UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW versus MD. NAWAZ KHAN on 22 September 2021

[2021] 7 S.C.R. 819

UNION OF INDIA THROUGH NARCOTICS CONTROLBUREAU, LUCKNOW

v.

MD. NAWAZ KHAN

(Criminal Appeal No. 1043 of 2021)

SEPTEMBER 22, 2021

[DR. DHANANJAYA Y. CHANDRACHUD ANDB. V. NAGARATHNA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.8,21, 27A and 29 – On receiving information, a vehicle was interceptedby the NCB officers in which respondent and other two accusedpersons were travelling – Nothing objectionable was found in thecourse of personal search – However, search of car revealed twopackets together weighing 3.300 kg hidden under the place wherewiper is connected to the front bonnet of the car – The applicationfor bail of the respondent was rejected by the Additional Districtand Sessions Judge – The High Court allowed the application forbail by the respondent – On appeal, held: The impugned order ofthe High Court, apart from observing that no contraband was foundfrom the personal search and observed that twin conditionscontained in s.37(1)(b) of the NDPS Act were satisfied – The HighCourt ignored the following circumstances: (i) The respondent wastravelling in the vehicle all the way from Dimapur in Nagaland toRampur in Uttar Pradesh with the co-accused; (ii) The complaintnotes that the CDR analysis of the mobile number used by therespondent indicated that he was in regular touch with the otheraccused persons who were known to him; (iii) The quantity ofcontraband found was of commercial quantity; and (iv) Thecontraband was concealed in the vehicle in which the respondentwas travelling with the co-accused – The High Court overlookedcrucial requirements and glossed over the circumstances which werematerial to the issue as to whether a case for grant of bail wasestablished – In failing to do so, the order of the High Court becomesunsustainable – Moreover, after the respondent was enlarged onbail he has consistently remained away from the criminal trialresulting in the issuance of a non-bailable warrant against him –

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ATherefore, the impugned judgment and order of the High Court isset aside – Accordingly, the respondent is directed to surrender.

Allowing the appeal, the Court

HELD: 1. This Court has referred to the precedents toreiterate the governing principles. At this stage of theBproceedings, it needs only to be clarified that the trial is to takeplace this Court where evidence will be adduced. [Para 23][833-G-H; 834-A]

Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14SCC 496 : [2010] 12 SCR 1165; Mahipal v. RajeshCKumar @ Polla & Anr. (2020) 2 SCC 118 : [2019] 14SCR 529; Union of India v. Shiv Shanker Kesar (2007)7 SCC 798 : [2007] 9 SCR 964; Madan Lal and Anotherv. State of Himachal Pradesh (2003) 7 SCC 465 : [2003]2 Suppl. SCR 716 – relied on.DPrabhakar Tewari v. State of Uttar Pradesh (2020) 11SCC 648; Union of India v. Prateek Shukla (2021) 5SCC 430; Mohan Lal v. State of Rajasthan1 (2015) 6SCC 222 : [2015] 5 SCR 435 – referred to.

2. As regards the finding of the High Court regardingEabsence of recovery of the contraband from the possession ofthe respondent, in Union of India v. Rattan Mallik, a two-judgeBench of this Court cancelled the bail of an accused and reversedthe finding of the High Court, which had held that as the contraband(heroin) was recovered from a specially made cavity above theFcabin of a truck, no contraband was found in the ‘possession’ ofthe accused. The Court observed that merely making a findingon the possession of the contraband did not fulfil the parametersof Section 37(1)(b) and there was non-application of mind by theHigh Court. [Para 24][834-A-C]

3. In line with the decision of this Court in Rattan Mallik,Gthis Court is of the view that a finding of the absence of possessionof the contraband on the person of the respondent by the HighCourt in the impugned order does not absolve it of the level ofscrutiny required under Section 37(1)(b)(ii) of the NDPS Act. Withregard to the statement under Section 67 of the NDPS Act, theH

