Holding

The High Court’s grant of bail was unsustainable because it ignored the statutory requirements of Section 37(1)(b)(ii) and the material facts indicating the accused’s conscious association with the contraband, leading to the setting aside of the bail order.

Summary

The Narcotics Control Bureau intercepted a vehicle traveling from Dimapur to Rampur and discovered 3.3 kg of heroin concealed under the wiper of the car. The three occupants, including Md. Nawaz Khan, were arrested; a personal search of Khan revealed no contraband, but the drug was found in the vehicle. The trial court denied bail, but the Allahabad High Court granted it, relying on the absence of possession on Khan and a clerical error in a statement. On appeal, the Supreme Court held that the High Court failed to consider crucial factors such as the commercial quantity of drugs, Khan's continuous travel with co‑accused, and CDR evidence, and misapplied the test under Section 37(1)(b)(ii) of the NDPS Act. The Court reiterated that bail under the NDPS Act requires reasonable grounds to believe the accused is not guilty and not likely to commit offences, and that possession must be examined in context. Consequently, the Supreme Court set aside the High Court’s bail order, dismissed the bail application, and directed the respondent to surrender.

Issues considered

The applicability of Section 37(1)(b)(ii) of the NDPS Act in granting bail to an accused where contraband was found in the vehicle but not on the accused's person.
Whether the High Court erred in concluding that the absence of personal possession of the drugs negated the requirement of reasonable grounds for bail.
Whether procedural compliance with Section 42 of the NDPS Act was necessary for the validity of the search and subsequent bail decision.
The admissibility and relevance of the statement recorded under Section 67 of the NDPS Act.

Legislation cited

Code of Criminal Procedure, 1973
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 27A, s. 29, s. 37(1)(b), s. 42, s. 50, s. 54, s. 67, s. 8

Subjects

NDPS ActBailConscious possessionCommercial quantitySection 37Section 42Drug traffickingNon‑bailable warrant

Judgment

[2021] 7 S.C.R. 819 819

UNION OF INDIA THROUGH NARCOTICS CONTROL A
BUREAU, LUCKNOW
v.
MD. NAWAZ KHAN
(Criminal Appeal No. 1043 of 2021) B
SEPTEMBER 22, 2021
[DR. DHANANJAYA Y. CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.8,
C
21, 27A and 29 – On receiving information, a vehicle was intercepted
by the NCB officers in which respondent and other two accused
persons were travelling – Nothing objectionable was found in the
course of personal search – However, search of car revealed two
packets together weighing 3.300 kg hidden under the place where
wiper is connected to the front bonnet of the car – The application D
for bail of the respondent was rejected by the Additional District
and Sessions Judge – The High Court allowed the application for
bail by the respondent – On appeal, held: The impugned order of
the High Court, apart from observing that no contraband was found
from the personal search and observed that twin conditions
E
contained in s.37(1)(b) of the NDPS Act were satisfied – The High
Court ignored the following circumstances: (i) The respondent was
travelling in the vehicle all the way from Dimapur in Nagaland to
Rampur in Uttar Pradesh with the co-accused; (ii) The complaint
notes that the CDR analysis of the mobile number used by the
respondent indicated that he was in regular touch with the other F
accused persons who were known to him; (iii) The quantity of
contraband found was of commercial quantity; and (iv) The
contraband was concealed in the vehicle in which the respondent
was travelling with the co-accused – The High Court overlooked
crucial requirements and glossed over the circumstances which were
G
material to the issue as to whether a case for grant of bail was
established – In failing to do so, the order of the High Court becomes
unsustainable – Moreover, after the respondent was enlarged on
bail he has consistently remained away from the criminal trial
resulting in the issuance of a non-bailable warrant against him –
H
819
820 SUPREME COURT REPORTS [2021] 7 S.C.R.

