In a very significant development, the Supreme Court in a latest, learned, laudable and landmark judgment titled State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh in Criminal Appeal No. 923 of 2022 (Arising out of SLP (Crl.) No. 9470 of 2021) cited in 2022 LiveLaw (SC) 580 delivered as recently as on July 11, 2022 in exercise of its criminal appellate jurisdiction observed that the rigours of Section 37 NDPS Act will not apply in a case where applicability of Section 27A NDPS Act is seriously questionable and there was no recovery from the accused and quantity in question was intermediate quantity. It must be noted that in this case, we had seen earlier that the Calcutta High Court had granted bail to a person accused under Sections 21(b)/29/27A of the Narcotic Drugs and Psychotropic Substances Act. While taking note of the facts of the case and other materials, the Apex Court Bench comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed that the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case.

To start with, this brief, brilliant and balanced judgment authored by Justice Dinesh Maheshwari for a Bench of Apex Court comprising of himself and Justice Aniruddha Bose sets the ball rolling by first and foremost putting forth in para 2 that:
This appeal by the State of West Bengal is directed against the order dated 24.11.2021, as passed by the Division Bench of Calcutta High Court in CRM No. 3152 of 2021, whereby the respondent, an accused of the offences under Sections 21(b)/29/27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter also referred to as 'the NDPS Act'.), has been ordered to be enlarged on bail with certain additional conditions, apart from bail bonds and sureties.

To put things in perspective, the Bench then envisages in para 4 that:
The matter in issue in this appeal has its genesis in FIR No. 65 of 2021 dated 19.02.2021, registered at New Alipore Police Station, Kolkata, initially in respect of offences under Sections 21(b)/29 NDPS Act; after recovery of 76 grams of cocaine from a motorcar bearing registration No. WB06P/0233 with three occupants, namely, Somnath Chattopadhyay (security guard), Prabir Kumar De and Pamela Goswami. However, on 23.02.2021, the respondent Rakesh Singh @ Rakesh Kumar Singh was arrested in this matter with the accusations essentially pertaining to the offence under Section 27A of the NDPS Act, i.e., financing illicit trafficking in contrabands and harbouring offenders; and with the allegations that he got the contraband procured and then got it planted in the vehicle occupied by the aforesaid three persons.

While elaborating in detail on the prosecution case, the Bench then enunciates in para 5 that:
It is the accusations concerning the respondent which forms the core of the subject-matter of this appeal. Thus, we may take note of the salient features of the prosecution case against the respondent as follows: 5.1. As per the prosecution, the respondent had hatched a criminal conspiracy with the other charged co-accused persons for falsely implicating the said Prabir Kumar De and Pamela Goswami of offences under the NDPS Act out of personal grudge. It is alleged that in order to fulfil his designs, the respondent financed the activity of procuring cocaine, a contraband drug, to the tune of Rs. 8,50,000/- from the coaccused Amrita Singh @ Sweety; that upon receiving instructions and payment from the respondent, the said co-accused Amrita Singh @ Sweety procured the contraband from other co-accused persons, namely, Daim Akhtar and Farhan Ahmed; and that after procurement, the contraband was handed over to the respondent by the co-accused Amrita Singh@ Sweety.

5.2. According to the prosecution, the respondent, thereafter, engaged the co-accused Amrit Raj Singh, who allured the said Prabir Kumar De and Pamela Goswami to attend a meeting with a senior political leader at New Alipore area on 19.02.2021 in relation with the ensuing Legislative Assembly elections; and the said Amrit Raj Singh went to the house of the respondent on 18.02.2021 and was also seen using the vehicle of the respondent.

5.3. It has further been alleged that on 19.02.2021, the said Prabir Kumar De and Pamela Goswami, accompanied by their security guard Somnath Chattopadhyay, picked up Amrit Raj Singh in their vehicle and proceeded for the meeting scheduled at New Alipore area. Upon reaching the place of occurrence, Amrit Raj Singh, on the pretext of changing his clothes, stayed in the vehicle while Prabir Kumar De, Pamela Goswami, and Somnath Chattopadhyay got off. Taking advantage of the circumstances, Amrit Raj Singh concealed cocaine in different parts of the vehicle and made a call to the respondent over a phone number, which stood in the name of one Jitendra Kumar Singh. Thereafter, Amrit Raj Singh fled on a scooty, as instructed by the respondent and then, took shelter at the respondent's residence.