High Court has placed abundant reliance on the inclusion of ‘AK’sname in place of the respondent’s name in the endorsement oftranslation on the statement of the respondent. In Tofan Singh, athree judge Bench of this Court held that a statement underSection 67 of the NDPS Act is inadmissible. The ASG submittedthat independent of the statement, there are valid reasons todeny bail on the basis of the material which has emerged at thisstage. [Paras 25-26][834-C-F]

4. In the complaint that was filed on 16 October 2019 it isalleged that at about 1400 hours on 26 March 2019, informationwas received that between 1500-1700 hours on the same day,the three accused persons would be reaching Uttar Pradesh. Thecomplaint states that the information was immediately reducedto writing. Therefore, the contention that Section 42 of the NDPSAct was not complied with is prima facie misplaced. The questionis one that should be raised in the course of the trial. [Para29][836-C-E]

5. The following circumstances are crucial to assessingwhether the High Court has correctly evaluated the applicationfor bail, having regard to the provisions of Section 37: (i) Therespondent was travelling in the vehicle all the way from Dimapurin Nagaland to Rampur in Uttar Pradesh with the co-accused; (ii)The complaint notes that the CDR analysis of the mobile numberused by the respondent indicates that the respondent was inregular touch with the other accused persons who were knownto him; (iii) The quantity of contraband found in the vehicle is ofa commercial quantity; and (iv) The contraband was concealed inthe vehicle in which the respondent was travelling with the co-accused. [Para 30][836-E-H]

6. The High Court has clearly overlooked crucialrequirements and glossed over the circumstances which werematerial to the issue as to whether a case for the grant of bail wasestablished. In failing to do so, the order of the High Courtbecomes unsustainable. Moreover, it has emerged, during thecourse of the hearing that after the respondent was enlarged onbail he has consistently remained away from the criminal trialresulting in the issuance of a non-bailable warrant against him.

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AThe High Court ought to have given due weight to the seriousnessand gravity of the crime which it has failed to do. [Para 32][837-C-D]

Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1;Dharampal Singh v. State of Punjab (2010) 9 SCC 608B: [2010] 10 SCR 1160; Union of India v. Rattan Mallik(2009) 2 SCC 624 : [2009] 1 SCR 533; Karnail Singhv. State of Haryana (2009) 8 SCC 539 : [2009] 11 SCR470; Boota Singh v. State of Haryana (2021) SCCOnLine SC 324 – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1043 of 2021.F

From the Judgment and Order dated 01.10.2020 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Bail ApplicationNo.7379 of 2019.

S. V. Raju, ASG, Ms. Sairica Raju, Annam Venkatesh, Ms. SunitaGSharma, Anshuman Singh, B. V. Balaram Das, Advs. for the Appellant.

Rakesh Dahiya, Adv. for the Respondent.

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The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. This appeal arises from a judgment of a Single Judge at theLucknow Bench of the High Court of Judicature at Allahabad dated1 October 2020. NCB Case Crime No 14 of 2019 registered at PoliceStation, NCB, Lucknow for alleged offences under Sections 8, 21, 27A,29 of the Narcotic Drugs and Psychotropic Substances Act 1985[1].TheHigh Court has allowed an application for bail.

2. The complaint was filed on 16 September 2019 through theIntelligence Officer at the Lucknow Zonal Unit of the Narcotics ControlBureau[2]. The allegation is that the NCB, Zonal Unit received informationat 1400 hours that three persons namely Md. Arif Khan, Rafiuddin andMd. Nawaz Khan (the respondent), who are residents of Manipur wereproceeding with heroin/morphine in a Maruti Ritz vehicle bearingregistration No.UK 06 AA 25823 from Dimapur in Nagaland to Rampurin Uttar Pradesh and that the vehicle would be passing through BanarasiDas College, Lucknow.The information was reduced into writing andwas produced before the Zonal Director, NCB Lucknow. A team ofNCB officers was formed and it was directed to liaise with the team ofthe Uttar Pradesh Special Task Force, Lucknow[3]. A surveillance wasconducted in the area around Babu Banarasi Das College and at 1600hours, the car in which the respondent was travelling with the other twoco-accused was intercepted. A searchwas conducted in the presence ofa gazetted officer in view of the provisions of Section 50 of the NDPSActbut nothing objectionable was recovered in the course of the personalsearch. However, a search of the car revealed two polythene packetshidden under the place where the wiper is connected to the front bonnetof the car. The first packet weighed 1.740 kg, while the second packetweighed 1.750 kg. Samples were taken and upon testingwith the drugdetection kit, the samples tested positive for heroin.