A Therefore, the impugned judgment and order of the High Court is
set aside – Accordingly, the respondent is directed to surrender.
Allowing the appeal, the Court
HELD: 1. This Court has referred to the precedents to
reiterate the governing principles. At this stage of the
B proceedings, it needs only to be clarified that the trial is to take
place this Court where evidence will be adduced. [Para 23][833-
G-H; 834-A]
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496 : [2010] 12 SCR 1165; Mahipal v. Rajesh
C Kumar @ Polla & Anr. (2020) 2 SCC 118 : [2019] 14
SCR 529; Union of India v. Shiv Shanker Kesar (2007)
7 SCC 798 : [2007] 9 SCR 964; Madan Lal and Another
v. State of Himachal Pradesh (2003) 7 SCC 465 : [2003]
2 Suppl. SCR 716 – relied on.
D Prabhakar Tewari v. State of Uttar Pradesh (2020) 11
SCC 648; Union of India v. Prateek Shukla (2021) 5
SCC 430; Mohan Lal v. State of Rajasthan1 (2015) 6
SCC 222 : [2015] 5 SCR 435 – referred to.
2. As regards the finding of the High Court regarding
E absence of recovery of the contraband from the possession of
the respondent, in Union of India v. Rattan Mallik, a two-judge
Bench of this Court cancelled the bail of an accused and reversed
the finding of the High Court, which had held that as the contraband
(heroin) was recovered from a specially made cavity above the
F cabin of a truck, no contraband was found in the ‘possession’ of
the accused. The Court observed that merely making a finding
on the possession of the contraband did not fulfil the parameters
of Section 37(1)(b) and there was non-application of mind by the
High Court. [Para 24][834-A-C]
3. In line with the decision of this Court in Rattan Mallik,
G
this Court is of the view that a finding of the absence of possession
of the contraband on the person of the respondent by the High
Court in the impugned order does not absolve it of the level of
scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. With
regard to the statement under Section 67 of the NDPS Act, the
H
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 821
MD. NAWAZ KHAN

High Court has placed abundant reliance on the inclusion of ‘AK’s A
name in place of the respondent’s name in the endorsement of
translation on the statement of the respondent. In Tofan Singh, a
three judge Bench of this Court held that a statement under
Section 67 of the NDPS Act is inadmissible. The ASG submitted
that independent of the statement, there are valid reasons to
B
deny bail on the basis of the material which has emerged at this
stage. [Paras 25-26][834-C-F]
4. In the complaint that was filed on 16 October 2019 it is
alleged that at about 1400 hours on 26 March 2019, information
was received that between 1500-1700 hours on the same day,
the three accused persons would be reaching Uttar Pradesh. The C
complaint states that the information was immediately reduced
to writing. Therefore, the contention that Section 42 of the NDPS
Act was not complied with is prima facie misplaced. The question
is one that should be raised in the course of the trial. [Para
29][836-C-E] D
5. The following circumstances are crucial to assessing
whether the High Court has correctly evaluated the application
for bail, having regard to the provisions of Section 37: (i) The
respondent was travelling in the vehicle all the way from Dimapur
in Nagaland to Rampur in Uttar Pradesh with the co-accused; (ii) E
The complaint notes that the CDR analysis of the mobile number
used by the respondent indicates that the respondent was in
regular touch with the other accused persons who were known
to him; (iii) The quantity of contraband found in the vehicle is of
a commercial quantity; and (iv) The contraband was concealed in
the vehicle in which the respondent was travelling with the co- F
accused. [Para 30][836-E-H]
6. The High Court has clearly overlooked crucial
requirements and glossed over the circumstances which were
material to the issue as to whether a case for the grant of bail was
established. In failing to do so, the order of the High Court G
becomes unsustainable. Moreover, it has emerged, during the
course of the hearing that after the respondent was enlarged on
bail he has consistently remained away from the criminal trial
resulting in the issuance of a non-bailable warrant against him.
H
822 SUPREME COURT REPORTS [2021] 7 S.C.R.

A The High Court ought to have given due weight to the seriousness
and gravity of the crime which it has failed to do. [Para 32][837-
C-D]
Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1;
Dharampal Singh v. State of Punjab (2010) 9 SCC 608
B : [2010] 10 SCR 1160; Union of India v. Rattan Mallik
(2009) 2 SCC 624 : [2009] 1 SCR 533; Karnail Singh
v. State of Haryana (2009) 8 SCC 539 : [2009] 11 SCR
470; Boota Singh v. State of Haryana (2021) SCC
OnLine SC 324 – referred to.
C Case Law Reference
[2010] 12 SCR 1165 relied on Para 13
[2019] 14 SCR 529 relied on Para 14

D [2007] 9 SCR 964 relied on Para 16
[2003] 2 Suppl. SCR 716 relied on Para 22
[2010] 10 SCR 1160 referred to Para 22
[2015] 5 SCR 435 referred to Para 22
E
[2009] 1 SCR 533 referred to Para 24
[2009] 11 SCR 470 referred to Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1043 of 2021.
F
From the Judgment and Order dated 01.10.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Bail Application
No.7379 of 2019.
S. V. Raju, ASG, Ms. Sairica Raju, Annam Venkatesh, Ms. Sunita
G Sharma, Anshuman Singh, B. V. Balaram Das, Advs. for the Appellant.
Rakesh Dahiya, Adv. for the Respondent.