5.4. As regards recovery and seizure of contraband, it has been alleged that on 19.02.2021, based on credible source information, a team of officers was constituted at New Alipore Police Station; and this team detained the said vehicle bearing Registration No. WB-06 P/0233, seized 76 grams of cocaine from the vehicle, and arrested the said three persons, who were present in the vehicle. Based on this recovery and seizure, a written complaint dated 19.02.2021 was submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI and thereupon, the said FIR No. 65 of 2021 for offences under Sections 21(b) and 29 NDPS Act was registered. Some of the contents of this written complaint leading to the FIR in question shall have their own bearing on the contentions urged in this matter. The same shall be adverted to at the appropriate juncture hereafter later.

5.5. According to the prosecution, on 20.02.2021, the said Amrit Raj Singh was seen leaving the house of the respondent. Further on 22.02.2021, considering the nature and gravity of crime, the investigation of the matter was taken over by the Detective Department, Lalbazar, Kolkata and the Joint Commissioner of Police, Crime, Kolkata formed the Special Investigation Team ('SIT', for short) under Memo No. CI/47/9/21.

5.6. It has further been pointed out that a notice under Section 160 of the Code of Criminal Procedure, 1973 ('CrPC', for short) read with Section 67 NDPS Act was issued to the respondent by the investigating agency requesting his appearance before the Investigating Officer at Narcotic Cell, 6th Floor, KIT Building, Kolkata on 23.02.2021 at 4:00 p.m. This notice was challenged by the respondent by filing WPA No. 5448 of 2021 but the High Court, by its order of the even date, dismissed the petition so filed by the respondent.

5.7. It has yet further been alleged that the respondent failed to appear in response to the notice aforesaid and, therefore, the police went to search his residence at 12A Orphangunj Road, PS Watgunge, Kolkata-23 but the police personnel faced obstructions from CISF personnel, who blocked their entry into the respondent's residence at the instructions of the respondent's sons. It is the case of prosecution that the respondent could not be located at his residence; and one hard-disk consisting of CCTV footage was seized from his house but, upon forensic examination, it was found that the data had been deleted therefrom. It is, however, pointed out that the respondent was detained and arrested at Galsi PS, Purba Bardhaman in the State of West Bengal at 11:29 p.m. on 23.02.2021.

5.8. As regards the aforesaid allegations concerning the events of 18.02.2021 and 19.02.2021, the prosecution has referred to the call record details of the conversation between the respondent and the said Amrit Raj Singh as also the CCTV footage recorded on the respondent's neighbourhood as also at other place of fleeing of Amrit Raj Singh. The statement of one Sanjay Singh is also referred in relation to the fact of the said co-accused Amrit Raj Singh leaving the house of the respondent.

5.9. The prosecution has further referred to the statement of one witness Md. Nasir Khan recorded on 27.02.2021 under Section 161 CrPC wherein he had stated that on 10.02.2021, the respondent handed over one bundle of 2000 rupees notes to the said co-accused Amrita Singh @ Sweety and the said co-accused handed over 7/8 small packets to the respondent. The prosecution has also referred to the statement of another witness Nishat Alam @ Ruman Khan recorded under Section 161 CrPC on 28.02.2021 in corroboration of the statement of Md. Nasir Khan, concerning the financing and procurement of cocaine. Yet further, the statements of these two witnesses recorded on 30.03.2021 under Section 164 CrPC have also been referred to. It has also been alleged that on 27.02.2021, the respondent refused to follow the norms of Central Lockup, Lalbazar and on being requested by the security personnel to follow the norms, he threatened them with dire consequences; and that on 09.03.2021, the respondent, on being produced before the NDPS Court, manhandled the OC, Narcotic Cell by abusing and threatening him which resulted in Hare Street PS Case No. 69 dated 10.03.2021 for offences under Sections 353/506 of the Indian Penal Code, 18604 and a chargesheet has been filed in relation thereto.

