STATE BY (NCB) BENGALURUversusPALLULABID AHMAD ARIMUTTA & ANR.

422                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 422                 [2022] 1 S.C.R.


A                      STATE BY (NCB) BENGALURU
                                         v.
                PALLULABID AHMAD ARIMUTTA & ANR.
          (Petition for Special Leave to Appeal (Crl.) No. 242 of 2022)
B                             JANUARY 10, 2022
                 [N. V. RAMANA, CJI, SURYA KANT AND
                             HIMA KOHLI, JJ.]
             Bail – Cancellation of – Allegations of drug trafficking –
      Held: A confessional statement recorded u/s.67 of the NDPS Act
C     will remain inadmissible in trial of an offence under the NDPS Act
      – Arrests made by petitioner-NCB, on basis of confession/ voluntary
      statements of respondents-accused or the co-accused u/s.67, cannot
      form the basis for overturning the impugned orders releasing them
      on bail – Narcotic Drugs and Psychotropic Substances Act, 1985 –
D     s.67.
             Bail – Cancellation of – Allegations of drug trafficking –
      Held: On facts, the only reason that appears to have weighed with
      the High Court for releasing A-2 on bail is that his case stands on
      the same footing as A-1, A-3 and A-4 who had been enlarged on
      bail – A-2 however cannot seek parity with the aforesaid co-accused
E
      and no such benefit could have been extended to him in view of
      s.37 of the NDPS Act when he was found to be in conscious
      possession of commercial quantity of psychotropic substances, as
      contemplated under the NDPS Act – Bail granted to A-2 cancelled
      – Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37.
F
            EXTRAORDINARY APPELLATE JURISDICTION: Petition
      for Special Leave to Appeal (Crl.) No. 242 of 2022.
            From the Judgment and Order dated 16.09.2019 of the High Court
      of Karnataka at Bengaluru in Criminal Petition No.4462 of 2019.
G           With
            Petition for Special Leave to Appeal (Crl.) Nos. 1569, 1454, 1465,
      2080 and 1773-74 of 2021.
            K. M. Nataraj, S. V. Raju, ASGs, B. K. Satija, Ms. Rekha Pandey,
      Rajat Nair, O. P. Shukla, Arvind Kumar Sharma, B. V. Balaram Das,
H     Ms. Sairica Raju, Annam Venkatesh, Rahul Mishra, Arvind Kumar
                                        422
STATE BY (NCB) BENGALURU v. PALLULABID AHMAD ARIMUTTA                       423


Sharma, Ms. Seema Bengani, Ms. Swarupama Chaturvedi, Ms. Vimla              A
Sinha, Vatsal Joshi, Advs. for the Petitioner.
      Rajesh Mahale, P. V. Dinesh, Ashwini Kumar Singh, Bineesh K.,
Advs. for the Respondents.
         The Order of the Court was passed by
                                                                            B
         HIMA KOHLI J.
         Delay condoned in SLP (Crl.) … Diary No. 22702 of 2020.
       1. As the facts of the present petitions are intertwined, having
arisen from two connected cases registered as NCB Case FN No. 48/
01/03/2019/BZU and NCB Case FN No. 48/01/07/2019/BZU, it is                 C
proposed to dispose them by a common order. The petitioner-Narcotic
Control Bureau, Bengaluru Zonal Unit1, is aggrieved by an order dated
16th September, 2019 passed in Criminal Leave Petition No. 4462/2019
(subject matter of SLP(Crl.) Diary No. 22702/2020), order dated 14th
January, 2020 passed in Criminal Leave Petition No. 8603/2019 (subject      D
matter of SLP (Crl.) No. 1454/2021), order dated 16th January, 2020
passed in Criminal Petition No. 7861/2019 (subject matter of SLP (Crl.)
No. 1465/2021), order dated 19th December, 2019 passed in Criminal
Petition No. 7624/2019 c/w Criminal Petition No. 6609/2019 (subject
matter of SLP (Crl.) Nos. 1773-1774/2021), order dated 08th January,
2020 passed in Criminal Petition No. 7714/2019 (subject matter of SLP       E
(Crl.) No. 1569/2021) and order dated 20th January, 2020 passed in
Criminal Petition No. 7897/2019 (subject matter of SLP (Crl.) No. 2080/
2021). By the aforesaid orders, the High Court of Karnataka has released
the respondents on bail for the offences punishable under Sections 8(c),
8A read with Sections 20(b), 21, 22, 27A, 27B, 28 and 29 of the Narcotic    F
Drugs and Psychotropic Substances Act, 19852, as the case may be.
       2. The facts leading to registering of the aforesaid cases against
the respondents are that on 22nd March, 2019, the petitioner-NCB had
received information that two persons i.e., Nausheer Mohammed [A-1]
and Noushad Mannakkamvalli [A-2] were going to carry drugs and travel
                                                                            G
to Doha by Oman Airways from Bengaluru International Airport.
Immediately on receiving such information, a team of NCB officers
arrived at the airport and on searching the luggage of A-1 and A-2,