H
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 823
MD. NAWAZ KHAN

The Judgment of the Court was delivered by A
DR DHANANJAYA Y CHANDRACHUD, J.
1. This appeal arises from a judgment of a Single Judge at the
Lucknow Bench of the High Court of Judicature at Allahabad dated
1 October 2020. NCB Case Crime No 14 of 2019 registered at Police
Station, NCB, Lucknow for alleged offences under Sections 8, 21, 27A, B
29 of the Narcotic Drugs and Psychotropic Substances Act 1985 1.The
High Court has allowed an application for bail.
2. The complaint was filed on 16 September 2019 through the
Intelligence Officer at the Lucknow Zonal Unit of the Narcotics Control
Bureau2. The allegation is that the NCB, Zonal Unit received information C
at 1400 hours that three persons namely Md. Arif Khan, Rafiuddin and
Md. Nawaz Khan (the respondent), who are residents of Manipur were
proceeding with heroin/morphine in a Maruti Ritz vehicle bearing
registration No.UK 06 AA 25823 from Dimapur in Nagaland to Rampur
in Uttar Pradesh and that the vehicle would be passing through Banarasi D
Das College, Lucknow.The information was reduced into writing and
was produced before the Zonal Director, NCB Lucknow. A team of
NCB officers was formed and it was directed to liaise with the team of
the Uttar Pradesh Special Task Force, Lucknow3. A surveillance was
conducted in the area around Babu Banarasi Das College and at 1600
hours, the car in which the respondent was travelling with the other two E
co-accused was intercepted. A searchwas conducted in the presence of
a gazetted officer in view of the provisions of Section 50 of the NDPSAct
but nothing objectionable was recovered in the course of the personal
search. However, a search of the car revealed two polythene packets
hidden under the place where the wiper is connected to the front bonnet F
of the car. The first packet weighed 1.740 kg, while the second packet
weighed 1.750 kg. Samples were taken and upon testingwith the drug
detection kit, the samples tested positive for heroin.
3. Since the occupants of the car were not well- versed with
Hindi or English, an official belonging to the Shasastra Seema Bal4 was G
summoned at the spot for the purpose of translation as he hailed from
Manipur and was conversant with the Manipuri language. The statements
1
“NDPS Ac’’
2
“NCB’’
3
“UP-STF’’
4
“SSB’’ H
824 SUPREME COURT REPORTS [2021] 7 S.C.R.

A of the three accused persons were recorded in English and were
translated in Manipuri by the official from the SSB and the accused
were placed under arrest. However, while certifying the statement of
the respondent, the official of the SSB mentioned the name of Mohd.
Arif Khan in place of the respondent (Md. Nawaz Khan).
B 4. The sample packets marked as P1S1 and P2S1 were sent to
the Chief Examiner, Central Revenues Control Laboratory, New Delhi 5
on 27 March 2019. A chemical examination report dated 25 April 2019
was prepared by CRCL which stated that the samples did not test positive
for diacetylmorphine that is heroin, however, it tested positive for morphine.
C 5. Letters dated 10 July 2019 were sent to Airtel Private Limited,
Lucknow; Vodafone Idea Limited, Lucknow; and Reliance JIO Info
Communication Limited Lucknow, to obtain certified copies of call detail
records6 and customer application forms7 relating to certain mobile
numbers. The CDR analysis of the said mobile numbers indicates that
the respondent was regularly corresponding with the co-accused and
D one Anish @ Abbas, who is a resident of Dimapur and is also suspected
to be involved in drug trafficking.
6. The application for bail moved by the respondent was rejected
by the Seventh Additional District and Sessions Judge, Lucknow on 27
June 2019, observing that a huge quantity of heroin weighing 3.300 kg
E was recovered and that having regard to the seriousness and gravity of
the crime, no case for the grant of bail was established. The respondent
moved the High Court and by the impugned order dated 1 October 2020,
the application for bail was allowed.
7. The submission of the respondent before the High Court was
F that he was only a companion in the vehicle which was driven by co-
accused Rafiuddin and was not in conscious possession of the contraband
since it had been recovered from the wiper fitted on the front bonnet of
the vehicle, of which he had no knowledge. Moreover, it was urged that
the provisions of Sections 42 and 50 of the NDPS Act were not complied
G with. According to the respondent, the statement under Section 67 had
not been duly explained to him, which was evident from the fact that the
official of the SSB who signed it had certified that the translation had
been explained in Manipuri to Mohd. Arif Khan (co-accused). The name
5
“CRCL’’
6
“CDR’’
H 7
“CAF’’
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 825
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

