STATE OF KERALA ETC. versus RAJESH ETC.
[2020] 3 S.C.R. 348, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE OF KERALA ETC.
v.
RAJESH ETC.
(Criminal Appeal Nos. 154-157 of 2020)
JANUARY 24, 2020
[INDU MALHOTRA AND AJAY RASTOGI, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37
& ss.2(viia), (xxiiia), 20(b)(ii)(c), 29 – Scheme of s.37 – In Crime
No.14/2018, accused persons (A1 to A3) were found in joint
possession of 10.202 kgs of hashish oil and currency notes worth
Rs. 13,50,000/- – Allegation against the accused respondent-A5
was that he entrusted hashish oil to A1 through A-2 for sale in
international market – Additional Sessions Judge rejected A5’s
application for post-arrest bail – Granted by High Court – Further,
in Crime No.19/2018, case of prosecution is that accused respondent-
A1 (who is A5 in Crime No.14/2018) along with two other persons
including A3 were found to be in possession of 1.800 kg of hashish
oil – Post -arrest bail of both the accused was dismissed by Sessions
Judge – Granted by High Court – On appeal, held: Hashish oil is
shown at Sl. No. 13 in notification dtd. 19.10.01 issued by Central
Government in exercise of power u/s.2(viia) & (xxiiia), NDPS Act –
Hashish oil above 1 kg is commercial quantity – Jurisdiction of
Court to grant bail is circumscribed by provisions of s.37, NDPS
Act – Scheme of s.37 reveals that the exercise of power to grant bail
is not only subject to the limitations contained u/s.439, CrPC, but is
also subject to the limitation placed by s.37 which commences
with
non-obstante clause – Operative part of the said section is in the
negative form prescribing the enlargement of bail to any person
accused of commission of an offence under the Act, unless twin
conditions are satisfied – First condition is that the prosecution
must be given an opportunity to oppose the application; and the
second, is that the Court must be satisfied that there are reasonable
grounds for believing that person accused is not guilty of such
offence – High Court completely overlooked the underlying object
of s.37 that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the grant of
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bail, its liberal approach in the matter of bail under the NDPS Act
is indeed uncalled for – Single Judge failed to record a finding
mandated u/s.37, NDPS Act, a sine qua non for granting bail to the
accused under NDPS Act – Further, the consideration that prevailed
upon the Court to grant bail to the other accused persons (in Crime
No.14/2018) will not absolve the act of the accused respondent-A5
from the rigour of s.37, NDPS Act – Impugned order passed by the
High Court releasing the respondents on bail is set aside – Code of
Criminal Procedure – s.482.
Allowing the appeals, the Court
HELD: Hashish oil is shown at Sl. No. 13 in the notification
dated 19th October, 2001 issued by the Central Government in
exercise of power under Section 2(viia) and (xxiiia) of the NDPS
Act. Hashish oil above 1 kg is commercial quantity. The
jurisdiction of the Court to grant bail is circumscribed by the
provisions of Section 37 of the NDPS Act. It can be granted in
case there are reasonable grounds for believing that accused is
not guilty of such offence, and that he is not likely to commit any
offence while on bail. It is the mandate of the legislature which is
required to be followed. [Paras 17, 18][354-D-E]
Union of India v. Ram Samujh and Ors. 1999 (9) SCC
429 : [1999] 2 Suppl. SCR 76 – relied on.
Satpal Singh v. State of Punjab (2018) 13 SCC 813 :
[2018] 3 SCR 739 – referred to.
1.2 The scheme of Section 37 reveals that the exercise of
power to grant bail is not
only subject to the limitations contained
under Section 439 of the CrPC, but is also subject to the limitation
placed by Section 37 which commences with non-obstante clause.
