After carefully examining the arguments advanced by learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples
could not be carried out for want of facilities”. In the absence of any clarity Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021 so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16th March, 2020. Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited. {Para 10}
11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15th July, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra). The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2nd November, 2020 passed by the learned Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021 Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan [A-1], since the charge sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 5703 OF 2021
BHARAT CHAUDHARY Vs UNION OF INDIA
Author: HIMA KOHLI J.
Dated: December 13, 2021
1. By this common order, we propose to dispose of two Petitions for
Special Leave to Appeal filed against the common judgment and order
dated 15th July, 2021 passed by the learned Single Judge of the High Court
of Madras. SLP(Crl) No. 5703/2021 has been filed by Bharat Chaudhary
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
[A-4] who is aggrieved by the reversal of the bail order dated 02nd
November, 2020 granted in his favour by the learned Special Judge, EC &
NDPS Cases, Chennai whereas Raja Chandrasekharan [A-1] has
challenged the dismissal of the bail application filed by him under Section
439 of the Criminal Procedure Code.
2. The case set up by the prosecution is that on specific information
received by the Directorate of Revenue Intelligence, Chennai Zonal Unit1,
Officers of DRI had seized about 1,37,665 tablets of different types
collectively weighing 90Kgs. (approx.) described as psychotropic
substances from the following four locations, all situated in Chennai:
(i) Office of M/s. Aviation Star Express, Ekkattuthangal, a Franchisee
of M/s DHL Express India Private Limited;
(ii) 2 Destination, a Franchisee of M/s S.T. Courier;
(iii) residence of Raja Chandrasekharan [A-1]; and
(iv) office premises of M/s. DHL Express India Private Limited.
3. Believing the tablets seized from the aforesaid premises to be
composed of psychotropic substances covered under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 19852 read with the
1 For short ‘the DRI’
2 For short ‘the NDPS Act’
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
Customs Act, the DRI conducted investigation and summoned M.V.
Srinivasan [A-2] – Director of M/s 2 Destination and Propreitor of M/s S.T.
Courier; Raja Chandrasekharan [A-1] – Proprietor of Ascure Pure Herbals;
M. Ashok Kumar [A-3] - employee of A-1 and after recording their
statements, booked them for the offences under Section 8(c) punishable
under Sections 22(c), 25, 28 and 29 of the NDPS Act and arrested them on
18th October, 2019. Based on the statements made by A-1 and A-3 that
they had colluded with suppliers in Nagpur and Rajasthan and procured
tablets composed of psychotrophic substances for exporting and sending
through courier service to customers in USA under the guise of herbal
tablets, on orders received from Bharat Chaudhary [A-4], officers of DRI,
Jaipur Unit conducted a search at his residence at Jaipur on 16th March,
2020 and seized some incriminating material. Thereafter, he was arrested
on 17th March, 2020 for contravening the provisions of Section 8(c)
punishable under Sections 22(c), 24 and 29 of the NDPS Act. On being
granted transit bail by the learned Chief Metropolian Magistrate, Jaipur, A-4
was produced before the NDPS Court at Chennai on 19th March, 2020 and
remanded on the same day.
4. Vide order dated 2nd November, 2020, the learned Special Judge, EC
& NDPS Cases, Chennai granted bail to Bharat Chaudhary[A-4]. The
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
reasons that weighed with the said Court for granting bail to A-4 were that :-
(i) he was not found to be in possession of any psychotropic substance
and no contraband was recovered from his residence or office during
the search;
(ii) the electronic gagets/devices that were seized from the office of A-4
had been sent for obtaining a scientific report which was still awaited;
(iii) while 1,37,665 tablets were seized from four different locations in
Chennai between 15th October, 2019 and 18th October, 2019, officers
of the DRI had gone to Jaipur to arrest A-4 after five months, solely
on the basis of the statement made by A-1 under Section 67 of the
NDPS Act;
(iv) there was no live link established against A-4, a resident of Jaipur of
having connived with the other accused, A-1 to A-3 who were all
residing in Chennai and arrested from there.