of the respondent as noted earlier is Md. Nawaz Khan. The High Court A
allowed the application for bail and observed thus:
“Considering the rival submissions of learned counsel for parties,
going through the recovery memo, alleged statement of the
applicant recorded under Section 67 of the NDPS Act and the
certification of Shri L.H. Kapin, it is evident that indisputably the B
alleged contraband was recovered from the wiper fitted on the
front bonnet of the vehicle, which was being driven by Rafiuddin
and the applicant was sitting in the said vehicle along with Arif
Khan. Admittedly, nothing was recovered from the possession of
the applicant. Further, in the search memo prepared by the officials,
they categorically mentioned that, since the persons were not well C
conversed with the Hindi or English language, Shri LH. Kapin,
personnel of SSB IV Battalion, Lucknow was requested to arrive
on the spot for explaining the contents. A perusal of Annexure
No. 3 of the counter affidavit goes to show that the name of the
applicant is mentioned on the statement, but it also reveals that D
while certifying this statement, Shri LH. Kapin mentioned in his
certification that “Translated the statement as stated by Md. Arif
Khan and after recording of stated readover the statement and
made understand in Manipuri Language.” Thus, since the statement
was explained to Mohd. Arif Khan and not to the applicant as
also that this statement was filed along with the complaint before E
the court below, oral argument of the learned counsel for the
respondent at this juncture, cannot be accepted that due to
mistake,the name of Mohd. Arif Khan is mentioned in place
ofMohd. Nawaz (applicant). It is also undisputed that the applicant
does not have any criminal antecedent.” F
8
8. Mr SV Raju, Additional Solicitor General appearing on behalf
of the appellant submitted that in view of the decision in Tofan Singh v.
State of Tamil Nadu9, where it was held that a confessional statement
made under Section 67 of the NDPS Act will not be admissible in evidence,
he does not seek to place reliance on the statement of the respondent. G
At the same time, it was urged that the High Court while granting bail
has lost sight of three crucial circumstances namely:

8
“ASG’’
9
(2021) 4 SCC 1. H
826 SUPREME COURT REPORTS [2021] 7 S.C.R.

A (i) A huge contraband of morphine weighing 3.300 kg has been
recovered from the vehicle;
(ii) The respondent was admittedly travelling in the vehicle all
the way from Dimapur in Nagaland to Rampur in Uttar
Pradesh; and
B (iii) The complaint tabulates the call data records of the cell phones
used by the accused. The accused persons were found to
have been in touch with each other and a flow chart has been
set out in the complaint.
9. In addition, it was urged that:
C
(i) The decisions of this Court have held that compliance with
the provisions of Section 42 of the NDPS Act is warranted
where a private vehicle is sought to be searched in a public
place;

D (ii) As a matter of fact the contents of the complaint would
indicate that there was compliance with the provisions of
Section 42 of the NDPS Act;
(iii) Several decisions of this Court indicate that whether the
provisions of Section 42 of the NDPS Act have been complied
with is a matter of trial; and
E
(iv) A presumption under Section 54 of the NDPS Act would arise
in respect of the possession of a narcotic drug which is found
to be in the conscious possession of the accused.
On the above grounds, the learned ASG submitted that no case
F for the grant of bail exists, particularly, having regard to the provisions of
Section 37(1)(b)(ii) of the NDPS Act.
10. Apart from the above circumstances, it has been submitted
that the respondent, afterhaving been released on bail, has consistently
avoided appearing before the Sessions Judge at Lucknow as a result of
G which charges could not be framed and eventually a non-bailable warrant
has been issued against the respondent.
11. On the other hand, Mr Rakesh Dahiya, learned Counsel
appearing on behalf of the respondent submitted that the contraband in
the present case was found concealed in the vehicle in which the
H respondent was travelling. Thus, it cannot be stated that it was the
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 827
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

