NARCOTICS CONTROL BUREAU VERSUS MOHIT AGGARWAL

NARCOTICS CONTROL BUREAU VERSUS MOHIT AGGARWAL


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1001-1002 OF 2022
ARISING OUT OF
PETITIONS FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 6128-29 OF 2021
NARCOTICS CONTROL BUREAU ….. APPELLANT
VERSUS
MOHIT AGGARWAL ….. RESPONDENT
J U D G M E N T
Hima Kohli, J.
1. Leave granted.
2. The appellant-NCB is aggrieved by the judgment and order dated
16.03.2021 passed by the High Court of Delhi granting post-arrest bail to
the respondent-accused in Case No.SC/1334/2020, where the
respondent is facing trial for the offence under Sections 8/22 and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 19851
.
3. The case set up by the prosecution is that on the basis of secret
information received by the officials of the Narcotic Control Bureau2
 on
1 For short ‘NDPS Act’
2 For short ‘NCB’
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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
09.01.2020, that one parcel had been booked by a person from Agra
named Gaurav Kumar Aggarwal, to be delivered to one Manoj Kumar at
Ludhiana, Punjab and was stored at the godown of a courier company at
Village Samalkha, Kapasehra, New Delhi, suspected to contain NRX
tablets, being a narcotic drug, the NCB team reached the said godown
and conducted search proceedings. The suspected parcel was identified
and opened in the presence of two independent witnesses from amongst
the staff members of the courier company. The said parcel was opened
and 50,000 Tramadol tablets weighing 20 kgs were recovered. As the
tablets contained in the suspected parcel had been mis-declared and
were without any valid bill, seizure proceedings were initiated by the
officials of the NCB.
4. In the voluntary statement made by the accused, Gaurav Kumar
Aggarwal under Section 67 of the NDPS Act, he stated that he had
booked the parcel through a courier company to be delivered to Manoj
Kumar, resident of Ludhiana, Punjab and that he had purchased the
Tramadol tablets recovered during the search proceedings from the
respondent herein, without any bill or prescription. Rather, it was
mentioned on the parcel that it contained “surgical items”. The accused
Gaurav Kumar Aggarwal further stated that the respondent herein had
purchased the above medicines from one Promod Jaipuria alias
Page 2 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
Davinder Khandelwal, a resident of Jaipur and the son-in-law of Promod
Jaipuria used to look after his business in Agra and that he had a
godown where the drugs were stored.
5. The prosecution further stated that Gaurav Kumar Aggarwal had
disclosed that he knew where the residence and the shop of the
respondent were located and he could identify them. Accordingly, the
said accused person accompanied the Raiding team to the premises of
the respondent herein. On the disclosure made by the respondent
herein, the Raiding team proceeded to the godown of Promod Jaipuria
and conducted a search during which a cache of drugs covered under
the NDPS Act, were recovered. The said drugs included 6,64,940 tablets
of different psychotropic substances including Tramadol, Zolpidem and
Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc
Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8
ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the
search conducted by the NCB officials at the premises of the coaccused, Manoj Kumar at Ludhiana.
6. In his statement recorded under Section 67 of the NDPS Act, the
respondent herein disclosed that he had been illegally selling and
purchasing the said tablets and capsules from Promod Jaipuria. The
Page 3 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
respondent was taken into custody on 11th January, 2020. He moved
two applications for grant of bail before the learned Special Judge,
NDPS. Both the said applications were vehemently opposed by the
appellant-NCB and were rejected by the Special Judge, NDPS.
Aggrieved by the order dated 21st July, 2020, whereby his second bail
application was dismissed, the respondent filed a petition under Section
439 of the Code of Criminal Procedure, 19733
 for grant of bail which has
been allowed by the impugned order passed by the learned Single Judge
of the High Court.
