1 1.

3-BA-st-2386-2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION (STAMP) NO. 2386 OF 2020

Rhea Chakraborty, ]
Age: 28 years, Actress, ]
Residing at : 101, Primrose Apartments, ]
Near Ajivasan Hall, Next to SNDT College, ]
Juhu Road, Santacruz (West), ]
Mumbai – 400 049 ]
(Currently lodged at Byculla Prison) ] .... Applicant
Versus
1. The Union of India ]
(Through Intelligence Officer, ]
Narcotics Control Bureau, Mumbai.) ]
2. State of Maharashtra. ] .... Respondents
-----
Mr. Satish L. Maneshinde a/w. Anandini Fernandes, Namita
Maneshinde & Nikhil Maneshinde, for the Applicant.
Mr. Anil C. Singh, Additional Solicitor General a/w. Sandesh Patil,
Shreeram Shirsat, D.P. Singh, Amogh Singh, Aditya Thakkar, Pavan
Patil, [Link] Gupte, Chintan Shah, Mayur Jaisingh, for
Respondent No.1 – NCB
Mr. Swapnil S. Pednekar, APP, for Respondent No.2 – State.
-----

CORAM : SARANG V. KOTWAL, J.

RESERVED ON : 29.09.2020
PRONOUNCED ON : 07.10.2020

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ORDER:

1. This is an application for bail preferred by the Applicant

in connection with C.R. No.16/2020 registered with the Narcotics

Control Bureau, Mumbai (hereinafter referred to as “NCB”) for the

offences punishable under Sections 8(c) read with 20(b)(ii), 22,

27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as “NDPS Act”). The

Applicant was arrested on 8.9.2020.

2. I have heard this application along with Bail

Applications (Stamp) No.2184/2020, 2201/2020, 2205/2020 &

2387/2020. Since all these Applications involve common

questions of law and since all these questions were raised and

argued in this application, I am treating this application as the lead

application in this group for deciding the questions of law.

Therefore, the submissions advanced on the questions of law in

other applications are also incorporated in this order.

3. I have heard Mr. Satish L. Maneshinde, learned Counsel

for the Applicant in present application and also for the Applicant

in Bail Application (St.) No.2387/2020, Mr. Taraq Sayed, learned

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Counsel for the Applicant in Bail Application (St.) No.2184/2020,

Mr. Rajendra Rathod, learned Counsel for the Applicant in Bail

Application (St.) No.2201/2020 and Mr. Subodh Desai, learned

Counsel for the Applicant in Bail Application (St.) No.2205/2020.

4. Respondent No.1, in this Application, is Union of India

(through Intelligence Officer, NCB), as described in the title of this

Application. I have heard learned Additional Solicitor General Mr.

Anil C. Singh, appearing for Respondent No.1 in all these

Applications.

5. This application cannot be decided without addressing

the questions of law argued before me. Therefore, I have heard all

the learned Counsel extensively on the questions of law as well as

on facts.

BRIEF FACTS AND CASE OF THE INVESTIGATING AGENCY

6. The allegations against the present Applicant, according

to the investigating agency’s case are set out in the affidavit-in-

reply dated 28.9.2020 filed on behalf of Respondent No.1. The

facts mentioned in that affidavit-in-reply are as follows.

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a) On 28.08.2020, acting on a secret information, a

team of NCB apprehended one Abbas Ramzan Ali Lakhani

possessing 46 grams of Mariguana/Ganja at Old Kurla Gaon.

Abbas told the team that he had purchased the drug from one

Karn Arora, resident of Powai. On this basis, Karn Arora was

apprehended and 13 grams of Ganja was recovered from his

possession. Both of them were arrested.

b) Based on the disclosures made by Abbas Lakhani and Karn

Arora, premises of one Zaid Vilatra was

searched. Indian currency of Rs.9,55,750/- and foreign

currency of 2081 Us Dollars, 180 UK Pounds and UAE 15

Dirhams was seized under panchanama dated 1.9.2020.

Zaid Vilatra’s statement was recorded. Zaid Vilatra disclosed that

the seized amount was the sale proceeds of the contraband and

that he had supplied Marijuna, Ganja, Bud and psychotropic

substances to many persons. Zaid Vilatra disclosed few names

with their details. In Zaid Vilatra’s voluntary statement, name of

Abdel Basit Parihar (Applicant in B.A.(Stamp) No.2184/2020) as

a receiver of Ganja/Marijuana, was revealed.

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c) Abdel Basit Parihar’s statement was recorded. He stated

that he purchased and sold Marijuana/ Ganja

through Zaid Vilatra and others. He used to supply drugs from

Zaid Vilatra and one Kaizan Ebrahim as per instructions of Showik

Chakarborty (Applicant in B.A.(Stamp) No.2387/2020). There

were other instances when Abdel Basit

Parihar facilitated supply of drugs. He was in contact

with Samuel Miranda (Applicant in B.A.(Stamp) No.2205/2020)

and Showik Chakarborty. As per the NCB’s case, Abdel Basit

Parihar is an active member of a drug syndicate connected with

high-profile personalities and drug suppliers. He used to pay

and receive money via credit cards/cash and payment

gateways. Abdel Basit Parihar was arrested on 3.9.2020. In his

voluntary statement, Abdel Basit Parihar disclosed the name of

Kaizan Ebrahim as a supplier of Charas/Hashish.

d) Based on disclosure by Abdel Basit Parihar; Kaizan

Ebrahim’s premises were searched. During the search, NCB

recovered 0.5 Grams of dark brown substance suspected to be

Hashish/Charas. Kaizan Ebrahim’s voluntary statement was

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recorded and he was arrested.

e) Kaizan Ebrahim in turn disclosed that Showik Chakarborty

used to direct him to deliver contraband to Dipesh Sawant

(Applicant in B.A.(Stamp) No.2201/2020). Voluntary statements

of Kaizan Ebrahim and Abdel Basit Parihar revealed the name of

Samuel Miranda.

f) Samuel Miranda’s voluntary statement was recorded and

he was arrested on 4.9.2020.

g) Showik Chakraborty’s voluntary statement was recorded

wherein he has allegedly disclosed that Abdel Basit Parihar

provided drugs to Dipesh Sawant through Kaizan Ebrahim. On the

basis of this material, Showik Chakraborty was arrested on

4.9.2020.

h) Dipesh Sawant’s name was revealed in the statements of

Kaizan Ebrahim and Abdel Basit Parihar. Dipesh Sawant’s

statement was recorded. He has stated that he got contact details

of a Weed and Hashish dealer from Showik Chakraborty and

Kaizan. Even Dipesh Sawant was arrested on 5.9.2020.

i) In his voluntary statement, Kaizan Ebrahim disclosed the

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name of Anuj Keshwani as a supplier of Ganja/Marijuana. In his

statement, he mentioned about purchase and sale of Marijuana/

Ganja, Charas and LSD. NCB’s case is that Anuj Keshwani used to

procure drugs from Rigel Mahakala for selling them to Kaizan

Ebrahim. There were instances where Anuj Keshwani facilitated

supply of drugs and he was in contact with Kaizan Ebrahim. Anuj

Keshwani’s statement was recorded and he was arrested on

7.9.2020.

j) The affidavit-in-reply further mentions that from Anuj

Keshwani, 585 grams of Charas, 270.12 grams of Ganja, 3.6 grams

of THC and 0.62 grams (0.1 gram was commercial quantity) of

LSD; apart from cash of Rs.1,85,200/- were recovered.

k) This recovery from Anuj Keshwani is important, because

according to NCB, the entire case, therefore, is based on recovery

of commercial quantity of LSD and, hence, it is not a case of

recovery of small quantity of narcotic drugs or psychotropic

substance.

l) The affidavit further mentions that Showik Chakraborty’s

statement revealed that he used to facilitate delivery of drugs

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through Abdel Basit Parihar from Kaizan Ebrahim and Zaid. These

deliveries used to be received by the aides of Sushant Singh

Rajput. It is the case of NCB that every such delivery

and every payment made in that behalf was in conscious

knowledge of the present Applicant. Samuel Miranda’s statement

mentions that he used to procure drugs on directions of Sushant

Singh Rajput and the present Applicant. According to him, the

financial matters in this regard were dealt by the Applicant and

Sushant Singh Rajput.

m) In his statement, Dipesh Sawant has disclosed that he used

to receive drugs for Sushant Singh Rajput on his directions

on several occasions and the present Applicant also gave similar

instructions. According to him, financial issues for purchase

of drugs were dealt by Sushant Singh Rajput and the

present Applicant. Dipesh Sawant himself used to receive drugs

along with Samuel Miranda for consumption by Sushant Singh

Rajput.

