Date of the Case: 10th January 2022
Petitioner: State by Narcotics Control Bureau Bengaluru
Respondent: Pallulabid Ahamad Arimutta
Bench/ Judges: Hon’ble Justice Surya Kant, Hon’ble Ms. Kohli
Order: Hon’ble Justice Ms. Kohli
Legal Provisions: Narcotics Drugs and Psychotropic Substance Act, 1985
Facts of the Case:
On 22nd March 2019, NCB (petitioner) received information regarding drug trafficking that 2 people named Nausheer Mohammed and Noushad Mannakkamvalli were going to carry drugs and travel to Doha by Oman Airways from Bangalore International Airport. Immediately upon receiving information, a team of NCB officers arrived at the airport and on searching the luggage of Nausheer and Noushad, seized 4.525 Kg of Hashish, 965 Grams of Amphetamine, and 30 Grams of Cocaine. Both the respondents Pallulabid Ahamad Arimuttaand Mohammed Majid Saleem were arrested for the offenses stated above. Mohammad Afzal was also arrested on the basis that he was in constant touch with Nausheer and Abu Thahir and the statement given by Abu Thahir revealed that both of them has arranged the drugs that were to be delivered to Nausheer Mohammed and Noushad Mannakkamvalli on 22nd march 2022, who was going to carry the same to Doha. Munees Kavil Paramabath was purportedly found to be in conservation with Naushad, Afzal, Sabir, and Munees as per the CDR of Abu on the date of the seizure. The petitioner claims that apart from the statement of Abu recorded under Section 67 of the NDPS Act, he had also voluntarily stated during his examination that he was paid money by Munees for financing the drugs. Abu and Sabir were similarly arrested on the statement of the co-accused, namely, Noushad, Afzal, and Munees, and on an allegation that flight tickets of Nausheer were recovered from the house of Abu and Afzal.
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 Nausheer and Naushad were going to reach Bengaluru Airport along with persons named Khushboo Sharma and Mohammad Asif for trafficking drugs to Doha. The specific allegations leveled against Mohammed Afzal 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 confessional statement of the co-accused, Abu recorded under Section 67 of the NDPS Act, a large number of drugs was seized at his tenanted premises and from the handbag of the co-accused, Khushboo Sharma also found to be in his possession at the Airport, which concealed drugs. As for Munees who was granted bail vide order dated 20th 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, Nausheer under Section 67 of the NDPS Act disclosing therein that Abu had sent drugs to Doha on several previous occasions on instructions received from his brother and that he was financing the drug business.
Issue Raised in the Case:
- Whether it was appropriate to grant bail for the offenses which are punishable under Sections 8(c), 8A read with Sections 20(b), 21, 22, 27A, 27B, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985?
Contention
The learned counsel appearing for the petitioner has challenged the impugned order on the ground that the High Court has mistaken in returning a finding that the rigors of 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 presumption that there is a reasonable ground for believing that they are not guilty of such an offense.
It was also argued by the counsel 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 offenses alleged against them or that they are not likely to commit any such offense while on bail.
It was argued by the respondent after going through the tabulated statement submitted by the petitioner- NCB, it emerges that except for the voluntary statement of Nausheer and Noushad in the first case and that of the respondent themselves recorded under section 67 of NDPS Act, it appears prima facie, that no substantial material was available with the prosecution at the time of the arrest to connect the respondent with the allegation leveled against the of indulging in drug trafficking. It has not to be denied by the prosecution that except of Mohmmad Afzal none of the other respondents were found to be in possession of commercial quantities of the psychotropic substance, as mentioned in NDPS Act 1985[2].
Rationale
The court asked learned counsel to prepare a tabulated statement of the respondents regarding their role. The said tabulated statement has been filed, and a perusal thereof reveals that heavy reliance has been placed by the petitioner-NCB on the voluntary statements of the accused and the co-accused recorded under Section 67 of the NDPS Act for arresting them. Having gone through the Call Details Record along with the tabulated statement of the respondent submitted on behalf of NCB, it appears, prima facie, that no substantial material was available with the prosecution at the time of the arrest to connect the respondents with the allegations leveled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent Mohammad Afzal, none of the other respondents were found to have commercial quantities of psychotropic substances, as contemplated under the NDPS Act.
The court held in clear terms in Tofan Singh Vs. State of Tamil Nadu[3], that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offense 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 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 with evidence on the part of one of the respondents is an aspect that will be examined at the stage of the trial. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.
However, the evidence brought before us against Mohammed Afzal who was granted bail order dated 08th January 2020, will have to be treated on an entirely different footing. The bail granted to the respondent-Mohammed Afzal is canceled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.
Defects of law:
In the given case, none of the pre-conditions stipulated in Section 37 of the NDPS Act, which starts with a non-obstante clause, had been met in the instant cases for granting any relief to the respondents.
Section 37 of NDPS Act 1985, Offenses to be cognizable and non-bailable— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) every offense punishable under this Act shall be cognizable;
(b) no person accused of an offense punishable for 3 [offenses under section 19 or section 24 or section 27A and also for offenses involving commercial quantity] shall be released on bail or his bond unless—
(i) the Public Prosecutor has been allowed 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 an offense and that he is not likely to commit any offense while on bail.
(2) The limitations to granting of bail specified in clause (b) of sub-section (1) are in addition to the regulations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.].
INFERENCE
The court upheld, and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents are dismissed as meritless. The Mohammad Afzal case should have been dealt with on a completely different footing, and he was punished for the same.
REFERENCES:
https://indiankanoon.org/doc/19482106/
BY: SAMRIDHI SRIVASTAVA
COURSE: BBA-LLB 2ND YEAR
3RD SEMESTER
BATCH: 2021-2026
ICFAI UNIVERSITY DEHRADUN
[1] Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
[2] Narcotics Drugs and Psychotropic Substance Act, 1885
[3] Tofan Singh v. State of Tamil Nadu on 29 October, 2020 https://indiankanoon.org/doc/143202244/