NARCOTICS CONTROL BUREAUversusMOHIT AGGARWAL

600                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 600              [2022] 7 S.C.R.


A                    NARCOTICS CONTROL BUREAU
                                       v.
                            MOHIT AGGARWAL
                   (Criminal Appeal Nos. 1001-1002 of 2022)
B
                                JULY 19, 2022
             [N. V. RAMANA, CJI, KRISHNA MURARI AND
                         HIMA KOHLI, JJ.]
             Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.
C     8, 22, 29, 37 and 67 – Post-arrest bail – Not granted – Respondent
      made statement u/s. 67 NDPS Act and disclosed that he was illegally
      selling and purchasing the illegal drugs from ‘PJ’ – Based on it, a
      search was conducted by NCB at the premise of co-accused-‘PJ’
      and drugs covered under NDPS were recovered in huge quantities
D     – Respondent was taken into custody – Respondent made application
      for bail before Special Judge, NDPS which was rejected – High
      Court granted bail to respondent u/s 439 of Cr.PC – NCB filed an
      appeal before the Supreme Court and submitted that in light of
      s.37 of NDPS Act, the High Court erred in granting bail to the
E     respondent – Respondent contended that any confessional statement
      recorded u/s 67 NDPS Act is inadmissible in trial of offence under
      the said Act – Held: In view of the Tofan Singh case, the admissions
      made by respondent u/s. 67 NDPS Act is inadmissible in the trial
      under the NDPS Act – However, the disclosure statement made by
      the respondent to NCB which led to the searching of premises of co-
F
      accused-‘PJ’ and recovery of huge amount of illicit drugs and the
      arrest of ‘PJ’, which was based on respondent’s information shows
      that they were in touch with each other – As per s.37 of NDPS Act,
      only if the condition of reasonable grounds for believing that the
      person accused is not guilty of such an offence is satisfied, then
G     only bail can be granted – Respondent have failed to demonstrate
      the same – Condition u/s. 37 NDPS Act was not satisfied – Order of
      post-arrest bail quashed and set aside – Code of Criminal Procedure,
      1973 – s.439.

H
                                      600
  NARCOTICS CONTROL BUREAU v. MOHIT AGGARWAL                        601


     Allowing the appeals, the Court                                A
       HELD:1. The Single Judge of the High Court cannot be
faulted for holding that the appellant NCB could not have relied
on the confessional statements of the respondent and the other
co-accused recorded under Section 67 of the NDPS Act in the
light of law laid down by a Three Judges Bench of this Court in     B
Tofan Singh case, wherein 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 offence
under the NDPS Act. Therefore, the admissions made by the
respondent while in custody to the effect that he had illegally     C
traded in narcotic drugs, will have to be kept aside. However,
this was not the only material that the appellant-NCB had relied
on to oppose the bail application filed by the respondent. The
appellant-NCB had specifically stated that it was the disclosures
made by the respondent that had led the NCB team to arrive at
                                                                    D
and raid the godown of the co-accused, ‘PJ’ which resulted in the
recovery of a large haul of different psychotropic substances in
the form of tablets, injections and syrups. Counsel for the
appellant-NCB had also pointed out that it was the respondent
who had disclosed the address and location of the co-accused,
‘PJ’ who was arrested later on and the CDR details of the mobile    E
phones of all co-accused including the respondent herein showed
that they were in touch with each other. [Para 16][608-G-H; 609-
A-C]
      2. Even dehors the confessional statement of the
respondent and the other co-accused recorded under Section 67       F
of the NDPS Act, which were subsequently retracted by them,
the other circumstantial evidence brought on record by the
appellant-NCB ought to have dissuaded the High Court from
exercising its discretion in favour of the respondent and
concluding that there were reasonable grounds to justify that he    G
was not guilty of such an offence under the NDPS Act. This Court
was not persuaded by the submission made by counsel for the
respondent and the observation made in the impugned order that
since nothing was found from the possession of the respondent,
                                                                    H
602            SUPREME COURT REPORTS                      [2022] 7 S.C.R.


