* Author
[2024] 2 S.C.R. 357 : 2024 INSC 114
State by the Inspector of Police
v.
B. Ramu
(Criminal Appeal No. 801 of 2024)
12 February 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
In a case involving recovery of huge quantity of narcotic substance
(232.5 kg of ganja), wherein the Respondent-accused was indicted
as being the conspirator for procurement/supply of the ganja so
recovered, High Court whether justified in granting anticipatory bail
in connection with the FIR registered for the offences punishable
u/ss.8(c), 20(b)(ii)(c) and 29(1), Narcotic Drugs and Psychotropic
Substances Act, 1985.
Headnotes
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 –
Code of Criminal Procedure, 1973 – s.438 – Quantity of narcotic
substance seized multiple times the commercial quantity –
Anticipatory bail granted by High Court, satisfaction in terms
of the rider contained in s.37 not recorded – Challenge to:
Held: For entertaining a prayer for bail in a case involving recovery
of commercial quantity of narcotic drug or psychotropic substance,
the Court would have to mandatorily record the satisfaction in terms
of the rider contained in s.37, NDPS Act – In the event, the Public
Prosecutor opposes the prayer for bail either regular or anticipatory,
the Court would have to record a satisfaction that there are grounds
for believing that the accused is not guilty of the offence alleged
and that he is not likely to commit any offence while on bail – In
the present case, High Court not only omitted to record any such
satisfaction, but rather completely ignored the factum of recovery
of narcotic substance (ganja), multiple times the commercial
quantity – In case of recovery of such a huge quantity of narcotic
substance, the Courts should be slow in granting even regular
bail to the accused what to talk of anticipatory bail more so when
the accused is alleged to be having criminal antecedents – High
358 [2024] 2 S.C.R.
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Court failed to consider that the accused had criminal antecedents
and was already arraigned in two previous cases under the NDPS
Act – Impugned order being cryptic and perverse on the face of
the record is quashed and set aside. [Paras 9-12, 15]
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Code of
Criminal Procedure, 1973.
List of Keywords
Huge quantity of narcotic substance; Ganja; Anticipatory bail; Bail;
Recovery of commercial quantity of narcotic drug or psychotropic
substance; Multiple times the commercial quantity; Criminal
antecedents.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.801
of 2024
From the Judgment and Order dated 25.01.2022 of the High Court
of Judicature at Madras in CRLOP No. 1067 of 2022
Appearances for Parties
V. Krishnamurthy, Sr. A.A.G., D.Kumanan, Mrs. Deepa. S, Sheikh
F. Kalia, Veshal Tyagi, Advs. for the Appellant.
G.Sivabalamurugan, Selvaraj Mahendran, C.Adhikesavan, S.B.
Kamalanathan, Sumit Singh Rawat, P.V. Harikrishnan, Karuppaiah
Meyyappan, Raghunatha Sethupathy B, Ms. Kanika Kalaiyarasan,
Abhishek Kalaiyarasan, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
Mehta, J.
1. Heard.
2. This appeal is directed against the order dated 25.01.2022 passed
by the learned Single Judge of the Madras High Court whereby,
the application under Section 438 of Code of Criminal Procedure,
1973 preferred by the respondent-accused in connection with Crime
[2024] 2 S.C.R. 359
State by the Inspector of Police v. B. Ramu
No. 235 of 2021 registered at P.S. Erode Taluk, District-Erode was
allowed and the respondent-accused was granted anticipatory bail
in connection with the aforesaid FIR registered for the offences
punishable under Sections 8(c), 20(b)(ii)(c) and 29(1) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter being
referred to as ‘NDPS Act’).
3. On perusal of the case records, it becomes apparent that on search
of the house of Brinda/A1 and Kesavan/A2, both were found to be
in possession of 232.5 kg of ganja. The respondent-accused herein
was indicted as being the conspirator for procurement/supply of the
ganja so recovered.
4. As per the schedule to the NDPS Act, the commercial quantity
of ganja is 20kg. It is thus not in dispute that the quantity of the
narcotic substance seized in this case is well above commercial
quantity.
5. The learned Public Prosecutor appearing for the State in the
High Court opposed the prayer for grant of anticipatory bail to
the respondent-accused herein. The High Court considered the
application for grant of anticipatory bail and allowed the same in
the following manner:-
“3. The learned counsel appearing for the petitioner
submitted that the petitioner has not committed any
offence as alleged by the prosecution and he has been
falsely implicated in this case. He further submitted that
all the cases were put up cases by the police in order
to implicated him. Further he also submits that all the
accused were arrested and all were released in the
Trial Court in statutory bail. Hence, he prays for grant
of anticipatory bail.
4. The learned Additional Public Prosecutor appearing for
the respondent submitted that 3 previous cases pending
against the petitioner, investigation almost completed.
However, he vehemently opposed to grant anticipatory
bail to the petitioner.
5. Considering the facts and circumstances of the case, this
Court is inclined to grant anticipatory bail to the petitioner
with certain conditions.