(v) the test reports in respect of the seized material were awaited and it
was not established whether the tablets which, as per the accused
were sexual enhancement tablets, would qualify either as a narcotic
or psychotrophic substance so as to fall within the ambit of the NDPS
Act;
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
(vi) The first test report received by the DRI on 21st November, 2019,
revealed that the tablets were actually sexual enhancement drugs
and not covered under the NDPS Act and the test report in respect of
26 tablets sent to CFSL, Hyderabad, was still awaited.
5. Being mindful of the recent verdict of a Three Judge Bench of this
Court in Tofan Singh v. State of Madras3 wherein as per the majority
decision, a confessional statement recorded under Section 67 of the NDPS
Act has been held to be inadmissible in the trial of an offence under the
NDPS Act, the learned Special Judge, EC & NDPS Cases, Chennai
granted bail to Bharat Chaudhary [A-4]. On the DRI challenging the
aforesaid order before the High Court of Madras, the bail order granted in
favour of A-4 has been cancelled by the learned Single Judge with scathing
remarks made against the learned Special Judge. Citing the same
reasons as have been given in the case of A4, the bail application moved
by A1 has also been rejected.
6. The learned Single Judge has faulted the Special Judge, EC & NDPS
Cases] for having conducted a roving enquiry to grant bail to A-4. It has
been held that the ruling in Tofan Singh’s case, does not bar the
Prosecuting Agency from recording the statement of the co-accused for the
purpose of apprehending the other accused in the offence. Observing that
3 [2021] 4 SCC 1
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
it was not on the basis of the statement of A-4 that he has been arrested
and detained, but rather on the basis of the information furnished by A-1 to
A-3 who have implicated him as a person involved in the offence and for
arranging supply of contraband, it was held that absence of any evidence
to establish a link between A-1, A-3 and A-4 could not form the basis for
granting any relief to A-4. As for the observation of the Special Judge, EC
& NDPS Cases that the test reports received by the prosecuting agency on
22nd November, 2019 revealed that many of the tablets were sexual
enhancement drugs and not covered under the NDPS Act, the High Court
opined that the test reports did not totally negate the fact that the seized
contraband goods were not narcotic substances. Much emphasis was laid
on the total quantity of the contraband seized and it was held that once the
test reports showed that some of the tablets contained narcotic substances,
it was sufficient to refuse bail to A-4. Critical of the approach of the trial
Court that held that since the test reports were not filed by the prosecuting
agency along with the complaint, the benefit ought to enure in favour of A-
4, the High Court observed that, by the time the Special Judge, EC &
NDPS Cases had pronounced the order on 2nd November, 2020, test
reports were available and ought to have been taken into consideration.
7. Appearing for Bharat Chaudhary [A-4], Mr. Gopal
Shankaranarayanan, learned Senior Advocate has assailed the impugned
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
order contending that there was no good reason for the High Court to have
cancelled the bail granted to A-4 by the learned Special Judge, EC & NDPS
cases. He submitted that a grave error has been committed by the High
Court by completely overlooking the fact that not a single tablet was
recovered from the possession of A-4; that the tablets were seized from the
premises of A-1 to A-3 and some of the extracted samples sent for testing
showed that a large number of the seized pills were sex enhancement
drugs and not contraband; that the seized contraband had not been
produced or sampled before the Magistrate and that A4 has been dragged
into the matter solely on the basis of the confession/statements made by
Raja Chandrasekaran [A-1] under Section 67 of the NDPS Act, despite the
fact that in a recent judgment of this Court in Tofan Singh (supra), the
majority view is that a confessional statement is not admissible in evidence
which view has been followed in Criminal Appeal No. 1273 of 2021 titled
“Sanjeev Chandra Agarwal vs. Union of India”, decided on 25th October,
2021.
8. Mr. Anand Grover, learned Senior counsel appearing on behalf of
Raja Chandrasekharan [A-1] has argued that the High Court has fallen into
an error by rejecting the bail application of A-1 without considering the
submission made that no commercial quantity of the psychotropic
substance had been proved so far. The test reports produced by the
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
prosecution showed that the Ayurvedic/herbal medicines seized were
meant for sex enhancement which do not fall under the ambit of the NDPS
Act and that Standing Order 1/89 issued by the Government of India under
Section 52A of the NDPS Act has been completely disregarded inasmuch
as the samples were not drawn on the spot and/or recovered from the
premises of A-1, nor were the samples drawn in the office of DRI in the
presence of the accused and the Panchas. It was canvassed that the
sanctity and integrity of the seizure made is highly doubtful on account of
failure on the part of the prosecuting agency to follow the procedure
prescribed in Sections 42 and 52 of the NDPS Act. It was also argued that
the information received and recorded in the present case, was in respect
of the alleged export of the psychotropic substances from the premises of
M/s Aviation Star Express, a franchisee of M/s. DHL Express Limited and
there is no mention of A-1 or his premises in the information referred to
under Section 42 of the NDPS Act.
