REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO(S). 154­157   OF 2020   (Arising out of SLP(Crl.) No(s). 7309­7312 of 2019)

STATE OF KERALA ETC. …..APPELLANT(S)

VERSUS

RAJESH ETC.       ….RESPONDENT(S)

J U D G M E N T

Ajay Rastogi, J.

1. Leave granted.

2. The appellant­prosecution has challenged the discretion

exercised by the learned Single Judge of the High Court of Kerala in

granting post­arrest bail to the accused respondents without noticing

the mandate of Section 37(1)(b)(ii) of the Narcotic Drugs and

Psychotropic Substances Act,  1985(hereinafter being referred to as

“NDPS Act”) under the order impugned dated 10th May, 2019 followed

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with 12th June, 2019 rejecting the application filed by the appellant

under Section 482 of the Code of Criminal Procedure(hereinafter

being referred to as “CrPC”) for recalling the order of post­arrest bail

dated 10th May, 2019.

3. It may be noticed that accused respondent Shajimon is (A­5)

in Crime No. 14/2018 and (A­1) in Crime No. 19/2018 and another

accused respondent Rajesh is (A­3) in Crime No. 19/2018.

Facts of Crime No. 14/2018  

4. The prosecution case is that on 25th May, 2018 at 5.30 p.m. in

the parking area of the Hotel Aquarock situated at Mannanthala,

accused A­1 to A­3 were found to be in joint possession of 10.202

kgs of hashish oil and currency notes worth Rs. 13,50,000/­.  The

Circle Inspector of Excise, Thiruvananthapuram arrested all of

three accused A­1 to A­3 and seized the hashish oil, money and the

vehicles which were used by them for transporting oil.   The

allegation against the accused respondent (A­5) was that he

entrusted hashish oil to A­1 through A­2 for sale in the

International market and Crime No. 14/2018 was registered against

him for the offences punishable under Sections 20(b)(ii)(c) and

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Section 29 of the NDPS Act and after  investigation, charge­sheet

was filed on 10th May, 2019.

5. On an application filed for post­arrest bail by accused

respondent(A­5), learned Additional Sessions Judge while noticing

the mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed

that there was a prima facie material to presume that the accused

committed the offence punishable under Section 20(b)(ii)(c) and

Section 29 of the NDPS Act and rejected the application for post­

arrest bail vide order dated 21st February, 2019 which came to be

challenged  at the instance  of the  accused respondent filing  bail

application before the High Court.

6. Learned Judge of the High Court without even noticing Section

37 of the NDPS Act and taking note of the fact that other accused

persons in Crime No. 14/2018(A­1 to A­4) since have been released

on bail, granted  him post­arrest  bail  under the  order impugned

dated 10th May, 2019 which is a subject matter of appeal before us.

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Facts of Crime No. 19/2018

7. The accused respondents in Crime No. 19/2018 are registered

at excise circle office, Thiruvananthapuram alleging commission of

the offence punishable under Section 20(b)(ii)(c) of the NDPS Act.  It

may be noticed that A­5 in Crime No. 14/2018 is A­1(Shajimon) in

Crime No. 19/2018 and other accused, i.e.  Rajesh is A­3.  The case

of prosecution is that on 25th  October, 2018 at about 5.45 PM at

Aristo Junction, Thiruvananthapuram, accused respondent

(Shajimon­A1) along with two other persons including A­3(Rajesh)

were found to be in possession of 1.800 kg of hashish oil.   They

were arrested on 25th October, 2018 for offence punishable under

Section 20(b)(ii)(c)  of the  NDPS Act.  After investigation, charge­

sheet was filed on 17th  April, 2019.   Both the accused

respondents(A­1 and A­3) filed their respective post­arrest bail

application before the Sessions Judge, Thiruvananthapuram which

came to be dismissed after assigning cogent reasons under Order

dated 21st  February,  2019 and both of them preferred  their  bail

application before the High Court.   The High Court vide its order

dated 10th  May, 2019 granted bail to   A­1 and A­3 in Crime No.

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19/2018 and observed that both the accused have completed 195

days in judicial custody and their further detention is not necessary

as  nothing  remains to  be investigated  against them.    Although

Section 37 of NDPS Act has been referred to by the learned Single

Judge in the  impugned order not  for the purpose of showing  its

compliance, but to justify due application of mind in taking decision

to grant post­arrest bail under Order dated 10th May, 2019.

8. It may also be noticed that respondent(A­5) was earlier

convicted under Section 55(a) of Abkari Act in S.C. 235/2005.   At

the same time,  for threatening witness  in Crime No. 14/2018, a

separate Crime No. 38/2018 has been registered against him.

