2022 (7) TMI 1555 - HC - Indian Laws

Bail denied for accused in 585g charas smuggling case under Section 37 NDPS Act requirements

Bombay HC rejected bail application for accused involved in smuggling 0.585 kg charas/hashish. Court applied Section 37 NDPS Act requiring reasonable ... Seeking grant of bail - smuggling of of 0.585 kg. of Charas/Hashish - commercial quantity or not - admissibility of statement recorded under Section 67 of the NDPS Act - reasonable grounds under Section 37 of the NDPS Act for grant of bail - HELD THAT:- Section 37 of the NDPS Act, which contain a provision for a person accused of the offence punishable under the Act, being released on bail, contemplates satisfaction of two conditions, being the Public Prosecutor has been given an opportunity to oppose the application for such release and 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. The Hon’ble Apex Court has clarified the expression “reasonable grounds” in the case of Union of India through Narcotics Control Bureau, Lucknow Vs.Md.Nawaj Khan [2021 (9) TMI 1054 - SUPREME COURT] holding that '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.' “Reasonable grounds” in terms of Section 37(1) would mean credible, plausible and the grounds for the course to believe that the accused person is not guilty of the alleged offence. Looking to the material compiled in the charge-sheet, it cannot be believed that the applicant has not committed the offence, though finding of his guilt not recorded. Restricting myself to the limited purpose of considering the application for bail, the material in the charge-sheet is focussed and considering the alleged connection between the applicant and the co-accused, the evidence cannot be weighed to reach a conclusion that he has not committed any offence. Mere absence of recovery of the contraband from the applicant is no ground to confer his liberty upon him. The applicant appears to be a part of a larger chain and he was knowing the dealers and he is one of the person in the whole chain, who was facilitating the supply of drug either procuring from the dealers directly or he was an intermediary link between the supplier and the purchaser. The length of custody/long incarceration is no ground for releasing the applicant on bail, whose involvement is prima facie, apparent from the material compiled in the charge-sheet and there is no material to show that he will not indulge in similar activity on being released on bail. The application is rejected. Issues Involved:1. Admissibility of statements recorded under Section 67 of the NDPS Act.2. Application of Section 27A of the NDPS Act concerning financing illicit trafficking.3. Consideration of 'reasonable grounds' under Section 37 of the NDPS Act for granting bail.4. The role of call data records (CDRs) and other evidence in establishing the applicant's involvement in drug trafficking.5. The impact of non-recovery of contraband on the bail application.Issue-Wise Detailed Analysis:1. Admissibility of Statements Recorded Under Section 67 of the NDPS Act:The applicant's counsel argued that the case against the applicant is primarily based on statements recorded under Section 67 of the NDPS Act, which are inadmissible as confessions as per the Supreme Court's decision in Tofan Singh Vs. State of Tamilnadu. The counsel emphasized that the statement of co-accused Anuj Keshwani, implicating the applicant, has been retracted and is not sufficient to sustain a conviction. The court acknowledged the argument regarding the inadmissibility of Section 67 statements but noted that other evidence, such as call data records and audio transcripts, corroborates the applicant's involvement in drug trafficking.2. Application of Section 27A of the NDPS Act:The applicant's counsel contended that there is no evidence to support charges under Section 27A, which pertains to financing illicit trafficking. Citing the case of Rhea Chakraborty Vs. Union of India, the counsel argued that mere purchase and sale of drugs do not constitute financing. The court, however, found that the applicant's involvement in a larger drug syndicate, as evidenced by digital records and financial transactions, prima facie, supports the charge under Section 27A.3. Consideration of 'Reasonable Grounds' Under Section 37 of the NDPS Act for Granting Bail:The court highlighted the stringent conditions under Section 37 of the NDPS Act, which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. The court cited the Supreme Court's interpretation of 'reasonable grounds' as requiring substantial probable cause. Upon reviewing the evidence, including CDRs and the applicant's alleged role in the drug supply chain, the court concluded that there were no reasonable grounds to believe the applicant was not guilty, thus denying bail.4. The Role of Call Data Records (CDRs) and Other Evidence:The prosecution presented CDRs and audio transcripts as evidence of the applicant's involvement in drug trafficking. The court noted that these records established a connection between the applicant and co-accused Anuj Keshwani, indicating regular communication and transactions related to drugs. The court found this evidence credible and sufficient to support the prosecution's case against the applicant.5. The Impact of Non-Recovery of Contraband on the Bail Application:The applicant's counsel argued that no contraband was recovered from the applicant, which should weigh in favor of granting bail. However, the court, referencing precedents, stated that non-recovery of contraband does not automatically entitle an accused to bail. The court emphasized that the applicant's involvement in a drug trafficking network, as evidenced by other materials, was sufficient to deny bail.In conclusion, the court rejected the bail application, citing the applicant's prima facie involvement in drug trafficking activities, the lack of reasonable grounds to believe he was not guilty, and the potential risk of him engaging in similar activities if released on bail.