respondent who was in conscious possession of the contraband. Learned A
counsel submitted that the respondent is neither the driver nor the owner
of the vehicle and in this backdrop, the order of the High Court enlarging
him on bail cannot be faulted.
12. At the present stage, it is material to note that:
(i) The vehicle which was intercepted at Lucknow was B
proceeding from Dimapur (Nagaland) towards Rampur (Uttar
Pradesh);
(ii) The quantity of 3.300 kg of a narcotic substance which is a
commercial quantity was found concealed in the vehicle;
C
(iii) The respondent is not an unknown passenger but a person
who, according to the prosecution, was closely in contact with
the co-accused.
13. The principles that guide this Court while assessing an order
of the High Court granting bail have been succinctly laid down in D
Prasanta Kumar Sarkar v. Ashis Chatterjee10. In Prasanta Kumar
(supra), while the trial court dismissed several bail applications that were
filed by the accused who was charged for the commission of an offence
punishable under Section 302 of the Indian Penal Code 1860 11, the High
Court allowed the bail application. Justice DK Jain, speaking for the
two-judge Bench, observed: E
“9. … this Court does not, normally, interfere with an order passed
by the High Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court to exercise
its discretion judiciously, cautiously and strictly in compliance with
the basic principles laid down in a plethora of decisions of this F
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while considering
an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence; G
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
10
(2010) 14 SCC 496
11
“IPC’’ H
828 SUPREME COURT REPORTS [2021] 7 S.C.R.

A (iv) danger of the accused absconding or fleeing, if released on
bail;
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
B
(vii)reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.”
14. The decision in Prasanta Kumar(supra) was referred to in a
C judgment of this Court in Mahipal v. Rajesh Kumar @Polla & Anr.12,
where the High Court had granted bail to an accused who was charged
with the commission of an offence punishable under Section 302 of the
IPC. One of us (Justice DY Chandrachud), speaking for the Court held
and laid down the standard for adjudicating a plea for the cancellation of
D bail :
“14. The provision for an accused to be released on bail touches
upon the liberty of an individual. It is for this reason that this Court
does not ordinarily interfere with an order of the High Court
granting bail. However, where the discretion of the High Court to
grant bail has been exercised without the due application of mind
E
or in contravention of the directions of this Court, such an order
granting bail is liable to be set aside. The Court is required to
factor, amongst other things, a prima facie view that the accused
had committed the offence, the nature and gravity of the offence
and the likelihood of the accused obstructing the proceedings of
F the trial in any manner or evading the course of justice. The
provision for being released on bail draws an appropriate balance
between public interest in the administration of justice and the
protection of individual liberty pending adjudication of the case.
However, the grant of bail is to be secured within the bounds of
the law and in compliance with the conditions laid down by this
G
Court. It is for this reason that a court must balance numerous
factors that guide the exercise of the discretionary power to grant
bail on a case-by-case basis. Inherent in this determination is
whether, on an analysis of the record, it appears that there is a

12
H (2020) 2 SCC 118
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 829
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

prima facie or reasonable cause to believe that the accused had A
committed the crime. It is not relevant at this stage for the court
to examine in detail the evidence on record to come to a conclusive
finding.
[…]
16. Where a court considering an application for bail fails to B
consider relevant factors, an appellate court may justifiably set
aside the order granting bail. An appellate court is thus required
to consider whether the order granting bail suffers from a
non-application of mind or is not borne out from a prima
facie view of the evidence on record. It is thus necessary for C
this Court to assess whether, on the basis of the evidentiary record,
there existed a prima facie or reasonable ground to believe that
the accused had committed the crime, also taking into account
the seriousness of the crime and the severity of the punishment.”
(emphasis supplied) D
15. The dual test propounded in Mahipal (supra) was subsequently
followed by this Court in Prabhakar Tewari v. State of Uttar
Pradesh 13.
16. With regard to the grant of bail for offences under the NDPS
Act, in Union of India v. Shiv Shanker Kesari14 this Court observed E
that bail may be cancelled if it has been granted without adhering to the
parameters under Section 37 of the NDPS Act. Further, in Union of
India v. Prateek Shukla 15, one of us (Justice DY Chandrachud),
speaking for a two-judge Bench, noted that non-application of mind to
the rival submissions and the seriousness of the allegations involving an F
offence under the NDPS Act by the High Court are grounds for
cancellation of bail.
17. Section 37 of the NDPS Act regulates the grant of bail in
cases involving offences under the NDPS Act. Section 37 reads as
follows:
G
“(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),—

