BHARAT CHAUDHARYversusUNION OF INDIA

                          [2021] 9 S.C.R. 551                            551


                     BHARAT CHAUDHARY                                    A
                                  v.
                        UNION OF INDIA
    (Petition for Special Leave to Appeal (Crl.) No. 5703 of 2021)
                        DECEMBER 13, 2021                                B
               [N.V. RAMANA, CJI, SURYA KANT
                     AND HIMA KOHLI, JJ.]
       Narcotic Drugs and Psychotropic Substances Act, 1985: ss.
8(c), 22(c), 25, 28, 29, 67 – Seizure of psychotropic substances –
Prosecution case that large number of tablets seized by Directorate      C
of Revenue Intelligence from different locations believing to be
psychotropic substances – A-1 to A-3 arrested under various
provisions of NDPS Act for alleged export of psychotropic
substances – Arrest of A-4 on the basis of statements of A-1 and A-
3 for contravening provisions of NDPS Act – Grant of bail to A-4         D
by NDPS Court – However, the High Court cancelled the bail in
favour of A-4 – High Court also rejected the bail application of A-
1 – On appeal, held: Held: In absence of clarity on quantitative
analysis of samples, prosecution cannot state at the preliminary stage
that the accused were found to be in possession of psychotropic
substances – Large number of tablets seized by DRI admittedly            E
contain herbs/medicines meant to enhance male potency, and does
not attract provision of NDPS Act – No tablets seized during search
of office and residence of A-4 – WhatsApp messages from devices
seized not sufficient to establish link between A 4 and A1 to A3 –
Furthermore, scientific reports is still awaited – No conscious          F
possession of psychotropic substances proved against A-4 – Order
setting aside the bail of A-4 on mere reliance on statements of A-1
to A-3 u/s. 67 cannot be sustained – Thus, the order of the High
Court qua A-4 is quashed and set aside – Also it is appropriate to
release A-1 on bail.
                                                                         G
      Disposing of the Special Leave Petitions, the Court
      HELD: 1.1. The impugned order cancelling the bail granted
in favour of A-4, is not sustainable in view of the fact that the
records sought to be relied upon by the prosecution show that
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                                 551
552            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     one test report dated 6th December, 2019, two test reports dated
      17 th December, 2019 and one test report dated 21st December,
      2019 in respect of the sample pills/tablets drawn and sent for
      testing by the prosecuting agency conclude with a note appended
      by the Assistant Commercial Examiner at the foot of the reports
      stating that “quantitative analysis of the samples could not be
B
      carried out for want of facilities”. In the absence of any clarity so
      far on the quantitative analysis of the samples, the prosecution
      cannot be heard to state at this preliminary stage that the
      petitioners have been found to be in possession of commercial
      quantity of psychotropic substance as contemplated under the
C     NDPS Act. [Para 10][558-B-D]
             1.2. A large number of the tablets that have been seized by
      the DRI admittedly contain herbs/medicines meant to enhance
      male potency and they do not attract the provisions of the NDPS
      Act. Most importantly, none of the tablets were seized by the
D     prosecution during the course of the search conducted, either at
      the office or at the residence of A-4. Reliance on printouts of
      WhatsApp messages downloaded from the mobile phone and
      devices seized from the office premises of A-4 cannot be treated
      at this stage as sufficient material to establish a live link between
      him and A-1 to A-3, when even as per the prosecution, scientific
E     reports in respect of the said devices is still awaited.
      [Para 10][558-D-F]
             2. In the absence of any psychotropic substance found in
      the conscious possession of A-4, mere reliance on the statement
      made by A-1 to A-3 under Section 67 of the NDPS Act is too
F     tenuous a ground to sustain the impugned order. The impugned
      order qua A-4 is quashed and set aside and the order passed by
      the Special Judge, EC and NDPS Cases, is restored. As for A-1,
      since the charge sheet has already been filed and by now the said
      accused has remained in custody for over a period of two years,
G     it is deemed appropriate to release him on bail, subject to the
      satisfaction of the trial court. [Para 11][558-F-H; 559-A]
            Sanjeev Chandra Agarwal vs. Union of India Criminal
            Appeal No. 1273 of 2021 decided on 25th October,
            2021; Tofan Singh v. State of Madras (2021) 4 SCC 1
H           – referred to.
              BHARAT CHAUDHARY v. UNION OF INDIA                              553