3. Since the occupants of the car were not well- versed withHindi or English, an official belonging to the Shasastra Seema Bal[4] wassummoned at the spot for the purpose of translation as he hailed fromManipur and was conversant with the Manipuri language. The statements 1 “NDPS Ac’’

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Aof the three accused persons were recorded in English and weretranslated in Manipuri by the official from the SSB and the accusedwere placed under arrest. However, while certifying the statement ofthe respondent, the official of the SSB mentioned the name of Mohd.Arif Khan in place of the respondent (Md. Nawaz Khan).

B4. The sample packets marked as P1S1 and P2S1 were sent tothe Chief Examiner, Central Revenues Control Laboratory, New Delhi[5]on 27 March 2019. A chemical examination report dated 25 April 2019was prepared by CRCL which stated that the samples did not test positivefor diacetylmorphine that is heroin, however, it tested positive for morphine.

C5. Letters dated 10 July 2019 were sent to Airtel Private Limited,Lucknow; Vodafone Idea Limited, Lucknow; and Reliance JIO InfoCommunication Limited Lucknow, to obtain certified copies of call detailrecords[6] and customer application forms[7] relating to certain mobilenumbers. The CDR analysis of the said mobile numbers indicates thatthe respondent was regularly corresponding with the co-accused andDone Anish @ Abbas, who is a resident of Dimapur and is also suspectedto be involved in drug trafficking.

6. The application for bail moved by the respondent was rejectedby the Seventh Additional District and Sessions Judge, Lucknow on 27June 2019, observing that a huge quantity of heroin weighing 3.300 kgEwas recovered and that having regard to the seriousness and gravity ofthe crime, no case for the grant of bail was established. The respondentmoved the High Court and by the impugned order dated 1 October 2020,the application for bail was allowed.

7. The submission of the respondent before the High Court wasFthat he was only a companion in the vehicle which was driven by co-accused Rafiuddin and was not in conscious possession of the contrabandsince it had been recovered from the wiper fitted on the front bonnet ofthe vehicle, of which he had no knowledge. Moreover, it was urged thatthe provisions of Sections 42 and 50 of the NDPS Act were not compliedGwith. According to the respondent, the statement under Section 67 hadnot been duly explained to him, which was evident from the fact that theofficial of the SSB who signed it had certified that the translation hadbeen explained in Manipuri to Mohd. Arif Khan (co-accused). The name 5 “CRCL’’

6 “CDR’’H7 “CAF’’

of the respondent as noted earlier is Md. Nawaz Khan. The High Courtallowed the application for bail and observed thus:

“Considering the rival submissions of learned counsel for parties,going through the recovery memo, alleged statement of theapplicant recorded under Section 67 of the NDPS Act and thecertification of Shri L.H. Kapin, it is evident that indisputably thealleged contraband was recovered from the wiper fitted on thefront bonnet of the vehicle, which was being driven by Rafiuddinand the applicant was sitting in the said vehicle along with ArifKhan. Admittedly, nothing was recovered from the possession ofthe applicant. Further, in the search memo prepared by the officials,they categorically mentioned that, since the persons were not wellconversed with the Hindi or English language, Shri LH. Kapin,personnel of SSB IV Battalion, Lucknow was requested to arriveon the spot for explaining the contents. A perusal of AnnexureNo. 3 of the counter affidavit goes to show that the name of theapplicant is mentioned on the statement, but it also reveals thatwhile certifying this statement, Shri LH. Kapin mentioned in hiscertification that “Translated the statement as stated by Md. ArifKhan and after recording of stated readover the statement andmade understand in Manipuri Language.” Thus, since the statementwas explained to Mohd. Arif Khan and not to the applicant asalso that this statement was filed along with the complaint beforethe court below, oral argument of the learned counsel for therespondent at this juncture, cannot be accepted that due tomistake,the name of Mohd. Arif Khan is mentioned in placeofMohd. Nawaz (applicant). It is also undisputed that the applicantdoes not have any criminal antecedent.”

