Sami Ullaha Vs.
Superintendent, Narcotic Central Bureau [2008] INSC 1904 (7 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1748 OF 2008
[Arising out of SLP (Crl.) No. 2175 of 2008] Sami Ullaha ...Appellant Versus
Superintendent, Narcotic Central Bureau ...Respondent
S.B. SINHA, J :
1.
Leave
granted.
2.
Whether
an order of bail granted in favour of the appellant herein could have been
directed to be cancelled on the basis of a report of analysis of the articles
recovered from him containing `heroin' is the core question involved herein.
3.
Before,
however, we advert to the said question, we may notice the factual matrix
involved in the matter.
On or about
14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain,
who were traveling in a bus were searched and allegedly contraband weighing 2
kgs. was recovered. A purported statement was made by the said accused persons
that the said contraband (heroin) was meant to be delivered to the appellant.
Nothing was recovered from him.
Apart from the said
statements of the said accused persons, no other material is available on
record to sustain a charge against him. On the basis of the said statement, the
appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in
terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short "the Act"). Appellant contends that he was tortured and
the statement was obtained forcibly from him on some blank documents. He later
on retracted therefrom.
Indisputably, the
seized articles were sent for chemical examination to the Government Opium and
Alkaloid Works, Neemuch. A report was sent to the investigating officer on
23.09.2004 stating that the sample did not contain any contraband substance.
Appellant thereafter filed an application for discharge. The prosecution moved
the court for sending the substance 3 allegedly recovered from the co-accused
persons for its examination by the Central Revenue Control Laboratory, New
Delhi. It was rejected by the court opining that there was no provision in the
Act for sending the sample to another laboratory. The court, however, did not
pass an order of discharge in favour of the appellant but released him on bail,
stating:
"Accordingly, as
mentioned above, there is no ground that by accepting the application of the
complainant and order be passed for sending the second sample for examination
to another laboratory. If the investigating officer so desires, then in
accordance with the ruling expounded as above, he is free to send the second
sample to any of the laboratories for its examination at his own level. On the
basis of the abovementioned observations, the application of the complainant is
rejected."
4.
The
prosecution, however, sent another sample to the Central Revenue Control
Laboratory, New Delhi. A report dated 6.01.2005 was sent opining that the
sample under reference was tested positive for Diacetyl-morphine (Heroin),
which according to the said report was found to be 2.6% of the sample tested.
5.
Thereafter,
an application for cancellation of bail was filed on 4.02.2005. By an order
dated 15.03.2005, the bail granted to the appellant was cancelled relying on or
on the basis of the second report obtained by the respondent from the Central
Revenue Control Laboratory, New Delhi stating:
"While receiving
guidance from the abovementioned citations, I arrive at the conclusion that
under the present facts, the second sample which was sent for examination and
according to its receipt the seized substance was heroine, and on the basis of
which charges have been levelled against the accused persons, and the
prosecution has right to send second sample for chemical examination, and as
such there are charges of serious nature against the accused persons in which
there provisions (sic) to award punishment of imprisonment of the term of at
least ten years and fine of rupees one lakh, as well as under Section 37 of the
Act, in case of recovery of psychotropic substances in the quantity of commerce
& trade, bail cannot be granted until the court does not arrive at the
conclusion to the effect that the accused is not guilty of such an offence, and
in case of granting him bail such an offence will not be committed by him
during the course of his remaining free on bail."
6.
A
revision application filed thereagainst by the appellant before the High Court,
which was marked as S.B. Criminal Revision Petition No. 277 of 2005, was
dismissed by reason of the impugned judgment.
7.
Appellant
is, thus, before us.
8.
Mr.
Sushil Kumar Jain, learned counsel appearing on behalf of the appellant, would
contend that in the peculiar facts and circumstances of this case there was no
justification at all for cancellation of bail which had already been granted to
the appellant.
The learned counsel
would contend that a bail granted must be cancelled only if the requirements
contained in Sub-section (2) of Section 439 of the Code of Criminal Procedure
are fulfilled.
In any event, as the
Central Revenue Control Laboratory, New Delhi is not a designated chemical
examiner as defined in the Narcotic Drugs and Psychotropic Substances Rules,
1985 (for short "the Rules"), reliance thereupon could not have been
placed particularly when the laboratory 6 which comes within the definition of
the term "Chemical Examiner" had opined otherwise.
The learned counsel
would contend that unlike the provisions of Section 13(3) of the Prevention of
Food Adulteration Act, 1954, no provision exists in the Act for sending one
sample to one laboratory and the second to another laboratory.
The learned counsel
would further contend that the miniscule percentage of heroin which has been
found, i.e., 2.6%, would not come within the purview of commercial quantity.
9.
Mr.
B.B. Singh, learned counsel appearing on behalf of the respondent, on the other
hand, 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 is not likely to commit the said offence, no order of
bail could have been passed in derogation of the provisions thereof.
7 It was furthermore
submitted 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 of conviction could be based thereupon.
Even a retracted
confession, according to the counsel, can form basis for recording a judgment
of conviction.
10.
