Applicability Of Section 27A Is Seriously Questionable : Supreme Court Upholds Bail Granted To NDPS Accused

The Supreme Court observed that the rigours of Section 37 NDPS Act will not apply in a case where applicability of Section 27A NDPS Act is seriously questionable and there was no recovery from the accused and quantity in question was intermediate quantity.

In this case, the Calcutta High Court granted bail to a person accused under Sections 21(b)/29/27A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

In appeal before the Apex Court, the State contended that  (a) the accusation is essentially of financing the trafficking of contraband and also of harbouring offenders, which relates to the offence under Section 27A NDPS Act and to which, the rigours of Section 37 NDPS Act do apply; (b) the accusation is supported by prima facie evidence, including the statements of witnesses as also CCTV footage and call data records; (c) on 23.02.2021, even though the accused attempted to question the notice summoning him to appear at 04:00 p.m. and the High Court dismissed his writ petition but, he did not appear and was apprehended later in the night at a distant place; (d) the prosecution has shown that the accused was involved in as many as 53 criminal cases and he has been convicted in at least two of them; and (e) the prosecution has alleged that even in relation to this particular case, the accused had been separately charge-sheeted for the offence pertaining to Section 353 IPC and he has attempted to threaten the law enforcing agencies and personnel. 

On behalf of the accused- respondent, it was contended that only intermediate quantity of contraband was involved; that Section 27A NDPS Act was not attracted due to lack of prima facie evidence concerning involvement of the respondent; that there was no history of the respondent dealing in narcotics; that there was no recovery of contraband from the physical or conscious possession of the respondent; and that the FIR case has been completely changed by the State in the charge-sheet, raising considerable doubt regarding the veracity of prosecution case.

Taking note of the facts of the case and other materials, the Apex Court bench comprising Justices Dinesh Maheshwari and Aniruddha Bose observed that the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case.

"Suffice it to observe for the present purpose that in the given set of facts and circumstances, the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply to the present case"

The bench also upheld the High Court view that looking to accused's past history, there was nothing on record to suggest that he was likely to commit an offence under the NDPS Act while on bail. While dismissing the appeal, the court observed:

"Although, the past history of the respondent and even his conduct in relation to the processes concerning the present case give rise to a few questions but, the strong countervailing factor in the present case is the prima facie indication that he is being sought to be framed by concoctions and baseless stories. Another factor noticeable is that the respondent has not been involved in any NDPS Act case or any akin offence in the past. Interestingly, it is noticed from the material placed on record that nothing of any contraband article has been recovered from the respondent or from any place under his exclusive control. This factor further adds on to the doubt as to whether the respondent had at all been indulgent in narcotics or any contraband? That being the position, the view as taken by the High Court cannot be said to be an altogether unacceptable or  impossible view of the matter. Moreover, it cannot be said that the respondent was consciously seeking to abscond on 23.02.2021 merely because he was found in the night at Purba Bardhaman and not at Kolkata. In any case, the aspect relating to tendency to flee has been duly taken care of with the conditions as imposed by the High Court. The other submissions with reference to the decision in the case of Prasanta Kumar Sarkar (supra) hardly make out a case for interference particularly looking to the nature of evidence sought to be adduced by the prosecution against the respondent. In this regard, we would hasten to observe that apart from the stringent conditions already imposed by the High Court, it is always open for the prosecution to seek imposition of any further condition or even to seek cancellation of the bail granted to the respondent, in case of any fault on his part in due adherence to the conditions already imposed."

Case details

State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh | 2022 LiveLaw (SC) 580 | CrA 923 OF 2022 | 11 July 2022

Coram: Justices Dinesh Maheshwari and Aniruddha Bose 

Headnotes

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Sections 27A, 37 - When applicability of Section 27A NDPS Act is seriously questionable in this case and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply. (Para 16.4)

Summary : Appeal against Calcutta High Court order granted bail to a person accused under Sections 21(b)/29/27A of NDPS Act - Dismissed - No reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions.

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