Summary
Police stopped a moving car in Kolkata in February 2021 and, on the occupants pointing out the hiding places, seized 76 grams of cocaine; an FIR was registered against the three occupants under Sections 21(b) and 29 of the NDPS Act. The charge-sheet instead alleged that the respondent, a political figure with 53 criminal cases, had financed the cocaine and had it planted in the car by an associate to frame two occupants out of personal grudge, attracting Section 27A. The Calcutta High Court granted bail on stringent conditions, holding Section 37 inapplicable. The Supreme Court dismissed the State's appeal. The planting story was irreconcilable with the police complaint that a moving car was stopped and the occupants themselves showed where the drugs lay;
Issues
- Whether the rigours of Section 37 of the NDPS Act apply to an accused charged under Section 27A with financing illicit traffic and harbouring an offender, where nothing was recovered from him, the quantity was intermediate, and the prosecution case of planting contradicts the original police complaint.
- Whether the High Court's grant of bail on a prima facie assessment that the accused may not have committed the offence, despite his 53 criminal cases and alleged non-cooperation, was a possible view warranting no interference.
Provisions considered
- Section 27A, Narcotic Drugs and Psychotropic Substances Act, 1985The accusation of financing illicit trafficking and harbouring rested wholly on the story that the respondent procured cocaine and had it planted in the car; that story being prima facie contrary to the foundational written complaint, the applicability of Section 27A was seriously questionable. The High Court's view that a solitary transaction does not amount to 'trafficking' or 'financing illicit traffic', which connote continuity, was noted without needing elaboration. (¶¶ 8.3, 14, 16.2, 16.3, 16.4, 17)
- Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985The twin conditions apply to offences under Section 27A regardless of recovery, but where the Section 27A case is in serious doubt, there was no recovery from the respondent and the quantity (76 grams of cocaine) is intermediate, the rigours of Section 37 do not apply and bail could be considered on ordinary principles. (¶¶ 13, 16.4, 17)
- Sections 21(b), 29 and 67, Narcotic Drugs and Psychotropic Substances Act, 1985The FIR was registered under Sections 21(b) and 29 against the car's occupants on recovery of cocaine; the respondent was summoned under Section 160 CrPC read with Section 67 before the witness statements implicating him were recorded, a sequence the Court said could not be ignored. (¶¶ 4, 5.6, 14.1)
- Sections 161 and 164, Code of Criminal Procedure, 1973Statements of two witnesses recorded under Sections 161 and 164 describing the exchange of cash and packets raised reasonable questions as to why they were kept as companions during clandestine deals; alleged Section 161 statements of the car occupants, not shown to be on the trial court record, contradicted the police complaint and raised more questions than they answered. (¶¶ 5.9, 14.1, 15, 16.1)
Held
- The written complaint of 19.02.2021, an admitted document and the foundation of the case, records that a moving car was detained with the help of the raiding team and that on being asked the occupants pointed to the rear zip cover of the front seat and beneath the driver's seat where the cocaine lay. The alleged statements that an associate stayed inside a parked car for 10 to 15 minutes and planted the drugs are squarely contrary to it. At the bail stage the only logical course is to proceed on the complainant officer's version, whereupon the edifice of the case against the respondent crumbles. (¶¶ 16, 16.1, 16.2)
- Once the planting story is prima facie disbelieved, the factors connecting the respondent to it — financing, harbouring, the witness statements, CCTV footage and call records — can only be regarded as false and fanciful at this stage, and the questions of possession, quantity and financing become redundant; the High Court rightly found Section 27A seriously questionable and Section 37 inapplicable, and rightly refrained from elaborating on the evidence so as to leave it open for trial. (¶¶ 14.1, 16.3, 16.4, 17)
- The respondent's 53 cases with two convictions, allegations of threatening officers, a separate charge-sheet under Sections 353 and 506 IPC in this very matter and his arrest at a distant place after failing to appear raised real questions, but the strong countervailing factor was the prima facie indication that he was being framed by concoctions; he had no NDPS antecedents and nothing was recovered from him or any place in his exclusive control. Being found at night in another district did not show conscious absconding, and the risk of flight was met by the stringent conditions imposed. The High Court's view was not impossible, and the prosecution may seek further conditions or cancellation on any breach. (¶¶ 13, 18, 18.1, 19)
Result
State's appeal dismissed; the Calcutta High Court's order of 24.11.2021 granting bail on stringent conditions upheld, the observations being prima facie and confined to the question of bail without bearing on the trial.