                          Case Law Refernce                                   A
(2021) 4 SCC 1             referred to.                     Para 5
      EXTRAORDINARY APPELLATE JURISDICTION : Petition
For Special Leave To Appeal (Crl.) No.5703 of 2021.
      From the Judgment and Order dated 15.07.2021 of the High Court          B
of Judicature at Madras in Crl. O.P. No.18450 of 2020.
         With
         Petition For Special Leave to Appeal (Crl.) No.8919 of 2021.
      Gopal Sankaranarayanan, Anand Grover, Sr. Advs., R. C. Paul
                                                                              C
Kanagaraj, Karuppaiah Meyyappan, Raghunatha Sethupathy B., Ms.
Kanika Kalaiyarasan, Shrutanjaya Bhardwaj, Abhishek Kalaiyarasan,
Ms. Pariksha, Nirnimesh Dube, Ms. Tripti Tandon, Satbir Singh Pillania,
Vivekanand Rana, Sandiv Kalia, Nand Ram, Somvir Deswal, Ms. Reena
Rao, Dr. Sushil Balwada, Advs. for the Petitioner.
                                                                              D
       Ms. Aishwarya Bhati, ASG, Rupesh Kumar, Ms. Archna Pathak
Dave, Rajat Nair, Ms. Deepabali Dutta, Mukesh Kumar Maroria, Advs.
for the Respondent.
         The Order of the Court was passed by
         HIMA KOHLI J.                                                        E
      1. By this common order, we propose to dispose of two Petitions
for Special Leave to Appeal filed against the common judgment and
order dated 15th July, 2021 passed by the learned Single Judge of the
High Court of Madras. SLP(Crl) No. 5703/2021 has been filed by Bharat
Chaudhary [A-4] who is aggrieved by the reversal of the bail order            F
dated 02nd November, 2020 granted in his favour by the learned Special
Judge, EC & NDPS Cases, Chennai whereas Raja Chandrasekharan
[A-1] has challenged the dismissal of the bail application filed by him
under Section 439 of the Criminal Procedure Code.
      2. The case set up by the prosecution is that on specific information   G
received by the Directorate of Revenue Intelligence, Chennai Zonal Unit1,
Officers of DRI had seized about 1,37,665 tablets of different types
collectively weighing 90Kgs. (approx.) described as psychotropic
substances from the following four locations, all situated in Chennai:
1
    For short ‘the DRI’                                                       H
554                   SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A              (i)      Office of M/s. Aviation Star Express, Ekkattuthangal, a
                        Franchisee
                        of M/s DHL Express India Private Limited;
               (ii)     2 Destination, a Franchisee of M/s S.T. Courier;
B              (iii)    residence of Raja Chandrasekharan [A-1]; and
               (iv)     office premises of M/s. DHL Express India Private Limited.
             3. Believing the tablets seized from the aforesaid premises to be
      composed of psychotropic substances covered under the provisions of
      the Narcotic Drugs and Psychotropic Substances Act, 19852 read with
C     the Customs Act, the DRI conducted investigation and summoned M.V.
      Srinivasan [A-2] – Director of M/s 2 Destination and Propreitor of M/s
      S.T. Courier; Raja Chandrasekharan [A-1] – Proprietor of Ascure Pure
      Herbals; M. Ashok Kumar [A-3] - employee of A-1 and after recording
      their statements, booked them for the offences under Section 8(c)
D     punishable under Sections 22(c), 25, 28 and 29 of the NDPS Act and
      arrested them on 18th October, 2019. Based on the statements made by
      A-1 and A-3 that they had colluded with suppliers in Nagpur and Rajasthan
      and procured tablets composed of psychotrophic substances for exporting
      and sending through courier service to customers in USA under the
      guise of herbal tablets, on orders received from Bharat Chaudhary [A-
E     4], officers of DRI, Jaipur Unit conducted a search at his residence at
      Jaipur on 16th March, 2020 and seized some incriminating material.
      Thereafter, he was arrested on 17th March, 2020 for contravening the
      provisions of Section 8(c) punishable under Sections 22(c), 24 and 29 of
      the NDPS Act. On being granted transit bail by the learned Chief
F     Metropolian Magistrate, Jaipur, A-4 was produced before the NDPS
      Court at Chennai on 19th March, 2020 and remanded on the same day.
            4. Vide order dated 2nd November, 2020, the learned Special Judge,
      EC & NDPS Cases, Chennai granted bail to Bharat Chaudhary[A-4].
      The reasons that weighed with the said Court for granting bail to A-4
      were that :-
G
               (i)      he was not found to be in possession of any psychotropic
                        substance and no contraband was recovered from his
                        residence or office during the search;

      2
H         For short ‘the NDPS Act’
                 BHARAT CHAUDHARY v. UNION OF INDIA                               555
                           [HIMA KOHLI J.]

