that the applicant has not committed the offence and the nature and magnitude of the accusation. This court observed that in the present case, the substance seized weighed over 3kgs and of commercial value and the statements given by the accused himself is not considered.
- With respect to the question of ‘conscious possession’, the Court referred to Madan Lal and Another v. State of Himachal Pradesh (2003) and noted that whether the accused was in conscious possession of substance should be determined from the facts and circumstances of the case. In this case, the accused was in constant contact with other accused and everyone was travelling in the same car and they all knew each other. Once the possession of illegal substance is proved, the burden shifts on the accused to prove his innocence as he has the special knowledge.
- Mere absence of contraband with the accused does become a solitary reason for granting bail. Even after the bail was granted, the accused avoided criminal trails and it became difficult for framing relevant issues. Hence, the Court held that the High Court did not give due weight to the magnitude of the offence and its impact and set aside the High Court order.
Conclusion
The Supreme Court ordinarily does not interfere in the High Court order of granting bail. This is because the provisions of bail heavily touch upon the concept of liberty. But when bail is granted with no application of mind, it is liable to set aside. The Court should be convinced that there is no prima facie case against the accused and also take other factors into consideration. A Court can only grant bail within the bounds of law.
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Questions:
1. Does a competent officer have the power to search, seize and arrest without a warrant?
2. Will Section 106 of the Indian Evidence Act apply for the accused to prove his innocence against his possession of illegal substances?