n) Based on these disclosures, the Applicant was summoned

and her voluntary statement under Section 67 of NDPS Act was

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recorded on 6.9.2020, 7.9.2020 and 8.9.2020. According to NCB,

the Applicant acknowledged the statements of these accused and

explained her own role. It is the case of NCB that during her

statement, the Applicant revealed about her involvement in

procurement of drugs and financing of illicit drug dealing. Her

statement also mentions instructions given to Samuel Miranda,

Dipesh Sawant and Showik Chakraborty in this regard. Thus,

according to NCB, the Applicant was an active member of a drug

syndicate connected with drug supplies. She was a prominent

member of supply chain of drugs to Sushant Singh Rajput and

she was handling finances also. It is, therefore, NCB’s case that the

Applicant used to procure drugs for Sushant Singh Rajput and that

she used to manage finances along with Sushant Singh Rajput for

drug procurement. Based on this material, the Applicant was

arrested on 8.9.2020.

o) Further investigation revealed that in

March 2020, the Applicant’s brother Showik Chakraborty had told

Samuel Miranda to get bud for Sushant Singh Rajput and arranged

the contact of Zaid Vílatra through his associate Abdel Basit

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Parihar. For this drug consignment, the present Applicant’s debit

card of HDFC Bank was provided to Samuel Miranda. Using that

debit card, Samuel Miranda withdrew Rs.10,000/- for the bud

of 5 Grams.

p) It is the further case of NCB that on 16.3.2020, in

pursuance to the conspiracy between the Applicant and Showik

Chakraborty, they assessed the requirement of ganja for Sushant

Singh Rajput. NCB has the WhatsApp chats to that effect. On

17.3.2020, Showik Chakraborty shared Samuel Miranda's contact

number with Abdel Basit Parihar and drug was delivered to

Samuel Miranda by Abdel Basit's contact, Zaid Vilatra, near Eat

Around Corner in Bandra. On 15.4.2020, Showik Chakraborty

facilitated delivery of charas in conspiracy with Samuel Miranda.

Charas was delivered to Dipesh Sawant by Abdel Basit's

contact Kaizan Ebrahim. According to NCB, Showik’s disclosure

showed that he used cash/card of the Applicant for purchase of

drugs with knowledge of the Applicant. It is specifically mentioned

in the affidavit that Showik was controlling the supply of drugs

and financing of such illicit drug dealings, directly as well as

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indirectly with full knowledge of the Applicant. Showik

Chakraborty had received delivery of weed from one Karamjeet

(KJ) through his friend Suryadeep Malhotra at Showik and the

Applicant’s residence. Showik had received consignments of drugs

from Samuel Miranda. The affidavit further mentions that Showik

had bank transactions with drug supplier Dwayne Fernandes

regarding drug purchase. NCB has bank account statement to that

effect.

q) Thus, according to NCB, Showik Chakraborty was

facilitating, dealing, financing and receiving

the drug deliveries at his residence and at the residence of Sushant

Singh Rajput.

r) Dipesh Sawant’s statement revealed that on 17.3.2020, on

the directions of Showik, he received the delivery

of Bud/Ganja in Bandra from Zaid. At that time, Samuel Miranda

was with him.

s) On 17.4.2020, Showik Chakraborty and the Applicant

asked Dipesh Sawant to receive Charas/hashish from Kaizan. The

delivery took place near Mont Blanc building. Dipesh Sawant has

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paid Rs. 7000/- to Kaizan which was given by the present

Applicant.

t) On 1.5.2020, Showik asked Dipesh to receive Ganja from

Dwyane and gave him Dwayne’s contact number. On 2.5.2020,

Dipesh Sawant received Charas from Dwayne. In the first week of

June, Dipesh Sawant received Ganja from a delivery-boy by

named Rishikesh Pawar for Sushant Singh Rajput and the

Applicant.

u) It is alleged that the Applicant gave Rs.10,000/- to Dipesh

Sawant which he paid to Dwayne outside Mont Blanc building and

received two packets of Ganja of 25 grams each. Dwayne sent his

bank details to Dipesh Sawant, who in turn shared them with

Showik Chakraborty for balance payment. The Applicant had told

Dipesh Sawant that one of the packets would be taken by Showik

Chakraborty.

7. Based on these allegations and material, NCB has

stated in their affidavit that there was sufficient material against

the present Applicant to show that she was involved in financing

the illicit trafficking of drugs and was dealing in it. It is further

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their case that the Applicant was aware that Sushant Singh Rajput

was engaged in consumption and, yet, she harboured him and

concealed him whilst he was engaged in consuming drugs.

According to NCB, this would amount to harbouring. It is their

case that the applicant allowed her residence for drug storage and

helped Sushant Singh Rajput in procuring drugs for consumption.

The Applicant not only regularly dealt in, but, also financed illicit

trafficking of drugs and that she was a conspirator with other

accused in the present offence involving commercial quantity of

contraband i.e LSD, which was recovered from co-accused Anuj

Keshwani.

8. The NCB claims that they have ample material

including electronic evidence that the Applicant was involved in

drug trafficking. She had facilitated in drug deliveries and

payment through credit card / cash / payment gateways for the

contraband and, therefore, the Applicant was not entitled for bail.

It is mentioned that if she was released on bail at this crucial stage

of investigation, it would hamper further investigation. It is

specifically mentioned that the drugs which were financed by her

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were not meant for her personal consumption. The drugs were

supplied for consumption by some other person. Thus, according

to NCB, Section 27A of NDPS Act was squarely applicable.

9. It was pointed out by the learned Counsel for the

Applicant that the Applicant’s statements were allegedly recorded

on 6.9.2020, 7.9.2020 and 8.9.2020. According to him, she

retracted such statements on 8.9.2020 and 9.9.2020.

10. The Applicant had preferred Criminal Bail Application

No.1871/2020 before the Special Court for NDPS at Greater

Mumbai for her release on bail. This Application was rejected by

the learned Special Judge vide his order dated 11.9.2020. The

learned Judge specifically observed that Section 27A operated

against her and at this stage it was not possible to observe that her

statement was recorded under coercion and hence was

inadmissible. The learned Judge referred to Section 37 of NDPS

Act. He also referred to recovery of commercial quantity of LSD

from accused Anuj Keshwani. It was further observed that the

investigation was at a preliminary stage and from the available

record, it could not be said that, there were no reasonable grounds

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to connect the Applicant/Accused. According to the learned

Judge, bar under Section 37 of NDPS Act operated and, therefore,

she was not entitled for release on bail. It was also observed that if

she was released on bail, then she would alert others involved in

the offence and that they would destroy the evidence. According

to the learned Special Judge, there was possibility of tampering of

evidence. On these reasons, her bail application was rejected.

11. In this background, the Applicant has approached this

Court for her release on bail.

SUBMISSIONS ON BEHALF OF THE APPLICANT

12. Following are the submissions made by Mr. Maneshinde

in support of this Application. These submissions will be

discussed, in detail, at their proper place in the following

paragraphs when I give my reasons.

i. Mr. Maneshinde basically submitted that no contraband was

recovered from the Applicant. She cannot be connected with

recovery of any commercial quantity of any contraband. She

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cannot be connected even with an intermediate quantity of any

contraband. At the highest, there are allegations that she was

connected with the offence because she helped in procuring drugs

for personal consumption by Sushant Singh Rajput. There was

nothing to show that such consumption allegedly facilitated by the

present Applicant, exceeded small quantity of contraband.

Therefore, according to Mr. Maneshinde, the offences are bailable

as far as the present Applicant is concerned, and hence, she is

entitled to be released on bail as a matter of right.

ii. Mr. Maneshinde submitted that Section 27A is not applicable

against the present Applicant. She cannot be said to have financed

any illicit traffic of drugs. She cannot be said to have harboured

any such person mentioned under Section 27A of NDPS Act.

Sushant Singh Rajput had enough funds and he did not need

financial help from the Applicant to procure drugs. He further

submitted that when she was arrested, NCB did not even seek her

custody for investigation purposes and she was straightway

remanded to judicial custody. This shows that her custody for

investigation purposes was not required.

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iii. Mr. Maneshinde further submitted that Anuj Keshwani has

no connection with the Applicant or her brother Showik

Chakraborty. Therefore, recovery effected from him can not be

held as a circumstance against the present Applicant.

iv. Mr. Maneshinde pointed out that even as per NCB’s case,

Sushant Singh Rajput was the only consumer of drugs in the

house. There were four others staying with Sushant Singh Rajput

from March to June, 2020, namely, Dipesh Sawant, Samuel

Miranda, one Neeraj who was a cook and one Peethani who was a

friend of Sushant Singh Rajput.

v. Sushant Singh Rajput’s phone was not collected. Hence, one

material link is missing.

vi. It was not NCB’s case that Sushant Singh Rajput became

addicted to drugs only after the Applicant came in his life.

According to Mr. Maneshinde there was material to show that he

was already addicted to drugs. The affidavit-in-reply of the

Respondent, at the highest, shows that the Applicant had spent

about Rs.27,000/-. There was nothing to show that such money

was actually used for procuring drugs. The contraband was not

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seized from Sushant Singh Rajput’s house and there is no trace of

any such delivery of contraband.

vii. Mr. Maneshinde submitted that Sushant Singh Rajput was

financially sound. He was residing in his own house. Therefore, by

no stretch of imagination, can it be said that the Applicant

harboured him or that she gave him shelter.

viii. According to Mr. Maneshinde, at the highest, the Applicant’s

role was that of an abettor in the main offence of consumption. In

case of consumption of small quantity, the consumer can be granted

immunity. Therefore, the abettor in such cases cannot be punished

more severely.

ix. Lastly, Mr. Maneshinde submitted that NCB had no authority

to conduct the investigation in this case as the order passed by the

Hon’ble Supreme Court transferring the case involving death of

Sushant Singh Rajput to CBI bars investigation by any agency

other than CBI.