         (ii)     the electronic gagets/devices that were seized from the         A
                  office of A-4 had been sent for obtaining a scientific report
                  which was still awaited;
         (iii)    while 1,37,665 tablets were seized from four different
                  locations in Chennai between 15th October, 2019 and 18th
                  October, 2019, officers of the DRI had gone to Jaipur to        B
                  arrest A-4 after five months, solely on the basis of the
                  statement made by A-1 under Section 67 of the NDPS Act;
         (iv)     there was no live link established against A-4, a resident of
                  Jaipur of having connived with the other accused, A-1 to
                  A-3 who were all residing in Chennai and arrested from          C
                  there.
         (v)      the test reports in respect of the seized material were
                  awaited and it was not established whether the tablets
                  which, as per the accused were sexual enhancement tablets,
                  would qualify either as a narcotic or psychotrophic substance   D
                  so as to fall within the ambit of the NDPS Act;
         (vi)     The first test report received by the DRI on 21st November,
                  2019, revealed that the tablets were actually sexual
                  enhancement drugs and not covered under the NDPS Act
                  and the test report in respect of 26 tablets sent to CFSL,      E
                  Hyderabad, was still awaited.
       5. Being mindful of the recent verdict of a Three Judge Bench of
this Court in Tofan Singh v. State of Madras3 where in as per the
majority decision, a confessional statement recorded under Section 67
of the NDPS Act has been held to be inadmissible in the trial of an               F
offence under the NDPS Act, the learned Special Judge, EC & NDPS
Cases, Chennai granted bail to Bharat Chaudhary [A-4]. On the DRI
challenging the aforesaid order before the High Court of Madras, the
bail order granted in favour of A-4 has been cancelled by the learned
Single Judge with scathing remarks made against the learned Special
Judge. Citing the same reasons as have been given in the case of A4,              G
the bail application moved by A1 has also been rejected.
    6. The learned Single Judge has faulted the Special Judge, EC &
NDPS Cases] for having conducted a roving enquiry to grant bail to A-
3
    [2021] 4 SCC 1                                                                H
556            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     4. It has been held that the ruling in Tofan Singh’s case, does not bar
      the Prosecuting Agency from recording the statement of the co-accused
      for the purpose of apprehending the other accused in the offence.
      Observing that it was not on the basis of the statement of A-4 that he
      has been arrested and detained, but rather on the basis of the information
      furnished by A-1 to A-3 who have implicated him as a person involved in
B
      the offence and for arranging supply of contraband, it was held that
      absence of any evidence to establish a link between A-1, A-3 and A-4
      could not form the basis for granting any relief to A-4. As for the
      observation of the Special Judge, EC & NDPS Cases that the test reports
      received by the prosecuting agency on 22nd November, 2019 revealed
C     that many of the tablets were sexual enhancement drugs and not covered
      under the NDPS Act, the High Court opined that the test reports did not
      totally negate the fact that the seized contraband goods were not narcotic
      substances. Much emphasis was laid on the total quantity of the
      contraband seized and it was held that once the test reports showed that
      some of the tablets contained narcotic substances, it was sufficient to
D
      refuse bail to A-4. Critical of the approach of the trial Court that held
      that since the test reports were not filed by the prosecuting agency along
      with the complaint, the benefit ought to enure in favour of A-4, the High
      Court observed that, by the time the Special Judge, EC & NDPS Cases
      had pronounced the order on 2nd November, 2020, test reports were
E     available and ought to have been taken into consideration.
              7. Appearing for Bharat Chaudhary [A-4], Mr. Gopal
      Shankaranarayanan, learned Senior Advocate has assailed the impugned
      order contending that there was no good reason for the High Court to
      have cancelled the bail granted to A-4 by the learned Special Judge, EC
F     & NDPS cases. He submitted that a grave error has been committed by
      the High Court by completely overlooking the fact that not a single tablet
      was recovered from the possession of A-4; that the tablets were seized
      from the premises of A-1 to A-3 and some of the extracted samples sent
      for testing showed that a large number of the seized pills were sex
      enhancement drugs and not contraband; that the seized contraband had
G     not been produced or sampled before the Magistrate and that A4 has
      been dragged into the matter solely on the basis of the confession/
      statements made by Raja Chandrasekaran [A-1] under Section 67 of
      the NDPS Act, despite the fact that in a recent judgment of this Court in
      Tofan Singh (supra), the majority view is that a confessional statement
H     is not admissible in evidence which view has been followed in Criminal
          BHARAT CHAUDHARY v. UNION OF INDIA                               557
                    [HIMA KOHLI J.]