9. Per contra, Ms. Aishwarya Bhati, learned Additional Solicitor General
appearing for DRI has supported the impugned judgment and vehemently
argued that A-4 is the mastermind behind the entire criminal conspiracy
and he, in connivance with A-1, has been supplying contraband to A-1 to A-
3, for being illegally exported abroad under the garb of sex enhancement
tablets. She alluded to the 71 samples sent for testing and the test report
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
of CRCL, Chennai dated 18th December, 2019 confirming the presence of
narcotic substances along with male potency increment drugs and
strenuously argued that the nexus between A-4 and A-1 to A-3 is not only
established through the statements of A-1 to A-3 recorded under Section 67
of the NDPS Act, but also from the documents in the form of printouts of the
data downloaded from the moblie phone and laptop of A-4, in particular, the
Whatsapp chats and bank transactions between A-1 and A-4. Submitting
that since the twin tests laid down under Section 37 of the NDPS Act in
respect of commercial quantity for grant of bail have not been satisfied, the
impugned order does not deserve interference.
10. After carefully examining the arguments advanced by learned
counsel for the parties and having cursorily glanced at the records, we are
of the opinion that the impugned order cancelling the bail granted in favour
of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the
records sought to be relied upon by the prosecution show that one test
report dated 6th December, 2019, two test reports dated 17th December,
2019 and one test report dated 21st December, 2019 in respect of the
sample pills/tablets drawn and sent for testing by the prosecuting agency
conclude with a note appended by the Assistant Commercial Examiner at
the foot of the reports stating that “quantitative analysis of the samples
could not be carried out for want of facilities”. In the absence of any clarity
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
so far on the quantitative analysis of the samples, the prosecution cannot
be heard to state at this preliminary stage that the petitioners have been
found to be in possession of commercial quantity of psychotropic
subtances as contemplated under the NDPS Act. Further, a large number
of the tablets that have been seized by the DRI admittedly contain
herbs/medicines meant to enhance male potency and they do not attract
the provisions of the NDPS Act. Most importantly, none of the tablets were
seized by the prosecution during the course of the search conducted, either
at the office or at the residence of A-4 at Jaipur, on 16th March, 2020.
Reliance on printouts of Whatsapp messages downloaded from the mobile
phone and devices seized from the office premises of A-4 cannot be
treated at this stage as sufficient material to establish a live link between
him and A-1 to A-3, when even as per the prosecution, scientific reports in
respect of the said devices is still awaited.
11. In the absence of any psychotropic substance found in the conscious
possession of A-4, we are of the opinion that mere reliance on the
statement made by A-1 to A-3 under Section 67 of the NDPS Act is too
tenuous a ground to sustain the impugned order dated 15th July, 2021. This
is all the more so when such a reliance runs contrary to the ruling in Tofan
Singh (supra). The impugned order qua A-4 is, accordingly, quashed and
set aside and the order dated 2nd November, 2020 passed by the learned
Petition for Special Leave to Appeal (Criminal) No. 5703 OF 2021
Special Judge, EC & NDPS Cases, is restored. As for Raja
Chandrasekharan [A-1], since the charge sheet has already been filed and
by now the said accused has remained in custody for over a period of two
years, it is deemed appropriate to release him on bail, subject to the
satisfaction of the trial Court.
12. Before parting with the cases, it is clarified that the prima facie
observations made hereinabove are limited to considering the relief of
regular bail prayed for by the petitioners and nothing expressed
hereinabove shall be treated as an observation on the merits of the case,
i.e., CC No.0000037/2020, pending trial. The petitions for special leave to
appeal are disposed of in the above terms.
.................................CJI.
[N. V. RAMANA]
...................................J.
[SURYA KANT]
...................................J.
[HIMA KOHLI]
New Delhi,
December 13, 2021
No comments:
Post a Comment