A     he is not guilty of the offence for which he has been charged.
      Such an assumption would be premature at this stage. [Para
      17][609-D-E]
            3. The Court held that the narrow parameters of bail
      available under Section 37 of the Act, have not been satisfied in
B     the facts of the instant case. At this stage, it was not safe to
      conclude that the respondent had successfully demonstrated that
      there were reasonable grounds to believe that he was not guilty
      of the offence alleged against him, for him to have been admitted
      to bail. The length of the period of his custody or the fact that the
C     charge-sheet has been filed and the trial has commenced are by
      themselves not considerations that can be treated as persuasive
      grounds for granting relief to the respondent under Section 37 of
      the NDPS Act. [Para 18][609-F-G]
            Tofan Singh v. State of Tamil Nadu 2020 SCC Online
D           SC 882; Collector of Customs, New Delhi v.
            Ahmadalieva Nodira (2004) 3 SCC 549 : [2004] 2 SCR
            1092; State of Kerala and Others v. Rajesh and Others
            (2020) 12 SCC 122 : [2020] 3 SCR 348 – referred to.
                             Case Law Reference
E
      [2004] 2 SCR 1092                 referred to      Para 12
      [2020] 3 SCR 348                  referred to      Para 13
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 1001-1002 of 2022.
F           From the Judgment and Order dated 16.03.2021 of the High Court
      of Delhi at New Delhi in Bail Appl. No. 2585 of 2020 & Crl. M. (B)
      8044 of 2020.
            Jayant K. Sud, ASG, Varun Chugh, Kanu Agrawal, Ms. Aniruddha
      Purshotham, Randeep Sachdeva, Kartik J., A. K. Sharma, B. V. Balaram
G
      Das, Advs. for the Appellant.
            P. K. Jain, S. P. Singh Rathore, Saurabh Jain, P. K. Goswami,
      Advs. for the Respondent.


H
      NARCOTICS CONTROL BUREAU v. MOHIT AGGARWAL                              603


         The Judgment of the Court was delivered by                           A
         HIMA KOHLI, J.
         1. Leave granted.
       2. The appellant-NCB is aggrieved by the judgment and order
dated 16.03.2021 passed by the High Court of Delhi granting post-arrest       B
bail to the respondent-accused in Case No.SC/1334/2020, where the
respondent is facing trial for the offence under Sections 8/22 and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 19851.
       3. The case set up by the prosecution is that on the basis of secret
information received by the officials of the Narcotic Control Bureau 2 on     C
09.01.2020, that one parcel had been booked by a person from Agra
named Gaurav Kumar Aggarwal, to be delivered to one Manoj Kumar
at Ludhiana, Punjab and was stored at the godown of a courier company
at Village Samalkha, Kapasehra, New Delhi, suspected to contain NRX
tablets, being a narcotic drug, the NCB team reached the said godown          D
and conducted search proceedings. The suspected parcel was identified
and opened in the presence of two independent witnesses from amongst
the staff members of the courier company. The said parcel was opened
and 50,000 Tramadol tablets weighing 20 kgs were recovered. As the
tablets contained in the suspected parcel had been mis-declared and
                                                                              E
were without any valid bill, seizure proceedings were initiated by the
officials of the NCB.
      4. In the voluntary statement made by the accused, Gaurav Kumar
Aggarwal under Section 67 of the NDPS Act, he stated that he had
booked the parcel through a courier company to be delivered to Manoj
                                                                              F
Kumar, resident of Ludhiana, Punjab and that he had purchased the
Tramadol tablets recovered during the search proceedings from the
respondent herein, without any bill or prescription. Rather, it was
mentioned on the parcel that it contained “surgical items”. The accused
Gaurav Kumar Aggarwal further stated that the respondent herein had
purchased the above medicines from one Promod Jaipuria alias Davinder         G
Khandelwal, a resident of Jaipur and the son-in-law of Promod Jaipuria
used to look after his business in Agra and that he had a godown where
the drugs were stored.
1
    For short ‘NDPS Act’
2
    For short ‘NCB’.                                                          H
604                 SUPREME COURT REPORTS                       [2022] 7 S.C.R.