Appeal No. 1273 of 2021 titled “Sanjeev Chandra Agarwal vs.                A
Union of India”, decided on 25th October, 2021.
       8. Mr. Anand Grover, learned Senior counsel appearing on behalf
of Raja Chandrasekharan [A-1] has argued that the High Court has
fallen into an error by rejecting the bail application of A-1 without
considering the submission made that no commercial quantity of the         B
psychotropic substance had been proved so far. The test reports produced
by the prosecution showed that the Ayurvedic/herbal medicines seized
were meant for sex enhancement which do not fall under the ambit of
the NDPS Act and that Standing Order 1/89 issued by the Government
of India under Section 52A of the NDPS Act has been completely
disregarded inasmuch as the samples were not drawn on the spot and/or      C
recovered from the premises of A-1, nor were the samples drawn in the
office of DRI in the presence of the accused and the Panchas. It was
canvassed that the sanctity and integrity of the seizure made is highly
doubtful on account of failure on the part of the prosecuting agency to
follow the procedure prescribed in Sections 42 and 52 of the NDPS Act.     D
It was also argued that the information received and recorded in the
present case, was in respect of the alleged export of the psychotropic
substances from the premises of M/s Aviation Star Express, a franchisee
of M/s. DHL Express Limited and there is no mention of A-1 or his
premises in the information referred to under Section 42 of the NDPS
Act.                                                                       E

       9. Per contra, Ms. Aishwarya Bhati, learned Additional Solicitor
General appearing for DRI has supported the impugned judgment and
vehemently argued that A-4 is the mastermind behind the entire criminal
conspiracy and he, in connivance with A-1, has been supplying contraband
to A-1 to A-3, for being illegally exported abroad under the garb of sex   F
enhancement tablets. She alluded to the 71 samples sent for testing and
the test report of CRCL, Chennai dated 18th December, 2019 confirming
the presence of narcotic substances along with male potency increment
drugs and strenuously argued that the nexus between A-4 and A-1 to A-
3 is not only established through the statements of A-1 to A-3 recorded    G
under Section 67 of the NDPS Act, but also from the documents in the
form of printouts of the data downloaded from the moblie phone and
laptop of A-4, in particular, the Whatsapp chats and bank transactions
between A-1 and A-4. Submitting that since the twin tests laid down
under Section 37 of the NDPS Act in respect of commercial quantity for
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558             SUPREME COURT REPORTS                              [2021] 9 S.C.R.


A     grant of bail have not been satisfied, the impugned order does not deserve
      interference.
             10. After carefully examining the arguments advanced by learned
      counsel for the parties and having cursorily glanced at the records, we
      are of the opinion that the impugned order cancelling the bail granted in
B     favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact
      that the records sought to be relied upon by the prosecution show that
      one test report dated 6th December, 2019, two test reports dated 17th
      December, 2019 and one test report dated 21st December, 2019 in respect
      of the sample pills/tablets drawn and sent for testing by the prosecuting
      agency conclude with a note appended by the Assistant Commercial
C     Examiner at the foot of the reports stating that “quantitative analysis
      of the samples could not be carried out for want of facilities”. In the
      absence of any clarity so far on the quantitative analysis of the samples,
      the prosecution cannot be heard to state at this preliminary stage that
      the petitioners have been found to be in possession of commercial quantity
D     of psychotropic subtances as contemplated under the NDPS Act. Further,
      a large number of the tablets that have been seized by the DRI admittedly
      contain herbs/medicines meant to enhance male potency and they do
      not attract the provisions of the NDPS Act. Most importantly, none of
      the tablets were seized by the prosecution during the course of the search
      conducted, either at the office or at the residence of A-4 at Jaipur, on
E     16 th March, 2020. Reliance on printouts of Whatsapp messages
      downloaded from the mobile phone and devices seized from the office
      premises of A-4 cannot be treated at this stage as sufficient material to
      establish a live link between him and A-1 to A-3, when even as per the
      prosecution, scientific reports in respect of the said devices is still awaited.
F            11. In the absence of any psychotropic substance found in the
      conscious possession of A-4, we are of the opinion that mere reliance on
      the statement made by A-1 to A-3 under Section 67 of the NDPS Act is
      too tenuous a ground to sustain the impugned order dated 15th July, 2021.
      This is all the more so when such a reliance runs contrary to the ruling in
G     Tofan Singh (supra). The impugned order qua A-4 is, accordingly,
      quashed and set aside and the order dated 2nd November, 2020 passed
      by the learned Special Judge, EC & NDPS Cases, is restored. As for
      Raja Chandrasekharan [A-1], since the charge sheet has already been
      filed and by now the said accused has remained in custody for over a

H
             BHARAT CHAUDHARY v. UNION OF INDIA                                   559
                       [HIMA KOHLI J.]

period of two years, it is deemed appropriate to release him on bail,             A
subject to the satisfaction of the trial Court.
       12. Before parting with the cases, it is clarified that the prima
facie observations made hereinabove are limited to considering the relief
of regular bail prayed for by the petitioners and nothing expressed
hereinabove shall be treated as an observation on the merits of the case,         B
i.e., CC No.0000037/2020, pending trial. The petitions for special leave
to appeal are disposed of in the above terms.

Nidhi Jain                                    Petitions special leave disposed.
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