7. Arguing for the appellant-NCB, Mr. Jayant K. Sud, learned
Additional Solicitor General, submitted that while passing the impugned
order granting bail to the respondent, the High Court has erred in
observing that no incriminating material was recovered by the NCB
officials at his residence. He stated that the High Court has completely
overlooked the fact that it was on the basis of the disclosures made by
the respondent himself that huge quantities of narcotic drugs and
injections were seized from the godown of the co-accused, Promod
Jaipuria who was subsequently arrested by the Department; that the
High Court has committed a grave error by not applying the terms and
conditions imposed under Section 37 of the NDPS Act; that the offence
3 For short ‘Cr.P.C.’
Page 4 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
committed by the respondent falls under the category of recovery of
commercial quantity of narcotic drugs and in the light of the embargo
placed in Section 37 of the NDPS Act, the respondent ought not to have
been admitted to bail and that this is a case of constructive/conscious
possession of the contraband substances as the respondent was an
active participant in a organized gang that was involved in smuggling of
drugs. Lastly, it was stated that there was sufficient circumstantial
evidence available against the respondent which would disentitle him for
being admitted to bail.
8. On the other hand, Mr. P.K. Jain, learned Advocate-on-Record
appearing for the respondent vehemently opposed the present appeal
and submitted that the High Court has rightly admitted the respondent to
bail after he remained in custody for a period of one year and three
months. He submitted that the impugned order was passed after
granting a hearing to the counsel for the appellant-NCB and the
respondent and the respondent has not violated any of the terms and
conditions of bail imposed on him. On merits, it was urged that in the
alleged incident, neither was the consignment of the narcotic drugs
booked by or for the respondent. No recovery was made from the
respondent and nothing was found from the search conducted at his
residence and shop. Describing the respondent as a small-time
Page 5 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
shopkeeper selling medicines at Agra, learned counsel submitted that he
had no connection with the other co-accused persons and that his name
had cropped up in the course of the statement of the co-accused,
Gaurav Kumar Aggarwal under Section 67 of the NDPS Act, which was
partly recorded at Agra and partly at Delhi. Though Gaurav Kumar
Agarwal had taken the officials of the NCB team to the respondent’s
shop which was duly searched, nothing incriminating was recovered from
there. Besides the above, both the co-accused, Gaurav Kumar Aggarwal
and the respondent herein had at the first opportunity, retracted from
their statements recorded under Section 67 of the NDPS Act and in view
of law laid-down by this Court in Tofan Singh v. State of Tamil Nadu4
,
any confessional statement recorded under Section 67 of the NDPS Act,
is inadmissible in the trial of an offence under the said Act. Urging that
the High Court has followed the aforesaid judicial dicta and after noting
the fact that the charge-sheet had already been filed and besides the
confessional statements of the accused recorded under Section 67 of the
NDPS Act, no other incriminating material was forthcoming, the
respondent had been rightly admitted to bail. Thus, learned counsel for
the respondent contended that there is no infirmity in the impugned order
that deserves interference.
4 2020 SCC Online SC 882
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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
9. We have carefully considered the arguments advanced by learned
counsel for the parties and have perused the records.
10. The provisions of Section 37 of the NDPS Act read as follows:
“[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 [offences
under section 19 or section 24 or section 27A and also for
offences involving commercial quantity] 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 limitations on granting of bail specified in clause (b) of subsection (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.]
11. It is evident from a plain reading of the non-obstante clause
inserted in sub-section (1) and the conditions imposed in sub-section (2)
of Section 37 that there are certain restrictions placed on the power of
the Court when granting bail to a person accused of having committed
an offence under the NDPS Act. Not only are the limitations imposed
under Section 439 of the Code of Criminal Procedure, 1973 to be kept in
mind, the restrictions placed under clause (b) of sub-section (1) of
Section 37 are also to be factored in. The conditions imposed in subsection (1) of Section 37 is that (i) the Public Prosecutor ought to be
given an opportunity to oppose the application moved by an accused
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Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
person for release and (ii) if such an application is opposed, then the
Court must be satisfied that there are reasonable grounds for believing
that the person accused is not guilty of such an offence. Additionally, the
Court must be satisfied that the accused person is unlikely to commit any
offence while on bail.
12. The expression “reasonable grounds” has come up for discussion
in several rulings of this Court. In “Collector of Customs, New Delhi v.
