2021 INSC 0558 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION C riminal Appeal No. 1 043 of 2021 (Arising out of SLP (Crl) No. 1771 of 2021 ) Union of India through N arcotics Control Bureau, ....Appellant Lucknow Versus Md. Nawaz Khan ....Respondent J U D G M E N T Dr Dhananjaya Y Chandrachud, J. 1 This appeal arises from a judgment of a Single Judge at the Lucknow Bench of the High Court of Judicature at Allahabad dated 1 October 2020. NCB Case Crime No 14 of 2019 registered at Police Station, NCB, Lucknow for alleged offences under Sections 8, 21, 27A, 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 1. The High Court has allowed an application for bail. 1 “NDPS Act ” 8 commission of an offence punishable under Section 302 of the Indian Penal Code 1860 11, the High Court allowed the bail application. Justice DK Jain , speaking for the two -judge Bench, observed: “9. … this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance w ith the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima faci e or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii ) severity of the punishment in the event of conviction; (iv ) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi ) likelihood of the offence being repeated; (vii ) reasonable apprehension of the witnesses being influenced; and (viii ) danger, of course, of justice being thwarted by grant of bail. ” 14 The decision in Prasanta Kumar (supra) was referred to in a judgment of this C ourt in Mahipal v. Rajesh Kumar @ Polla & Anr . 12, where the High C ourt had granted bail to an accused who was charged with the commission of an offence punishable under Section 302 of the IPC . One of us (Justice DY Chandrachud) , speaking for the C ourt held and laid down the standard for adjudicating a plea for the cancel lation of bail : “14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason 11 “IPC ” 12 (2020) 2 SCC 118 9 that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contr avention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case- by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the acc used had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. […] 16. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non -application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.” ( emphasis supplied ) 15 The dual test propounded i n Mahipal (supra) was subsequently followed by this Court in Pra bhakar Tewari v. State of Uttar Pradesh 13. 13 (2020) 11 SCC 648 10 16 With re gard to the grant of bail for offences under the NDPS Act, in Union of India v. Shiv Shanker Kesari 14 this Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act. Further, in Union of India v. Prateek Shukla 15 , one of us (Justice DY Chandrachud), speaking for a two- judge Bench, noted that non-application of mind to the rival submissions and the seriousness of the allegations involv ing an offence under the NDPS Act by the High Court are grounds for cancellation of bail. 17 Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS Act. Section 37 reads as follows: “(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 o n 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 believin g 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 Procedu re, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (emphasis supplied ) 14 (2007) 7 SCC 798 15 (2021) 5 SCC 430 11 18 Under Section 37(1)(b)(ii) , the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are : (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist ‘reasonable grounds to believe’ that (a) the person i s not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. 19 The standard prescribed for the grant of bail is ‘reasonable ground to believe’ that the person is not guilty of the offence. Interpreting the standard of ‘reasonable grounds to believe’, a two- judge Bench of this Court in Shiv Shanker Kesari (supra) , held that: “7. The expression used in Section 37(1)( b)( ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 8. The wor d “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. “ 7 . … In Stroud' s Judicial Dictionary , 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times 12 and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.” (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] […] 10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315] 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” (emphasis supplied ) 20 Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail . Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug- trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. 21 In the present case, t he High Court while granting bail to the r espondent adverted to two circumstances, namely (i) absence of recovery of the contraband 13 from the possession of the respondent and (ii) the wrong name in the endorsement of translat ion of the statement under Section 67 of the NDPS Act . 22 We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal and Another v. State of Himachal Pradesh 16 this Court held that “19. Whether ther e was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20( b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. 21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contex ts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal 16 (2003) 7 SCC 465 14 Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniform [ly ] applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. […] 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.” What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab 17 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. I n Mohan Lal v. State of Rajasthan 18, this Court also observed that the term “pos session” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on thi s knowledge. 17 (2010) 9 SCC 608 18 (2015) 6 SCC 222 15 23 We have referred to the above precedents to reiterate the governing principles . At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court where evidence will be adduced. 24 As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that i n Union of India v. Rattan Mallik 19, a two -judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of t he contraband did not fulfil the parameters of Section 37(1)(b) and there was non- application of mind by the High Court. 25 In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. 26 With regard to the statement under Section 67 of the NDPS Act, t he High Court has placed abundant reliance on the inclusion of M ohd. Arif Kha n’s name in place of the respondent ’s name in the endorsement of translation o n the statement of the respondent . In Tofan Singh (supra), a three judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG 19 (2009) 2 SCC 624 16 submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage. 27 Another submission that has been raised by the counsel for the respondent both before the High Court and this Court is that due to non- compliance of the procedural requirement under Section 42 of the NDPS Act 20, the respondent should be granted bail. Section 42 provides that on the receipt of information of the commission of an offence under the statu te, the officer will have to write down the information and send it to a superior officer with 72 hours . It has been submitted by the respondent that though the information was received by the Zonal D irector, the information was put down in writing by an officer who was a part of the team constituted on the receipt of the information. The written information was then sent to the Zonal D irector. This C ourt Karnail Singh v. State of Haryana 21 held that though the writing down of information on the receipt of it should normally precede the search and seizure by the officer, in exceptional circumstances that warrant immediate and expedient action, the infor mation shall be written down later along with the reason for the delay: 20 “42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or cont rolled substance in respect of which an offence punishable under this Act [..]; (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy -two hours send a copy thereof to his immediate official superior. ” 21 (2009) 8 SCC 539 17 “35. […](c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasona ble period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non- compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating a ction, or non- sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the pol ice officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. ” 28 Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh (supra) was recently followed by this C ourt in Boota Singh v. State of Haryana 22. 22 2021 SCC OnLine SC 324 18 29 In the complaint that was filed on 16 October 2019 it is alleged that at a bout 1400 hours on 26 March 2019, information was received that between 1500-1700 hours on the same day, the three accused persons would be reaching Uttar Pradesh. The complaint states that the information was immediately reduced to writing. The refore, the contention that Section 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial. 30 The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of S ection 37: (i) The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co- accused; (ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him ; (iii) The quantity of contraband found in the vehicle is of a commercial quantity ; and (iv) The contraband was concealed in the vehicle in which the respondent was travelling with the co- accused. 19 31 The impugned order of the High Court, apart from observing that no contraband was found from the personal search of the respondent has ignored the above circumstances. The High Court has merely observed that “[…] In view of the above, the twin conditions contained under Section 37(1)(b) of the NDPS Act stand satisfied. This Court is of the view that if there is reasonable ground, the applicant is entitled to be released on bail.” 32 The High Court has clearly overlooked cruc ial requirements and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Moreover, it has emerged, during the co urse of the hearing that after the respondent was enlarged on bail he has consistently remained away from the criminal trial resulting in the issuance of a non- bailable warrant against him. The High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do. 33 For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 1 October 2020 in Bail No. 7379 of 2019. 20 34 The application for bail filed by the respondent shall stand dismissed. The respondent shall accordingly surrender forthwith. 35 Pending application (s), if any, stand disposed of. ……….. ………………………………………J [Dr Dhananjaya Y Chandrachud] ……..….. …………………………………………J [B V Nagarathna] New Delhi; September 22, 2021