Full Judgment Text
Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO.242 OF 2022
ARISING OUT OF DIARY NO. 22702 OF 2020
STATE BY (NCB) BENGALURU ….. PETITIONER
VERSUS
PALLULABID AHMAD ARIMUTTA & ANR. ….. RESPONDENTS
ALONGWITH
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 1569 OF 2021
UNION OF INDIA ….. PETITIONER
VERSUS
MOHAMMED AFZAL ….. RESPONDENT
WITH
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) 1454 OF 2021
UNION OF INDIA
NARCOTICS CONTROL BUREAU, BENGALURU ….. PETITIONER
Signature Not Verified
VERSUS
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.01.18
17:03:56 IST
Reason:
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
MOHAMMED AFZAL ….. RESPONDENT
WITH
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) 1465 OF 2021
STATE BY INTELLIGENCE OFFICER,
NARCOTICS CONTROL BUREAU ….. PETITIONER
VERSUS
MUNEES KAVIL PARAMABATH @ MUNEES KP ….. RESPONDENT
WITH
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) 2080 OF 2021
STATE OF KARNATAKA ….. PETITIONER
VERSUS
MUNEES KAVIL PARAMABATH ….. RESPONDENT
AND
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 1773-74 OF 2021
STATE BY INTELLIGENCE OFFICER (NCB)
BENGALURU ZONAL UNIT, BENGALURU ….. PETITIONER
VERSUS
ABU THAHIR @ ABDU & ETC. ….. RESPONDENTS
O R D E R
HIMA KOHLI J.
Delay condoned in SLP (Crl.) … Diary No. 22702 of 2020.
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
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 proposed to dispose them by a
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common order. The petitioner-Narcotic Control Bureau, Bengaluru Zonal Unit ,
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is aggrieved by an order dated 16 September, 2019 passed in Criminal Leave
Petition No. 4462/2019 (subject matter of SLP(Crl.) Diary No. 22702/2020),
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order dated 14 January, 2020 passed in Criminal Leave Petition No.
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8603/2019 (subject matter of SLP (Crl.) No. 1454/2021), order dated 16
January, 2020 passed in Criminal Petition No. 7861/2019 (subject matter of
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SLP (Crl.) No. 1465/2021), order dated 19 December, 2019 passed in Criminal
Petition No. 7624/2019 c/w Criminal Petition No. 6609/2019 (subject matter of
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SLP (Crl.) Nos. 1773-1774/2021), order dated 08 January, 2020 passed in
Criminal Petition No. 7714/2019 (subject matter of SLP (Crl.) No. 1569/2021)
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and order dated 20 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,
short ‘NCB’
1 In
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
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28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 , as
the case may be.
2. The facts leading to registering of the aforesaid cases against the
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respondents are that on 22 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 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, 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.
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48/01/03/2019/BZU and arrested for the offences stated above. Similarly,
Mohammed Afzal[A-6], respondent in SLP (Crl.) No. 1454/2021 was arrested on
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an allegation that his Call details record 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
2 In short ‘NDPS Act’
3 H ereinafter referred to as the ‘first case’
For short ‘CDR’
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
67 of the NDPS Act which purportedly revealed that both of them had arranged
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the drugs that were delivered to A-1 and A-2 on 22 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 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
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]
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and [A-2] in NCB Case FN No. 48/01/07/2019/BZU , were going to reach
Bengaluru Airport alongwith persons named Khushboo Sharma and
H ereinafter referred to as the ‘second case’
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
Mohammad Asif for trafficking drugs to Doha. The said accused were
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apprehended in the parking area of Bengaluru Airport on 15 June, 2019. It is
stated that Khushboo Sharma was found to be in possession of a black bag that
when searched, revealed 510 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, namely, 330 Grams of Methamphetamine, 13.680 Kgs of
Hashish, 2.850 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
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08 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 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.
6. As for Munees Kavil [A-5], respondent in Criminal Petition No. 7897/2019
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
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who was granted bail vide order dated 20 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 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 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 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
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
any ground to believe that they were not guilty of the offences alleged against
them or that they are not likely to commit any such offence while on bail.
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8. Vide order dated 05 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 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 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 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
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
case are not clean.
9. Having gone through the records alongwith the tabulated statement of the
respondents submitted on behalf of the petitioner-NCB 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 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.
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10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu ,
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
(2021) 4 SCC 1
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
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 of evidence on the part of one of the
respondents is an aspect that will be examined at the stage of trial. For the
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aforesaid reason, this Court is not inclined to interfere in the orders dated 16
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September, 2019, 14 January, 2020, 16 January, 2020, 19 December, 2019
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and 20 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 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
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08 January, 2020, will have to be treated on an entirely different footing. There
are specific allegations levelled against the said respondent regarding recovery
of substantial commercial quantities of drugs from a rented accommodation
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
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occupied by him pursuant to which he was arrested on 16 June, 2019. This
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aspect has been completely overlooked while passing the order dated 08
January, 2020 wherein, the only reason that appears to have weighed with the
High Court for releasing him on bail is that his case stands on the same footing
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as A-1, A-3 and A-4 who had been enlarged on bail vide orders dated 11
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October, 2019, 16 September, 2019 and 09 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 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 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 bail. This
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Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021
Court has refrained from making any observations on the merits of the case
pending before the trial Court.
................................. CJI.
[N. V. RAMANA]
.................................. .J.
[SURYA KANT]
................................... J.
[HIMA KOHLI]
New Delhi,
January 10, 2022.
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