On the face of it, the Bench then observes in para 13 that:
At the first blush, a few factors appear operating against the respondent and it appears questionable if the respondent was entitled to be granted bail in this matter, particularly having regard to the facts and circumstances that: (a) the accusation is essentially of financing the trafficking of contraband and also of harbouring offenders, which relates to the offence under Section 27A NDPS Act and to which, the rigours of Section 37 NDPS Act do apply; (b) the accusation is supported by prima facie evidence, including the statements of witnesses as also CCTV footage and call data records; (c) on 23.02.2021, even though the respondent attempted to question the notice summoning him to appear at 04:00 p.m. and the High Court dismissed his writ petition but, he did not appear and was apprehended later in the night at a distant place; (d) the prosecution has shown that the respondent was involved in as many as 53 criminal cases and he has been convicted in at least two of them; and (e) the prosecution has alleged that even in relation to this particular case, the respondent had been separately charge-sheeted for the offence pertaining to Section 353 IPC and he has attempted to threaten the law enforcing agencies and personnel.

13.1. However, a comprehensive look at the salient and core features of this case persuades us to endorse the view taken by the High Court as being a possible view of the matter, particularly in regard to the doubt on the prosecution case and consequentially a reasonable ground to believe against the complicity of the respondent.

Be it noted, the Bench then specifies in para 14 that:
The accusation against the respondent pertaining to offence under Section 27A NDPS Act is essentially based on the prosecution story that the respondent, nursing a grudge against the said two occupants of the motorcar namely, Prabir Kumar De and Pamela Goswami, hatched the conspiracy to have them implicated in an NDPS Act case and in pursuance thereof, got the contraband procured through the co-accused Amrita Singh@ Sweety after making payment for the same; got the contraband planted in the said motorcar through the other co-accused Amrit Raj Singh; and extended shelter to Amrit Raj Singh before and after the event of planting. This story is sought to be supported and strengthened with the statements of the said witnesses Md. Nasir Khan and Nishat Alam @ Ruman Khan, as recorded under Section 161 CrPC on 27.02.2021 and 28.02.2021 respectively as also their statements under Section 164 CrPC as recorded on 30.03.2021.

14.1. Though, prima facie, it appears that the aforesaid statements of the witnesses have not as such gone into consideration of the High Court but, a close look at the impugned order makes it clear that in paragraph 7 thereof, the High Court has noticed as to what was contained in the initial FIR and what was suggested in the charge-sheet; and has found, prima facie, that the story in the charge-sheet, about the respondent having got contraband item planted in the motorcar in which the said three persons were travelling to put them in trouble because of personal enmity, was of considerable doubt. The High Court has, and in our view rightly so, not elaborated on all the features of evidence so as to leave the relevant aspects open for trial. However, in view of the contentions advanced before us, it may be observed that at the present stage, the contention on the part of the respondent cannot be ignored that if such statements of the said two witnesses were recorded on 27.02.2021 and 28.02.2021, there was no material with the investigating agency to summon him on 22.02.2021. This is apart from the fact that the statements of the said two witnesses, prima facie give rise to some reasonable questions, as to why were they kept as companions while the respondent and the co-accused Amrita Singh @Sweety purportedly carried out the alleged clandestine deals with exchange of contraband and the currency?

Most significantly, the Bench then minces no words to state in para 16 that, According to the prosecution, the FIR in question for offences under Sections 21(b) and 29 NDPS Act came to be registered on the basis of a written complaint dated 19.02.2021, as submitted to the Officer In-Charge of New Alipore Police Station, Kolkata by Somnath Sarkar, SI after the aforesaid proceedings of search of the said motorcar as also seizure of contraband from the motorcar. This complaint dated 19.02.2021 is an admitted document of the appellant and is rather the foundation of the entire matter. A few passages of the said written complaint, disclosing as to what exactly transpired in detaining the vehicle and as to how the contraband was recovered, could be usefully noticed as under: -