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SUBMISSIONS ON BEHALF OF INVESTIGATING AGENCY/RESPONDENT NO.1

13. As against the arguments advanced by Mr. Maneshinde,

learned ASG made his submissions on facts based on the affidavit

filed on behalf of Respondent No.1. He relied on the facts

mentioned in the affidavit, which are reproduced hereinabove, to

contend that all the serious offences are made out against the

present Applicant and, therefore, she is not entitled to be released

on bail.

14. The learned ASG strenuously made his submissions on

various aspects of law which I shall deal with, when I discuss those

questions of law.

15. Learned ASG submitted that the contention of Mr.

Maneshinde that NCB was not authorized to conduct investigation

is not correct. According to learned ASG, the investigation in this

case was entirely on a different subject matter. Consumption of

drugs by Sushant Singh Rajput was only one of the angles of entire

investigation; and that angle was totally unconnected with his

death. He submitted that the Court will have to look at the totality

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of the case. The drug abuse has to be controlled and stopped in

every field. People have to be encouraged to maintain good health.

He submitted that the offence under NDPS Act is worse than

murder or culpable homicide and it should be dealt with severely.

16. Learned ASG submitted that this investigation is started

by arrest of Abbas Lakhani, who was totally unconnected with

Sushant Singh Rajput. According to learned ASG, the youth of this

country look at their role models for inspiration and when they are

involved in such offences, they should be punished severely so that

it would be a lesson for everyone else.

17. Learned ASG relied on the statement of Objects and

Reasons of the main Act and its subsequent amendments. He also

relied on interpretation of the Hon’ble Supreme Court in many

cases emphasizing the Objects and Reasons of the Act. He

submitted that, as of today, twenty accused are arrested and they

are all inter-linked with each other. According to learned ASG,

recovery of contraband was not an absolute requirement for

proceeding with investigation and prosecuting the accused. At this

stage, the statements recorded under Section 67 of NDPS Act were

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sufficient and could be relied on for conducting further probe.

According to learned ASG, the Applicant was actively giving

instructions, making payments and facilitating procurement of

drugs. Her acts fell within the meaning of ‘financing’ and

‘harbouring’ as mentioned under Section 27A of the NDPS Act.

REASONING

18. As Mr. Maneshinde has raised the basic issue as to

whether NCB was competent to conduct this investigation, this

issue needs to be decided first. According to Mr. Maneshinde, the

Hon’ble Supreme Court has transferred the investigation related to

Sushant Singh Rajput’s death to CBI. Mr. Maneshinde’s contention

is that all other cases registered in connection with that incident

are required to be transferred to CBI and that CBI alone was the

proper agency who could have investigated the subject matter of

this investigation conducted by NCB. Mr. Maneshinde relied on the

directions given by the Hon’ble Supreme Court in the case of Rhea

Chakraborty Vs. State of Bihar & Ors. 1 Paragraph-41 of the said

order dated 19.8.2020 reads thus :

1 Decision of Hon’ble Supreme Court dated 19.8.2020 in Transfer Petition (Crl.)

No.225/2020

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“41. In such backdrop, to ensure public confidence in the

investigation and to do complete justice in the matter,
this Court considers it appropriate to invoke the
powers conferred by Article 142 of the Constitution.
As a Court exercising lawful jurisdiction for the
assigned roster, no impediment is seen for exercise of
plenary power in the present matter. Therefore while
according approval for the ongoing CBI investigation,
if any other case is registered on the death of the actor
Sushant Singh Rajput and the surrounding
circumstances of his unnatural death, the CBI is
directed to investigate the new case as well. It is
ordered accordingly.”

19. On the other hand, learned ASG strongly urged that the

Hon’ble Supreme Court has directed that the CBI should investigate

any other case registered on the death of actor Sushant Singh

Rajput and the surrounding circumstances of his unnatural death.

According to learned ASG, the present investigation does not relate

to the death of Sushant Singh Rajput and it does not even relate to

the surrounding circumstances of his unnatural death. He also

submitted that the investigation in this case has started after secret

information was received and the first person, namely, Abbas

Lakhani was arrested. The investigation led to various disclosures

and recoveries. Consumption of drugs by Sushant Singh Rajput

was only one part of the investigation. The investigation ran deep

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into uncovering a chain of illicit traffic in drugs.

20. In my opinion, the contentions raised by learned

ASG will have to be accepted. The subject matter of the

investigation conducted by the NCB is different. It started after

receipt of information and after arrest of Abbas Lakhani. During

the course of this investigation, incidentally it was found that

Sushant Singh Rajput used to procure drugs. For that purpose,

many others helped him. This investigation led to arrest of many

other dealers in illicit traffic of drugs who are unconnected with the

death of Sushant Singh Rajput. In this view of the matter, I do not

find any force in the submissions of Mr. Maneshinde that NCB is not

empowered to investigate into this offence, which is a totally

different subject matter.

21. Since this is an application for bail in respect of offences

punishable under the NDPS Act, the provisions of that Act are

required to be considered carefully. The bail provisions under the

NDPS Act are mentioned under Section 37 of that Act. Section 37

reads thus :

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“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.”

22. As per requirements of this Section, the Court has to

give opportunity to the Public Prosecutor to oppose the application

for such relief. Such opportunity is given in the present case as I

have heard learned ASG extensively. He has opposed this

application. The second requirement is that, the Court should be

satisfied about the two conditions. There should be reasonable

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grounds for believing that the Applicant is not guilty of such

offence and the Applicant is not likely to commit any offence while

on bail. Therefore, the Court will have to consider whether these

two conditions are satisfied. However, these requirements are

applicable only where the rigours of Section 37 mentioned in

Clause (b) of Sub-Section (1) of Section 37 are applicable in the

case. This view is consistently taken by the Hon’ble Supreme

Court. The Hon’ble Supreme Court in the case of Union of India Vs.

Rattan Mallik alias Habul2 has dealt with this aspect in Paragraphs-

12, 13 & 14. They are as follows:

“12. It is plain from a bare reading of the non obstante

clause in Section 37 of the NDPS Act and sub-
section (2) thereof that the power to grant bail to a
person accused of having committed offence
under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by clause (b) of
sub-section (1) of Section 37 of the NDPS Act.
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. It is manifest that the conditions are
2 (2009) 2 SCC 624

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cumulative and not alternative. The satisfaction

contemplated regarding the accused being not
guilty, has to be based on "reasonable grounds".
13. The expression "reasonable grounds" has not been
defined in the said Act but means something more
than prima facie grounds. It connotes substantial
probable causes for believing that the accused is
not guilty of the offence he is charged with. The
reasonable belief contemplated in turn, points to
existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence
(vide Union of India v. Shiv Shanker Kesari,
(2007) 7 SCC 798). Thus, recording of satisfaction
on both the aspects, noted above, is sine qua non
for granting of bail under the NDPS Act.
14. We may, however, hasten to add that 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". At
this stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a
positive finding as to whether or not the accused
has committed offence under the NDPS Act. What
is to be seen is whether there is reasonable ground
for believing that the accused is not guilty of the
offence(s) he is charged with and further that he is
not likely to commit an offence under the said Act
while on hail. The satisfaction of the court about
the existence of the said twin conditions is for a
limited purpose and is confined to the question of
releasing the accused on bail.”

. Based on these guidelines and observations, I am

deciding the present Application.

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23. I need to decide following questions in this application.

I. Whether the offences alleged against the Applicant are

bailable. This question needs to be decided because the

Applicant is claiming her release on bail as a matter of

right.

II. If the offences are non-bailable, then, as to whether

rigours mentioned in Section 37(1)(b) of NDPS Act are

applicable.

III. If such rigours are not applicable and if the offences are

non-bailable then whether the Court should exercise its

discretion to grant or refuse bail.

WHETHER ALL THE OFFENCES UNDER NDPS ACT ARE NON-BAILABLE

24. The applicant has vehemently contended that the

allegations, at the highest, show that the offence is a bailable

offence and the Applicant could not have been detained in custody

since the Applicant was ready and willing to furnish bail.

25. This issue is important and, therefore, I am examining

this issue in detail. In support of his contention that the offences

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involving small quantities are bailable, Mr. Maneshinde relied on a

judgment of a Single Judge of this Court in the case of Stefan

Mueller Vs. State of Maharashtra3. In this case, it was held that the

offences involving small quantities of contraband were bailable

offences.