Ahmadalieva Nodira”
5
, a decision rendered by a Three Judges Bench of
this Court, it has been held thus :-
“7. 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 as the present accused-respondent is concerned, are:
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 on 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.” [emphasis added]
13. The expression “reasonable ground” came up for discussion in
“ State of Kerala and others Vs. Rajesh and others”6
 and this Court
has observed as below:
5 (2004) 3 SCC 549
6 (2020) 12 SCC 122
Page 8 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
“20. 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. In the case on hand, the High
Court seems to have completely overlooked the underlying object of
Section 37 that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the grant of
bail, its liberal approach in the matter of bail under the NDPS Act is
indeed uncalled for.” [emphasis added]
14. To sum up, the expression “reasonable grounds” used in clause (b)
of Sub-Section (1) of Section 37 would mean credible, plausible and
grounds for the Court to believe that the accused person is not guilty of
the alleged offence. For arriving at any such conclusion, such facts and
circumstances must exist in a case that can persuade the Court to
believe that the accused person would not have committed such an
offence. Dove-tailed with the aforesaid satisfaction is an additional
consideration that the accused person is unlikely to commit any offence
while on bail.
15. We may clarify that at the stage of examining an application for bail
in the context of the Section 37 of the Act, the Court is not required to
record a finding that the accused person is not guilty. The Court is also
not expected to weigh the evidence for arriving at a finding as to whether
the accused has committed an offence under the NDPS Act or not. The
entire exercise that the Court is expected to undertake at this stage is for
the limited purpose of releasing him on bail. Thus, the focus is on the
Page 9 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
availability of reasonable grounds for believing that the accused is not
guilty of the offences that he has been charged with and he is unlikely to
commit an offence under the Act while on bail.
16. Coming back to the facts of the instant case, the learned Single
Judge of the High Court cannot be faulted for holding that the appellantNCB could not have relied on the confessional statements of the
respondent and the other co-accused recorded under Section 67 of the
NDPS Act in the light of law laid down by a Three Judges Bench of this
Court in Tofan Singh (supra), wherein as per the majority decision, a
confessional statement recorded under Section 67 of the NDPS Act has
been held to be inadmissible in the trial of an offence under the NDPS
Act. Therefore, the admissions made by the respondent while in custody
to the effect that he had illegally traded in narcotic drugs, will have to be
kept aside. However, this was not the only material that the appellantNCB had relied on to oppose the bail application filed by the respondent.
The appellant-NCB had specifically stated that it was the disclosures
made by the respondent that had led the NCB team to arrive at and raid
the godown of the co-accused, Promod Jaipuria which resulted in the
recovery of a large haul of different psychotropic substances in the form
of tablets, injections and syrups. Counsel for the appellant-NCB had
also pointed out that it was the respondent who had disclosed the
Page 10 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
address and location of the co-accused, Promod Jaipuria who was
arrested later on and the CDR details of the mobile phones of all coaccused including the respondent herein showed that they were in touch
with each other.
17. Even dehors the confessional statement of the respondent and the
other co-accused recorded under Section 67 of the NDPS Act, which
were subsequently retracted by them, the other circumstantial evidence
brought on record by the appellant-NCB ought to have dissuaded the
High Court from exercising its discretion in favour of the respondent and
concluding that there were reasonable grounds to justify that he was not
guilty of such an offence under the NDPS Act. We are not persuaded by
the submission made by learned counsel for the respondent and the
observation made in the impugned order that since nothing was found
from the possession of the respondent, he is not guilty of the offence for
which he has been charged. Such an assumption would be premature at
this stage.
18. In our opinion the narrow parameters of bail available under
Section 37 of the Act, have not been satisfied in the facts of the instant
case. At this stage, it is not safe to conclude that the respondent has
successfully demonstrated that there are reasonable grounds to believe
Page 11 of 12
Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021
that he is not guilty of the offence alleged against him, for him to have
been admitted to bail. The length of the period of his custody or the fact
that the charge-sheet has been filed and the trial has commenced are by
themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37 of the
NDPS Act.
19. As a result of the aforesaid discussion, the present appeals are
allowed and the impugned order releasing the respondent on post-arrest
bail, is quashed and set aside. The bail bonds of the respondent are
cancelled and he is directed to be taken into custody forthwith.
.................................CJI.
 [N. V. RAMANA]
 ...................................J.
 [KRISHNA MURARI]
 ...................................J.
 [HIMA KOHLI]
New Delhi,
July 19, 2022
Page 12 of 12

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