360 [2024] 2 S.C.R.
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6. Accordingly, the petitioner is directed to be released on
bail in the event of arrest or on his appearance, within a
period of fifteen (15) days after lifting of lockdown or the
commencement of the Court’s normal functioning whichever
is earlier, before the learned Judicial Magistrate - I, Erode,
on condition that the petitioner shall execute a bond for
a sum of Rs.10,000/- (Rupees Ten Thousand only) with
two sureties, each for a like sum to the satisfaction of the
respondent police or the police officer who intends to arrest
or to the satisfaction of the learned Magistrate concerned,
3/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.1067 of
2022 failing which, the petition for anticipatory bail shall
stand dismissed and on further condition that:
[a] the petitioner is directed to deposit a sum of Rs.30,000/-
(Rupees Thirty Thousand only) to the credit of the
Registered Tamil Nadu Advocate Clerk Association,
Chennai within a period of two weeks from the date of
receipt of a copy of this order and shall produce the said
receipt before the Court below.
[b] the petitioner and the sureties shall affix their photographs
and Left Thumb Impression in the surety bond and the
Magistrate may obtain a copy of their Aadhar card or Bank
pass Book to ensure their identity.
[c] the petitioner is directed to report before the respondent
police on every Tuesday and Saturday at 10.30 a.m., until
further orders;
[d] the petitioner shall not tamper with evidence or witness
either during investigation or trial.
[e] the petitioner shall not abscond either during investigation
or trial.
[f] On breach of any of the aforesaid conditions, the learned
Magistrate/Trial Court is entitled to take appropriate action
against the petitioner in accordance with law as if the
conditions have been imposed and the petitioner released
on anticipatory bail by the learned Magistrate/Trial Court
himself as laid down by the Hon’ble Supreme Court in
P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].
[2024] 2 S.C.R. 361
State by the Inspector of Police v. B. Ramu
[g] If the accused thereafter absconds, a fresh FIR can be
registered under Section 229A IPC.”
6. From the order reproduced supra, it is apparent that the learned Single
Judge totally ignored the submission of the Public Prosecutor that
the respondent-accused was arraigned in three more previous cases
(two of which involve offence under the NDPS Act). Furthermore, the
learned Single Judge also totally ignored the fact that the recovered
ganja was well in excess of the commercial quantity as provided in
the schedule to the NDPS Act.
7. During the course of submissions, learned counsel for the respondent
vehemently and fervently contended that during the intervening
period, the matter has progressed much ahead inasmuch as the
investigation has been concluded and charge-sheet has been filed.
Now the matter is posted for framing of charges against the accused.
8. Section 37 of the NDPS Act deals with bail to the accused charged
in connection with offence involving commercial quantity of a
narcotic drug or psychotropic substance. The provision is reproduced
hereinbelow for the sake of ready reference:-
“[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
27-A 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.
362 [2024] 2 S.C.R.
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(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]”
9. A plain reading of statutory provision makes it abundantly clear that
in the event, the Public Prosecutor opposes the prayer for bail either
regular or anticipatory, as the case may be, the Court would have
to record a satisfaction that there are grounds for believing that the
accused is not guilty of the offence alleged and that he is not likely
to commit any offence while on bail.
10. It is apposite to note that the High Court not only omitted to record
any such satisfaction, but has rather completely ignored the factum of
recovery of narcotic substance (ganja), multiple times the commercial
quantity. The High Court also failed to consider the fact that the
accused has criminal antecedents and was already arraigned in two
previous cases under the NDPS Act.
11. In case of recovery of such a huge quantity of narcotic substance, the
Courts should be slow in granting even regular bail to the accused
what to talk of anticipatory bail more so when the accused is alleged
to be having criminal antecedents.
12. For entertaining a prayer for bail in a case involving recovery of
commercial quantity of narcotic drug or psychotropic substance, the
Court would have to mandatorily record the satisfaction in terms of
the rider contained in Section 37 of the NDPS Act.
13. Manifestly, a very strange approach has been adopted by the learned
Single Judge in the impugned order whereby the anticipatory bail
was granted to the respondent on the condition that the appellant
would deposit a sum of Rs. 30,000/- to the credit of the registered
Tamil Nadu Advocate Clerk Association, Chennai along with various
other conditions. The condition no. [a] (supra) so imposed by the High
Court is totally alien to the principles governing bail jurisprudence
and is nothing short of perversity.
14. The fact that after investigation, the charge-sheet has been filed
against the respondent-accused along with other accused persons,
fortifies the plea of the State counsel that the Court could not have
recorded a satisfaction that the accused was prima facie not guilty
of the offences alleged.
[2024] 2 S.C.R. 363
State by the Inspector of Police v. B. Ramu
15. As a consequence, the impugned order is cryptic and perverse on
the face of the record and cannot be sustained. Thus, the same is
quashed and set aside.
16. The appeal is allowed in these terms.
17. The respondent-accused shall surrender before the learned trial
court within a period of 10 days from today.
18. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