1
    In short ‘NCB’
2
    In short ‘NDPS Act’                                                     H
424              SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     seized 4.525 Kgs of Hashish, 965 Grams of Amphetamine and 30 Grams
      of Cocaine. Both the respondents in SLP(Crl) @ Diary No. 22702/2020
      i.e. Pallulabid Ahamad Arimutta and Mohammed Majid Saleem were
      arraigned as Accused Nos. 3 and 4 in NCB Case FN No. 48/01/03/
      2019/BZU3 and arrested for the offences stated above. Similarly,
      Mohammed Afzal[A-6], respondent in SLP (Crl.) No. 1454/2021 was
B
      arrested on an allegation that his Call details record4 revealed that he
      was in constant conversation with A-2 and one Abu Thahir @ Abdu [A-
      5]. Additionally, reliance was placed by the Department on the statement
      of A-5 recorded under Section 67 of the NDPS Act which purportedly
      revealed that both of them had arranged the drugs that were delivered
C     to A-1 and A-2 on 22nd March 2019, who were going to carry the same
      in their luggage while flying to Doha.
             3. Munees Kavil Paramabath [A-8], respondent in SLP (Crl.)
      No. 1454/2021 was purportedly found to be in conversation with A-2, A-
      6, A-7 and A-8 as per the CDR of A-5 on the date of the seizure. The
D     petitioner-NCB claims that apart from the statement of A-5 recorded
      under Section 67 of the NDPS Act, he had also voluntarily stated during
      his examination that he was paid money by A-8 for financing the drugs.
      Abu Thahir @ Abdu [A-5] and Sabir Bayan [A-7], respondents in SP
      (Crl.) No. 1773-1774/2021 were similarly arrested on the statement of
      the co-accused, namely, A-2, A-6 and A-8 and on an allegation that
E     flight tickets of A-1 were recovered from the house of A-5 and A-6.
             4. After registering the first case and in the course of conducting
      an investigation officers of the petitioner-NCB claimed to have gathered
      credible information that Abu Thahir @ Abdu and Mohammed Afzal
      arraigned as [A-1] and [A-2] in NCB Case FN No. 48/01/07/2019/
F     BZU5, were going to reach Bengaluru Airport alongwith persons named
      Khushboo Sharma and Mohammad Asif for trafficking drugs to Doha.
      The said accused were apprehended in the parking area of Bengaluru
      Airport on 15th June, 2019. It is stated that Khushboo Sharma was found
      to be in possession of a black bag that when searched, revealed 510
G     grams of Methamphetamine concealed in sanitary napkins. Further, when
      A-1 and A-2 were taken by the Department to a tenanted flat occupied
      by them, NCB officers found huge quantities of drugs stashed there,

      3
        Hereinafter referred to as the ‘first case’
      4
        For short ‘CDR’
      5
H       Hereinafter referred to as the ‘second case’
STATE BY (NCB) BENGALURU v. PALLULABID AHMAD ARIMUTTA                            425
                    [HIMA KOHLI J.]