. This judgment in the case of Stefan Mueller (supra) was

relied on by a Division Bench of High Court of Delhi in the case of

Minnie Khadim Ali Kuhn Vs. State NCT of Delhi and others4

. The learned Single Judge Bench of this Court in Stefan

Mueller (supra) has observed that the heading or the marginal note

of Section 37 reads as “Offences to be cognizable and non-

bailable”. However, the language of Section 37 itself mentions that

every offence punishable under this Act shall be cognizable, but,

there is no such similar sentence mentioning that every offence

punishable under NDPS Act shall be non-bailable.

. The learned Single Judge referred to a few judgments

explaining that marginal note, heading or title of a Section has a

3 Passed in Criminal Writ Petition No.2939/2009 decided on 23.6.2010 [Bombay High

Court]. It is also reported in 2010 SCC OnLine Bom 1974
4 Passed in WP (CRL) No.338/2012 & CRL. M.A. No.2824/2012 [Delhi High Court]

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limited role to play in the construction of statutes. In cases of

conflict between the plain language of the provisions and the

meaning of the heading or title, the heading or title would not

control the meaning which is clearly and plainly discernible from

the language of the provision thereunder.

. The learned Judge has observed that since the

Legislature has not declared specifically under Section 37 that all

the offences under the Act shall be non-bailable, the provisions of

Cr.P.C. are required to be looked into to find out whether the

offences under NDPS Act are bailable or not. The learned Single

Judge thereafter referred to Part-II of the Schedule to the Code of

Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), which gives

classification of offences against other laws declaring them to be

bailable or non-bailable. This classification under Part II of the

Schedule to Cr.P.C. mentions that the offences in other laws are

bailable if they are punishable with imprisonment for less than

three years or with fine only. Therefore, according to the learned

Judge, since the offences involving small quantity of the

contraband were punishable for sentences less than three years,

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these offences would be bailable. In the same judgment, it was

further held that in bailable offences, even conditions cannot be

imposed on the accused in view of provisions of Section 436 of

Cr.P.C..

26. In this view of the aforesaid reasoning, it is necessary

to consider this question in little more detail.

27. When the Act was brought in force in the year, 1985,

the preamble of the Act read thus:

“An Act to consolidate and amend the law

relating to narcotic drugs, to make stringent
provisions for the control and regulation of
operations relating to narcotic drugs and
psychotropic substances and for matters
connected therewith”

28. At that time, Section 37 of that Act read thus:

“37. Offences to be cognizable.

Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every offence
punishable under this Act shall be cognizable.”

29. Thus, there was no mention in the Act itself as to

whether the offences would be bailable or non-bailable. Therefore,

obviously to consider this aspect, recourse needed to be taken to

the provisions of Cr.P.C. i.e. Part II of its Schedule. It is important to

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note that the Act, as it stood then in 1985, Section 27 provided

punishment for illegal possession in small quantity for personal

consumption of a contraband and under that Section the maximum

punishment was one year. Similarly Sections 26 and 31 provided

lesser punishments. All the other offences, provided punishment of

rigorous imprisonment for a term which was not less than ten

years. Thus, there were bailable as well as non-bailable offences

mentioned under the NDPS Act in 1985, applying Part II of

Schedule of Cr.P.C..

30. Subsequently, the Legislature felt that though the major

offences were non-bailable by virtue of level of punishment, on

technical grounds the drug offenders were being released on bail.

Therefore, it was felt necessary to make the offences cognizable

and non-bailable. This is mentioned in the Statement of Objects

and Reasons dated 29.11.1988 for amendments carried out in the

Act. The opening paragraph of Statement of Objects and Reasons

reads thus :

“In recent years, India has been facing a problem of

transit traffic in illicit drugs. The spill-over from such
traffic has caused problems of abuse and addiction.
The Narcotic Drugs and Psychotropic Substances Act,

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1985 provides deterrent punishments for drug

trafficking offences. Even though the major offences
are non-bailable by virtue of the level of punishments,
on technical grounds, drug offenders were being
released on bail. In the light of certain difficulties
faced in the enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the need to amend
the law to further strengthen it, has been felt.”

. Clause (vii) of second paragraph of Statement of Objects and

Reasons reads thus:

“2. A Cabinet Sub-Committee which was constituted

for combating drug traffic and preventing drug
abuse, also made a number of recommendations
for strengthening the existing law. In the light of
the recommendations of the Cabinet Sub-
Committee and the working of the Narcotic Drugs
and Psychotropic Substances Act, in the last three
years, it is proposed to amend the said Act. These
amendments, inter alia, provide for the
following :-
xxxx
xxxx
xxxx
xxxx
(vii) to provide that the offences shall be
cognizable and non-bailable.”

31. Accordingly, Section 37 was amended. The marginal

note of the amendment reads “Offences to be cognizable and non-

bailable”; and the Section 37 after 1988 amendment (w.e.f.

29.5.1989) itself reads thus:

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"37. (1) Notwithstanding anything contained in the Code

of Criminal Procedure, 1973,-
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for a term of imprisonment of
five years or more under this Act 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 or any other law for the time
being in force on granting of bail".

. Thus, for the first time there was reference to special

provisions for bail for offences under NDPS Act. The rigours were

introduced for offences punishable with imprisonment of five years

or more. Sub-Section (2) mentioned that the limitations on

granting bail were in addition to the limitations under Cr.P.C. or any

other law for the time being in force.

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32. Section 37 was further amended in the year 2001. At

that time, sentencing structure was introduced depending on the

quantity of drugs in respect of certain penal Sections of NDPS Act.

The first paragraph of the Statement of Objects and Reasons of

2001 amendment reads thus :

“The Narcotic Drugs and Psychotropic Substances Act,

1985 provides deterrent punishment for various
offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. Most of the offences
invite uniform punishment of a minimum
ten years rigorous imprisonment which may extend up
to twenty years. While the Act
envisages severe punishments for drug traffickers, it
envisages reformative approach towards
addicts. In view of the general delay in trial it has been
found that the addicts prefer not to
invoke the provisions of the Act. The strict bail
provisions under the Act add to their
misery. Therefore, it is proposed to rationalise the
sentence structure so as to ensure that
while drug traffickers who traffic in significant
quantities of drugs are punished with
deterrent sentences, the addicts and those who commit
less serious offences are sentenced
to less severe punishment. This requires rationalisation
of the sentence structure provided
under the Act. It is also proposed to restrict the
application of strict bail provisions to those
offenders who indulge in serious offences.”

. After this amendment in the year 2001, now Section 37

reads as mentioned hereinbefore.

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33. Thus, it can be seen that in the year 1985, Cr.P.C.

governed the provisions of bail for NDPS offences. By the

amendment carried in the year 1989 (w.e.f. 29.5.1989), for the first

time, the provisions of Cr.P.C. were excluded by specifically

introducing a non obstante clause excluding application of Cr.P.C.

for grant of bail. If there was inconsistency between the NDPS Act

and Cr.P.C., the provisions of NDPS Act were to prevail.

34. In the year 2001, the Act was further amended.

However, significantly the structure of Section 37 did not change.

The only major difference was that the provisions for grant of bail

were made less severe for offences involving quantities less than

the commercial quantity of a contraband. In addition, of course,

the rigours did apply to Sections 19, 24 and 27A. As observed by

the learned Single Judge in Stefan Mueller (supra), there was no

specific sentence categorically stating that every offence punishable

under the NDPS Act was non-bailable. The title was - “offences to

be cognizable and non-bailable”. The same position existed before

2001 between 1989 to 2001 as well.

35. In the 1985 Act except Sections 26, 27 and 32, all other

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offences were non-bailable as per the schedule of Cr.P.C. and yet

necessity was felt to make offences non-bailable as mentioned in

the Statement of Objects and Reasons. The concept of small

quantity was already there in the then existing Section 27.

Therefore, the amendment to Section 37 in the year 1989 and then

in the year 2001 will not be affected by concept of “small quantity”

introduced in sentencing structure of other penal sections.

36. In my opinion, the situation is completely clarified by a

Constitution Bench of the Hon’ble Supreme Court in the case of

State of Punjab Vs. Baldev Singh5. The Constitution Bench was

deciding the ambit and scope of Section 50 of the NDPS Act. The

Court was deciding various facets of Section 50 of the NDPS Act.