The operative part of the said section is in the negative form
prescribing the enlargement of bail to any person accused of
commission of an offence under the Act, unless twin conditions
are satisfied. The first condition is that the prosecution must be
given an opportunity to oppose the application; and the second,
is that the Court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such offence. If either
of these two conditions is not satisfied, the ban for granting bail
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operates. The Single Judge failed to record a finding mandated
under Section 37 of the NDPS Act which is a sine qua non for
granting bail to the accused under the NDPS Act. The impugned
order passed by the High Court releasing the respondents on
bail is set aside. The trial Court is directed to proceed and
expedite the trial. [Paras 20, 22 and 26][356-E-F; 357-B; 358-D]
Case Law Reference
[2018] 3 SCR 739
referred to
Para 12
[1999] 2 Suppl. SCR 76
relied on
Para 19
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 154-157 of 2020.
From the Judgment and Order dated 12.06.2019 of the High Court
of   Kerala at Ernakulam in Crl. M. Appln. No. 2 of 2019 in Bail Appl.
No. 2765 of 2019, Crl. M. Appln. No. 2 of 2019 in Bail Appl. No. 2996
of 2019, Crl. M. Appln. No. 2 of 2019 in Bail Appl. No. 3229 of 2019.
Ranjith Kumar, Sr. Adv., G. Prakash, Jishnu M.L., Ms. Priyanka
Prakash, Ms. Beena Prakash, Advs. for the Appellants.
Basant R., Sr. Adv., Shinoj K. Narayanan, K. Rajeev, Advs. for
the Respondents.
The Judgment of the Court was delivered by
AJAY RASTOGI, J.
1. Leave granted.
2. The appellant-prosecution has challenged the discretion
exercised by the learned Single Judge of the High Court of Kerala in
granting post-arrest bail to the accused respondents without noticing the
mandate of Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic
Substances Act, 1985(hereinafter being referred to as “NDPS Act”)
under the
order impugned dated 10th May, 2019 followed with 12th June,
2019 rejecting the application filed by the appellant under Section 482 of
the Code of Criminal Procedure(hereinafter being referred to as “CrPC”)
for recalling the order of post-arrest bail dated 10th May, 2019.
3. It may be noticed that accused respondent Shajimon is (A-5) in
Crime No. 14/2018 and (A-1) in Crime No. 19/2018 and another accused
respondent Rajesh is (A-3) in Crime No. 19/2018.
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Facts of Crime No. 14/2018
4. The prosecution case is that on 25th May, 2018 at 5.30 p.m. in
the parking area of the Hotel Aquarock situated at Mannanthala, accused
A-1 to A-3 were found to be in joint possession of 10.202 kgs of hashish
oil and currency notes worth Rs. 13,50,000/-. The Circle Inspector of
Excise, Thiruvananthapuram arrested all of three accused A-1 to A-3
and seized the hashish oil, money and the vehicles which were used by
them for transporting oil.  The allegation against the accused respondent
(A-5) was that he entrusted hashish oil to A-1 through A-2 for sale in the
International market and Crime No. 14/2018 was registered against him
for the offences punishable under Sections 20(b)(ii)(c) and Section 29
of the NDPS Act and after investigation, charge-sheet was filed on 10th
May, 2019.
5. On an application filed for post-arrest bail by accused
respondent(A-5), learned Additional Sessions Judge while noticing the
mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed that
there was a prima facie material to presume that the accused committed
the offence punishable under Section 20(b)(ii)(c) and Section 29 of the
NDPS Act and rejected the application for post-arrest bail vide order
dated 21st February, 2019 which came to be challenged at the instance
of the accused respondent filing bail application before the High Court.
6. Learned Judge of the High Court without even noticing Section
37 of the NDPS Act and taking note of
the fact that other accused
persons in Crime No. 14/2018(A-1 to A-4) since have been released on
bail, granted him post-arrest bail under the order impugned dated 10th
May, 2019 which is a subject matter of appeal before us.
Facts of Crime No. 19/2018
7. The accused respondents in Crime No. 19/2018 are registered
at excise circle office, Thiruvananthapuram alleging commission of the
offence punishable under Section 20(b)(ii)(c) of the NDPS Act. It may
be noticed that A-5 in Crime No. 14/2018 is A-1(Shajimon) in Crime No.