namely, 330 Grams of Methamphetamine, 13.680 Kgs of Hashish, 2.850               A
Kgs of Hashish Oil, 9.050 Kgs of Ganja and 4586 Capsules of Lyrica.
       5. The specific allegations levelled against Mohammed Afzal [A-
2], respondent in SLP (Crl.) No. 1569/2021 who was granted bail vide
order dated 08th January, 2020 in the second case registered by the
NCB, is that apart from his own inculpatory statement and the                    B
confessional statement of the co-accused, Abu Thahir @ Abdu [A-1]
recorded under Section 67 of the NDPS Act, large quantity of drugs
were seized at his tenanted premises and from the hand bag of the co-
accused, Khushboo Sharma also found to be in his possession at the
Airport, which concealed drugs.
                                                                                 C
       6. As for Munees Kavil [A-5], respondent in Criminal Petition
No. 7897/2019 who was granted bail vide order dated 20 th January, 2020
in the second case registered by the NCB, the basis for arresting him
was the statement made against him by the co-accused, A-1 under
Section 67 of the NDPS Act disclosing therein that A-5 had sent drugs
to Doha on several previous occasions on instructions received from his          D
brother and that he was financing the drug business.
       7. Mr. S.V. Raju and Mr. K. M. Nataraj, learned Additional
Solicitors General both appearing for the petitioner-NCB in the connected
petitions have challenged the impugned orders primarily on the ground
that the High Court has erred in returning a finding that the rigors of          E
Section 37 of the NDPS Act are not attracted to the facts of the present
cases; that none of the pre-conditions stipulated in Section 37 of the
NDPS Act that starts with a non-obstante clause, had been met in the
instant cases for granting any relief to the respondents and that a
concession has been granted to the respondents on an erroneous                   F
presumption that there is a reasonable ground for believing that they are
not guilty for such an offence. It has been vehemently argued by the
learned Additional Solicitors General that in the instant cases, there existed
justifiable reasons to reject the bail applications of the respondents and
there was hardly any ground to believe that they were not guilty of the
offences alleged against them or that they are not likely to commit any          G
such offence while on bail.
       8. Vide order dated 05th January, 2020, learned counsel for the
petitioners-NCB were directed to prepare a comprehensive tabulated
statement with respect to the role attributed to each of the respondents,
the evidence gathered against them at the time of their arrest, their            H
426               SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     antecedents, the dates on which they were arrested and the period of
      custody undergone by them, for ready reference. The said tabulated
      statement has been filed and a perusal thereof reveals that in SLP (Crl.)
      @ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. 1465/
      2021, SLP (Crl.) Nos. 1773-1774/2021, SLP (Crl.) No. 2080/2021, heavy
      reliance has been placed by the petitioner-NCB on the voluntary
B
      statements of the accused and the co-accused recorded under Section
      67 of the NDPS Act for arresting them. Another piece of evidence
      referred to is the CDR details in respect of A-3, A-4, A-5, A-6 and A-8
      in the first case which as per the prosecution, goes to show that the said
      respondents were constantly in touch with each other and with A-1 and
C     A-2 on the date of the seizure. The attention of this Court was also
      drawn to the fact that the antecedents of A-5, A-6 and A-8 in the first
      case and A-2 and A-5 in the second case are not clean.
              9. Having gone through the records alongwith the tabulated
      statement of the respondents submitted on behalf of the petitioner-NCB
D     and on carefully perusing the impugned orders passed in each case, it
      emerges that except for the voluntary statements of A-1 and A-2 in the
      first case and that of the respondents themselves recorded under Section
      67 of the NDPS Act, it appears, prima facie, that no substantial material
      was available with the prosecution at the time of arrest to connect the
      respondents with the allegations levelled against them of indulging in
E     drug trafficking. It has not been denied by the prosecution that except
      for the respondent in SLP (Crl.) No. 1569/2021, none of the other
      respondents were found to be in possession of commercial quantities of
      psychotropic substances, as contemplated under the NDPS Act.
             10. It has been held in clear terms in Tofan Singh Vs. State of
F     Tamil Nadu6, that a confessional statement recorded under Section 67
      of the NDPS Act will remain inadmissible in the trial of an offence
      under the NDPS Act. In the teeth of the aforesaid decision, the arrests
      made by the petitioner-NCB, on the basis of the confession/voluntary
      statements of the respondents or the co-accused under Section 67 of
G     the NDPS Act, cannot form the basis for overturning the impugned orders
      releasing them on bail. The CDR details of some of the accused or the
      allegations of tampering of evidence on the part of one of the respondents
      is an aspect that will be examined at the stage of trial. For the aforesaid
      reason, this Court is not inclined to interfere in the orders dated 16th

H     6
          (2021) 4 SCC 1
STATE BY (NCB) BENGALURU v. PALLULABID AHMAD ARIMUTTA                             427
                    [HIMA KOHLI J.]

September, 2019, 14th January, 2020, 16th January, 2020, 19th December,           A
2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/
2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.)
No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The
impugned orders are, accordingly, upheld and the Special Leave Petitions
filed by the petitioner-NCB seeking cancellation of bail granted to the
                                                                                  B
respective respondents, are dismissed as meritless.
       11. However, the evidence brought before us against Mohammed
Afzal [A-2], respondent in SLP (Crl.) No. 1569/2021, subject matter of
the second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who was
granted bail vide order dated 08th January, 2020, will have to be treated
on an entirely different footing. There are specific allegations levelled         C
against the said respondent regarding recovery of substantial commercial
quantities of drugs from a rented accommodation occupied by him
pursuant to which he was arrested on 16th June, 2019. This aspect has
been completely overlooked while passing the order dated 08th January,
2020 wherein, the only reason that appears to have weighed with the               D
High Court for releasing him on bail is that his case stands on the same
footing as A-1, A-3 and A-4 who had been enlarged on bail vide orders
dated 11th October, 2019, 16th September, 2019 and 09th September, 2019,
in connection with the second case registered by the Department. We
are of the firm view that A-2 cannot seek parity with the aforesaid co-
accused and no such benefit could have been extended to him in view of            E
Section 37 of the Act when he was found to be in conscious possession
of commercial quantity of psychotropic substances, as contemplated under
the NDPS Act. That being the position, the petitioner-NCB succeeds in
SLP (Crl.) No. 1569/2021. The bail granted to the respondent-Mohmmed
Afzal [A-2] is cancelled forthwith at this stage and he is directed to            F
surrender before the Sessions Court/Special Judge (NDPS) within a
period of two weeks, for being taken into custody.
       12. The petitions are disposed of in terms of the aforesaid order.
       13. Needless to state that the observations made above are limited
to examining the relief sought in the present petitions for cancellation of       G
bail. This Court has refrained from making any observations on the merits
of the case pending before the trial Court.

Bibhuti Bhushan Bose                                     Petitions disposed of.
                                                                                  H