While deciding this issue, the Hon’ble Supreme Court considered as

to why this Act was brought in force and also considered other

provisions and as to how these provisions were interpreted. The

entire scheme of the Act was considered in detail. For the purpose

of deciding the present issue, two paragraphs can be

advantageously reproduced here. Paragraphs-3 and 4 read thus :

5 (1999) 6 Supreme Court Cases 172

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“3. Drug abuse is a social malady. While drug

addiction eats into the vitals of the society, drug
trafficking not only eats into the vitals of the
economy of a country, but illicit money generated
by drug trafficking is often used for illicit
activities including encouragement of terrorism.
There is no doubt that drug trafficking, trading and
its use, which is a global phenomena and has
acquired the dimensions of an epidemic, affects
the economic policies of the State, corrupts the
system and is detrimental to the future of a
country. It has the effect of producing a sick
society and harmful culture. Anti-drug justice is a
criminal dimension of social justice. The United
Nations Convention against Illicit Trafficking in
Narcotic Drugs and Psychotropic Substances
which was held in Vienna, Austria in 1988 was
perhaps one of the first efforts, at an international
level, to tackle the menace of drug trafficking
throughout the comity of nations. The
Government of India has ratified this convention.
4. Prior to the passing of the NDPS Act, 1985 control
over narcotic drugs was being generally exercised
through certain Central enactments though some
of the States also had enacted certain statutes with
a view to deal with illicit traffic in drugs. The
Opium Act, 1857 related mainly to preventing
illicit cultivation of poppy, regulating cultivation
of poppy and manufacture of opium. The Opium
Act, 1878 supplemented the Opium Act, 1857 and
made possession, transportation, import, export,
sale, etc. of opium also an offence. The Dangerous
Drugs Act, 1930, was enacted with a view to
suppress traffic in contraband and abuse of
dangerous drugs, particularly derived from opium,
Indian hemp and coca leaf etc. The Act prescribed
maximum punishment of imprisonment for three
years with or without fine, insofar as the first

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offence is concerned and for the second or the

subsequent offence the punishment could go up to
four years' RI. These Acts, however, failed to
control illicit drug traffic and drug abuse on the
other hand exhibited an upward trend. New drugs
of addiction known as psychotropic substances
also appeared on the scene posing serious
problems. It was noticed that there
was an absence of comprehensive law to enable
effective control over Psychotropic substances in
the manner envisaged by the International
Convention on Psychotropic Substances, 1971.
The need for the enactment of some
comprehensive legislation on narcotic drugs and
psychotropic substances was, therefore, felt.
Parliament with a view to meet a social challenge
of great dimensions, enacted the NDPS Act, 1985
to consolidate and amend existing provisions
relating to control over drug abuse etc. and to
provide for enhanced penalties particularly for
trafficking and various other offences. The NDPS
Act, 1985 provides stringent penalties for various
offences. Enhanced penalties are prescribed for
the second and subsequent offences. The NDPS
Act, 1985 was amended in 1988 w.e.f. 29-5-1989.
Minimum punishment of 10 years' imprisonment
which may extend up to 20 years and a minimum
fine of Rs 1 lakh which may extend up to Rs 2
lakhs have been provided for most of the offences
under the NDPS Act, 1985. For the second and
subsequent offences, minimum punishment of
imprisonment is 15 years which may extend to 30
years while minimum fine is Rs 1.5 lakhs which
may extend to Rs 3 lakhs. Section 31(a) of the
Act, which was inserted by the Amendment Act of
1988, has even provided that for certain offences,
after previous convictions, death penalty shall be
imposed, without leaving any discretion in the

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court to award imprisonment for life in

appropriate cases. Another amendment of
considerable importance introduced by the
Amendment Act, 1988 was that all the offences
under the Act were made triable by a Special
Court. Section 36 of the Act provides for
constitution of Special Courts manned by a person
who is a Sessions Judge or an Additional Sessions
Judge. Appeals from the orders of the Special
Courts lie to the High Court. Section 37 makes all
the offences under the Act to be cognizable and
non-bailable and also lays down stringent
conditions for grant of bail. However, despite the
stringent provisions of the NDPS Act, 1985 as
amended in 1988 drug business is booming;
addicts are rapidly rising; crime with its role in
narcotics is galloping and drug trafficking network
is ever-growing. While interpreting various
provisions of the statute, the object of the
legislation has to be kept in view but at the same
time the interpretation has to be reasonable and
fair.”

. As can be seen, the Hon’ble Supreme Court considered

the amendment Act of 1988 in detail and in clear terms it is

mentioned with no uncertainty that “Section 37 makes all the

offences under the Act to be cognizable and non-bailable and also

lays down stringent conditions for grant of bail.” This categorical

statement shows that Section 37, firstly, makes all offences non-

bailable; and, secondly, also lays down stringent conditions for

grant of bail.

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. The Hon’ble Supreme Court has further observed that

despite the stringent provisions of the NDPS Act, 1985, as amended

in 1988, the drug business was booming, addicts were rapidly

rising, crime with its role in narcotics was galloping and drug

trafficking network was ever-growing. While interpreting various

provisions of the statute, the object of the legislature is required to

be kept in view, but, at the same time the interpretation has to be

reasonable and fair.

. The situation has not changed since 1999 when these

observations were made by the Hon’ble Supreme Court. In fact, the

situation has become worse. Therefore, these observations apply to

today’s scenario with more force.

37. It was argued on behalf of the Applicants that this

judgment in Baldev Singh (supra) was delivered in the year 1999;

and thereafter there was further amendment to Section 37 in the

year 2001. Therefore, it was sought to be contended that these

observations are not applicable to the amended Section 37 after

2001. This contention has no force. The Section itself has not

undergone any change in its structure. Even in 1999, as the Act

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stood then, there was no specific sentence that “all the offences

were non-bailable”. This particular aspect was found to be

significant by the learned Single Judge in Stefan Mueller’s case

(supra). It appears that Baldev Singh (supra) was not placed

before the Hon’ble Courts when Stefen Mueller and Minnie

Khadim’s cases (supra) were decided. Hence, the observations of

the Constitution Bench in Baldev Singh (supra) apply to the

provisions of Section 37, as it stood then, and also to Section 37 as

it stands today after the amendment in the year 2001. The

categorical statement and observation of the Constitution Bench in

Baldev Singh’s case (supra) clearly binds everybody. Hence, there is

no further scope to argue that only some offences under the NDPS

Act are non-bailable and other offences where punishment is less

than three years are bailable as per Part II of the Schedule of Cr.P.C.

38. It was contended on behalf of the Applicants, and in

particular by Mr. Subodh Desai and Mr. Taraq Sayed, that these

observations are ‘fleeting reference’ and do not have binding effect.

This contention will have to be rejected. Even obiter dictum of the

Hon’ble Supreme Court is binding on this Court. This was held in

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the case of Municipal Committee, Amritsar Vs. Hazara Singh6 In

this case, a Three Judges Bench of the Hon’ble Supreme Court

approved observations made by Kerala High Court in this regard.

The relevant portion reads thus:

“……. Indeed, the Kerala case cited before us by

Counsel viz., State of Kerala v. Vasudevan Nair,
(Cr. A. No. 89 of 1973, decided by the Kerala
High Court on July 18, 1974 – All India
Prevention of Food Adulteration Cases Reporter,
1975 Part I, p.8.] itself shows that such distortion
of the passage in the judgment did not and could
not pass muster. When pressed with such misuse
of this ruling, the High Court repelled it. The law
of food adulteration, as also the right approach to
decisions of this Court, have been set out correctly
there:
Judicial propriety, dignity and decorum
demand that being the highest judicial tribunal in
the country even obiter dictum of the Supreme
Court should be accepted as binding. Declaration
of law by that Court even if it be only by the way
has to be respected. But all that does not mean that
every statement contained in a judgment of that
Court would be attracted by Article 141.
Statements on matters other than law have no
binding force. Several decisions of the Supreme
Court are on facts and that Court itself has pointed
out in Gurcharan Singh v. State of Punjab, 1972
FAC 549 and Prakash Chandra Pathak v. State of
Uttar Pradesh, AIR 1960 SC 195, that as on facts
no two cases could be similar, its own decisions
which were essentially on questions of fact could

6 (1975) 1 Supreme Court Cases 794

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not be relied upon as precedents for decision of

other cases.”

39. In the case of Laxmi Devi Vs. State of Bihar and others 7,

the Hon’ble Supreme Court quoted various earlier judgments with

approval. It was mentioned and held that the ratio decidendi is

the underlying principle, namely, the general reasons or the general

grounds upon which the decision is based. The reasons for the

decision or the ratio decidendi is not the final order containing the

decision. In fact, in a judgment, though the ratio decidendi may

point to a particular result, the decision may be different and not a

natural consequence of the ratio decidendi of the judgment. It is

the ratio decidendi of a judgment and not the final order in the

judgment, which forms a precedent. Ratio decidendi in Latin meant

“the reason for deciding”.

. These observations and reference to other judgments

are found in Paragraphs-21, 22, 23 & 24 of the judgment.

40. In the case of Baldev Singh (supra), the Constitution

Bench had considered the objects and reasons for the Act and the

amendments, various Sections, entire scheme of the Act and then

7 (2015) 10 Supreme Court Cases 241

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they decided the scope of Section 50 of the NDPS Act. Thus, the

observations made in paragraph-4 of Baldev Singh’s case (supra)

are clearly in the nature of ratio decidendi; and they cannot be

termed as fleeting reference as is sought to be argued.

41. In fact, in the case of State of Orissa Vs. Laxman Jena8

Paragraph-4 of Baldev Singh’s case (supra) is reproduced and the

sentence prior to that says - “A Constitution Bench of this Court in

State of Punjab v. Baldev Singh, (1999) 6 SCC 172, has held …..”

Thus, even the Hon’ble Supreme Court in a later judgment has

treated Paragraph-4 of Baldev Singh’s case (supra) as important

decisive observations.

