SAMI ULLAHA versus SUPERINTENDENT, NARCOTIC CENTRAL BUREAU

Citation: [2008] 15 S.C.R. 626 · Decided: 07-11-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2008) 15 S.C.R. 626 
SAMI ULLAHA 
II. 
SUPERINTENDENT, NARCOTIC CENTRAL BUREAU 
(Criminal Appeal No. 1748 of 2008) 
NOVEMBER 7, 2008 
[S.8. SINHA AND CYRIAC JOSEPH, JJ.] 
.. 
Narcotic Drugs and Psychotropic Substances Act, 19~5; 
Ss.2(vii a), 37 and 67: 
Grantlcanc;ellation of bail - Contraband goods - Heroin 
- Seizure of, from possession of two persons - Accused 
persons indicating that the goods meant to be delivered to 
appellant - Arrest of appellant - Bail - Cancellation of, on the 
0 
basis of second chemical examination report of sample of 
seized goods - Justification of - Held: Though, general 
principles of grant of bail not applicable in a case under the 
1985 Act and Courts have limited power to grant bail in such 
cases but quantity of contraband goods is one of the factor 
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which should be taken into consideration while granting bail 
- In the instant case, quantity of the goods allegedly recovered 
was intermediate quantity -
Thus, the rigors of provisions 
under s. 37 of the Act for granting bail not justified - Effect of 
contradictory chemical analysis report must be gone into trial 
not at this stage - Moreover, personal liberty of a person is 
F protected in terms of Article 21 of the Constitution - When two 
views are possible, the one leans in favour of the accused must 
be favoured - When the prosecution itself had failed to show 
that seized goods contained any narcotic substance, reliance . 
on the confession statement of accused does not arise at this 
G stage - Hence, the order canceling the bail set aside - Code 
of Criminal Procedure, 1973 - s.439 - Bail - Grant of -
Ingredients. 
The question which arose for determination in this 
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626 
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SAMI ULLAHA v. SUPERINTENDENT, NARCOTIC 
627 
CENTRAL BUREAU 
... 
appeal was as to whether an order of bail granted in A 
favour of the accused could have been cancelled on the 
basis of a report of chemical analysis of the contraband 
goods recovered from him under the provisions of 
Narcotic Drugs and Psychotropic Substances Act, 1985. 
Appellant contended that a bail granted must be 
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cancelled only if the requirements contained in Sub-
section (2) of Section 439 of the Code of Criminal 
Procedure are fulfilled; that the Central Revenue Control 
Laboratory, New Delhi is not a designated chemical C 
examiner as defined in the Narcotic Drugs and 
Psychotropic Substances Rules, 1985, reliance 
thereupon could not have been placed particularly when 
the laboratory which comes within the definition of the 
term "Chemical Examiner" had opined otherwise; that no 
provision exists in the Act for sending one sample to one D 
laboratory and the second to another laboratory; and that 
the miniscule percentage of the contraband goods i.e., 
2.6% has been found, which would not come within the 
purview of commercial quantity. 
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On behalf of the respondent, it was submitted that as' 
Section 37 of the Act contains a special provision 
providing that {i) no court shall grant bail without hearing 
the public prosecutor; {ii) the court is of the opinion that 
there is reasonable ground to believe that the accused 
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is not likely to commit the said offence and no order of 
bail could have been passed in derogation of the 
provisions thereof; that having regard to the fact that the 
appellant himself had confessed his guilt by making a 
statement in terms of Section 67 of the Act, a judgment G 
of conviction could be based thereupon. Even a retracted 
confession, according to the counsel, can form basis for 
recording a judgment of conviction. 
Allowing the appeal, the Court 
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628 
SUPREME COURT REPORTS 
[2008] 15 S.C.R. 
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HELD: 1.1. The Narcotic Drugs and Psychotropic 
Substances Act although is a self-contained code, 
application of the provisions of the Code of Criminal 
Procedure, 1973, however, either expressly or by 
~ecessary implication, have not been excluded. There 
B exists a distinction between an appeal from an order 
granting bail and an order directing cancellation of bail. 
While entertaining an application for cancellation of bail, 
it must be found that the accused had misused the liberty 
granted to him as a result whereof he has attempted to 
c tamper with evidence; that he has attempted to influence 
the witnesses; that there is a possibility of the accused 
to abscond and, therefore, there is a possibility that the 
accused may not be available for trial. [Para 10] [633-H; 
634-A, B, CJ 
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1.2. It is true that the gene

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