Holding

The Supreme Court held that bail could not be granted as the High Court failed to satisfy the requirement of reasonable grounds that the accused was not guilty, thereby setting aside the bail order.

Summary

Customs detained an Uzbek national who was found carrying a large quantity of Diazepam tablets and she admitted the possession in a statement under Section 67 of the NDPS Act. The Special Court denied bail, but the Delhi High Court granted bail, holding that the prosecution had not produced material showing the tablets matched the psychotropic substance listed in Schedule Item 43 and that the laboratory report was of no consequence. On appeal, the Supreme Court examined the requirements of Section 37 of the NDPS Act, emphasizing that bail may be granted only if the court is satisfied on reasonable grounds that the accused is not guilty and is unlikely to commit another offence. The Court found that the High Court ignored the confessional statement and the Central Revenue Control Laboratory report, and that "reasonable grounds" requires more than prima facie evidence. Consequently, the bail order was set aside and the accused was directed to surrender. The appeal was allowed.

Issues considered

What is the meaning of "reasonable grounds" under Section 37 of the NDPS Act for granting bail?
Whether the High Court erred in granting bail by overlooking the confessional statement and laboratory report?
Whether the seized Diazepam tablets constitute a psychotropic substance within the definition of the NDPS Act for the purpose of bail denial?

Legislation cited

Code of Criminal Procedure, 1973s. 439, s. 482
Narcotic Drugs and Psychotropic Substances Act, 1985s. 2(xxiii), s. 37, s. 67, s. 8

Subjects

bailNDPS Actpsychotropic substancereasonable groundscustoms seizureDiazepamconfessional statementlaboratory report

Judgment

A CUSTOMS, NEW DELHI
v.
AHMADALIEV A NODIRA

MARCH 11, 2004

B [S. RAJENDRA BABU, ARIJIT PASAY AT AND G.P. MATHUR, JJ.]

Narcotic Drugs and Psychotropic Substance Act, 1985; Ss. 2 (xxiii), 8,
37, 67 and item No. 43 of the Schedule to the Act:

c Seizure of large quantity of Diazepam Tablets allegedly a psychotropic
substance-Arrest of accused-Bail-Rejected by Special Court-Allowed by
High Court holding that no definite material placed by the Revenue which
conforms description of the recovered tablets to the psychotropic substance,
possession of which is prohibited-On appeal, Held: Chemical test Report in
D respect of recovered tablets brought to the notice of High Court-Before
granting bail, the Court has to satisfy itself whether reasonable grounds exist
to believe that the accused was not guilty of the alleged offence-High Court ,_
not only overlooked the underlying object of Section 37 of the Act but also did
not take note of the confessional statement of the accused-It could not
reasonably be believed that the accused was not guilty of the offence alleged
E against him-Hence not entitled to bail-'-Order granting bail set aside.

Words and Phrases: ''reasonable grounds "-Meaning of-Jn the context
of Section 37 of the NDPS Act. t -
Respondent-accused, a foreign national, was found carrying a large
F quantity of 'Diazepam' tablets, a psychotropic substance, possession of
which was prohibited under the Narcotic Drugs and Psychotropic
Substance Act. Customs authorities seized the tablets and arrested her.
Special Court rejected her bail application. However, High Court granted
her bail holding· that no definite material was placed by the Revenue
G Department to show that the tablets recovered conforms to the description
of the prohibited chemical, a psychotropic substance as mentioned in item
No. 43 of the Schedule to the Act. Hence the present appeal by the ;l_-

Revenue.

It was contended by the Revenue that the seized tablets of Diazepam
H 1092
-- CUSTOMS. NEW DELHI v. AHMADALIEVA NOD IRA ] 093

conforms to the description of the prohibited psychotropic substance; and
that the evidentiary value of the laboratory report in respect of the seized
A

tablets was totally overlooked by the High Court.

Allowing the appeal, the Court

HELD: 1.1. The limitations on granting of bail come in only when B
the question of granting bail 11rises 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 was not guilty of the alleged offence and that
he was not likely to commit any offence while on bail. The conditions are
cumulative and not alternative. The satisfaction contemplated regarding
C

the accused being not guilty has to be based on reasonable grounds. The
High Court seems to have completely overlooked the underlying object
of Section 37 of the Act. It did not take note of the confessional statement
recorded under Section 67 of the Act. The report of the Central Revenue D
Control Laboratory was brought to the notice of the High Court, which
was lightly brushed aside without any justifiable reason. (1096-A-FJ

1.2. It does not appear to be a case where it could be reasonably
I believed that the accused was not guilty of the alleged offence. Hence,
the impugned order granting bail is set aside and the bail granted is E
-- cancelled. However, it is made clear that no final opinion on the merit of
the case has been expressed in this Judgment, and whatever has been stated
is the background of Section 37 of the Act for the purpose of bail.
(1096-G-H; 1097-AJ

Union of India v. Thamisharasi and Ors., JT (1995) 4 SC 253, relied F
on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
312 of 2004.

From the Judgment and Order dated 31.7.2000 of the Delhi High Court G
in Cr!. M. No. 2006 of 2000.

K.K. Sood, Additional Solicitor General, Ashok Bhan and B. Krishna
..... Prasad for the Appellant.