….At about 11:30 hrs we reached at Nalini Ranjan Avenue, under New Alipore P.S. area. Source led us to the spot and maintained watch. At about 13:00 hrs source pointed out towards one maroon colored Honda BR-V car was coming along from West to East direction. The said vehicle was detained with the help of other raiding team members on the road in front of a house named as Parameshwari Sadan at 92/93 Nalini Ranjan Avenue, block-B (formerly 24N, Block-B), PS-New Alipore, Kol-53 and found two male and one female persons sited inside of the maroon colored car bearing no. WB06P0233. One male person sited at driver sit and another male person waws sited next to the driver seat (front) and one female person sited at rear seat of the said vehicle/car. We disclosed our identity for the purpose of detention…

*** *** ***

…..After that the undesigned started to search the male detainees and the said vehicle/car one by one on the spot in presence of all maintaining all legal formalities and at that time the lady constable Pema Lamu Sherpa started to search the female detainee maintaining decency and decorum. During search of the vehicle bearing no. WB06P0233 on being asked the all detainees of the vehicle bearing no. WB06P0233 pointed out towards at the rear zip cover of the left front seat and under driver's seat of the said vehicle where the contravened drugs/cocaine were found in concealed manner in black colored polythene packets. Thereafter undersigned took out two black colored polythene packets and opened those one by one. On being opened the packet found in the left side rear zip cover of driver seat, found 35 pieces transparent zip pouch each containing white colored power (sic) said to be cocaine and weighing about 40 gms. On being opened the packets found under the driver seat, found 31 pieces transparent zip pouch each containing white coloured power (sic) said to be cocaine and weighing about 36 gms…. (emphasis supplied)

16.1. Two major aspects emerge from the extraction foregoing: one, that before interception, the motorcar in question was in motion and was moving from west to east direction, which was detained by police with the help of other raiding team members; and second, that during search, the occupants of motorcar pointed towards two specific places inside the vehicle where the contraband drug/cocaine was placed in a concealed manner i.e., rear zip cover of the left front seat and beneath the driver's seat. Both these assertions, when examined with reference to the alleged statements of the three motorcar-occupants, as placed before us with supplementary written submissions, their incompatibility and contradiction strikingly come to the fore. According to the said statements, a few minutes before the alleged 'encircling' of motorcar by the raiding team, the said occupants had come out of the vehicle and Amrit Raj Singh remained inside for changing his clothes; and he spent a minimum of 10 to 15 minutes inside the vehicle when these three persons allegedly saw him bending down and doing something on the floor of the car! The story, as sought to be suggested in these statements, contradicts the fundamental facts stated in the initial complaint that the search and raiding team persons had in fact stopped and detained the moving vehicle; and that the occupants of motorcar pointed towards the specific places in the vehicle where the contraband items were concealed.

16.2. When the assertions of the SI lodging the written complaint after search of the vehicle and seizure of contraband on 19.02.2021 are pitted against the alleged statements of the three occupants of the vehicle, the question does arise as to which of the two contradictory versions is to be accepted at this stage? In our view, at the present stage and on prima facie consideration of the matter, the only logical approach could be to proceed on the basis of the version of the SI as given in the written complaint because, it is not the case of the appellant that the version in the written complaint is not correct. In this view of the matter, the very edifice of the prosecution case against the respondent crumbles down and falls flat. Putting it differently, the story of planting of contraband in the vehicle in question by some third person like Amrit Raj Singh could only be disbelieved, for being squarely contrary to the initial case of the prosecution, as stated in the written complaint.

16.3. Once the veracity of prosecution case against the respondent is in serious doubt, further analysis on the other factors about financing the drug trafficking and harbouring of offender need not be undertaken because, when the story of planting of contraband is removed out of consideration, all other factors by which respondent is sought to be connected with such alleged planting could only be regarded as false and fanciful, at least at this stage.

16.4. Hence, suffice it to observe for the present purpose that in the given set of facts and circumstances, the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply to the present case.