19/2018 and other accused, i.e. Rajesh is A-3. The case of prosecution
is that on 25th October, 2018 at about 5.45 PM at Aristo Junction,
Thiruvananthapuram, accused respondent (Shajimon-A1) along with two
other persons including A-3(Rajesh) were found to be in possession of
1.800 kg of hashish oil. They were arrested on 25th October, 2018 for
offence punishable under Section 20(b)(ii)(c) of the NDPS Act. After
STATE OF KERALA ETC. v. RAJESH ETC.
[AJAY RASTOGI, J.]
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investigation, charge-sheet was filed on 17th April, 2019.  Both the accused
respondents(A-1 and A-3) filed their respective post-arrest bail application
before the Sessions Judge, Thiruvananthapuram which came to be
dismissed after assigning cogent reasons under Order dated 21st February,
2019 and both of them preferred their bail application before the High
Court. The High Court vide its order dated 10th May, 2019 granted bail
to  A-1 and A-3 in Crime No. 19/2018 and observed that both the accused
have completed 195 days in judicial custody and their further detention
is not necessary as nothing remains to be investigated against them.
Although Section 37 of NDPS Act has been referred to by the learned
Single Judge in the impugned order not for the purpose of showing its
compliance, but to justify due application of mind in taking decision to
grant post-arrest bail under Order dated 10th May, 2019.
8. It may also be noticed that respondent(A-5) was earlier
convicted under Section 55(a) of Abkari Act in S.C. 235/2005. At the
same time, for threatening witness in Crime No. 14/2018, a separate
Crime No. 38/2018 has been registered against him.
9. Immediately after the post-arrest bail was granted by the learned
Single Judge, miscellaneous application was filed by the appellant under
Section 482 CrPC for recalling the orders of grant of post-arrest bail to
the accused respondents dated 10th May, 2019. The learned Single
Judge
after noticing the submissions made in paragraph 16, that even if it was
an erroneous order and it did not involve application of mind, still it was
not open for the Court to reconsider the facts invoking Section 482 CrPC
and expressed its view that the remedy of the State lies in assailing the
orders of the Court before the superior forum, if so advised, and dismissed
the application vide order dated 12th June, 2019 which is also a subject
matter of challenge before us.
10. Mr. Ranjit Kumar, learned senior counsel for the appellant
submits that the High Court has committed an apparent error in exercising
discretion in favour of the accused respondents in granting post-arrest
bail to them without taking note of the mandate of Section 37(1)(b)(ii) of
the NDPS Act.
11. Learned senior counsel further submits that negation of bail is
the rule, and its grant is an exception under Section 37(1)(b)(ii) of the
NDPS Act. For granting bail, the Court must, on the basis of the record
produced before it, be satisfied that there are reasonable grounds for
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believing that the accused is not guilty of the offences with which he has
been charged, and further he is not likely to commit any offence while
on bail.
12. Learned senior counsel further submits that the conditions for
granting bail, specified in Section 37(1)(b)(ii) are in addition to the
limitations provided under the CrPC, or any other law for the time being
in force regulating the grant of bail. Liberal approach in the matter of
bail under the NDPS Act is uncalled for. In support of his submission,
learned senior counsel has placed reliance on the judgment of the three-
Judge Bench of this Court reported in Satpal Singh Vs. State of Punjab
2018(13) SCC 813.
13. Per contra, Mr. R. Basant, learned senior counsel for the
respondents, while supporting the order passed by the High Court
impugned in the proceedings submits that in Crime No. 14/2018, accused
nos. 1 to 4 were granted post-arrest bail by the High Court vide Orders
dated 4th October, 2018, 20th February, 2019 and 25th February, 2019
and the prosecution has not taken any steps to challenge the grant of bail
to all other accused persons. In the given circumstances, the post-arrest
bail which has been granted to respondent(A-5) in Crime No. 14/2018
(Shajimon) does not call for any interference.