8. Mr SV Raju, Additional Solicitor General[8] appearing on behalfof the appellant submitted that in view of the decision in Tofan Singh v.State of Tamil Nadu[9], where it was held that a confessional statementmade under Section 67 of the NDPS Act will not be admissible in evidence,he does not seek to place reliance on the statement of the respondent.At the same time, it was urged that the High Court while granting bailhas lost sight of three crucial circumstances namely:

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A(i)A huge contraband of morphine weighing 3.300 kg has beenrecovered from the vehicle;

(ii) The respondent was admittedly travelling in the vehicle allthe way from Dimapur in Nagaland to Rampur in UttarPradesh; and B

(iii) The complaint tabulates the call data records of the cell phonesused by the accused. The accused persons were found tohave been in touch with each other and a flow chart has beenset out in the complaint.

9. In addition, it was urged that:

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(i) The decisions of this Court have held that compliance withthe provisions of Section 42 of the NDPS Act is warrantedwhere a private vehicle is sought to be searched in a publicplace; D(ii) As a matter of fact the contents of the complaint wouldindicate that there was compliance with the provisions ofSection 42 of the NDPS Act;

(iii) Several decisions of this Court indicate that whether theprovisions of Section 42 of the NDPS Act have been compliedwith is a matter of trial; andE

(iv) A presumption under Section 54 of the NDPS Act would arisein respect of the possession of a narcotic drug which is foundto be in the conscious possession of the accused.

On the above grounds, the learned ASG submitted that no caseFfor the grant of bail exists, particularly, having regard to the provisions ofSection 37(1)(b)(ii) of the NDPS Act.

10. Apart from the above circumstances, it has been submittedthat the respondent, afterhaving been released on bail, has consistentlyavoided appearing before the Sessions Judge at Lucknow as a result ofGwhich charges could not be framed and eventually a non-bailable warranthas been issued against the respondent.

11. On the other hand, Mr Rakesh Dahiya, learned Counselappearing on behalf of the respondent submitted that the contraband inthe present case was found concealed in the vehicle in which theHrespondent was travelling. Thus, it cannot be stated that it was the respondent who was in conscious possession of the contraband. Learnedcounsel submitted that the respondent is neither the driver nor the ownerof the vehicle and in this backdrop, the order of the High Court enlarginghim on bail cannot be faulted.

12. At the present stage, it is material to note that:

(i) The vehicle which was intercepted at Lucknow wasproceeding from Dimapur (Nagaland) towards Rampur (UttarPradesh);

(ii) The quantity of 3.300 kg of a narcotic substance which is acommercial quantity was found concealed in the vehicle;

(iii) The respondent is not an unknown passenger but a personwho, according to the prosecution, was closely in contact withthe co-accused.

13. The principles that guide this Court while assessing an orderof the High Court granting bail have been succinctly laid down inPrasanta Kumar Sarkar v. Ashis Chatterjee[10]. In Prasanta Kumar(supra), while the trial court dismissed several bail applications that werefiled by the accused who was charged for the commission of an offencepunishable under Section 302 of the Indian Penal Code 1860[11], the HighCourt allowed the bail application. Justice DK Jain, speaking for thetwo-judge Bench, observed:

“9. … this Court does not, normally, interfere with an order passedby the High Court granting or rejecting bail to the accused.However, it is equally incumbent upon the High Court to exerciseits discretion judiciously, cautiously and strictly in compliance withthe basic principles laid down in a plethora of decisions of thisCourt on the point. It is well settled that, among othercircumstances, the factors to be borne in mind while consideringan application for bail are:

(i) whether there is any prima facie or reasonable ground to believethat the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction; 10 (2010) 14 SCC 49611 “IPC’’

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828SUPREME COURT REPORTS

[2021] 7 S.C.R.

