AI Drafter 
TaxTMI 
TaxTMI 
2021 (9) TMI 1054
X X X X Extracts X X X X
X X X X Extracts X X X X
....eeding with heroin/morphine in a Maruti Ritz vehicle bearing registration No. UK 06 AA 25823 from Dimapur in Nagaland to Rampur in Uttar Pradesh and that the vehicle would be passing through Banarasi Das College, Lucknow. The information was reduced into writing and was produced before the Zonal Director, NCB Lucknow. A team of NCB officers was formed and it was directed to liaise with the team of the Uttar Pradesh Special Task Force, Lucknow "UP-STF". A surveillance was conducted in the area around Babu Banarasi Das College and at 1600 hours, the car in which the respondent was travelling with the other two co-accused was intercepted. A search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered in the course of the personal search. However, a search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car. The first packet weighed 1.740 kg, while the second packet weighed 1.750 kg. Samples were taken and upon testing with the drug detection kit, the samples tested positive for heroin. 3 Since the occupants of the car....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duly explained to him, which was evident from the fact that the official of the SSB who signed it had certified that the translation had been explained in Manipuri to Mohd. Arif Khan (co-accused). The name of the respondent as noted earlier is Md. Nawaz Khan. The High Court allowed the application for bail and observed thus: "Considering the rival submissions of learned counsel for parties, going through the recovery memo, alleged statement of the applicant recorded under Section 67 of the NDPS Act and the certification of Shri L.H. Kapin, it is evident that indisputably the alleged contraband was recovered from the wiper fitted on the front bonnet of the vehicle, which was being driven by Rafiuddin and the applicant was sitting in the said vehicle along with Arif Khan. Admittedly, nothing was recovered from the possession of the applicant. Further, in the search memo prepared by the officials, they categorically mentioned that, since the persons were not well conversed with the Hindi or English language, Shri LH. Kapin, personnel of SSB IV Battalion, Lucknow was requested to arrive on the spot for explaining the contents. A perusal of Annexure No. 3 of the counter affida....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a narcotic drug which is found to be in the conscious possession of the accused. On the above grounds, the learned ASG submitted that no case for the grant of bail exists, particularly, having regard to the provisions of Section 37(1)(b)(ii) of the NDPS Act. 10 Apart from the above circumstances, it has been submitted that the respondent, after having been released on bail, has consistently avoided appearing before the Sessions Judge at Lucknow as a result of which charges could not be framed and eventually a non-bailable warrant has been issued against the respondent. 11 On the other hand, Mr Rakesh Dahiya, learned Counsel appearing on behalf of the respondent submitted that the contraband in the present case was found concealed in the vehicle in which the respondent was travelling. Thus, it cannot be stated that it was the respondent who was in conscious possession of the contraband. Learned counsel submitted that the respondent is neither the driver nor the owner of the vehicle and in this backdrop, the order of the High Court enlarging him on bail cannot be faulted. 12 At the present stage, it is material to note that: (i) The vehicle which was inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....djudicating a plea for the cancellation 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 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 contravention 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 exer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 limitations 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. (emphasis supplied) 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 is 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 stan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, the High Court while granting bail to the respondent adverted to two circumstances, namely (i) absence of recovery of the contraband from the possession of the respondent and (ii) the wrong name in the endorsement of translation 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 unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andard 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. In Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, this Court also observed that the term "possession" 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 this knowledge. 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 in Union of India v. Rattan Mallik (2009) 2 SCC 624, 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, n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.", the respondent should be granted bail. Section 42 provides that on the receipt of information of the commission of an offence under the statute, 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 Director, 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 Director. This Court Karnail Singh v. State of Haryana (2009) 8 SCC 539 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 information shall be written down later along with the reason for the delay: "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....