Holding

The High Court's grant of bail was illegal as the conditions of Section 37 of the NDPS Act were not met; bail must be denied.

Summary

The Narcotics Control Bureau (NCB) appealed a Bombay High Court order that granted bail to D.P. Namade, who was charged under the NDPS Act for manufacturing and supplying Mandrax tablets. The High Court had granted bail on the ground that the Special Judge's order to provide copies of seized documents to the accused had not been complied with. The Supreme Court held that Section 37 of the NDPS Act imposes a strict prohibition on bail unless the public prosecutor is heard and the court is satisfied of reasonable grounds of innocence and non‑risk, and that non‑supply of documents is not a permissible ground for bail. The Court also clarified that dismissal of a Special Leave Petition does not create a binding precedent. Consequently, the bail order was set aside and the accused was directed to surrender. The appeal was allowed.

Issues considered

Whether the High Court could grant bail on the ground of non‑compliance with an order to supply copies of documents under Section 37 of the NDPS Act.
Whether the conditions stipulated in Section 37(1)(b) of the NDPS Act were satisfied in the present case.
Whether the dismissal of a Special Leave Petition (SLP) creates a binding precedent that could affect the bail decision.

Legislation cited

Code of Criminal Procedure, 1973
Narcotic Drugs and Psychotropic Substances Act, 1985s. 22, s. 28, s. 29, s. 2(xxiii), s. 30, s. 37, s. 8(c)

Subjects

NDPS ActbailSection 37non‑complianceSpecial Leave PetitionnarcoticsmanufacturingMandrax tabletsSupreme Court

Judgment

A NARCOTICS CONTROL BUREAU
V. T
DILIP PRALHAD NAMADE

MARCH 18, 2004

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:

S. 3 7-Bail-Non-supply of copies ofdocuments to accused-Effect of-
C Accused facing trial for offences under the Act-His bail application rejected
by Special Court-Bail granted by High Court holding that direction given by
Special Judge for supply of copies of documents was not complied withe--
Held, the scope and ambit of s. 37 was not kepi in view by High Court-Mere
non-compliance of the order passed for supply of copies, if any, cannot entitle
D an accused to get bail notwithstanding prohibitions contained in s.37---Case
is not one to which the exceptions provided in s.37 can be applied-
Circumslances under which the bail can be granted in the background ofs.37
indicated-Judgment of High Court granting bail to accused has no legal
sanction and as such is set aside.

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

Constitution of India, 1950: Articles 136 and 141-Disposal of petition
for special leave-Effect of-Accused facing trial for offences under Narcotics
Drugs and Psychotropic Substances Act-Bail rejected by Special Court but
F granted by High Court holding that direction given by Special Judge for
supply of copies of documents was not complied with-Plea of long passage
of time, relying upon earlier orders passed by Supreme Court in some SLPs-
He/d,-Disposa/ of an SLP against a judgment of High Court does not mean
that the said judgment is affirmed by such dismissal-The order passed in any
G SLP al the threshold without detailed reasons does not constitute any
declaration of law or constitute a binding precedent-Supreme court cannot
and does not reverse or modifY the decree or order appealed against while
deciding the petition for special leave to appeal and that loo when the SLP

.
was being dismissed-What is impugned before Supreme Court can be reversed

H 92
NARCOTICS CONTROL BUREAU v. D.P. NAMADE [PASAYAT. J.] 93

or modified only afier granting leave and then assuming appellate jurisdiction A
over it-If the order impugned before Supreme Court cannot be reversed or
modified at the SLP stage, obviously that order cannot also be affirmed at the
SLP stage.

Union of India and Ors. v. Jaipal Singh, (2003) 7 Supreme 676;
Kunhayamlned and Ors. v. State of Kera/a and Anr., 120001 6 SCC 359 and B
Shri Ramnik Vallabhdas Madvane and Ors. v. Taraben Pravinlal Madhvani,
(2003) 8 Supreme 208, relied on.

"CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
349 of 2004.
c
From the Judgment and Order dated 19.12.2002 of the Bombay High
Court in Crl. A. No. 2892 of 2002.