The Judgment of the Court was delivered by H
1094 SUPREME COURT REPORTS [2004] 2 S.C.R.

A ARIJIT PASAYAT, J. Leave granted.

Grant of bail to the respondent (hereinafter referred to as "the accused")
by a learned Single Judge, of the Delhi High Court is questioned by the
Customs authorities who had purportedly recovered huge quantity of
"Diazepam" - 5 mg. Tablets" from her.
B
Factual background necessary to be noted is as follows:

On 4.4.2000 Customs authorities detained the respondent-accused, a
Uzbeck national who came to India to do business in garments and was
found carrying large quantity of"Diazepam" - 5 mg. tablets". In the statement
C recorded under Section 67 of the Narcotic Drugs and Psychotropic Substance
Act, 1985 (in short 'the NDPS Act') recovery of tablets was admitted by the
accused. She was arrested on 5.4.2000. An application for bail was filed
before the Special Court, NDPS Act which was rejected taking into account
of the embargo placed under Section 37 of the Act. The accused-respondent
D filed an application for bail under Section 439 read with Section 482 of the
. Code of Criminal Procedure, 1973 (in short 'the Code'). The stand taken
essentially was that the tablets seized were not "psychotropic substance"
within the definition of the term in the Act. The application was opposed by
the detaining authorities on the ground that the article in question was covered
by Serial no. 43 of the Schedule to the Act, the export production manufacture,
E possession etc., which are prohibited under Section 8 of the Act. The High
Court was of the view that no definite material was placed to show the
materials allegedly recovered conforms to the chemical name mentioned in
the Item no.43 of the Schedule to the Act, and, therefore, cannot be treated
to be a psychotropic substance. Report of the Central Control Laboratory
F which was placed for consideration was held to be of no consequence.
Accordingly bail was granted to the respondent on her furnishing personal
bond for a sum of Rs.1,00,000 with one surety for the like amount to the
satisfaction of the Trial Court. It was further stipulated that the respondent-
accused was not to leave the jurisdiction of the Trial Court without prior
pennission from that Court.
G
In support of the appeal, Mr. K.K. Sood, learned Additional Solicitor
General, submitted that approach of the High Court is clearly erroneous and
overlooks the restrictions and limitations imposed by Section 37 of the NDPS
Act. With reference to serial no.43 of the Schedule to the Act it is submitted
that not only the seized articles conform to the description but also the
H laboratory reports evidentiary value was totally overlooked. There is no
CUSTOMS. NEW DELHI v. AHMADALIEVA NOD IRA [PASA YAT. .I.] l 095

appearance for the respondent-accused in spite of the notice. A
It would be appropriate to take note of few provisions which have
relevance. Section 2(xxiii) defining "psychotropic substances" and Section
37 dealing with bail read as follows:

Section 2(xxiilj B
"psychotropic substance" means any substance, natural or synthetic,
or any natural material or any salt or preparation of such substance
or material included in the. list of psychotropic substances specified
in the Schedule.

Section 37:
c
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 punish~ble for a term of D
imprisonment of five years or more under this Act 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
E
(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 limitation on granting of bail specified in clause (b) of sub- F
section (I) 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."

As observed by this Court in Union of India v. Thamisharasi and Ors.,
JT (1995) 4 SC 253 clause (b) of sub-section (I) of Section 37 imposes G
limitations on granting of bail in addition to those provided under the Code.
The two limitations are (I) an opportunity to the public prosecutor to oppose
the bail application and (2) satisfaction of the Court that there are reasonable
grounds for believing that the accused is not guilty of such offence and that
he is not likely to commit any offence while on bail.
H
1096 SUPREME COURT REPORTS [2004] 2 S.C.R.

A 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 the present accused-respondent is concerned, are (I) 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
B 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
--
C
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 at hand the
--
High Court seems to have completely overlooked the underlying object of
Section 37. It did not take note of the confessional statement recorded under
Section 67 of the Act. Description Serial no.43 of the Schedule which reads
D as follows has not been kept in view.

SI. No. International Other Chemical name
non-proprietary non-proprietary

E
43 DIAZEPAM 7-Chloro-l, 3-
dihydro-1-
methyl-5-phenyl-2H-I
4-benzondiazepin-2-one

F
In addition, the report of the Central Revenue Control Laboratory was brought
to the notice of the High Court. The same was lightly brushed aside without
any justifiable reason.

In the aforesaid background, this does not appear to be a case where
G it could be reasonably believed that the accused was not guilty of the alleged
offence. Therefore, the grant of bail to the accused was not called for. The
impugned order granting bail is set aside and the bail granted is cancelled. I-

The accused-respondent is directed to surrender to custody forthwith.
Additionally it shall be open to the Trial Court to issue notice to the surety
H and in case the accused does not surrender to custody, as directed, to pass
- CUSTOMS. NEW DELHI v. AHMADALIEVA NODIRA [PASAYAT,J.]1097

appropriate orders so far as the surety and the amount of security are concerned.
It is made clear that no final opinion on the merit of the case has been
A

expressed in this judgment, and whatever has been stated is the background
of Section 37 of the Act for the purpose of bail.

The appeal is allowed.
B
S.K.S. Appeal allowed.

---