14. Learned senior counsel further submits that so far as Crime
No. 19/2018 is concerned, they have been falsely implicated by the
batchmates of the excise official, Babu Varghese, who was convicted in
a
corruption case on the trap being laid down by respondent-Shajimon
who after trial, was convicted under Section 7 and Section 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act vide judgment dated
26th November, 2014 and later acquittal by the High Court may not be of
any significance.
15. Learned senior counsel further submits that charge-sheet has
been filed in both the cases, i.e. Crime No. 14/2018 and Crime No. 19/
2018 and the matter is fixed for framing of charge. No further
investigation is required from the accused respondents, and the learned
Single Judge under the impugned judgment has put stringent conditions
while granting post-arrest bail to the respondents, which has neither been
misused nor violated and after affording due opportunity of hearing and
noticing Section 37 of the NDPS Act, satisfaction has been recorded
that the accused respondents deserve post-arrest bail. Once the discretion
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has been exercised by the learned Single Judge based on the facts on
record, interference with the discretion exercised in favour of the accused
respondents is not warranted.
16. Learned senior counsel further submits that the High Court
was cognizant of the fact that the respondents had initiated prosecution
under the Prevention of Corruption Act against the batchmate of the
detecting officer and that such batchmate was convicted of the offence
under the Prevention of Corruption Act. The High Court was obviously
cognizant of the fact that it could be a case of false implication on account
of a prior animosity of the detecting officer-colleagues convicted under
the Prevention of Corruption Act on the complaint of the respondent.
There being no prior case against the respondent under the NDPS Act,
except these two cases, and the judicial discretion having been exercised,
no interference is called for by this Court.
17. It may be noticed that Hashish oil is shown at Sl. No. 13 in the
notification dated 19th October, 2001 issued by the Central Government
in exercise of power under Section 2(viia) and (xxiiia) of the NDPS Act.
Hashish oil above 1 kg is commercial quantity.
18. The jurisdiction of the Court to grant bail is circumscribed by
the provisions of Section 37 of the NDPS Act. It can be granted in case
there are reasonable grounds for believing that accused is not guilty of
such offence, and that he is not likely
to commit any offence while on
bail.  It is the mandate of the legislature which is required to be followed.
At this juncture, a reference to Section 37 of the Act is apposite.  That
provision makes the offences under the Act cognizable and non-bailable.
It reads thus:-
“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 [offences
under section 19 or section 24 or section 27A and also for
offences involving commercial quantity] 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
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(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.”
 (emphasis supplied)
19. This Court has laid down broad parameters to be followed
while considering the application for bail moved by the accused involved
in offences under NDPS Act. In Union of India Vs. Ram Samujh and
Ors. 1999(9) SCC 429, it has been elaborated as under:-
“7. It is to be borne in mind that the aforesaid legislative mandate
is required to be adhered to and followed. It should be borne in
mind that in a murder case, the accused commits murder of one
or two persons, while those persons who are dealing in narcotic
drugs are instrumental in causing death or in inflicting death-blow
to a number of innocent young victims, who are vulnerable; it
causes deleterious effects and a deadly impact on the society;
they are a hazard to the society; even if they are released
temporarily, in all probability, they would continue their nefarious
activities of trafficking and/or dealing in intoxicants clandestinely.
Reason may be large stake and illegal profit involved. This Court,
dealing with
the contention with regard to punishment under the
NDPS Act, has succinctly observed about the adverse effect of
such activities in Durand Didier v. Chief Secy., Union Territory
of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised
activities of the underworld and the clandestine smuggling of
narcotic drugs and psychotropic substances into this country
and illegal trafficking in such drugs and substances have led to
drug addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes and the
menace has assumed serious and alarming proportions in the
recent years. Therefore, in order to effectively control and
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eradicate this proliferating and booming devastating menace,
causing deleterious effects and deadly impact on the society
as a whole, Parliament in its wisdom, has made effective
provisions by introducing this Act 81 of 1985 specifying
mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market,
Parliament has provided that the person accused of offences under
the NDPS Act should not be released on bail during trial unless
the mandatory conditions provided in Section 37, namely,
(i)
there are reasonable grounds for believing that the accused
is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are
satisfied. The High Court has not given any justifiable reason
for not abiding by the aforesaid mandate while ordering the
release of the respondent-accused on bail. Instead of
attempting to take a holistic view of the harmful socio-
economic consequences and health hazards which would
accompany trafficking illegally in dangerous drugs, the court
should implement the law in the spirit with which Parliament,
after due deliberation, has amended.”