L. Nageshwara Rao, Additional Solicitor General, Sanjay R. Hegde and
Ms. Sushma Suri for the Appellant.
D
E.C. Agrawala, Mahesh Agarwal and Rishi Agrawal for the Respondent.

The following Order of the Court was delivered :

ARIJI'r-PASA YAT, J. Leave granted.
E
Grant of bail to the respondent by a learned Single judge of Bombay
High Court is questioned by the Narcotics Control Bureau (in short the
"NCB"). The respondent is facing trial for alleged commission of offences
punishable under Section 29 read with Sections 8( c),22,28 and 30 of the
Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS
Act'). The allegations against the respondent Di lip Pralhad Namade (hereinafter F
referred to as 'the accused') were that he was involved in the manufacturing
of mandrax tablets and he is the person who has supplied the technical know
how of preparation for the tablets.

Officers of the appellant- Bureau , Mumbai Zonal Unit, got information G
that one Suresh Faturmal Jain was travelling in a red Ford Escort car and was
carrying 20,000 Mandrax Tablets to be delivered to two persons at a particular
place. Acting on the information, two officers of the Bureau went to the
vicinity of the place where the tablets were to be delivered. Two persons
were called to act as Panchas. They found that there were three persons
travelling in the. car. The officers searched the car and arrested all the three H
I
94 SUPREME COURT REPORTS [2004] 3 S.C.R.

A occupants. One of them were Suresh Futornial Jain and others were Karakutti
Karan Anthony and Rajeev Shirook. From the bags, 20 Kgm. of Mandrax
Tablets were recovered. Statement of all the three accused persons were
recorded and on the basis of certain facts disclosed in the statements, a search
was taken up by the Officers and 650 Kgs. of chemicals used for manufacturing
B Mandrax tablets were recovered. During the course of investigation, other
persons were also searched and enquiries were made. The case against the
respondent-accused was that he was instrumental in helping the other accused
persons in setting up a plant and machinery for manufacture of Methaqualone fl
Powder and Mandrax Tablets. With the help of others, the respondent
alongwith accused No. 10 manufactured eleven lakhs Mandrax tablets on
C three occasions for other accused persons. He had also visited the factory of
accused No. 13 for the purpose of procurement of the Mandrax Tableting
Machineries etc.

A bail application was filed by the respondent-accused, which was
rejected on 27.8.200 I by the Special judge. Subsequently an application was
D filed on 21.6.2002 before the Special Judge for direction to the prosecuting
agency to supply copies of certain documents purported to have been recovered
from his house. The Special Judge directed the prosecution to furnish the
copies.

Subsequently an applici!tion for bail was filed by the respondent-accused
E before the Bombay High Court on 27.8.2002. By the Impugned order dated
19.12.2002 the High Court granted bail to the respondent-accused primarily
on the term that the direction given by the Special Judge for supply of copies
of documents was not complied with, though the bail application was opposed.

In support of the appeal Mr. L. Nageshwara Rao, learned Additional
F Solicitor General submitted that while granting bail the provisions of Section
37 of the Act were not kept in view. There is a prohibition on the grant of
bail in terms of Section 37 of the NDPS Act and only under the specified
conditions bail can be granted. Non-supply of documents pursuant to the
court's order is not one of the grounds on which bail can be granted. In fact
G the High Court recorded a wrong conclusion by observing that the order was
not complied with and there was also no challenge to the order directing
supply of documents. As a matter of fact claiming privilege the Bureau had
filed an application before the Special Judge clearly indicating that it would
not be in the interest of justice to grant copies, and prayer was made to the
Court that instead of granting copies the accused, if he so desires, could
H inspect the documents in presence of officials of the Bureau. That offer was
\