The
Act although is a self-contained code, application of the provisions of the
Code of Criminal Procedure, 1973, however, either expressly or by necessary
implication, have not been excluded. There 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 :
(a) he has attempted
to tamper with evidence;
(b) he has attempted
to influence the witnesses;
(c) there is a
possibility of the accused to abscond and, therefore, there is a possibility
that the accused may not be available for trial.
11.
It
is true that the general principles of grant of bail are not applicable in a
case involving the Act. The power of the court in that behalf is limited.
Section 37 of the Act
reads as under:
"37. Offences to
be cognizable and non-bailable (1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974)-- (a) every offence punishable
under this Act shall be cognizable;
(b) no person accused
of an offence punishable for offences under section 19 or section 24 or section
27A and also for offences involving commercial quantity shall be released on
bail or on his own bond unless-- (i) the Public Prosecutor has been given an
opportunity to oppose the application for such release, and (ii) where the
Public Prosecutor opposes the application, the court is satisfied that there
are reasonable grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.
(2) The limitations
on granting of bail specified in clause (b) of sub-section (1) are in addition
to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or
any other law for the time being in force, on granting of bail."
12.
However,
a distinction even is made as regards grant of bail in relation to a commercial
quantity and a small quantity. Commercial quantity has been defined in Section
2(viia) of the Act to mean "any quantity greater than the quantity
specified by the Central Government by notification in the Official
Gazette".
13.
We
will advert to the question of the definition of "Chemical Examiner"
a little later. The question, however, as to whether the contraband found came
within the purview of the commercial quantity within the meaning of Section
2(viia) or not is one of the factors which should be taken into consideration
by the courts in the matter of grant or refusal to grant bail. Even, according
to the Central Revenue Control Laboratory, New Delhi, only 2.6% of the sample
sent was found to be containing heroin. Small quantity in terms of the
notification issued under Sections 2(viia) and 2(xxiiia) is as under:
S.No Name of Narcotic
Drug or Chemical Small Commercial . Psychotropic Substance Name Quantity
Quantity (International Non- proprietary Name (INN)) 77. Morphine Morphine 5
gms. 250 gms.
10 The quantity,
thus, alleged to have been recovered from the co- accused persons could be said
to be intermediate quantity and, thus, the rigours of the provisions of Section
37 of the Act relating to grant of bail may not be justified.
In Ouseph alias
Thankachan v. State of Kerala [(2004) 4 SCC 446], this Court held:
"8.The question
to be considered by us is whether the psychotropic substance was in a small
quantity and if so, whether it was intended for personal consumption. The words
'small quantity' have been specified by the Central Government by the
notification dated 23-7-1996. Learned Counsel for the State has brought to our
notice that as per the said notification small quantity has been specified as 1
gram. If so, the quantity recovered from the appellant is far below the limit
of small quantity specified in the notification issued by the Central
Government. It is admitted that each ampoule contained only 2 ml and each ml
contains only 3 mg. This means the total quantity found in the possession of
the appellant was only 66 mg. This is less than 1/10th of the limit of small
quantity specified under the notification.
*** *** ***
11. On account of the
aforesaid fact situation, we are inclined to believe that the small quantity of
buprenorphine (Tidigesic) was in the possession of the appellant for his
personal consumption and, 11 therefore, the offence committed by him would
fall under Section 27 of the NDPS Act."
[See also E. Micheal
Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161]
14.
The
Central Government in exercise of its power conferred upon it under Section 9
read with Section 76 of the Act made the Rules. "Chemical Examiner"
has been defined in Rule 2(c) of the Rules to mean "the Chemical Examiner
or Deputy Chief Chemist or Shift Chemist or Assistant Chemical Examiner, Government
Opium & Alkaloid Works, Neemuch or, as the case may be, Ghazipur".
15.
It
is not necessary for us to consider the matter in depth as to whether the
aforementioned definition is exhaustive but then we are concerned with a
question involving cancellation of an order of bail. The authorised laboratory
at Neemuch categorically found that the seized substance did not contain any
contraband. For the purpose of grant of bail, the court cannot be said to have
committed any illegality in relying thereupon.
12 There exists a difference
of opinion insofar as the Central Revenue Control Laboratory, New Delhi, has
since opined that the sample contained 2.6% hereoin. The effect of said
contradictory report must be gone into only at trial. A person's liberty is
protected in terms of Article 21 of the Constitution of India. When two views
are possible, the view which leans in favour of an accused must be favoured.
16.
It
is not the stage where the court is required to take into consideration the
submission of Mr. B.B. Singh that a judgment of conviction is possible to be
recorded on the basis of a confessional statement made by an accused. It may be
so but the question is that when the prosecution itself had failed to show that
the seized substance contained any narcotic substance or psychotropic
substance, the question of reliance on the confession of the accused does not
arise; at least at this stage.
In Noor Aga v. State
of Punjab & Anr. [2008 (9) SCALE 681], this Court held:
"92. We may, at
the outset, notice that a fundamental error has been committed by the High
Court in placing explicit reliance upon Section 108 of the Customs Act.
