MOHD MUSLIM @ HUSSAIN versus STATE (NCT OF DELHI

Citation: [2023] 3 S.C.R. 697 · Decided: 28-03-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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MOHD MUSLIM @ HUSSAIN
v.
STATE (NCT OF DELHI)
(Criminal Appeal No(s). 943 of 2023)
MARCH 28, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37
– Code of Criminal Procedure, 1973 – s.436A – Appellant accused
of committing offences punishable under NDPS Act has been in
custody since 2015, if entitled to bail – Held: Recovery of ganja
was made from the four co-accused – Appellant was arrested at the
behest, and on the statement of one of the co-accused – Prosecution
relied on that statement, as well as the confessional statement of the
appellant – In addition, it also relied on the bank statements of one
of the co-accused who allegedly disclosed that money used to be
transferred to the appellant – As against this, the prosecution has
not recovered anything else from the appellant – The allegation
that he is a mastermind is not backed by any evidence of extensive
dealing with narcotics, which would reasonably have surfaced –
Further, two co-accused persons have been enlarged on bail –
Appellant has been in custody for over 7 years and 4 months –
Progress of the trial has been at a snail’s pace wherein 30 witnesses
have been examined, and 34 more have to be examined – Grant of
bail on ground of undue delay in trial, cannot be said to be fettered
by s.37, given the imperative of s.436A which is applicable to
offences under the NDPS Act too – Thus, on facts, appellant enlarged
on bail subject to such conditions as the trial court may impose –
Bail.
Bail – Offences under Special Acts – Duty of Courts –
Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37
– Special conditions under – Interpretation of.
Words and Phrases – ‘Not guilty’ – Discussed – Bail.
[2023] 3 S.C.R. 697
697
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Allowing the appeal, the Court
HELD: 1.1 The recovery of ganja was made on 28.09.2015,
from the four co-accused, including ‘NE’. The present appellant
was arrested at the behest, and on the statement of this ‘NE’.
The prosecution has relied on that statement, as well as the
confessional statement of the present appellant; in addition, it
has relied on the bank statements of ‘VS’ @ ‘B’, who allegedly
disclosed that money used to be transferred to the appellant. As
against this, the prosecution has not recovered anything else from
the appellant; its allegation that he is a mastermind, is not backed
by any evidence of extensive dealing with narcotics, which would
reasonably have surfaced. The prosecution has not shown
involvement of the appellant, in any other case. Furthermore, he
was apparently 23 years of age, at the time of his arrest. It is an
undisputed fact that two co-accused persons (who also, were not
present at the time of raid and from whom no contraband was
recovered) - the accused (‘VS’ @ ‘B’) who allegedly transferred
money to the appellant’s account as payment for the ganja, and
the accused (‘NY’ @ ‘TP’) from whom the original insurance
papers and registration certificate of the car from which
contraband was seized, was recovered - have both been enlarged
on bail. The appellant has been in custody for over 7 years and 4
months. The progress of the trial has been at a snail’s pace: 30
witnesses have been examined, whereas 34 more have to be
examined. [Para 17][709-E; 710-A-D]
1.2 The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that the
accused is “not guilty of such offence” and that he is not likely to
commit any offence while on bail. What is meant by “not guilty”
when all the evidence is not before the court? It can only be a
prima facie determination. That places the court’s discretion
within a very narrow margin. Given the mandate of the general
law on bails (Sections 436, 437 and 439, CrPC) which classify
offences based on their gravity, and instruct that certain serious
crimes have to be dealt with differently while considering bail
applications, the additional condition that the court should be
satisfied that the accused (who is in law presumed to be innocent)
is not guilty, has to be interpreted reasonably. Further the
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classification of offences under Special Acts (NDPS Act, etc.),
which apply over and above the ordinary bail conditions required
to be assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of the offence
and that upon release, they are not l

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