20. The scheme of Section 37 reveals that the exercise of power
to grant bail is not only subject to the limitations contained under Section
439 of the CrPC, but is also subject to the limitation placed by Section 37
which commences with non-obstante clause. The operative part of the
said section
is in the negative form prescribing the enlargement of bail to
any person accused of commission of an offence under the Act, unless
twin conditions are satisfied. The first condition is that the prosecution
must be given an opportunity to oppose the application; and the second,
is that the Court must be satisfied that there are reasonable grounds for
believing that he is not guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting bail operates.
21. 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. In the
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case on hand, the High Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the limitations provided
under the CrPC, or any other law for the time being in force, regulating
the grant of bail, its liberal approach in the matter of bail under the NDPS
Act is indeed uncalled for.
22. We may further like to observe that the learned Single Judge
has failed to record a finding mandated under Section 37 of the NDPS
Act which is a sine qua non for granting bail to the accused under the
NDPS Act.
23. The submission made by learned counsel for the respondents
that in Crime No. 14/2018, the bail has been granted to the other accused
persons(A-1 to A-4), and no steps have been taken by the prosecution
to challenge the grant of post-arrest bail to the other accused persons, is
of no consequence for the reason that the consideration prevailed upon
the Court to grant bail to the other accused persons will not absolve the
act of the accused respondent(A-5) from the rigour of Section 37 of the
NDPS Act.
24. The further submission of the learned counsel for the
respondents that they have been falsely implicated in Crime No. 19/
2018 for the reason that the batchmates of the excise official, Babu
Varghese was convicted in the corruption case on the trap being laid
down by the respondent-Shajimon(A-1) is only a conjecture of self-
defence, and no inference could be drawn of false implication, more so
when in Crime No. 19/2018 and
14/2018, charge-sheets have been filed
after investigation and the matter is listed before the learned trial Judge
for framing of the charge where the accused respondents certainly have
an opportunity to make their submissions.
25. That apart, in the application which was filed before the learned
Single Judge of the High Court by the appellant under Section 482 CrPC,
the learned Single Judge has also prima facie accepted that error has
been committed in granting bail to the accused respondents as observed
in para 16 of the impugned judgment as under:-
“On going through the orders granted on 10.5.2019 allowing bail
applications of A1 and A3 on the one hand and 5th accused on the
other hand in NDPS crime Nos. 19/2018 and 14/2018 respectively,
I find that the bail was granted by the Court after being cognizant
of the principles laid down in Section 37 of the Act whether it
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ultimately turned out to be right or wrong.  May be as regards 3rd
accused was concerned, order was passed under misconception
of facts.  Likewise, the criminal antecedents concerning the first
accused did not fall to the notice of this Court.  What could at the
most be said of the order passed by this Court is that it was
erroneous or it did not involve application of mind.  But then the
question arises is whether the same court could under law
reconsider the facts invoking Section 482 of the Code.  I am of
the opinion that the remedy of the State lay in challenging the
orders of this Court, if it was really aggrieved, before a superior
forum and not before the same court. Therefore, accepting the
argument of the learned counsel for the accused, I hold that none
of the applications seeking to recall the order of this Court is
maintainable under law.”
 (emphasis supplied)
26. In the result, the appeals are allowed and the impugned order
passed by the High Court releasing the respondents on bail is hereby set
aside. Bail bonds of the accused respondents stand cancelled and they
are directed to be taken into custody. The trial Court is directed to proceed
and expedite the trial.
27. Pending application(s), if any, stand disposed of.
Divya Pandey
Appeals allowed.