42. In another case of Beckodan Abdul Rehiman Vs. State of

Kerala9, Paragraph-4 of Baldev Singh (supra) is reproduced and

before that it was mentioned that “In that case the Court observed”.

Thus, in the subsequent judgments, i.e., subsequent to the

amendment of 2001 to Section 37, the Hon’ble Supreme Court

continued to refer to and rely on Paragraph-4 of Baldev Singh’s case

(supra).

8 (2009) 16 SCC 332

9 (2002) 4 SCC 229

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43. In the case of Director of Settlements, A.P. and others Vs.

M.R. Apparao and another10, it is observed that even obiter of

Supreme Court is of considerable weight. It was further observed

that a decision in the judgment of the Supreme Court cannot be

assailed on the ground that certain aspects were not considered or

the relevant provisions were not brought to the notice of the Court.

When the Supreme Court decides a principle, it would be the duty

of the High Court or a sub-ordinate Court to follow the decision of

the Supreme Court. These observations can be found in Paragraph-

7 of the said judgment. Thus, it leaves no manner of doubt in my

mind that the observations in Paragraph-4 in Baldev Singh’s case

(supra) are binding and it is my duty to follow this decision.

44. In another case of the Hon’ble Supreme Court, in the

case of Maktool Singh Vs. State of Punjab 11, the Hon’ble Supreme

Court in Paragraph-17 observed that the only offences exempted

from the purview of the said rigours on the bail provisions are

those under Sections 26 and 27 of the Act. The former was

punishable upto a maximum imprisonment for three years; and the

10 (2002) 4 SCC 638

11 (1999) 3 SCC 321

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latter upto a maximum imprisonment for one year. For all other

offences, the Court’s power to release an accused on bail during the

period before conviction had been drastically curtailed. Thus, these

observations also mean that only in some of the offences where

lesser punishment is provided, the rigours of bail provisions under

Section 37 will not apply, but, that does not make those offences

bailable. As mentioned earlier, the concept of application of rigours

and the concept as to whether a particular offence is bailable or

non-bailable are two different issues.

45. The non obstante clause in Section 37 plays a very

important part in construction of that Section. Originally in the

year 1985 this non obstante clause operated to exclude the

provisions of Cr.P.C. only to make all offences cognizable. At that

point of time, Section 37 declared that all the offences were

cognizable notwithstanding anything contained in the Cr.P.C.. In the

year 1985, the applicability of the Schedule to Cr.P.C. was not

excluded. For the first time in the year 1989, when the amended

provision of Section 37 was brought into force, the bail provisions

of Cr.P.C. were brought under the non obstante clause of Section 37

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of NDPS Act. Therefore, since 1989, the provisions for bail

including the Schedule to Cr.P.C., and in particular Part II of

Schedule of Cr.P.C., ceased to apply for offences punishable under

the NDPS Act. The provisions of NDPS Act in respect of bail

provisions were given complete over-riding effect and from that

point onwards the classification of offences were strictly governed

by Section 37 of the NDPS Act to the exclusion of all the provisions

of Cr.P.C. in respect of classification of such offences. The only

concession given by Section 37 of NDPS Act to the provisions of

Cr.P.C. are mentioned in sub-section (2) of Section 37. The Scheme

of Section 37 clearly shows that its provisions are independent of

Cr.P.C. and only additional limitations mentioned in Cr.P.C. in

granting bail were relevant. Therefore, clearly the classification of

offence was restricted to Section 37 of the NDPS Act and the

Schedule, in particular Part II of the Schedule of Cr.P.C. has no

application. The same situation continued even after amendment

of year 2001 made to Section 37 of the NDPS Act. Wherever there

was no inconsistency between the provisions of Section 37 and the

provisions for bail under Cr.P.C. then only it was permissible to look

at the Cr.P.C. for bail provisions. Therefore, other procedural

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aspects concerning bail provisions, for example, execution of bail

bonds etc. will be governed by the provisions of Cr.P.C.. If the

accused claims bail as of right in case of possession of small

quantity then no investigation can be carried out to find the source

and trade of the contraband. This defeats the object of the Act.

Considering all this discussion, I am of the firm view that the

observations made by the Hon’ble Supreme Court in Baldev Singh

(supra) are binding and all offences under the NDPS Act are non-

bailable.

46. A competent officer can effect arrest if he thinks it

proper to arrest such person. This is provided under Section

42(d). The officer arresting any such person has to keep in his mind

the benevolent provisions of this Act as well. This Act is not only a

strict, stringent and harsh Act for drug traffickers, it also shows

compassion and leniency in laying down reformative approach

under Sections 64A and 71. This reformative approach should

never be lost sight of.

47. Having said this, one cannot overlook the prevailing

situation in today’s society. The offenders involving smaller

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quantity or lesser punishment expose themselves to immediate

arrest. They cannot claim bail as of right. The Act needs to have

this deterrent effect to curb the spread of drug abuse.

INTERPLAY BETWEEN SECTIONS 27A & 37

48. Another issue which was raised before me, particularly

by Mr. Sayed, is that Section 37 indicates that rigours in granting

bail are applicable for the offences involving commercial

quantity and this concept will apply even to Sections 19, 24

and 27A of the NDPS Act. The scheme of the NDPS Act, after

amendment in the year 2001 shows that the concept of small,

intermediate and commercial quantity was introduced in some

penal sections. The sentencing structure was changed. For smaller

quantity, the sentence is much lesser. For intermediate quantity,

minimum sentence was not provided. But for the offences

involving commercial quantity, the minimum sentence provided is

ten years. According to Mr. Sayed, the rigours of Section 37 will

apply to the offences under Sections 19, 24 and 27A of the NDPS

Act if only theoffences involve commercial quantity. His reasoning

is that Sections 19, 24 and 27A are separated by word “or”.

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After Section 27A, they have used the word “and also” followed by

the words “for offences involving commercial quantity”. He,

therefore, contended that the concept of offences involving

commercial quantity is applicable to Sections 19, 24 and 27 as well.

Even this contention will have to be rejected. If the Legislature

wanted to restrict application of rigours only to the offence

involving commercial quantity including Sections 19, 24 & 27 there

was no necessity to mention these sections specifically in Section

37. A simple sentence that rigours will apply to all offences

involving commercial quantity would have served the purpose. The

specific mention of these three sections has its significance. The

punishment and sentencing under these Sections are independent

of the quantity of a contraband. When the Act was amended in the

year 2001, the other relevant penal Sections, viz., Sections 20, 21

& 22 were amended to include the concept of commercial quantity

and lesser quantity. However, these three Sections were

deliberately left untouched. Therefore, the concept of commercial

quantity or lesser quantity is not applicable to these Sections even

for consideration of bail applications. In the case of Union of

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India Vs. Niyazuddin Sk. and another 12, in Paragraph-6, the Hon’ble

Supreme Court has enumerated the offences where special rigours

apply. This Paragraph-6 reads thus:

“6. Section 37 of the NDPS Act contains special

provisions with regard to grant of bail in respect of
certain offences enumerated under the said section.
They are:
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27-A and
(4) Of offences involving commercial quantity.”

. Thus, there are four categories as observed by the

Hon’ble Supreme Court and the offences involving commercial

quantity is a separate category that has no direct connection with

the earlier three categories i.e. Sections 19, 24 & 27A. The use of

the word “and also” does indicate that the fourth category of

offences involving commercial quantity is separate. Therefore, if

the prosecuting agency has material to show that either of these

three offences are committed i.e. under Sections 19, 24 and 27,

then irrespective of the quantity of the contraband, the rigours of

Section 37 will apply.

12 (2018) 13 SCC 738

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SCOPE OF SECTION 27A OF THE NDPS ACT

49. Another important question of law which is required to

be addressed in this case is the scope and interpretation of Section

27A of the NDPS Act. Section 27A reads thus:

“27A. Punishment for financing illicit traffic and

harbouring offenders:-- Whoever indulges in
financing, directly or indirectly, any of the
activities specified in sub-clauses (i) to (v) of
clause (viiia) of section 2 or harbours any person
engaged in any of the aforementioned activities,
shall be punishable with rigorous imprisonment
for a term which shall not be less than ten years
but which may extend to twenty years and shall
also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons
to be recorded in the judgment, impose a fine
exceeding two lakh rupees.”

