Lack Of Contraband From Possession Of Accused By Itself Not A Ground To Grant Bail

Key Takeaways

• High Court granted bail to an accused as he was not in possession of contraband on his person when searched by the authorities.
• The Supreme court saw that the High Court has overlooked certain elements of the case when granting bail, and failed to give enough importance to the crime. Bail cannot be given to the accused merely due to a lack of contraband possession
• The test which High Court is 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.”

Facts

• The case of Narcotics Control Bureau, Lucknow Versus Md. Nawaz Khan, appeal had been filed by the Narcotics Control Bureau, against High Court’s grant of bail.
• A complaint was filed at the Intelligence Officer at the Lucknow Zonal Unit of the Narcotics Control Bureau, alleging that three people were proceeding with heroin/morphine.
• When the accused were found a search was conducted in the presence of a gazetted officer, but nothing objectionable was found on their person. A search of the car revealed two packets of illicit substances hidden under the bonnet. The accused were found to be violating section 8 of the NDPS Act.
• The respondent moved to the High Court seeking bail and submitted that he was merely a companion in the vehicle, and was not aware of the possession of the contraband. He also claimed that the provisions of Sections 42 and 50 of the NDPS Act were not complied with.
• The High Court granted bail, considering there was no contraband recovered from the respondent himself.

Relevant Laws

• Section 8 NDPS Act 1985- Prohibits non-medical operations related to narcotic drug or psychotropic substances
• Sections 42 NDPS Act 1985- Gives certain government authorities the power of entry, search, seizure and arrest without warrant or authorisation.
• Section 37 of the NDPS Act 1985- All offences under the Act are cognizable and non-bailable.

Supreme Court’s observations

• The Supreme Court, referring to several case laws, observed that even in the absence of possession of contraband on the person of the respondent, the “level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act” would not be absolved of.
• The Court also found that the argument that Section 42 of the NDPS Act was not complied with was prima facie misplaced.
• The Court observed that the High Court had glossed over certain elements of the case when granting bail, and had failed to give enough importance to the crime.
• Bail could not be given to the accused merely due to a lack of contraband possession.
• The test which the High Court was required to apply while granting bail was “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.”
• Due to these findings, the appeal of the Narcotics Control Bureau was granted.

Questions

• What section of the NDPS Act 1985, did the accused violate?
• Why did the High Court grant bail to the respondent?
• Was the Supreme Court in agreement with the High Court’s decision to grant bail?