Holding

The Supreme Court held that the trial court and High Court erred by not observing the mandatory provisions of Section 37 of the NDPS Act, rendering the bail order unsustainable and therefore set it aside.

Summary

The respondent, a truck driver, was intercepted with 163 kg of ganja and arrested under the NDPS Act. He was released on bail by a Special Judge and the High Court upheld the bail, despite the bail application being filed under Section 437 of the CrPC and Section 37(b)(ii) of the NDPS Act. The appellant contended that Section 37, which makes certain NDPS offences non‑bailable and imposes mandatory conditions, was ignored by both courts. The Supreme Court examined prior decisions interpreting Section 37 and held that the trial court and High Court failed to give the public prosecutor an opportunity to oppose bail and to satisfy themselves of reasonable grounds of innocence. Consequently, the bail order was deemed unsustainable and set aside. The appeal was allowed.

Issues considered

Whether Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which makes certain offences non‑bailable, applies to the bail application in this case.
Whether the trial court and the High Court complied with the mandatory requirements of Section 37, including hearing the public prosecutor and satisfying reasonable grounds of innocence before granting bail.
Whether bail can be granted in cases involving a commercial quantity of narcotics.

Legislation cited

Code of Criminal Procedure, 1973s. 437
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 29, s. 37, s. 43(a), s. 60

Subjects

NDPS ActSection 37bailnon‑bailable offencescommercial quantitypublic prosecutorSupreme Court

Judgment

[2008] 8 S.C.R. 1159

N.R. MON A
.. II.
MD. NASIMUDDIN
(Criminal Appeal No. 1167 of 2001)
MAY 16, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM,JJ.]

-~ NARCOTIC DRUGS AND PSYCHOTROPIC SUB-
STANCES ACT, 1985:
s. 37 rlw s. 437 Cr PC-Application for bail -Allowed by C
Special Judge - Order not interfered by High Court - Held:
The effect of s. 37 of the Act has not been noticed by either the
trial court or the High Court- The order granting bail is clearly
unsustainable and is set aside - Code of Criminal Procedure,
1973 - s. 437. D
A truck being driven by the respondent was inter-
cepted and on its search 163 kg 'ganja' was recovered
from it. The respondent was arrested. The report of the
Chemical Analyst of the Forensic Science Laboratory
confirmed the representative samples to be 'ganja'. On E
application for bail filed by the respondent, he was re-
leased on bail by the Special Judge concerned. The High
Court also allowed the respondent to remain on bail.
In the instant appeal it was contended that in view of F
the provisions of s. 37 of the Narcotic Drugs and Psycho-
tropic Substances Act, the trial court as also the High
Court erred in allowing the bail to the respondent.
Allowing the appeal, the Court
G
HELD: The effect of s. 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 in relation to grant of
bail, as has been considered by this Court in several de-
cisions*, has not been noticed by either the trial court or
1159 H
1160 SUPREME COURT REPORTS [2008] 8 S.C.R

A the High Court. Since the trial court and the High Court •
+.-
have not kept the relevant aspects in view, the order grant-
ing bail is clearly unsustainable and is set aside. (para 5 •
and 10) [1162-F-G; 1166-C] J
I
I
*Union of India v. Gurcharan Singh (2003) 11 SCC 764;
B Collector of Customs, New Delhi v. Ahmadalieva
Nodira

c
(2004) 13 SCC 549; Union of India v. Abdulla (2004)13 SCC
504; and Narcotics Control Bureau v. Karma Phuntsok and
Ors (2005) 12 SCC480 - relied on.
CRIMNIALAPPELLATE JURISDICTION: Criminal Appeal
--..:

'
>l-

No. 1167 of 2001

From the final Judgment and Order dated 12.4.2000 of
the High Court of Guwahati Imphal Bench in Criminal Revision
Pentition No. 7 of 2000
D
B.B. Singh, T.A. Khan and Sushma Suri for the Appellant.

Anjani Aiyagari for the Respondent.