13
(2020) 11 SCC 648
14
(2007) 7 SCC 798
15
(2021) 5 SCC 430 H
830 SUPREME COURT REPORTS [2021] 7 S.C.R.

A (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—
B (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
C that he is not likely to commit any offence while on bail.
(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 (2 of 1974) or any other law for the
time being in force on granting of bail.
D
(emphasis supplied)
18. Under Section 37(1)(b)(ii), the limitations on the grant of bail
for offences punishable under Sections 19, 24 or 27A and also for offences
involving a commercial quantity are :
E (i) The Prosecutor must be given an opportunity to oppose the
application for bail; and
(ii) There must exist ‘reasonable grounds to believe’ that (a)the
person is not guilty of such an offence; and (b) he is not likely

F to commit any offence while on bail.

19. The standard prescribed for the grant of bail is ‘reasonable
ground to believe’ that the person is not guilty of the offence. Interpreting
the standard of ‘reasonable grounds to believe’, a two-judge Bench of
this Court in Shiv Shanker Kesari (supra), held that:
G
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means something
more than prima facie grounds. It connotes substantial
probable causes for believing that the accused is not guilty
of the offence charged and this reasonable belief
H
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 831
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

contemplated in turn points to existence of such facts and A
circumstances as are sufficient in themselves to justify
recording of satisfaction that the accused is not guilty of
the offence charged.
8. The word “reasonable” has in law the prima facie meaning of
reasonable in regard to those circumstances of which the actor, B
called on to act reasonably, knows or ought to know. It is difficult
to give an exact definition of the word “reasonable”.
“7. … In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states
that it would be unreasonable to expect an exact definition of
the word ‘reasonable’. Reason varies in its conclusions C
according to the idiosyncrasy of the individual, and the times
and circumstances in which he thinks. The reasoning which
built up the old scholastic logic sounds now like the jingling of a
child’s toy.”
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok D
Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat
Water Supply and Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd. [(1989) 1 SCC 532]
[…]
10. The word “reasonable” signifies “in accordance with reason”. E
In the ultimate analysis it is a question of fact, whether a particular
act is reasonable or not depends on the circumstances in a given
situation. (See Municipal Corpn. of Greater Mumbai v. Kamla
Mills Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with F
reference to Section 37 of the Act is not called upon to record a
finding of not guilty. It is for the limited purpose essentially confined
to the question of releasing the accused on bail that the court is
called upon to see if there are reasonable grounds for believing
that the accused is not guilty and records its satisfaction about the
G
existence of such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of acquittal and recording
a finding of not guilty.”
(emphasis supplied)
H
832 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 20. Based on the above precedent, the test which the High Court
and this Court are required to apply while granting bail is whether there
are reasonable grounds to believe that the accused has not committed
an offence and whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the NDPS Act and
in order to curb the menace of drug-trafficking in the country, stringent
B
parameters for the grant of bail under the NDPS Act have been
prescribed.
21. In the present case, the High Courtwhile granting bail to the
respondent adverted to two circumstances, namely (i) absence of
recovery of the contraband from the possession of the respondent and
C (ii) the wrong name in the endorsement of translation of the statement
under Section 67 of the NDPS Act.
22. We shall deal with each of these circumstances in turn. The
respondent has been accused of an offence under Section 8 of the NDPS
Act, which is punishable under Sections 21, 27A, 29, 60(3) of the said
D Act. Section 8 of the Act prohibits a person from possessing any narcotic
drug or psychotropic substance. The concept of possession recurs in
Sections 20 to 22, which provide for punishment for offences under the
Act. In Madan Lal and Another v. State of Himachal Pradesh16 this
Court held that
E “19. Whether there was conscious possession has to be determined
with reference to the factual backdrop. The facts which can be
culled out from the evidence on record are that all the accused
persons were travelling in a vehicle and as noted by the trial court
they were known to each other and it has not been explained or
F shown as to how they travelled together from the same destination
in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in Chapter IV of the Act which relates
to offences for possession of such articles. It is submitted that in
G order to make the possession illicit, there must be a conscious
possession.
21. It is highlighted that unless the possession was coupled with
the requisite mental element i.e. conscious possession and not