. This Section refers to Section 2(viiia) of the NDPS Act. That

Section defines “illicit traffic” thus :

“2. Definitions.-- In this Act, unless the context

otherwise requires,

(viiia) “illicit traffic”, in relation to narcotic drugs and

psychotropic substances, means—

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(i) cultivating any coca plant or gathering any

portion of coca plant;
(ii) cultivating the opium poppy or any
cannabis plant;
(iii) engaging in the production, manufacture,
possession, sale, purchase, transportation,
warehousing, concealment, use or
consumption, import inter-State, export
inter-State, import into India, export from
India or transhipment of narcotic drugs or
psychotropic substances;
(iv) dealing in any activities in narcotic drugs
or psychotropic substances other than those
referred to in sub-clauses (i) to (iii); or
(v) handling or letting out any premises for the
carrying on of any of the activities referred
to in sub-clauses (i) to (iv);
other than those permitted under this Act, or any rule or
order made, or any condition of any licence, term or
authorisation issued, thereunder, and includes—
(1) financing, directly or indirectly, any of the aforementioned
activities;
(2) abetting or conspiring in the furtherance of or in support of
doing any of the aforementioned activities; and
(3) harbouring persons engaged in any of the aforementioned
activities;”

50. As per the NCB’s case, the Applicant financed

procurement of drugs for Sushant Singh Rajput and she harboured

him knowing that he was consuming drugs and, therefore, she has

committed the offence punishable under Section 27A. As discussed

earlier, rigours of Section 37 of the NDPS Act specifically apply to

Section 27A; and Section 27A is independent of the quantity

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involved. There is no mention of activities involving small,

intermediate or commercial quantity in Section 27A. Therefore,

what is required to be considered is what is meant by “financing”

and “harbouring”. Section 2(viiia) defining “illicit traffic” gives a

list of various activities. Clauses (i) to (v) in Section 2(viiia) are

referred to in Section 27A. Clauses (i), (ii) & (iii) are reproduced

ad verbatim in sub-clauses (a), (b) and (c) of the prohibitory

Section 8 of the NDPS Act. In the present case, the Applicant is

not concerned with sub-clauses (i) & (ii) of Section 2(viiia) or sub -

clauses (a) & (b) of Section 8 of the NDPS Act. Sub-clause (iii) of

Section 2(viiia) and sub-clause (c) of Section 8 require close

scrutiny. Section 8(c) prohibits certain activities and it lays down

that no person shall produce, manufacture, possess, sell, purchase,

transport, warehouse, use, consume, import inter-state, export

inter-state, import into India, export from India or tranship any

narcotic drug or psychotropic substance. These all activities are

included in sub-clause (iii) of Section 2(viiia) except ‘concealment’,

which is missing from Section 8(c). However, that would be

perhaps covered under the residuary provision of sub-clause (iv) of

Section 2(viiia). Contravention of Section 8 is made punishable

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under various provisions of NDPS Act, viz., Sections 20, 21, 22 and

23. Importantly all these penal Sections take into account the

quantity of the contraband to prescribe a particular sentence. The

penal Section like Sections 19, 24 and 27A are not quantity

specific. They make no reference to the quantity of the substance

involved.

51. The Legislature was clear in its intention to give

concession in the sentencing structure for smaller or intermediate

quantities of the contraband. If Section 27A is applied to the

activities mentioned in Sections 8, 18, 20(b), 21, 22 and 23, then

classification of offences for sentencing purposes depending on the

quantity will lose all its significance. Section 27A is a different

provision, though, the activities mentioned in these Sections are

common.

52. Section 27A is much wider if sub-clause (iv) of Section

2(viiia) is taken into account. This sub-clause (iv) of Section

2(viiia) takes in its sweep all the remaining activities which are not

mentioned in sub-clauses (i),(ii) & (iii). This covers just about

every activity which can be described as dealing in narcotic drugs

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or psychotropic substances. The interpretation of Section 27A

should not be stretched to the extent of rendering classification of

sentences depending on the quantities in penal Sections 20, 21, 22

and 23 otiose.

53. Sub-clause (viiia) of Section 2 of the NDPS Act is an

inclusive definition. The inclusive part mentions financing,

abetting or conspiring and harbouring. The financing and

harbouring parts are specifically made punishable under Section

27A.

54. The activities mentioned in Section 2(viiia)(iii) and

Section 8(c) refer to sale, purchase, export, import etc.. All these

activities involve monetary transactions. For every sale or

purchase, there can be use of money. But, that will not mean that

either of the parties has “financed” the transaction. Such sale and

purchase are separately prohibited and made punishable under

Section 8(c) read with Section 20 and other similar Sections.

Therefore, “financing” is something more than just paying for

purchase and other activities involving contraband as defined

under Section 8(c). Contravention of that Section and indulging in

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activities mentioned in Sections 20, 21, 22 and 23 incur

punishment depending on the quantity of the contraband.

55. For interpreting Section 27A harmoniously with the

Scheme of the Act and other Sections, it is necessary to go to the

Statement of Objects and Reasons for incorporating this Section in

the Act w.e.f 29.5.1989. The Statement of Objects and Reasons of

the 1989 Amendment, which is reproduced hereinbefore, mentions

that India was facing a problem of transit traffic in illicit drugs.

The spill-over from such traffic was causing problems of abuse and

addiction. Therefore, need was felt to amend the Law to further

strengthen it.

56. Thus, the aim was to control the traffic in illicit drugs as

the spill over from such traffic was causing problems of abuse and

addiction. The Legislature wanted to attack the basic cause of illicit

traffic of drugs. The prohibitory Section 8 was already existing at

that time. Therefore, a separate Section 27A was introduced to

check these activities which were the root cause of illicit traffic.

“Financing” and “harbouring” such activities were, therefore,

specifically mentioned under Section 27A.

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57. “Financing” is not defined under the Act. The Concise

Oxford Dictionary defines the word “finance” as “(1) the

management of (esp. public) money, (2) monetary support for an

enterprise, (3) (in pl.) the money resources of a state, company, or

person, to provide capital for (a person or enterprise)”.

58. Black’s Law Dictionary gives meaning of the word

“finance” as “to raise or provide funds”.

59. Thus, “financing” as generally understood, is offering

monetary support or provide funds.

60. Therefore, simply providing money for a particular

transaction or other transactions will not be financing of that

activity. Financing will have to be interpreted to mean to provide

funds for either making that particular activity operational or for

sustaining it. It is the financial support which directly or indirectly

is cause of existence of such illicit traffic. The word “financing”

would necessarily refer to some activities involving illegal trade or

business.

61. The allegations against the Applicant of spending

money in procuring drugs for Sushant Singh Rajput will not,

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therefore, mean that she had financed illicit traffic.

62. The next key word in Section 27A is “Harbours”. Again

“harbouring” is not defined under the NDPS Act. The expression

“harbour” is used in other Acts as well. One such Act is Terrorist

and Disruptive Activities (Prevention) Act, 1987 (for short,

“TADA”). Sub-section (4) of Section 3 of said Act reads thus:

“3. Punishment for terrorist acts.—

xxxx
xxxx
xxxx
(4) Whoever harbours or conceals, or
attempts to harbour or conceal, any terrorist shall
be punishable with imprisonment for a term
which shall not be less than five years but which
may extend to imprisonment for life and shall
also be liable to fine.”

63. The word “harbours” was not even defined in TADA.

The Hon’ble Supreme Court had an occasion to address this issue

which is reflected in the case of Kalpanath Rai Vs. State (through

CBI)13. In that case, it was contended before the Hon’ble Supreme

Court that the word “harbour” which was not defined in TADA must

be understood in the same manner as it was understood in Indian

Penal Code. The Hon’ble Supreme Court did not completely agree

13 (1997) 8 SCC 732

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with such contention, but, went on to make certain important

observations in Paragraphs-49, 50, 51, 52 and 53. Said Paragraphs-

49, 50, 51, 52 and 53 read thus :

“49. There are two hurdles in the way to adopt the IPC
definition of the word “harbour” for TADA. First
is that TADA permits reliance to be made only on
the definitions included in the Procedure Code
and not on the definitions in the IPC. Second is,
the word “harbour” as such has not been used in
the Procedure Code and hence the question of
side-stepping to Penal Code definitions does not
arise.

50. Be that as it may, we would refer to the

expression “harbour” as understood in IPC, for,
TADA is essentially a penal statute and hence the
meaning attached to the words in the IPC can
have a bearing on the words used in TADA,
unless they are differently defined in the Code.

51. Section 52-A of the Indian Penal Code defines the

word “harbour” as including “supplying a person
with shelter, food, drink, money, clothes, arms,
ammunition or means of conveyance, or the
assisting a person by any means, whether of the
same kind as those enumerated in this section or
not, to evade apprehension”.

52. Sections 136 and 312 of IPC are the provisions

incorporating two of the offences involving
“harbour” in which the common words used are
“whoever knowing or having reason to believe”.
Another offence in the Penal Code involving

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“harbour” is Section 157 wherein also the words

“whoever harbours knowing that such person
etc.” are available. It was contended that mens rea
is explicitly indicated in the said provisions in the
Penal Code whereas no such indication is made in
Section 3(4) of TADA and therefore, the element
of mens rea must be deemed to have been
excluded from the scope of Section 3(4) of
TADA.

53. The word “harbours” used in TADA must be

understood in its ordinary meaning as for penal
provisions. In Black’s Law Dictionary its meaning
is shown as “to afford lodging to, to shelter, or to
give a refuge to”. Quoting from Susnjar v. U.S.,
CCA Ohio, 27 F 2d 223 (F 2d at p. 224) the
celebrated lexicographer has given the meaning
of the word harbour as “receiving clandestinely
and without lawful authority a person for the
purpose of so concealing him that another having
a right to the lawful custody of such person shall
be deprived of the same”. In the other dictionaries
the meaning of the said word is delineated almost
in the same manner as above. It is, therefore,
reasonable to attribute a mental element (such as
knowledge that the harboured person was
involved in a terrorist act) as indispensable to
make it a penal act. That apart, there is nothing in
the Act, either expressly or even by implication,
to indicate that mens rea has been excluded from
the offence under Section 3(4) of TADA.”