A            5. The prosecution further stated that Gaurav Kumar Aggarwal
      had disclosed that he knew where the residence and the shop of the
      respondent were located and he could identify them. Accordingly, the
      said accused person accompanied the Raiding team to the premises of
      the respondent herein. On the disclosure made by the respondent herein,
B     the Raiding team proceeded to the godown of Promod Jaipuria and
      conducted a search during which a cache of drugs covered under the
      NDPS Act, were recovered. The said drugs included 6,64,940 tablets of
      different psychotropic substances including Tramadol, Zolpidem and
      Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc
      Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8
C
      ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the
      search conducted by the NCB officials at the premises of the co-accused,
      Manoj Kumar at Ludhiana.
             6. In his statement recorded under Section 67 of the NDPS Act,
      the respondent herein disclosed that he had been illegally selling and
D
      purchasing the said tablets and capsules from Promod Jaipuria. The
      respondent was taken into custody on 11th January, 2020. He moved
      two applications for grant of bail before the learned Special Judge, NDPS.
      Both the said applications were vehemently opposed by the appellant-
      NCB and were rejected by the Special Judge, NDPS. Aggrieved by the
E     order dated 21st July, 2020, whereby his second bail application was
      dismissed, the respondent filed a petition under Section 439 of the Code
      of Criminal Procedure, 19733 for grant of bail which has been allowed
      by the impugned order passed by the learned Single Judge of the High
      Court.
F            7. Arguing for the appellant-NCB, Mr. Jayant K. Sud, learned
      Additional Solicitor General, submitted that while passing the impugned
      order granting bail to the respondent, the High Court has erred in observing
      that no incriminating material was recovered by the NCB officials at his
      residence. He stated that the High Court has completely overlooked the
G     fact that it was on the basis of the disclosures made by the respondent
      himself that huge quantities of narcotic drugs and injections were seized
      from the godown of the co-accused, Promod Jaipuria who was
      subsequently arrested by the Department; that the High Court has
      committed a grave error by not applying the terms and conditions imposed
H     3
          For short ‘Cr.P.C.’
      NARCOTICS CONTROL BUREAU v. MOHIT AGGARWAL                               605
                    [HIMA KOHLI, J.]

under Section 37 of the NDPS Act; that the offence committed by the            A
respondent falls under the category of recovery of commercial quantity
of narcotic drugs and in the light of the embargo placed in Section 37 of
the NDPS Act, the respondent ought not to have been admitted to bail
and that this is a case of constructive/conscious possession of the
contraband substances as the respondent was an active participant in a         B
organized gang that was involved in smuggling of drugs. Lastly, it was
stated that there was sufficient circumstantial evidence available against
the respondent which would disentitle him for being admitted to bail.
       8. On the other hand, Mr. P.K. Jain, learned Advocate-on-Record
appearing for the respondent vehemently opposed the present appeal             C
and submitted that the High Court has rightly admitted the respondent to
bail after he remained in custody for a period of one year and three
months. He submitted that the impugned order was passed after granting
a hearing to the counsel for the appellant-NCB and the respondent and
the respondent has not violated any of the terms and conditions of bail
                                                                               D
imposed on him. On merits, it was urged that in the alleged incident,
neither was the consignment of the narcotic drugs booked by or for the
respondent. No recovery was made from the respondent and nothing
was found from the search conducted at his residence and shop.
Describing the respondent as a small-time shopkeeper selling medicines
at Agra, learned counsel submitted that he had no connection with the          E
other co-accused persons and that his name had cropped up in the course
of the statement of the co-accused, Gaurav Kumar Aggarwal under
Section 67 of the NDPS Act, which was partly recorded at Agra and
partly at Delhi. Though Gaurav Kumar Agarwal had taken the officials
of the NCB team to the respondent’s shop which was duly searched,              F
nothing incriminating was recovered from there. Besides the above, both
the co-accused, Gaurav Kumar Aggarwal and the respondent herein
had at the first opportunity, retracted from their statements recorded
under Section 67 of the NDPS Act and in view of law laid-down by this
Court in Tofan Singh v. State of Tamil Nadu 4, any confessional
                                                                               G
statement recorded under Section 67 of the NDPS Act, is inadmissible
in the trial of an offence under the said Act. Urging that the High Court
has followed the aforesaid judicial dicta and after noting the fact that the
charge-sheet had already been filed and besides the confessional
4
    2020 SCC Online SC 882                                                     H
606             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     statements of the accused recorded under Section 67 of the NDPS Act,
      no other incriminating material was forthcoming, the respondent had
      been rightly admitted to bail. Thus, learned counsel for the respondent
      contended that there is no infirmity in the impugned order that deserves
      interference.
B           9. We have carefully considered the arguments advanced by
      learned counsel for the parties and have perused the records.
            10. The provisions of Section 37 of the NDPS Act read as follows:
            “[37. Offences to be cognizable and non-bailable.–(1)
C           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
D               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

E               (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
F           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.]
             11. It is evident from a plain reading of the non-obstante clause
      inserted in sub-section (1) and the conditions imposed in sub-section (2)
G     of Section 37 that there are certain restrictions placed on the power of
      the Court when granting bail to a person accused of having committed
      an offence under the NDPS Act. Not only are the limitations imposed
      under Section 439 of the Code of Criminal Procedure, 1973 to be kept in
      mind, the restrictions placed under clause (b) of sub-section (1) of Section
      37 are also to be factored in. The conditions imposed in sub-section (1)
H
      NARCOTICS CONTROL BUREAU v. MOHIT AGGARWAL                               607
                    [HIMA KOHLI, J.]

of Section 37 is that (i) the Public Prosecutor ought to be given an           A
opportunity to oppose the application moved by an accused person for
release and (ii) if such an application is opposed, then the Court must be
satisfied that there are reasonable grounds for believing that the person
accused is not guilty of such an offence. Additionally, the Court must be
satisfied that the accused person is unlikely to commit any offence while      B
on bail.
      12. The expression “reasonable grounds” has come up for
discussion in several rulings of this Court. In “Collector of Customs,
New Delhi v. Ahmadalieva Nodira”5, a decision rendered by a Three
Judges Bench of this Court, it has been held thus :-                           C
         “7. The limitations on granting of bail come in only when the
         question of granting bail arises on merits. Apart from the grant of
         opportunity to the Public Prosecutor, the other twin conditions
         which really have relevance so far as the present accused-
         respondent is concerned, are: the satisfaction of the court that      D
         there are reasonable grounds for believing that the accused is not
         guilty of the alleged offence and that he is not likely to commit
         any offence while on bail. The conditions are cumulative and not
         alternative. The satisfaction contemplated regarding the accused
         being not guilty has to be based on reasonable grounds. The           E
         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              F
         satisfaction that the accused is not guilty of the alleged
         offence.” [emphasis added]
       13. The expression “reasonable ground” came up for discussion
in “State of Kerala and others Vs. Rajesh and others”6 and this Court
                                                                               G
has observed as below:
         “20. The expression ”reasonable grounds” means something more
         than prima facie grounds. It contemplates substantial probable
5
    (2004) 3 SCC 549
6
    (2020) 12 SCC 122                                                          H
608             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A           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 case on
B           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.” [emphasis
            added]
C
             14. To sum up, the expression “reasonable grounds” used in clause
      (b) of Sub-Section (1) of Section 37 would mean credible, plausible and
      grounds for the Court to believe that the accused person is not guilty of
      the alleged offence. For arriving at any such conclusion, such facts and
      circumstances must exist in a case that can persuade the Court to believe
D
      that the accused person would not have committed such an offence.
      Dove-tailed with the aforesaid satisfaction is an additional consideration
      that the accused person is unlikely to commit any offence while on bail.
              15. We may clarify that at the stage of examining an application
E     for bail in the context of the Section 37 of the Act, the Court is not
      required to record a finding that the accused person is not guilty. The
      Court is also not expected to weigh the evidence for arriving at a finding
      as to whether the accused has committed an offence under the NDPS
      Act or not. The entire exercise that the Court is expected to undertake
      at this stage is for the limited purpose of releasing him on bail. Thus, the
F     focus is on the availability of reasonable grounds for believing that the
      accused is not guilty of the offences that he has been charged with and
      he is unlikely to commit an offence under the Act while on bail.
            16. Coming back to the facts of the instant case, the learned Single
      Judge of the High Court cannot be faulted for holding that the appellant-
G
      NCB could not have relied on the confessional statements of the
      respondent and the other co-accused recorded under Section 67 of the
      NDPS Act in the light of law laid down by a Three Judges Bench of this
      Court in Tofan Singh (supra), wherein as per the majority decision, a
      confessional statement recorded under Section 67 of the NDPS Act has
H
   NARCOTICS CONTROL BUREAU v. MOHIT AGGARWAL                                   609
                 [HIMA KOHLI, J.]

been held to be inadmissible in the trial of an offence under the NDPS          A
Act. Therefore, the admissions made by the respondent while in custody
to the effect that he had illegally traded in narcotic drugs, will have to be
kept aside. However, this was not the only material that the appellant-
NCB had relied on to oppose the bail application filed by the respondent.
The appellant-NCB had specifically stated that it was the disclosures           B
made by the respondent that had led the NCB team to arrive at and raid
the godown of the co-accused, Promod Jaipuria which resulted in the
recovery of a large haul of different psychotropic substances in the form
of tablets, injections and syrups. Counsel for the appellant-NCB had
also pointed out that it was the respondent who had disclosed the address
                                                                                C
and location of the co-accused, Promod Jaipuria who was arrested later
on and the CDR details of the mobile phones of all co-accused including
the respondent herein showed that they were in touch with each other.
       17. Even dehors the confessional statement of the respondent
and the other co-accused recorded under Section 67 of the NDPS Act,
                                                                                D
which were subsequently retracted by them, the other circumstantial
evidence brought on record by the appellant-NCB ought to have dissuaded
the High Court from exercising its discretion in favour of the respondent
and concluding that there were reasonable grounds to justify that he
was not guilty of such an offence under the NDPS Act. We are not
persuaded by the submission made by learned counsel for the respondent          E
and the observation made in the impugned order that since nothing was
found from the possession of the respondent, he is not guilty of the offence
for which he has been charged. Such an assumption would be premature
at this stage.
       18. In our opinion the narrow parameters of bail available under         F
Section 37 of the Act, have not been satisfied in the facts of the instant
case. At this stage, it is not safe to conclude that the respondent has
successfully demonstrated that there are reasonable grounds to believe
that he is not guilty of the offence alleged against him, for him to have
been admitted to bail. The length of the period of his custody or the fact      G
that the charge-sheet has been filed and the trial has commenced are by
themselves not considerations that can be treated as persuasive grounds
for granting relief to the respondent under Section 37 of the NDPS Act.
       19. As a result of the aforesaid discussion, the present appeals
are allowed and the impugned order releasing the respondent on post-            H
610              SUPREME COURT REPORTS                      [2022] 7 S.C.R.


A     arrest bail, is quashed and set aside. The bail bonds of the respondent
      are cancelled and he is directed to be taken into custody forthwith.


      Ankit Gyan                                               Appeals allowed.
      (Assisted by : Aarsh Choudhary, LCRA)
B




C




D




E




F




G




H