Sami Ullaha vs Superintendent, Narcotic Central ...

On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain, who were traveling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statement was made by the said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Appellant contends that he was tortured and the statement was obtained forcibly from him on some blank documents. He later on retracted therefrom. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance 3 allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail, stating:

4. The prosecution, however, sent another sample to the Central Revenue Control Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the sample under reference was tested positive for Diacetyl-morphine (Heroin), which according to the said report was found to be 2.6% of the sample tested.

5. Thereafter, an application for cancellation of bail was filed on 4.02.2005. By an order dated 15.03.2005, the bail granted to the appellant was cancelled relying on or on the basis of the second report obtained by the respondent from the Central Revenue Control Laboratory, New Delhi stating:

"While receiving guidance from the abovementioned citations, I arrive at the conclusion that under the present facts, the second sample which was sent for examination and according to its receipt the seized substance was heroine, and on the basis of which charges have been levelled against the accused persons, and the prosecution has right to send second sample for chemical examination, and as such there are charges of serious nature against the accused persons in which there provisions (sic) to award punishment of imprisonment of the term of at least ten years and fine of rupees one lakh, as well as under Section 37 of the Act, in case of recovery of psychotropic substances in the quantity of commerce & trade, bail cannot be granted until the court does not arrive at the conclusion to the effect that the accused is not guilty of such an offence, and in case of granting him bail such an offence will not be committed by him during the course of his remaining free on bail."

15. It is not necessary for us to consider the matter in depth as to whether the aforementioned definition is exhaustive but then we are concerned with a question involving cancellation of an order of bail. The authorised laboratory at Neemuch categorically found that the seized substance did not contain any contraband. For the purpose of grant of bail, the court cannot be said to have committed any illegality in relying thereupon. 12

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18. Furthermore, for the purpose of cancellation of bail, the statutory requirements must be satisfied. Appellant has failed to do so.

19. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The order dated 15.03.2005 cancelling the bail is set aside and the revision application filed in the High Court stands allowed. The appeal is allowed.

November 07, 2008