A(iv) danger of the accused absconding or fleeing, if released onbail;

(v) character, behaviour, means, position and standing of theaccused;

(vi) likelihood of the offence being repeated; B(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 aCjudgment of this Court in Mahipal v. Rajesh Kumar @Polla & Anr.[12],where the High Court had granted bail to an accused who was chargedwith the commission of an offence punishable under Section 302 of theIPC. One of us (Justice DY Chandrachud), speaking for the Court heldand laid down the standard for adjudicating a plea for the cancellation ofbail :D

“14. The provision for an accused to be released on bail touchesupon the liberty of an individual. It is for this reason that this Courtdoes not ordinarily interfere with an order of the High Courtgranting bail. However, where the discretion of the High Court togrant bail has been exercised without the due application of mindEor in contravention of the directions of this Court, such an ordergranting bail is liable to be set aside. The Court is required tofactor, amongst other things, a prima facie view that the accusedhad committed the offence, the nature and gravity of the offenceand the likelihood of the accused obstructing the proceedings ofFthe trial in any manner or evading the course of justice. Theprovision for being released on bail draws an appropriate balancebetween public interest in the administration of justice and theprotection of individual liberty pending adjudication of the case.However, the grant of bail is to be secured within the bounds ofthe law and in compliance with the conditions laid down by thisGCourt. It is for this reason that a court must balance numerousfactors that guide the exercise of the discretionary power to grantbail on a case-by-case basis. Inherent in this determination iswhether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused hadcommitted the crime. It is not relevant at this stage for the courtto examine in detail the evidence on record to come to a conclusivefinding.

[…]

16. Where a court considering an application for bail fails toconsider relevant factors, an appellate court may justifiably setaside the order granting bail. An appellate court is thus requiredto consider whether the order granting bail suffers from anon-application of mind or is not borne out from a primafacie view of the evidence on record. It is thus necessary forthis Court to assess whether, on the basis of the evidentiary record,there existed a prima facie or reasonable ground to believe thatthe accused had committed the crime, also taking into accountthe seriousness of the crime and the severity of the punishment.”

15. The dual test propounded in Mahipal (supra) was subsequentlyfollowed by this Court in Prabhakar Tewari v. State of UttarPradesh[13].

16. With regard to the grant of bail for offences under the NDPSAct, in Union of India v. Shiv Shanker Kesari[14 ]this Court observedthat bail may be cancelled if it has been granted without adhering to theparameters under Section 37 of the NDPS Act. Further, in Union ofIndia v. Prateek Shukla[15], one of us (Justice DY Chandrachud),speaking for a two-judge Bench, noted that non-application of mind tothe rival submissions and the seriousness of the allegations involving anoffence under the NDPS Act by the High Court are grounds forcancellation of bail.

17. Section 37 of the NDPS Act regulates the grant of bail incases involving offences under the NDPS Act. Section 37 reads asfollows:

“(1) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

13(2020) 11 SCC 648

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(a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offencesunder section 19 or section 24 or section 27A and also foroffences involving commercial quantity] shall be releasedon bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunityto oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application,the court is satisfied that there are reasonable groundsfor believing that he is not guilty of such offence andthat he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) ofsub-section (1) are in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974) or any other law for thetime being in force on granting of bail.

