UNION OF INDIA THROUGH NARCOTICS CONTROL BUREAU, LUCKNOW versus MD. NAWAZ KHAN

Citation: [2021] 7 S.C.R. 819 · Decided: 22-09-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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UNION OF INDIA THROUGH NARCOTICS CONTROL
BUREAU, LUCKNOW
v.
MD. NAWAZ KHAN
(Criminal Appeal No. 1043 of 2021)
SEPTEMBER 22, 2021
[DR. DHANANJAYA Y. CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.8,
21, 27A and 29 – On receiving information, a vehicle was intercepted
by the NCB officers in which respondent and other two accused
persons were travelling – Nothing objectionable was found in the
course of personal search – However, search of car revealed two
packets together weighing 3.300 kg hidden under the place where
wiper is connected to the front bonnet of the car – The application
for bail of the respondent was rejected by the Additional District
and Sessions Judge – The High Court allowed the application for
bail by the respondent – On appeal, held: The impugned order of
the High Court, apart from observing that no contraband was found
from the personal search and observed that twin conditions
contained in s.37(1)(b) of the NDPS Act were satisfied – The High
Court ignored the following circumstances: (i) The respondent was
travelling  in the vehicle all the way from Dimapur in Nagaland to
Rampur in Uttar Pradesh with the co-accused; (ii) The complaint
notes that the CDR analysis of the mobile number used by the
respondent indicated that he was in regular touch with the other
accused persons who were known to him; (iii) The quantity of
contraband found was of commercial quantity; and (iv) The
contraband was concealed in the vehicle in which the respondent
was travelling with the co-accused – The High Court overlooked
crucial requirements and glossed over the circumstances which were
material to the issue as to whether a case for grant of bail was
established – In failing to do so, the order of the High Court becomes
unsustainable – Moreover, after the respondent was enlarged on
bail he has consistently remained away from the criminal trial
resulting in the issuance of a non-bailable warrant against him –
[2021] 7 S.C.R. 819
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Therefore, the impugned judgment and order of the High Court is
set aside – Accordingly, the respondent is directed to surrender.
Allowing the appeal, the Court
HELD: 1. This Court has referred to the precedents to
reiterate the governing principles. At this stage of the
proceedings, it needs only to be clarified that the trial is to take
place this Court where evidence will be adduced. [Para 23][833-
G-H; 834-A]
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496 : [2010] 12 SCR 1165; Mahipal v. Rajesh
Kumar @ Polla & Anr. (2020) 2 SCC 118 : [2019] 14
SCR 529; Union of India v. Shiv Shanker Kesar (2007)
7 SCC 798 : [2007] 9 SCR 964; Madan Lal and Another
v. State of Himachal Pradesh  (2003) 7 SCC 465 : [2003]
2 Suppl.  SCR 716 – relied on.
Prabhakar Tewari v. State of Uttar Pradesh (2020) 11
SCC 648; Union of India v. Prateek Shukla (2021) 5
SCC 430; Mohan Lal v. State of Rajasthan1 (2015) 6
SCC 222 : [2015] 5 SCR 435 – referred to.
2. As regards the finding of the High Court regarding
absence of recovery of the contraband from the possession of
the respondent, 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. [Para 24][834-A-C]
3. In line with the decision of this Court in Rattan Mallik,
this Court is 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. With
regard to the statement under Section 67 of the NDPS Act, the
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High Court has placed abundant reliance on the inclusion of ‘AK’s
name in place of the respondent’s name in the endorsement of
translation on the statement of the respondent. In Tofan Singh, a
three judge Bench of this Court held that a statement under
Section 67 of the NDPS Act is inadmissible. The ASG submitted
that independent of the statement, there are valid reasons to
deny
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