The Judgment of the Court was delivered by

E Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the learned Single Judge of the Gauhati High
•
Court, Imphal Bench, upholding the order passed by the Learned
Special Judge, NDPS, Manipur, Imphal, in Crl. Complaint case
no.32 of 2000, by which bail was granted to the respondent.
'(
F 2. Background facts in a nutshell are as follows:
On 17 .1.2000 the appellant received information in writ-
ing from a casual source that a Tata truck bearing registration
No.MN-5113 carrying ganga would be proceeding from Imphal .-
G area towards Guwahati in t~e early hours of 18.1.2000. It was
immediately reported by the appellant to its superior officer i.e.
.Ir "- '
Superintendent. NCB. RU. Imphal. who issued order to the ap-
pellant to take necessary action. The appellant along with other
members of staff of the NCB led by the Superintend kept vigil
along the lmphal-Ukhrul road and started checking of vehicles.
H
N.R. MON v. MD. NASIMUDDIN 1161
[DR. ARIJIT PASAYAT, J.]
.. ~ Around 7.00 a.m. on 18.1.2000 a Tata truck was seen approach- A
ing the road. The said vehicle was intercepted and stopped by
the appellant. The vehicle was occupied by a driver (the respon-
dent herein) and one Puma Bahadur handyman. The vehicle,
the accused and the handyman were brought to the Revenue
complex for a thorough checking. After following procedure laid B
down under Section 50 of the Narcotic Drugs and Psychotropic
)" Substance Act, 1985 (in short 'the Act'), the respondent and the
driver were asked whether they would like to be taken before
the Magistrate or the Gazetted Officer. During search 6 pack-
ets of ganja in pressed form, from a specially constructed ch am- c
ber in the fuel tank were recovered. On weighing, the same was
found to be 163 kgs. in total. The representative samples were
taken and sent for analysis by the Chemical Examiner of the
Government of Assam, at the State Forensic Science Labora-
tory in Guwahati. The voluntary statement of the respondent was
....
~ D
"! ' recorded in the presence of the witnesses on 18.1.2000. The
respondent was put on arrest under Section 43(a) of the Act
and case was registered for offence in relation to possession
-1
punishable under Sections 20, 29 and 60 of the Act. The Fo-
rensic Science Laboratory report was to the effect that the
sample was ganja. On 4.3.2000 an application for bail was filed E
before the learned Special Judge, NDPS, Manipur, Imphal, un-
der Section 437 of the Code of Criminal Procedure, 1973 (in
short 'Cr.P.C.') and Section 37(b)(ii) of the said Act. But without
'f taking note of Section 37 of the Act, bail was granted. The same
was challenged before the High Court. By the impugned order, F
the same was rejected. The High Court noted that attendance
of the accused can be secured by means of bail bonds already
signed. He may be allowed the respondent to remain on bail in
order to enable him to have adequate consultation with the law-
yer of his choice . G
. ~
~
' 3. Learned counsel for the appellant submitted that the
parameters of Section 37 have not been kept in view by the trial
Court and High Court. Learned counsel for the respondent sup-
ported the order.
H
~
1162 SUPREME COURT REPORTS [2008] 8 S.C.R.

A 4. Section 37 of the Act reads as follows: .... ...

"37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), -
B (a) Every offence punishable under this Act shall he
cognizable;
(b) No person accused of an [offences under section 19
or section 24 or section 27 A and also for offences
c 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
D
(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.
E
(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 (2of1974),
or any other law for the time being in force on granting of
F bail."
5. As rightly contended by learned counsel for the appel-
lant, the effect of Section 37 has not been noticed by either the
Trial Court or the High Court. The position relating to grant of
bail in the background of Section 37 of the Act has been con-
G sidered by this Court in several cases.
6. In Union of India v. Gurcharan Singh (2003(11) SCC
764), it was noted as follows:
"5. On a bare perusal of the impugned order of the High
H Court, we are satisfied that the High Court has not borne
N.R. MON v. MD. NASIMUDDIN 1163
[DR. ARIJIT PASAYAT, J ]
~
~
in mind the provisions of Section 3·1 of the Act before A
releasing the accused-respondent on bail. We, therefore,
set aside the order and allow this appeal. We direct that
the trial be concluded expeditiously."
7. In Collector of Customs, New Delhi v. Ahmadalieva
Nodira (2004 (3) sec 549) it was noted at page 552 as fol- B
)' lows:

"6. As observed by this Court in Union of India v.
Thamisharasi clause (b) of sub-section (1) of Section 37
imposes limitations on granting of bail in addition to those c
provided under the Code. The two limitations are: ( 1) 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
D
any offence while on bail.
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 E
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 F
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
,, G
ll 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
H
1164 SUPREME COURT REPORTS [2008] 8 S.C.R.