18. Under Section 37(1)(b)(ii), the limitations on the grant of bailfor offences punishable under Sections 19, 24 or 27A and also for offencesinvolving a commercial quantity are :

(i) The Prosecutor must be given an opportunity to oppose theapplication for bail; and

(ii) There must exist ‘reasonable grounds to believe’ that (a)theperson is not guilty of such an offence; and (b) he is not likely Fto commit any offence while on bail.

19. The standard prescribed for the grant of bail is ‘reasonableground to believe’ that the person is not guilty of the offence. Interpretingthe standard of ‘reasonable grounds to believe’, a two-judge Bench ofthis Court in Shiv Shanker Kesari (supra), held that:

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“7. The expression used in Section 37(1)(b)(ii) is“reasonable grounds”. The expression means somethingmore than prima facie grounds. It connotes substantialprobable causes for believing that the accused is not guiltyof the offence charged and this reasonable belief H

contemplated in turn points to existence of such facts andcircumstances as are sufficient in themselves to justifyrecording of satisfaction that the accused is not guilty ofthe offence charged.

8. The word “reasonable” has in law the prima facie meaning ofreasonable in regard to those circumstances of which the actor,called on to act reasonably, knows or ought to know. It is difficultto give an exact definition of the word “reasonable”.

“7. … In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 statesthat it would be unreasonable to expect an exact definition ofthe word ‘reasonable’. Reason varies in its conclusionsaccording to the idiosyncrasy of the individual, and the timesand circumstances in which he thinks. The reasoning whichbuilt up the old scholastic logic sounds now like the jingling of achild’s toy.”

(See Municipal Corpn. of Delhi v. Jagan Nath AshokKumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and GujaratWater 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 particularact is reasonable or not depends on the circumstances in a givensituation. (See Municipal Corpn. of Greater Mumbai v. KamlaMills Ltd. [(2003) 6 SCC 315]

11. The court while considering the application for bail withreference to Section 37 of the Act is not called upon to record afinding of not guilty. It is for the limited purpose essentially confinedto the question of releasing the accused on bail that the court iscalled upon to see if there are reasonable grounds for believingthat the accused is not guilty and records its satisfaction about theexistence of such grounds. But the court has not to consider thematter as if it is pronouncing a judgment of acquittal and recordinga finding of not guilty.”

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A20. Based on the above precedent, the test which the High Courtand this Court are required to apply while granting bail is whether thereare reasonable grounds to believe that the accused has not committedan offence and whether he is likely to commit any offence while on bail.Given the seriousness of offences punishable under the NDPS Act andin order to curb the menace of drug-trafficking in the country, stringentBparameters for the grant of bail under the NDPS Act have beenprescribed.

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21. In the present case, the High Courtwhile granting bail to therespondent adverted to two circumstances, namely (i) absence ofrecovery of the contraband from the possession of the respondent andC(ii) the wrong name in the endorsement of translation of the statementunder Section 67 of the NDPS Act.

22. We shall deal with each of these circumstances in turn. Therespondent has been accused of an offence under Section 8 of the NDPSAct, which is punishable under Sections 21, 27A, 29, 60(3) of the saidDAct. Section 8 of the Act prohibits a person from possessing any narcoticdrug or psychotropic substance. The concept of possession recurs inSections 20 to 22, which provide for punishment for offences under theAct. In Madan Lal and Another v. State of Himachal Pradesh[16 ]thisCourt held thatE

“19. Whether there was conscious possession has to be determinedwith reference to the factual backdrop. The facts which can beculled out from the evidence on record are that all the accusedpersons were travelling in a vehicle and as noted by the trial courtthey were known to each other and it has not been explained orFshown as to how they travelled together from the same destinationin a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband articles anoffence. Section 20 appears in Chapter IV of the Act which relatesto offences for possession of such articles. It is submitted that inGorder to make the possession illicit, there must be a consciouspossession.

21. It is highlighted that unless the possession was coupled withthe 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 whichassumes different colours in different contexts. It may carrydifferent meanings in contextually different backgrounds. It isimpossible, as was observed in Supdt. & Remembrancer of LegalAffairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completelylogical and precise definition of “possession” uniform[ly] applicableto all situations in the context of all statutes.