H 16
(2003) 7 SCC 465
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 833
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

mere custody without awareness of the nature of such possession, A
Section 20 is not attracted.
22. The expression “possession” is a polymorphous term which
assumes different colours in different contexts. It may carry
different meanings in contextually different backgrounds. It is
impossible, as was observed in Supdt. & Remembrancer of Legal B
Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979
SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely
logical and precise definition of “possession” uniform[ly] applicable
to all situations in the context of all statutes.
23. The word “conscious” means awareness about a particular C
fact. It is a state of mind which is deliberate or intended.
[…]
26. Once possession is established, the person who claims that it
was not a conscious possession has to establish it, because how
he came to be in possession is within his special knowledge. D
Section 35 of the Act gives a statutory recognition of this position
because of the presumption available in law. Similar is the position
in terms of Section 54 where also presumption is available to be
drawn from possession of illicit articles.”
What amounts to “conscious possession” was also considered in E
Dharampal Singh v. State of Punjab17, where it was held that the
knowledge of possession of contraband has to be gleaned from the facts
and circumstances of a case. The standard of conscious possession
would be different in case of a public transport vehicle with several
persons as opposed to a private vehicle with a few persons known to F
one another. In Mohan Lal v. State of Rajasthan18, this Court also
observed that the term “possession” could mean physical possession
with animus; custody over the prohibited substances with animus; exercise
of dominion and control as a result of concealment; or personal knowledge
as to the existence of the contraband and the intention based on this
knowledge. G
23. We have referred to the above precedents to reiterate the
governing principles. At this stage of the proceedings, it needs only to be

17
(2010) 9 SCC 608
18
(2015) 6 SCC 222 H
834 SUPREME COURT REPORTS [2021] 7 S.C.R.

A clarified that the trial is to take placethis Court where evidence will be
adduced.
24. As regards the finding of the High Court regarding absence of
recovery of the contraband from the possession of the respondent, we
note that in Union of India v. Rattan Mallik19, a two-judge Bench of
B this Court cancelled the bail of an accused and reversed the finding of
the High Court, which had held that as the contraband (heroin) was
recovered from a specially made cavity above the cabin of a truck, no
contraband was found in the ‘possession’ of the accused. The Court
observed that merely making a finding on the possession of the contraband
did not fulfil the parameters of Section 37(1)(b) and there was non-
C application of mind by the High Court.
25. In line with the decision of this Court in Rattan Mallik (supra),
we are of the view that a finding of the absence of possession of the
contraband on the person of the respondent by the High Court in the
impugned order does not absolve it of the level of scrutiny required under
D Section 37(1)(b)(ii) of the NDPS Act.
26. With regard to the statement under Section 67 of the NDPS
Act, the High Court has placed abundant reliance on the inclusion of
Mohd. Arif Khan’s name in place of the respondent’s name in the
endorsement of translation on the statement of the respondent. In Tofan
E Singh (supra), a three judge Bench of this Court held that a statement
under Section 67 of the NDPS Act is inadmissible. The ASG submitted
that independent of the statement, there are valid reasons to deny bail on
the basis of the material which has emerged at this stage.
27. Another submission that has been raised by the counsel for
F the respondent both before the High Court and this Court is that due to
non-compliance of the procedural requirement under Section 42 of the
NDPS Act20, the respondentshould be granted bail. Section 42 provides
that on the receipt of information of the commission of an offence under
the statute, the officer will have to write down the information and send
G it to a superior officer with 72 hours. It has been submitted by the
respondent that though the information was received by the Zonal
Director, the information was put down in writing by an officer who was
a part of the team constituted on the receipt of the information. The
19
(2009) 2 SCC 624
20
"42. Power of entry, search, seizure and arrest without warrant or authorisation: (1)
H Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 835
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

