HC: Any application for anticipatory bail for offences under the NDPS Act would have to be met with the requirements of S. 37 of the NDPS Act [Read Judgment]

06 May 2022

By : Ayesha

The Single Bench of the Delhi High Court in the case of MD Irshad vs State Nct of Delhi consisting of Justice Jasmeet Singh while granting anticipatory bail to the Applicant herein reiterates that while considering an application for bail u/s 37 of the NDPS Act, courts should see whether there is reasonable ground to believe that the accused is not guilty of the offence(s) he is charged with and that he is not likely to commit an offence while on bail.

Facts

The ASI posted at Special Staff East District, received an information that a person, who procures the contraband ‘smack’ from Uttar Pradesh supplies it in parts of Delhi, would come near the area of PS Kalyan Puri. The information was shared with other officers who decided to conduct a raid. The team laid a trap and a man emerged on the spot who was pointed out by the informer, who later identified him as Mohd. Akleem. Mohd. Akleem was nabbed by the staff. Notice u/s 50 Narcotic Drugs Psychotropic Substances Act (“NDPS Act”) were served to all detained persons. Interrogation was conducted of Mohd. Akleem after his arrest and he disclosed that he used to supply “smack” to Applicant (Irshad) and that he is the resident of the same village as Mohd. Akleem. On this statement and during the investigation, a notice u/s 67 NDPS Act was served to the Applicant to join the investigation. The Special Judge, NDPS, dismissed the anticipatory bail application of the Applicant.

Contentions Made

Petitioner: A confessional statement cannot be the only substantive evidence as it is only to assist the court and to make out a case against the applicant, the prosecutor must offer some affirmative legal evidence. Confessional statement can be used as corroborative statement when there is other evidence available. Applicant was not the seller nor was he caught with the drugs. He had no past antecedent and the offence as alleged, would be his first offence.

Respondent: Applicant was named by the arrested accused Md. Akleem, whose confession disclosed a link between them. The Status Report disclosed that the Applicant and the arrested accused belong to the same village. Furthermore, it stated that the sample exhibits were drawn from the illegal smack and the same have been sent and the result of the same is awaited. It also opposes the anticipatory bail on the ground that, “Activities of such drug cartels are highly alarming and undesirable for the society at large as they are spreading the poison of drugs in the society leading to the serious health hazards to the public” and therefore, the Applicant is to be interrogated at length to unearth the chain of supply of smack.

Observations of the Court

The Bench observed that any application for bail or anticipatory bail for offences under the NDPS Act would have to be met with the requirements of section 37 of the NDPS Act. Relying on Union of India v. Rattan Mallik, it was reiterated that apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The conditions are cumulative and not alternative. While considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of “not guilty”.

Judgment

Neither was there no other evidence against the Applicant except the confessional statement of Md. Akleem, nor did the applicant have any past antecedents. The Court did not believe, prima facie, that the accused is part of a larger conspiracy and was of the view that the accused is not guilty of the offence as alleged.

The Court granted anticipatory bail to the Applicant subject to the following conditions:

The Applicant shall be released on bail subject to furnishing a personal bond in the sum of Rs. 20,000/- to the satisfaction of the Investigating Officer concerned.
The Applicant was directed to deposit his passport with the Investigating Officer.
The Applicant shall cooperate and join investigation as and when directed by the Investigating Officer.
In case of any change of the Applicant’s address, he was directed to inform the same to the Investigating Officer.
The Applicant would not cause hindrance to the investigation in the present case.
The Applicant shall not, directly, or indirectly, tamper with evidence or try to influence the witnesses in any manner.