Section 37 of The NDPS Act II

Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 observed, bail may be cancelled if it has been granted without adhering to parameters under Section 37. Given the seriousness of offences punishable and in order to curb the menace of drug-trafficking, stringent parameters for grant of bail have been prescribed. Union of India v. Prateek Shukla, (2021) 5 SCC 430 noted, non-application of mind to rival submissions and seriousness of allegations are grounds for cancellation of bail.

Section 8 prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment. Madan Lal v. State of Himachal Pradesh, (2003) 7 SCC 465 held, “whether there was conscious possession has to be determined with reference to the factual backdrop.” What amounts to ‘conscious possession’ was also considered in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608. The standard of ‘conscious possession’ would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In line with Union of India v. Rattan Mallik, (2009) 2 SCC 624 finding of absence of possession of the contraband on the person does not absolve level of scrutiny required under Section 37(1)(b)(ii).

The issue of whether there was compliance of procedure laid down under Section 42 is a question of fact. Karnail Singh v. State of Haryana, (2009) 8 SCC 539 was recently followed in Boota Singh v. State of Haryana, 2021 SCC OnLine SC 324. The contention, Section 42 was not complied with, is prima facie misplaced.

High Court has ignored circumstances.

Hon’ble Justice Dr. D.Y. Chandrachud, Narcotics Control Bureau v. Md. Nawaz Khan, [Criminal Appeal No. 1043 of 2021].