written information was then sent to the Zonal Director. This Court A
Karnail Singh v. State of Haryana21 held that though the writing down
of information on the receipt of it should normally precede the search
and seizure by the officer, in exceptional circumstances that warrant
immediate and expedient action, the information shall be written down
later along with the reason for the delay:
B
“35. […](c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the superior
officer, should normally precede the entry, search and seizure by
the officer. But in special circumstances involving emergent
situations, the recording of the information in writing and sending C
a copy thereof to the official superior may get postponed by a
reasonable period, that is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with requirements of subsections
(1) and (2) of Section 42 is impermissible, delayed compliance D
with satisfactory explanation about the delay will be acceptable
compliance with Section 42. To illustrate, if any delay may result
in the accused escaping or the goods or evidence being destroyed
or removed, not recording in writing the information received,
before initiating action, or non-sending of a copy of such information E
to the official superior forthwith, may not be treated as violation
of Section 42. But if the information was received when the police
officer was in the police station with sufficient time to take action,
and if the police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official superior,
F
departments of central excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including para-military forces or armed forces
as is empowered in this behalf by general or special order by the Central Government,
or any such officer (being an officer superior in rank to a peon, sepoy or constable) of
the revenue, drugs control, excise, police or any other department of a State Government
as is empowered in this behalf by general or special order of the State Government, if G
he has reason to believe from persons knowledge or information given by any person
and taken down in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable under this Act [..];
(2) Where an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate official superior.’’
21
(2009) 8 SCC 539 H
836 SUPREME COURT REPORTS [2021] 7 S.C.R.

A then it will be a suspicious circumstance being a clear violation of
Section 42 of the Act. Similarly, where the police officer does not
record the information at all, and does not inform the official
superior at all, then also it will be a clear violation of Section 42 of
the Act. Whether there is adequate or substantial compliance with
Section 42 or not is a question of fact to be decided in each case.
B
The above position got strengthened with the amendment to Section
42 by Act 9 of 2001.”
28. Further, it was held that the issue of whether there was
compliance of the procedure laid down under Section 42 of the NDPS
Act is a question of fact. The decision in Karnail Singh (supra) was
C recently followed by this Court in Boota Singh v. State of Haryana22.
29. In the complaint that was filed on 16 October 2019 it is alleged
that at about 1400 hours on 26 March 2019, informationwas received
that between 1500-1700 hours on the same day, the three accused persons
would be reaching Uttar Pradesh. The complaint states that the
D information was immediately reduced to writing. Therefore, the contention
that Section 42 of the NDPS Act was not complied with is prima facie
misplaced. The question is one that should be raised in the course of the
trial.
30. The following circumstances are crucial to assessing whether
E the High Court has correctly evaluated the application for bail, having
regard to the provisions of Section 37:
(i) The respondent was travelling in the vehicle all the way from
Dimapur in Nagaland to Rampur in Uttar Pradesh with the
co-accused;
F
(ii) The complaint notes that the CDR analysis of the mobile
number used by the respondent indicates that the respondent
was in regular touch with the other accused persons who
were known to him;
(iii) The quantity of contraband found in the vehicle is of a
G
commercial quantity; and
(iv) The contraband was concealed in the vehicle in which the
respondent was travelling with the co-accused.

22
H 2021 SCC OnLine SC 324
UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW v. 837
MD. NAWAZ KHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

31. The impugned order of the High Court, apart from observing A
that no contraband was found from the personal search of the respondent
has ignored the above circumstances. The High Court has merely
observed that
“[…]
In view of the above, the twin conditions contained under Section B
37(1)(b) of the NDPS Act stand satisfied. This Court is of the
view that if there is reasonable ground, the applicant is entitled to
be released on bail.”
32. The High Court has clearly overlooked crucial requirements
and glossed over the circumstances which were material to the issue as C
to whether a case for the grant of bail was established. In failing to do
so, the order of the High Court becomes unsustainable. Moreover, it has
emerged, during the course of the hearing that after the respondent was
enlarged on bail he has consistently remained away from the criminal
trial resulting in the issuance of a non-bailable warrant against him. The D
High Court ought to have given due weight to the seriousness and gravity
of the crime which it has failed to do.
33. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court dated 1 October 2020
in Bail No. 7379 of 2019. E
34. The application for bail filed by the respondent shall stand
dismissed. The respondent shall accordingly surrender forthwith.
35. Pending application (s), if any, stand disposed of.

F
Ankit Gyan Appeal allowed.

G

H