9. Immediately after the post­arrest bail was granted by the

learned Single  Judge,  miscellaneous application was  filed by  the

appellant under Section 482 CrPC for recalling the orders of grant

of post­arrest bail to the accused respondents dated 10th  May,

2019.  The learned  Single  Judge  after  noticing the  submissions

made in paragraph 16, that even if it was an erroneous order and it

did not  involve application of  mind, still it  was not open for the

Court to reconsider the facts invoking Section 482 CrPC and

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expressed its view that the remedy of the State lies in assailing the

orders of the Court before the superior forum, if so advised, and

dismissed the application vide order dated 12th June, 2019 which is

also a subject matter of challenge before us.

10. Mr.  Ranjit  Kumar, learned senior  counsel for the  appellant

submits that the High Court has committed an apparent error in

exercising discretion in favour of the accused respondents in

granting post­arrest bail to them without taking note of the

mandate of Section 37(1)(b)(ii) of the NDPS Act.   

11. Learned senior counsel further submits that negation of bail is

the rule, and its grant is an exception under Section 37(1)(b)(ii) of

the NDPS Act.   For granting bail, the Court must, on the basis of

the record produced before it, be satisfied that there are reasonable

grounds for believing that the accused is not guilty of the offences

with which he has been charged, and further he is  not  likely to

commit any offence while on bail.

12. Learned senior counsel further submits that the conditions for

granting bail, specified in Section 37(1)(b)(ii) are in addition to the

limitations provided under the CrPC, or any other law for the time

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being in force regulating the grant of bail.  Liberal approach in the

matter of bail under the NDPS Act is uncalled for.  In support of his

submission, learned senior counsel has placed reliance on the

judgment of the three­Judge Bench of this Court reported in

Satpal Singh Vs. State of Punjab 2018(13) SCC 813.

13. Per contra, Mr. R. Basant, learned senior counsel for the

respondents, while supporting the order passed by the High Court

impugned in the proceedings submits that in Crime No. 14/2018,

accused nos. 1 to 4 were granted post­arrest bail by the High Court

vide Orders dated 4th October, 2018, 20th February, 2019 and 25th

February,  2019 and the prosecution has not  taken any steps to

challenge  the grant of  bail to all  other accused persons.   In the

given circumstances, the post­arrest bail which has been granted to

respondent(A­5) in Crime No. 14/2018(Shajimon) does not call for

any interference.   

14. Learned senior counsel further submits that so far as Crime

No. 19/2018 is concerned, they have been falsely implicated by the

batchmates of the excise official, Babu Varghese, who was convicted

in a corruption case on the trap being laid down by respondent­

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Shajimon who after trial, was convicted under Section 7 and

Section 13(1)(d) read with Section 13(2) of Prevention of Corruption

Act vide judgment dated 26th November, 2014 and later acquittal by

the High Court may not be of any significance.   

15. Learned senior counsel further submits that charge­sheet has

been filed in both the cases, i.e. Crime No. 14/2018 and Crime No.

19/2018 and the matter is fixed for framing of charge.  No further

investigation  is required from  the  accused respondents,  and  the

learned Single Judge under the impugned judgment has put

stringent conditions while granting post­arrest bail to the

respondents, which has neither been misused nor violated and after

affording due opportunity of hearing and noticing Section 37 of the

NDPS Act, satisfaction has been recorded that the accused

respondents deserve post­arrest bail.  Once the discretion has been

exercised by the learned Single Judge based on the facts on record,

interference with the discretion exercised in favour of the accused

respondents is not warranted.

16. Learned senior counsel further submits that the High Court

was cognizant of the fact that the respondents had initiated

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prosecution  under the Prevention of  Corruption  Act against the

batchmate of the  detecting officer  and that  such batchmate  was

convicted of the  offence under the  Prevention of  Corruption Act.

The High Court was obviously cognizant of the fact that it could be

a case of false implication on account of a prior animosity of the

detecting officer­colleagues convicted under the Prevention of

Corruption Act on the complaint of the respondent.  There being no

prior case against the respondent under the NDPS Act, except these

two cases,  and  the judicial  discretion having  been exercised,  no

interference is called for by this Court.

17. It may be noticed that Hashish oil is shown at Sl. No. 13 in the

notification dated 19th  October, 2001 issued by the Central

Government in exercise of power under Section 2(viia) and (xxiiia) of

the NDPS Act.  Hashish oil above 1 kg is commercial quantity.