A to have completely overlooked the underlying object of ~ r
Section 37, It did not take note of the confessional
statement recorded under Section 67 of the Act.
Description of drug at Serial No. 43 of the Schedule which
reads as follows has not been kept in view:
B
"SL.No. International Other non- Chemical name
non-proprietary properietary
names names
* * *
43 DIAZEPAM 7-Chloro- 1, 3-dihydro -
c 1, methy 1-5-pheny 1-2
• H-1, 4- benzondiasepin-
2-one
* * *"

In addition, the report of the Central Revenue Control Labo-
D ratory was brought to the notice of the High Court. The same .
was lightly brushed aside without any justifiable reason. •'
8. In Union of India v. Abdulla (2004 (13) SCC 504) it was
noted as follows:

E "5. The respondent herein was charged of the offences
punishable under Sections 8/21/29/60 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 before
the Court of Special Judge, Lucknow. His application for
grant of bail was rejected by the Special Judge by
F assigning reasons therefor. Further application being
made to the High Court of Judicature at Allahabad, the
High Court without considering the mandatory requirement
of Section 37 of the Act and without coming to the prima
facie conclusion that there was no material against the
G respondent to convict him for the charges alleged against
him mechanically proceeded to grant the bail. This Court
in the case of Supdt., Narcotics Control Bureau v. R.
Paulsamy (2000) 9 SCC 549, has held that in matters
arising out of the Narcotic Drugs and Psychotropic
Substances Act grant of bail is controlled by Section 37 of
H
N.R. MON v. MD. NASIMUDDIN 1165
[DR. ARIJIT PASAYAT, J.]

., ..1 the Act and it is mandatory for the Court to hear the Public A
Prosecutor and come to the prima facie conclusion that
there is no material to come to the conclusion that the
accused could be held guilty of the charges levelled against
him. Since such a conclusion is not recorded by the High
Court and is not supported by reasons we think the B
impugned order cannot be sustained."
9. In Narcotics Control, Bureau v. Karma Phuntsok and
Ors. (2005 (12) SCC 480) it was noted as follow:
"4. The respondents were convicted under Section 29 c
read with Section 20(b)(it)(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, (the NDPS Act) and
sentenced to rigorous imprisonment for 10 years and a
fine of Rs.1000. On appeals being filed, the learned Judge
suspended the sentence and the respondents were
0
enlarged on bail on executing a personal bond for a sum
of Rs. 50,000 with one surety for the like amount, to the
satisfaction of the trial court. We have perused the order
passed by the learned Judge and we find that there is not
even a whisper about the condition contained in Section
37 of the NDPSActwith regard to enlarging of the accused E
on bail. Mr Jaspal Singh, learned Senior Counsel
appearing for the respondents contended that the learned
Public Prosecutor did not oppose the bail as contained in
Section 37(1)(b)(it) of the NDPS Act. According to him,
unless the Public Prosecutor opposes the bail application, F
Section 37 will not apply. Mr Singh seriously contended
that inasmuch as the appellant have not put on record that
the Public Prosecutor had opposed the granting of bail it
must be presumed that this is an order covered under
Section 37(3) read with Section 439 CrPC. To say the G
least, the argument appears to be baseless. We cannot
accept the contention that in a matter involving seizure of
commercial quantity of a substance prohibited by the
NDPS Act when the Public Prosecutor appears on notice
of the bail application he would be standing there as a H
1166 SUPREME COURT REPORTS [2008] 8 S.C.R.

A mute spectator not opposing the bail application unless i. •
he was at the beck of the accused. We find no substance
in this argument. In our view, the very fact that the Public
Prosecutor appeared would suggest that he appeared to
oppose the bail application. In any event, the order of the
B High Court does not suggest that the Public Prosecutor
had agreed for bail being granted. In the aforesaid
circumstances, we find no substance whatsoever in the "
contention raised by Mr Singh." ,
10. Since the Trial Court and the High Court have not kept
C these aspects in view, the order granting bail is clearly unsus-
tainable and is set aside. The appeal is allowed.
R.P. Appeal allowed.