REPORTABLE

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

J U D G M E N T  

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

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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.

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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.”

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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

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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.

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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.

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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.”

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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 Psychotropic  Substance (International  Non- proprietary Name (INN))

Chemical Name

Small Quantity

Commercial Quantity

77. Morphine Morphine 5 gms. 250 gms.

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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,

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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.   

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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.

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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

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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:

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“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:

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“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

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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; November 07, 2008

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