23. The word “conscious” means awareness about a particularfact. It is a state of mind which is deliberate or intended.

[…]

26. Once possession is established, the person who claims that itwas not a conscious possession has to establish it, because howhe came to be in possession is within his special knowledge.Section 35 of the Act gives a statutory recognition of this positionbecause of the presumption available in law. Similar is the positionin terms of Section 54 where also presumption is available to bedrawn from possession of illicit articles.”

What amounts to “conscious possession” was also considered inDharampal Singh v. State of Punjab[17], where it was held that theknowledge of possession of contraband has to be gleaned from the factsand circumstances of a case. The standard of conscious possessionwould be different in case of a public transport vehicle with severalpersons as opposed to a private vehicle with a few persons known toone another. In Mohan Lal v. State of Rajasthan[18], this Court alsoobserved that the term “possession” could mean physical possessionwith animus; custody over the prohibited substances with animus; exerciseof dominion and control as a result of concealment; or personal knowledgeas to the existence of the contraband and the intention based on thisknowledge.

23. We have referred to the above precedents to reiterate thegoverning principles. At this stage of the proceedings, it needs only to be 17 (2010) 9 SCC 60818 (2015) 6 SCC 222

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Aclarified that the trial is to take placethis Court where evidence will beadduced.

24. As regards the finding of the High Court regarding absence ofrecovery of the contraband from the possession of the respondent, wenote that in Union of India v. Rattan Mallik[19], a two-judge Bench ofBthis Court cancelled the bail of an accused and reversed the finding ofthe High Court, which had held that as the contraband (heroin) wasrecovered from a specially made cavity above the cabin of a truck, nocontraband was found in the ‘possession’ of the accused. The Courtobserved that merely making a finding on the possession of the contrabanddid not fulfil the parameters of Section 37(1)(b) and there was non-Capplication 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 thecontraband on the person of the respondent by the High Court in theimpugned order does not absolve it of the level of scrutiny required underDSection 37(1)(b)(ii) of the NDPS Act.

26. With regard to the statement under Section 67 of the NDPSAct, the High Court has placed abundant reliance on the inclusion ofMohd. Arif Khan’s name in place of the respondent’s name in theendorsement of translation on the statement of the respondent. In TofanESingh (supra), a three judge Bench of this Court held that a statementunder Section 67 of the NDPS Act is inadmissible. The ASG submittedthat independent of the statement, there are valid reasons to deny bail onthe basis of the material which has emerged at this stage.

27. Another submission that has been raised by the counsel forFthe respondent both before the High Court and this Court is that due tonon-compliance of the procedural requirement under Section 42 of theNDPS Act[20], the respondentshould be granted bail. Section 42 providesthat on the receipt of information of the commission of an offence underthe statute, the officer will have to write down the information and sendGit to a superior officer with 72 hours. It has been submitted by therespondent that though the information was received by the ZonalDirector, the information was put down in writing by an officer who wasa part of the team constituted on the receipt of the information. The 19 (2009) 2 SCC 62420 "42. Power of entry, search, seizure and arrest without warrant or authorisation: (1)HAny such officer (being an officer superior in rank to a peon, sepoy or constable) of the written information was then sent to the Zonal Director. This CourtKarnail Singh v. State of Haryana[21 ]held that though the writing downof information on the receipt of it should normally precede the searchand seizure by the officer, in exceptional circumstances that warrantimmediate and expedient action, the information shall be written downlater along with the reason for the delay:

“35. […](c) In other words, the compliance with the requirementsof Sections 42(1) and 42(2) in regard to writing down theinformation received and sending a copy thereof to the superiorofficer, should normally precede the entry, search and seizure bythe officer. But in special circumstances involving emergentsituations, the recording of the information in writing and sendinga copy thereof to the official superior may get postponed by areasonable period, that is, after the search, entry and seizure. Thequestion is one of urgency and expediency.