64. Section 2(xxix) of NDPS Act also permits use of Cr.P.C.

to assign meaning to words and expressions. The Hon’ble Supreme

Court mainly discussed whether mens rea was applicable. Even in

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Section 27A of NDPS Act, the concept of mens rea is applicable.

Section 52-A of IPC can be used for a limited purpose as mentioned

by the Hon’ble Supreme Court. The key words in that Section are

“to evade apprehension”. This only means that first of all there has

to be another offender who has committed the offence. The person

who is charged with harbouring that main offender should have

supplied him with shelter, food etc.; and then the next requirement

is that that second person should have done this to prevent the

main offender’s apprehension. In the present case, no criminal case

or FIR was pending against Sushant Singh Rajput. He was residing

in his own house and was spending for his own food and other

necessities. At that point of time, he had no apprehension of any

arrest. Therefore, the act on the part of the Applicant cannot be

stretched to attract the allegation of harbouring Sushant Singh

Rajput.

65. Another important word in Section 27A is “engaged”.

The offence of harbouring is attracted when a person harbours the

persons “engaged” in the activities mentioned in Section 2(viiia)(i)

to (v). The Black’s Law Dictionary gives the meaning of the word

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“Engaged” as ‘to employ’ or ‘involve oneself’; ‘to take part in’; ‘to

embark’. Thus, if Section 27A is read in its entirety, it indicates that

financing is in respect of illicit traffic through which the financer

expects monetary or other returns. In the same context, Section

27A makes harbouring a punishable offence. Harbouring is in

respect of a person who is engaged in such activities. It requires

that he is either employed in or has involved himself with or has

taken part in or has embarked on such activities.

66. In this context, Mr. Maneshinde and Mr. Sayed relied on

the judgment of a Single Judge of High Court of Kerala in the case

of K.K. Ashraf s/o Muhammed K.K14. In Paragraph-17 of that

order, the expression “financing” was discussed. After referring to

the facts of the case, the learned Judge observed that sale of a

narcotic drug on credit is different from financing the activity of

sale of narcotic drug. The expression “financing” was not related to

the payment of the value of the narcotic drug. On the other

hand, it involved an activity other than sale or purchase of the

narcotic drug, in which a person invests or provides funds or

14 Decided on 13.10.2009 in Bail Application No.5251/2009 [Kerala High Court].

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resources for facilitating the activities mentioned in sub-clauses (i)

to (v) of Clause (viiia) of Section 2 of the NDPS Act. I agree with

these observations. Though, the learned ASG tried to submit that

the observations in fact helped his cause, I am unable to agree with

the learned ASG in this regard.

67. There is another important angle to interpretation of

Section 27A. Mr. Sayed submitted that the interpretation of

“harbouring” and “financing”, as sought to be made by Respondent

No.1 gives rise to anomalous situation. He pointed out that the

punishment for consumption of any narcotic drug or psychotropic

substance, as mentioned under Section 27, is maximum one year or

imposition of fine which may extend to Rs.20,000/-. By applying

the interpretation of Section 27A by NCB, if some other person like

a friend or a relative pays money for such consumption, then the

person who actually consumes the drug can be punished only upto

one year or can get immunity under Section 64-A of NDPS Act; but

the person who gives money for purchasing that drug faces the

prospect of spending twenty years in jail. This is highly

disproportionate and would be extremely unreasonable.

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. I agree with Mr. Sayed on this point. Section 27A

cannot be interpreted in this manner. Therefore, Section 27A will

have to be interpreted harmoniously with other Sections as well as

Objects and Reasons of the Act so that it attacks the illicit drug

trafficking, but, does not extend to sentencing another accused

more severely than the main offender.

. I am unable to agree with the submission that giving

money to another for consuming drug would mean encouraging

such habit and would mean “financing” or “harbouring” as

envisaged under Section 27A of the NDPS Act.

68. In the light of what is discussed above in respect of

questions of law, the facts in the case against the Applicant can be

considered.

69. The allegations and material against the present

Applicant are that on some occasions she had used her own money

in procuring drugs. She facilitated procuring of drugs through her

brother. For that purpose employees of Sushant Singh Rajput were

also used. As discussed earlier, her acts would not fall under

Section 27A of the NDPS Act.

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70. The main Section which could be attracted in her case

is violation of Section 8(c) of the NDPS Act, which is made

punishable under Section 20 or Section 22. In that case, it is

necessary for the investigating agency to show that her activities or

contravention involved commercial quantity of a Narcotic drug or

psychotropic substance. The investigation did not reveal any

recovery either from the Applicant or from the house of Sushant

Singh Rajput. It is their own case that the drugs were already

consumed and hence there was no recovery. In that case, there is

nothing at this stage to show that the Applicant had committed any

offence involving commercial quantity of contraband. The material

at the highest shows that she has committed an offence involving

contraband, but, the crucial element of incurring rigours of Section

37 in respect of commercial quantity is missing. Therefore, I am

satisfied that there are reasonable grounds for believing that the

Applicant is not guilty of any offence punishable under Sections 19,

24 or 27A or any other offence involving commercial quantity.

There are no other criminal antecedents against her. She is not

part of the chain of drug dealers. She has not forwarded the drugs

allegedly procured by her to somebody else to earn monetary or

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other benefits. Since she has no criminal antecedents, there are

reasonable grounds for believing that she is not likely to commit

any offence while on bail.

71. The learned ASG had argued that the celebrities and

role models should be treated harshly so that it sets an example for

the young generation and they do not get encouraged to commit

such offences. I do not agree. Everybody is equal before law. No

celebrity or role model enjoys any special privilege before the Court

of law. Similarly, such person also does not incur any special

liability when he faces law in the Courts. Each case will have to be

decided on its own merits irrespective of the status of the accused.

72. The learned Special Judge has observed that the

Applicant may alert others and evidence can be destroyed by them.

There is no basis for such observation. It is also important to note

that when the Applicant was produced before the Court for her first

remand, the investigating agency did not seek her custody. That

means, they are satisfied with her interrogation and she had

cooperated in that investigation.

73. Based on all this discussion, the Application is allowed.

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However, considering the background of the case, stringent

conditions are imposed. Hence, I pass the following order :

ORDER

i. In connection with C.R. No.16/2020 registered with the

Narcotics Control Bureau, Mumbai, the Applicant is directed

to be released on bail on her furnishing PR bond in the sum

of Rs.1,00,000/- (Rupees One Lakh Only) with one or two

sureties in the like amount.

ii. The Applicant shall deposit her passport with the

investigating agency.

iii. The Applicant shall not leave the country without prior

permission from the Special Judge for NDPS at Greater

Mumbai.

iv. If the Applicant has to go out of Greater Mumbai, she shall

inform the Investigating Officer; and shall give her itinerary

to the Investigating Officer in advance.

v. The Applicant shall attend the office of investigating agency

on first Monday of every month between 10:00 a.m. to

11:00 a.m. to mark her presence, for a period of six months.

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vi. The Applicant shall attend all the dates in the Court unless

prevented by any reasonable cause.

vii. The Applicant shall not tamper with the evidence or

investigation of the case.

viii. Criminal Bail Application stands disposed of accordingly.

(SARANG V. KOTWAL, J.)

74. At this stage, Shri Maneshinde requested to permit the

Applicant to furnish cash bail for a period of one month so that the

sureties can be arranged within that period. He submitted that

considering the prevailing pandemic situation, it will not be

possible to complete the formalities to arrange for sureties. Learned

ASG left this aspect to the discretion of the Court. Therefore,

initially the applicant is permitted to furnish cash bail for the sum

of Rs.1,00,000/- (Rupees One Lakh only) for a period of one month

from today. Within that period, the Applicant will have to furnish

the sureties, as directed.

75. Learned ASG sought stay of this order for a period of at

least one week from today to enable him to approach the Hon’ble

Supreme Court.

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76. I have imposed sufficiently stringent conditions on the

Applicant. Some further condition can be imposed for a limited

period to take care of the request made by learned ASG though I

am not inclined to grant stay to the order. If finally the order is set

aside and the bail is cancelled, the Applicant will be available for

being arrested again. Hence to ensure that even further, one more

condition is imposed:

(vii-a) After her release on bail, the Applicant shall mark her

presence at the nearest Police Station from her residence

anytime between 11:00 a.m. to 5:00 p.m. to show her

Digitally
signed by
Pradeepkumar

availability, for a period of ten days from her release.

Pradeepkumar P. Deshmane
P. Deshmane Date:
2020.10.07
12:12:08
+0530

77. This order shall be digitally signed by the Private

Secretary of this Court. All concerned shall act on production by fax

or email of a digitally signed copy of this order.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

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