Equally significant is what is then pointed out in para 17 that:
After the discussion aforesaid, we are constrained to reiterate that the High Court has dealt with this part of the matter without much elaboration and rightly so, for only the prayer of bail being under consideration. However, we have considered it appropriate to delve farther in the matter in view of the submissions made and material presented before us. In any case, for what has been discussed hereinabove, the result precisely remains the same as indicated by the High Court, that diametrically opposite case in the charge-sheet than that alleged in FIR gives rise to serious doubt on the veracity of the prosecution case against the respondent. In this view of the matter, the other part of submissions and reference to the cases of Md. Nawaz Khan and Rhea Chakraborty (supra) do not require much elaboration. As aforesaid, when the case against the respondent of getting the contraband planted in the vehicle in question is prima facie disbelieved because of material available on record, the questions concerning possession of contraband, its quantity or financing are all rendered redundant. In this view of the matter, reference to the other pieces of supporting evidence like the alleged statements of the said Md. Nasir Khan and Nishat Alam @ Ruman Khan as also the alleged CCTV footage and call data records cannot provide sustenance to the prosecution case against the respondent, at least at this stage.

Most remarkably, the Bench then observes in para 18 that:
The other segment of the relevant aspects of this case pertains to the conduct of the respondent. In this regard, a few noticeable facts and factors against him could be summarised thus: he has been involved in as many as 53 criminal cases and had been convicted in two of them; there had been several allegations against him of threatening the Investigating Officers and public servants from time to time; even in the present case too, he had allegedly threatened and misbehaved with the police officers and has been charge-sheeted for offences under Sections 353 and 506 IPC; and on 23.02.2021, he did not appear before the Investigating Officer even after dismissal of his writ petition by the High Court and was arrested at a faraway place. These facts and factors, prima facie, give rise to the question as to whether the respondent was entitled to be granted the indulgence of bail. The High Court has taken the view that, prima facie, the respondent might not have committed the offence he has been charged with in this case; and, looking to his past history, there was nothing on record to suggest that he was likely to commit an offence under the NDPS Act while on bail. The High Court has, in the totality of circumstances, taken the view that the respondent was entitled for bail on stringent conditions and has imposed additional conditions as noticed hereinbefore.

18.1. Although, the past history of the respondent and even his conduct in relation to the processes concerning the present case give rise to a few questions but, the strong countervailing factor in the present case is the prima facie indication that he is being sought to be framed by concoctions and baseless stories. Another factor noticeable is that the respondent has not been involved in any NDPS Act case or any akin offence in the past. Interestingly, it is noticed from the material placed on record that nothing of any contraband article has been recovered from the respondent or from any place under his exclusive control. This factor further adds on to the doubt as to whether the respondent had at all been indulgent in narcotics or any contraband? That being the position, the view as taken by the High Court cannot be said to be an altogether unacceptable or impossible view of the matter. Moreover, it cannot be said that the respondent was consciously seeking to abscond on 23.02.2021 merely because he was found in the night at Purba Bardhaman and not at Kolkata. In any case, the aspect relating to tendency to flee has been duly taken care of with the conditions as imposed by the High Court. The other submissions with reference to the decision in the case of Prasanta Kumar Sarkar (supra) hardly make out a case for interference particularly looking to the nature of evidence sought to be adduced by the prosecution against the respondent. In this regard, we would hasten to observe that apart from the stringent conditions already imposed by the High Court, it is always open for the prosecution to seek imposition of any further condition or even to seek cancellation of the bail granted to the respondent, in case of any fault on his part in due adherence to the conditions already imposed.

As a corollary, the Bench then holds in para 19 that:
In view of the above, we find no reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions.

For sake of clarity, the Bench then notes in para 20 that:
Before concluding on the matter, we deem it appropriate to observe that none of the comments herein would be of any bearing on the final view to be taken by the Trial Court after the trial because, the observations herein are only of prima facie view and that too, so far relevant for the purpose of the question of grant of bail to the respondent.

Finally, the Bench then concludes by holding in para 21 that:
Accordingly, and in view of the above, this appeal fails and is dismissed subject to the observations foregoing.

In conclusion, it merits no reiteration that the Apex Court is absolutely right in observing that the applicability of Section 27A of NDPS Act is seriously questionable. We thus see that the Apex Court very rightly grants bail to the NDPS accused. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh