SUPREME COURT OF INDIA
Narcotics Control Bureau
Vs.
Dilip Pralhad Namade
Crl.A.No.349 of 2004
(Doraiswamy Raju and Arijit Pasayat JJ.)
18.03.2004
JUDGMENT
Arijit Pasayat, J.
1. Leave granted.
2. Grant of bail to the respondent by a learned Single judge of Bombay High
Court is questioned by the Narcotics Control Bureau (in short the
"NCB"). The respondent is facing trial for alleged commission of
offences punishable under Section 29 read with Sections 8(c), 22, 28 and 30 of
the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the
'NDPS Act'). The allegations against the respondent Dilip Pralhad Namade
(hereinafter referred to as 'the accused') were that he was involved in the
manufacturing of mandrax tablets and he is the person who has supplied the
technical know how of preparation for the tablets.
3. Officers of the appellant- Bureau , Mumbai Zonal Unit, got information that
one Suresh Faturmal Jain was travelling in a red Ford Escort car and was
carrying 20, 000 Mandrax Tablets to be delivered to two persons at a particular
place. Acting on the information, two officers of the Bureau went to the
vicinity of the place where the tablets were to be delivered. Two persons were
called to act as Panchas. They found that there were three persons travelling
in the car. The officers searched the car and arrested all the three occupants.
One of them were Suresh Futormal Jain and others were Karakutti Karan Anthony
and Rajeev Shirook. From the bags, 20 Kgm. of Mandrax Tablets were recovered.
Statement of all the three accused persons were recorded and on the basis of
certain facts disclosed in the statements, a search was taken up by the
Officers and 650 Kgs. of chemicals used for manufacturing Mandrax tablets were
recovered. During the course of investigation, other persons were also searched
and enquiries were made.
4. The case against the respondent-accused was that he was instrumental in
helping the other accused persons in setting up a plant and machinery for manufacture
of Methaqualone Powder and Mandrax Tablets. With the help of others, the
respondent along with accused No. 10 manufactured eleven lakh Mandrax tablets
on three occasions for other accused persons. He had also visited the factory
of accused No. 13 for the purpose of procurement of the Mandrax Tableting
Machineries etc.
5. A bail application was filed by the respondent- accused, which was rejected
on 27.8.2001 by the Special judge Subsequently an application was filed on
21.6.2002 before the Special Judge for direction to the prosecuting agency to
supply copies of certain documents purported to have been recovered from his
house. The Special Judge directed the prosecution to furnish the copies.
6. Subsequently an application for bail was filed by the respondent-accused
before the Bombay High Court on 27.8.2002. By the Impugned order dated
19.12.2002 the High Court granted bail to the respondent-accused primarily on
the term that the direction given by the Special Judge for supply of copies of
documents was not complied with, though the bail application was opposed.
7. In support of the appeal Mr. L. Nageshwara Rao, learned Additional Solicitor
General submitted that while granting bail the provisions of Section 37 of the
Act were not kept in view. There is a prohibition on the grant of bail in terms
of Section 37 of the NDPS Act and only under the specified conditions bail can
be granted. Non-supply of documents pursuant to the court's order is not one of
the grounds on which bail can be granted. In fact the High Court recorded a
wrong conclusion by observing that the order was not complied with and there
was also no challenge to the order directing supply of documents. As a matter
of fact claiming privilege the Bureau had filed an application before the
Special Judge clearly indicating that it would not be in the interest of
justice to grant copies, and prayer was made to the Court that instead of
granting copies the accused, if he so desires, could inspect the documents in
presence of officials of the Bureau. That offer was not accepted by the accused
respondent. The Bureau wanted to avoid the possibility of any tampering with
the original documents and also further dissemination of the formula in public
and that is why inspection, as indicated above was offered. The accused having
not chosen to inspect the documents could not have made a grievance about
non-supply of copies or alleged non-compliance of the directions of the learned
Special Judge.
8. Per contra Mr. E.C. Agrarwala, learned counsel appearing for the
respondent-accused submitted that stand taken by the appellant-Bureau is
nothing but a camouflage to hide its inaction and non-compliance with the
orders of the Special Judge. There was a specific direction for supply of
copies and there is no ground indicated to substantiate the claim of privilege.
In any event, the order granting bail was passed on 19.12.2002 and this Court
was approached in May 2003 and in the meantime nearly 1 and half years have
elapsed without any allegations of the respondent-accused having misused his
liberties. He submitted that in two cases i.e. SLP (Crl.) No. 1136/2002 (
N.C.B. vs. Amar Pal Singh ) and SLP(Crl.) No. 434/2003, ( N.C.B. vs. Smt.
Hamida Sayyed Ali Shaikh) this Court did not interfere with order granting bail
on the sole ground of long passage of time. Therefore, it is submitted that
liberty granted to the respondent-accused should not be withdrawn.
9. It would be appropriate to take note of few provisions which have relevance
i.e. Section 2(xxiii) defining "psychotropic substances", and Section
37 dealing with bail. They read as follows:
Section 2(xxiii)
"psychotropic substance" means any substance, natural or synthetic,
or any natural material or any salt or preparation of such substance or
material included in the list of psychotropic substances specified in the
Schedule. Section 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 a term of imprisonment of
five years or more under this Act 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
(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 limitation 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."
10. As observed by this Court in Union of India v. Thamisharasi & Ors.
clause (b) of sub- section (1) of Section 37 imposes limitations on granting of
bail in addition to those provided under the Code. The two limitations are (1)
an opportunity to the public prosecutor to oppose the bail application and (2)
satisfaction of the Court that there are reasonable grounds for believing that
the accused is not guilty of such offence and that he is not likely to commit
any offence while on bail.
11. 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
the present accused-respondent is concerned, are (1) the satisfaction of the
Court that 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 for reasonable grounds. 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 and he is
not likely to commit any offence while on bail. This nature of embargo seems to
have been envisaged keeping in view the deleterious nature of the offence,
necessitates of public interest and the normal tendencies of the persons
involved in such network to pursue their activities with greater vigour and
make hay when, at large. In the case at hand the High Court seems to have
completely overlooked the underlying object of Section 37 and transgressed the
limitations statutorily imposed in allowing bail. It did not take note of the
confessional statement recorded under Section 67 of the Act.
12. A bare reading of the impugned judgment shows that the scope and ambit of
Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance
of the order passed for supply of copies, if any, cannot as in the instant case
entitle an accused to get bail notwithstanding prohibitions contained in
Section 37.
13. The circumstances under which the bail can be granted in the background of
Section 37 have been indicated above.
14. The case is not one to which the exceptions provided in Section 37 can be
applied.
15. Coming to the plea reqarding long passage of time it is to be noted that
the two orders passed by this Court in SLP (crl.) Nos. 1136/2002 and 434/2003
referred to above do not lay down any principle of law of invariable nature to
be universally applied. Furthermore, disposal of SLP against a judgment of the
High Court does not mean that the said judgment is affirmed by such dismissal.
The order passed in any SLP at threshold without detailed reasons does not
constitute any declaration of law or constitute a binding precedent. (see Union
of India and others vs. Jaipal Singh1. This court cannot and
does not reverse or modify the decree or order appealed against while deciding
the petition for special leave to appeal and that too when the SLP was being
dismissed. What is impugned before this Court can be reversed or modified only
after granting leave and then assuming appellate jurisdiction over it. If the
order impugned before this Court cannot be reversed or modified at the SLP
stage obviously that order cannot also be affirmed at the SLP stage (see
Kunhayammed and others vs. State of Kerala and another ) and Sri Ramnik
Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani2.
16. The inevitable conclusion is that the judgment has no legal sanction. We, therefore, set aside the impugned judgment of the High Court granting bail to the respondent.
17. The respondent-accused is directed to surrender to custody forthwith. Appeal is
allowed.
12003(7) Supreme 676
22003 (8) Supreme 208