NDPS: Absence Of Recovery Of Contraband From Possession Of Accused By Itself Not A Ground To Grant Bail: Supreme Court

The Supreme Court observed that bail cannot be granted to an accused under Narcotic Drugs and Psychotropic Substances Act, merely on a finding of the absence of possession of the contraband on the person of the accused.

Such a finding does not absolve the court of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act, the bench of Justices DY Chandrachud and BV Nagarathna observed.

The court reiterated that the test 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.

In this case, the High Court had granted after noticing that a search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered from the accused in the course of the personal search. However, it was on search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car.  

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 :

(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 to commit any offence while on bail.

In appeal, the court noted that the High Court 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. The bench observed:

"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 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 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. 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 Section 37(1)(b)(ii) of the NDPS Act."

Regarding the contention that Section 42 of the NDPS Act was not complied with, the court said that the said question should be raised in the course of the trial.

Referring to earlier judgments, the court also 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 one another, it noted.

"In Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, 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.", the court said.

Applying these principles to this case, the bench set aside the High Court order.

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