93. It refers to
leading of evidence, production of document or any other thing in an enquiry in
connection of smuggling of goods. Every proceeding in terms of Sub-section (4)
of Section 108 would be a judicial proceeding within the meaning of Sections
193 and 228 of the Indian Penal Code. The enquiry contemplated under Section
108 is for the purpose of 1962 Act and not for the purpose of convicting an accused
under any other statute including the provisions of the Act.
*** *** ***
98. It was pointed
out that the power of a Police Officer as crime detection and custom officer as
authorities invested with a power to check the smuggling of goods and to impose
penalty for loss of revenue being different, they were not Police Officers but
then the court took notice of the general image of police in absence of
legislative power to enforce other law enforcing agencies for the said purpose
in the following terms:
23. It is also to be
noticed that the Sea Customs Act itself refers to police officer in
contradistinction to the Customs Officer.
Section 180 empowers
a police officer to seize articles liable to confiscation under the Act, on
suspicion that they had been stolen.
Section 184 provides
that the officer adjudging confiscation shall take and hold possession of the
thing confiscated and every officer of police, on request of such officer,
shall assist him in taking and holding such possession. This leaves no room for
doubt that a Customs Officer is not an officer of the Police. 24. Section
171-A 14 of the Act empowers the Customs Officer to summon any person to give
evidence or to produce a document or any other thing in any enquiry which he be
making in connection with the smuggling of any goods.
*** *** *** 100.
When, however, the custom officers exercise their power under the Act, it is
not exercising its power as an officer to check smuggling of goods;
it acts for the
purpose of detection of crime and bringing an accused to book."
But, as indicated
hereinbefore, the said question need not be gone into at this stage.
17.
We
may, however, incidentally refer to a recent decision of the Privy Council in
State of Mauritius v. Khoyratty [2006] UKPC 13 : [2006] 2 WLR 1330] wherein a
similar provision curtailing the power of court to grant bail was held by the
Supreme Court of Mauritius to be ultra vires of the doctrine of separate of
power. A constitutional amendment by simple majority was carried out. Even that
constitutional amendment was held to be unconstitutional. The Privy Council in
the aforementioned case upheld the said decision stating:
15 "In A v
Secretary of State for the Home Department [2005] 2 AC 68 Lord Bingham gave the
leading judgement. He stated at para 42:
". . . It is
also of course true . . . that Parliament, the executive and the courts have
different functions. But the function of independent judges charged to
interpret and apply the law is universally recognised as a cardinal feature of
the modern democratic state, a cornerstone of the rule of law itself. The Attorney
General is fully entitled to insist on the proper limits of judicial authority,
but he is wrong to stigmatise judicial decision- making as in some way
undemocratic."
While not conclusive
of the issue presently before the Board, these decisions give important colour
to the words of section 1 of the Constitution, viz that Mauritius shall be a
democratic state.
14. There is another
aspect to take into account.
The Supreme Court
observed that decisions on bail are intrinsically within the domain of the judiciary.
At the very least that means that historically decisions on bail were regarded
as judicial. The importance of the historical perspective was emphasised in the
Australian jurisprudence cited in Anderson. This factor too gives colour to the
words of section 1."
18.
Furthermore,
for the purpose of cancellation of bail, the statutory requirements must be
satisfied. Appellant has failed to do so.
We may notice that in
State (Delhi Administration) v. Sanjay Gandhi [(1978) 2 SCC 411], this Court
held:
16 "13.
Rejection of bail when bail is applied for is one thing; cancellation of bail
already granted is quite another. It is easier to reject a bail application in
a non-bailable case than to cancel a bail granted in such a case. Cancellation
of bail necessarily involves the review of a decision already made and can by
and large be permitted only if, by reason of supervening circumstances, it
would be no longer conducive to a fair trial to allow the accused to retain his
freedom during the trial. The fact that prosecution witnesses have turned
hostile cannot by itself justify the inference that the accused has won them
over. A brother, a sister or a parent who has seen the commission of crime, may
resile in the Court from a statement recorded during the course of
investigation. That happens instinctively, out of natural love and affection,
not out of persuasion by the accused.
The witness has a
stake in the innocence of the accused and tries therefore to save him from the
guilt. Likewise, an employee may, out of a sense of gratitude, oblige the
employer by uttering an untruth without pressure or persuasion. In other words,
the objective fact that witnesses have turn- ed hostile must be shown to bear a
causal connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the off chance
or on the supposition that witnesses have been won over by the accused.
Inconsistent testimony can no more be ascribed by itself to the influence of
the accused than consistent testimony, by itself, can be ascribed to the
pressure of the prosecution. Therefore, Mr. Mulla is right that one has to
countenance a reasonable possibility that the employees of Maruti like the
approver Yadav might have, of their own volition, attempted to protect the
respondent from involvement in criminal charges. Their willingness now to
oblige the respondent would depend upon how much the 17 respondent has obliged
them in the past. It is therefore necessary for the prosecution to show some
act or conduct on the part of the respondent from which a reasonable inference
may arise that the witnesses have gone back on their statements as a result of
an intervention by or on behalf of the respondent."
19.
For
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The order dated 15.03.2005 cancelling the bail is set
aside and the revision application filed in the High Court stands allowed. The
appeal is allowed.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New
Delhi;
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