18. The jurisdiction of the Court to grant bail is circumscribed by

the provisions of Section 37 of the NDPS Act.  It can be granted in

case there are reasonable grounds for believing that accused is not

guilty of such  offence,  and that  he is  not likely to commit  any

offence while on bail.   It is the mandate of the legislature which is

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required to be followed.  At this juncture, a reference to Section 37

of the Act is apposite.  That provision makes the offences under the

Act cognizable and non­bailable.  It reads thus:­

“37. Offences to be cognizable and non­bailable.—(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.”

(emphasis supplied)

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19. This  Court  has laid  down broad parameters to  be followed

while  considering the  application  for  bail  moved  by the  accused

involved in offences under NDPS Act.  In Union of India Vs. Ram

Samujh and Ors.  1999(9)  SCC  429, it  has  been  elaborated  as

under:­

“7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in  inflicting death­blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in  all probability, they  would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely.  Reason may be  large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly  observed about the adverse  effect  of  such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in  such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a

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whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To  check  the  menace of  dangerous drugs  flooding  the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during  trial  unless the  mandatory  conditions  provided  in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid  mandate  while  ordering the release  of the respondent­accused on bail. Instead of attempting to take a holistic view of the harmful socio­economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.”

20. The scheme of Section 37 reveals that the exercise of power to

grant bail is  not  only subject to  the  limitations contained under

Section 439 of the CrPC, but is also subject to the limitation placed

by Section 37 which commences with non­obstante clause.  The

operative part of the said section is in the negative form prescribing

the enlargement of bail to any person accused of commission of an

offence under the Act, unless twin conditions are satisfied.  The first

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condition is that the prosecution must be given an opportunity to

oppose the application; and the second, is that the Court must be

satisfied that there are reasonable grounds for believing that he is

not guilty of such offence.   If either of these two conditions is not

satisfied, the ban for granting bail operates.

21. 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.

22. We may further like to observe that the learned Single Judge

has failed to record a finding mandated under Section 37 of the

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NDPS Act which is a sine qua non  for granting bail to the accused

under the NDPS Act.

23. The submission made by learned counsel for the respondents

that in Crime No. 14/2018, the bail has been granted to the other

accused persons(A­1 to A­4), and no steps have been taken by the

prosecution to challenge the grant of post­arrest bail to the other

accused  persons, is of no consequence for the reason that the

consideration prevailed upon the Court to grant bail to the other

accused persons will not absolve the act of the accused

respondent(A­5) from the rigour of Section 37 of the NDPS Act.  

24. The further submission of the learned counsel for the

respondents that  they have been  falsely  implicated  in Crime No.

19/2018 for the reason that the batchmates of the excise official,

Babu Varghese was convicted in the corruption case on the trap

being laid down by the respondent­Shajimon(A­1) is only a

conjecture of self­defence, and no inference could be drawn of false

implication,  more so when  in Crime No.  19/2018 and 14/2018,

charge­sheets have been filed after investigation and the matter is

listed before the learned trial Judge for framing of the charge where

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the  accused respondents certainly  have  an  opportunity to  make

their submissions.

25. That apart, in the application which was filed before the

learned  Single  Judge of the  High  Court  by the  appellant  under

Section 482 CrPC, the learned Single Judge has also prima facie

accepted that error  has  been  committed in granting  bail to the

accused respondents as observed in para 16 of the impugned

judgment as under:­

“  On going through the orders granted on 10.5.2019 allowing bail applications of A1 and A3 on the one hand and 5th accused on the other hand in NDPS crime Nos. 19/2018 and 14/2018 respectively, I find that the bail was granted by the  Court  after  being  cognizant  of the  principles laid down in Section 37 of the Act whether it ultimately turned out to be right or wrong.  May be as regards 3rd accused was concerned, order was passed under misconception of facts. Likewise, the criminal antecedents concerning the first accused did not fall to the notice of this Court.  What could at the most be said of the order passed by this Court is that it was erroneous or it did not involve application of mind. But then the  question  arises is  whether the  same court could under law reconsider the facts invoking Section 482 of the Code.   I  am of the opinion that the remedy of the State lay in challenging the orders of this Court, if it was really aggrieved, before a superior forum and not before the same court.  Therefore, accepting the argument of the learned counsel for the accused, I  hold  that  none of the applications seeking to recall the order of this Court is maintainable under law.”

(emphasis supplied)

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26. In the result, the appeals are allowed and the impugned order

passed  by the  High Court releasing the respondents on  bail is

hereby set  aside.  Bail  bonds of the  accused respondents stand

cancelled and they are directed to be taken into custody.  The trial

Court is directed to proceed and expedite the trial.

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

……………………………J. (INDU MALHOTRA)

……………………………J. (AJAY RASTOGI)

New Delhi January 24, 2020    

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