T
NARCOTICS CONTROL BUREAU v. D.P. NA MADE [PASAY AT. J.] 95

not accepted by the accused respondent. The Bureau wanted to avoid the A
possibility of any tampering with the original documents and also further
dissemination of the formula in public and that is why inspection, as indicated
above was offered. The accused having not chosen to inspect the documents
could not have made a grievance about non-supply of copies or alleged non-
compliance of the directions of the learned Special Judge.
B
Per contra Mr. E.C. Agrarwa!a, learned counsel appearing for the
respondent-accused submitted that stand taken by the appellant-Bureau is
nothing but a camouflage to hide its inaction and non-compliance with the
orders of the Special Judge. There was a specific direction for supply of
copies and there is no ground indicated to substantiate the claim of privilege. C
In any event, the order granting bail was passed on 19.12.2002 and this Court
was approached in May 2003 and in the meantime nearly 1~1, years have
elapsed without any allegations of the respondent-accused having misused
his liberties. He submitted that in two cases i.e. SLP (Cr!.) No. 1136 (N.C.B.
v. Amar Pal Singh) and SLP (Cr!.) No. 434, (N.C.B. v. Smt. Hamida Sayyed
Ali Shaikh) this Court did not interfere with order granting bail on the sole D
ground of long passage of time. Therefore, it is submitted that liberty granted
to the respondent-accused should not be withdrawn.

It would be appropriate to take note of few provisions which have
relevance i.e. Section 2(xxiii) defining "psychotropic substances", and Section
37 dealing with bail. They read as follows: E
Section 2(xxiii)

"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 F
in the Schedule.

Section 37:

Offences to be cognizable and non-bailable - ( 1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of G
1974), -(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of
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 H
96 SUPREME COURT REPORTS f2004] 3 S.C.R.

A 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.
B (2) The limitation on granting of bail specified in clause (b) of sub-
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."

C As observed by this Court in Union of India v. Thamisharasi and Ors.,
JT (1995) 4 SC 253 clause (b) of sub-section (1) of Section 37 imposes
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
D he is not likely to commit any offence while on bail.

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
E 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 for reasonable grounds. The expression "reasonable grounds" means
F something more than primafacie 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 and he is not likely to
commit any offence while on bail. This nature of embargo seems to have
G been envisaged keeping in view the deleterious nature of the offence,
necessitates of public interest and the normal tendencies of the persons involved
in such network to pursue their activities with greater vigour and make hay
when, at large. In the case at hand the High Court seems to have completely ;.
overlooked the underlying object of Section 37 and transgressed the limitations
H statutorily imposed in allowing bail. It did not take note of the confessional
\

r
I

NARCOTICS CONTROL BUREAU v. D.P. NAMADE [PASAYAT, J.] 97

statement recorded under Section 67 of the Act. A
A bare reading of the impugned judgment shows that the scope and
ambit of Section 37 of the NDPS Act was not kept in view by the High
Court. Mere non-compliance of the order passed for supply of copies, if any,
cannot as in the instant case entitle an accused to get bail notwithstanding
prohibitions contained in Section 37. B
The. circumstances under which the bail can be granted in the
background of Section 37 have been indicated above.

The case is not one to which the exceptions provided in Section 37 can
be applied. C
Coming to the plea regarding long passage of time it is to be noted that
the two orders passed by this Court in SLP (er!.) Nos. 1136 and 434/2003
referred to above do not lay down any principle of law of invariable nature
to be universally applied. Furthermore, disposal of SLP against a judgment
of the High Court does not mean that the said judgment is affirmed by such D
dismissal. The order passed in any SLP at threshold without detailed reasons
does not constitute any declaration of law or constitute a binding precedent.
see Union of India and Ors. v. Jaipal Singh, (2003) 7 Supreme 676. This
court cannot and does not reverse or modify the decree or order appealed
against while deciding the petition for special leave to appeal and that too E
when the SLP was being dismissed. What is impugned before this Court can
be reversed or modified only after granting leave and then assuming appellate
jurisdiction over it. lfthe order impugned before this Court cannot be reversed
or modified at the SLP stage obviously that order cannot also be affirmed at
the SLP stage (see Kunhayammed and Ors. v. State of Kera/a and Anr.,
[2000] 6 SCC 359 and Sri Ramnik Vallabhdas Madvane and Ors. v. Taraben F
Pravinlal Madhvani, (2003) 8 Supreme 208.
>
The inevitable conclusion is that the judgment has no legal sanction.
We, therefore, set aside the impugned judgment of the High Court granting
bail to the respondent. The respondent-accused is directed to surrender to
custody forthwith. G
Appeal is allowed.

R.P. Appeal allowed.

H