(d) While total non-compliance with requirements of subsections(1) and (2) of Section 42 is impermissible, delayed compliancewith satisfactory explanation about the delay will be acceptablecompliance with Section 42. To illustrate, if any delay may resultin the accused escaping or the goods or evidence being destroyedor removed, not recording in writing the information received,before initiating action, or non-sending of a copy of such informationto the official superior forthwith, may not be treated as violationof Section 42. But if the information was received when the policeofficer was in the police station with sufficient time to take action,and if the police officer fails to record in writing the informationreceived, or fails to send a copy thereof, to the official superior, departments of central excise, narcotics, customs, revenue intelligence or any otherdepartment of the Central Government including para-military forces or armed forcesas 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) ofthe revenue, drugs control, excise, police or any other department of a State Governmentas is empowered in this behalf by general or special order of the State Government, ifhe has reason to believe from persons knowledge or information given by any personand taken down in writing that any narcotic drug, or psychotropic substance, orcontrolled 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) orrecords grounds for his belief under the proviso thereto, he shall within seventy-twohours send a copy thereof to his immediate official superior.’’21 (2009) 8 SCC 539

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Athen it will be a suspicious circumstance being a clear violation ofSection 42 of the Act. Similarly, where the police officer does notrecord the information at all, and does not inform the officialsuperior at all, then also it will be a clear violation of Section 42 ofthe Act. Whether there is adequate or substantial compliance withSection 42 or not is a question of fact to be decided in each case.BThe above position got strengthened with the amendment to Section42 by Act 9 of 2001.”

28. Further, it was held that the issue of whether there wascompliance of the procedure laid down under Section 42 of the NDPSAct is a question of fact. The decision in Karnail Singh (supra) wasCrecently followed by this Court in Boota Singh v. State of Haryana[22].

29. In the complaint that was filed on 16 October 2019 it is allegedthat at about 1400 hours on 26 March 2019, informationwas receivedthat between 1500-1700 hours on the same day, the three accused personswould be reaching Uttar Pradesh. The complaint states that theDinformation was immediately reduced to writing. Therefore, the contentionthat Section 42 of the NDPS Act was not complied with is prima faciemisplaced. The question is one that should be raised in the course of thetrial.

30. The following circumstances are crucial to assessing whetherEthe High Court has correctly evaluated the application for bail, havingregard to the provisions of Section 37:

(i) The respondent was travelling in the vehicle all the way fromDimapur in Nagaland to Rampur in Uttar Pradesh with theco-accused;F

(ii) The complaint notes that the CDR analysis of the mobilenumber used by the respondent indicates that the respondentwas in regular touch with the other accused persons whowere known to him;

(iii) The quantity of contraband found in the vehicle is of aGcommercial quantity; and

(iv) The contraband was concealed in the vehicle in which therespondent was travelling with the co-accused.

31. The impugned order of the High Court, apart from observingthat no contraband was found from the personal search of the respondenthas ignored the above circumstances. The High Court has merelyobserved that “[…]

In view of the above, the twin conditions contained under Section37(1)(b) of the NDPS Act stand satisfied. This Court is of theview that if there is reasonable ground, the applicant is entitled tobe released on bail.”

32. The High Court has clearly overlooked crucial requirementsand glossed over the circumstances which were material to the issue asto whether a case for the grant of bail was established. In failing to doso, the order of the High Court becomes unsustainable. Moreover, it hasemerged, during the course of the hearing that after the respondent wasenlarged on bail he has consistently remained away from the criminaltrial resulting in the issuance of a non-bailable warrant against him. TheHigh Court ought to have given due weight to the seriousness and gravityof the crime which it has failed to do.

33. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court dated 1 October 2020in Bail No. 7379 of 2019.

34. The application for bail filed by the respondent shall standdismissed. The respondent shall accordingly surrender forthwith.

35. Pending application (s), if any, stand disposed of.

Ankit Gyan

Appeal allowed.

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