Supreme Court of IndiaUnion Of India Through Ncb vs Md. Nawaz Khan on 22 September, 2021Author: Hon'Ble Dr. ChandrachudBench: Hon'Ble Dr. Chandrachud, Vikram Nath, B.V. NagarathnaReportable\n\n                                       IN THE SUPREME COURT OF INDIA\n                                      CRIMINAL APPELLATE JURISDICTION\n\n\n                                         Criminal Appeal No. 1043 of 2021\n                                     (Arising out of SLP (Crl) No.1771 of 2021)\n\n\n\n\n          Union of India through Narcotics Control Bureau,                         ....Appellant\n          Lucknow\n\n\n                                                      Versus\n\n\n          Md. Nawaz Khan                                                           ....Respondent\n\n\n\n\n                                                 JUDGMENTDr Dhananjaya Y Chandrachud, J.1              This appeal arises from a judgment of a Single Judge at the Lucknow Bench\n\n          of the High Court of Judicature at Allahabad dated 1 October 2020. NCB Case\n\n          Crime No 14 of 2019 registered at Police Station, NCB, Lucknow for alleged\n\n          offences underSections 8,21,27A,29of the Narcotic Drugs andPsychotropic\n\n          Substances Act1985 1. The High Court has allowed an application for bail.\nSignature Not Verified\n\nDigitally signed by\nChetan Kumar\nDate: 2021.09.22\n15:44:11 IST\nReason:1“NDPS Act”12         The complaint was filed on 16 September 2019 through the Intelligence\n\nOfficer at the Lucknow Zonal Unit of the Narcotics Control Bureau 2. The allegation is\n\nthat the NCB, Zonal Unit received information at 1400 hours that three persons\n\nnamely Md. Arif Khan, Rafiuddin and Md. Nawaz Khan (the respondent), who are\n\nresidents of Manipur were proceeding with heroin/morphine in a Maruti Ritz vehicle\n\nbearing registration No. UK 06 AA 25823 from Dimapur in Nagaland to Rampur in\n\nUttar Pradesh and that the vehicle would be passing through Banarasi Das College,\n\nLucknow. The information was reduced into writing and was produced before the\n\nZonal Director, NCB Lucknow. A team of NCB officers was formed and it was\n\ndirected to liaise with the team of the Uttar Pradesh Special Task Force, Lucknow 3.\n\nA surveillance was conducted in the area around Babu Banarasi Das College and at\n\n1600 hours, the car in which the respondent was travelling with the other two co-\n\naccused was intercepted. A search was conducted in the presence of a gazetted\n\nofficer in view of the provisions ofSection 50of the NDPS Act but nothing\n\nobjectionable was recovered in the course of the personal search. However, a\n\nsearch of the car revealed two polythene packets hidden under the place where the\n\nwiper is connected to the front bonnet of the car. The first packet weighed 1.740 kg,\n\nwhile the second packet weighed 1.750 kg. Samples were taken and upon testing\n\nwith the drug detection kit, the samples tested positive for heroin.2“NCB”3“UP-STF”23      Since the occupants of the car were not well- versed with Hindi or English, an\n\nofficial belonging to the Shasastra Seema Bal 4 was summoned at the spot for the\n\npurpose of translation as he hailed from Manipur and was conversant with the\n\nManipuri language. The statements of the three accused persons were recorded in\n\nEnglish and were translated in Manipuri by the official from the SSB and the\n\naccused were placed under arrest. However, while certifying the statement of the\n\nrespondent, the official of the SSB mentioned the name of Mohd. Arif Khan in place\n\nof the respondent (Md. Nawaz Khan).4      The sample packets marked as P1S1 and P2S1 were sent to the Chief\n\nExaminer, Central Revenues Control Laboratory, New Delhi 5 on 27 March 2019. A\n\nchemical examination report dated 25 April 2019 was prepared by CRCL which\n\nstated that the samples did not test positive for diacetylmorphine that is heroin,\n\nhowever, it tested positive for morphine.5      Letters dated 10 July 2019 were sent to Airtel Private Limited, Lucknow;\n\nVodafone Idea Limited, Lucknow; and Reliance JIO Info Communication Limited\n\nLucknow, to obtain certified copies of call detail records 6 and customer application\n\nforms 7 relating to certain mobile numbers. The CDR analysis of the said mobile\n\nnumbers indicates that the respondent was regularly corresponding with the co-\n\naccused and one Anish @ Abbas, who is a resident of Dimapur and is also\n\nsuspected to be involved in drug trafficking.4“SSB”5“CRCL”6“CDR”7“CAF”36     The application for bail moved by the respondent was rejected by the Seventh\n\nAdditional District and Sessions Judge, Lucknow on 27 June 2019, observing that a\n\nhuge quantity of heroin weighing 3.300 kg was recovered and that having regard to\n\nthe seriousness and gravity of the crime, no case for the grant of bail was\n\nestablished. The respondent moved the High Court and by the impugned order\n\ndated 1 October 2020, the application for bail was allowed.\n\n\n7     The submission of the respondent before the High Court was that he was only\n\na companion in the vehicle which was driven by co-accused Rafiuddin and was not\n\nin conscious possession of the contraband since it had been recovered from the\n\nwiper fitted on the front bonnet of the vehicle, of which he had no knowledge.\n\nMoreover, it was urged that the provisions ofSections 42and50of the NDPS Act\n\nwere not complied with. According to the respondent, the statement underSection\n\n67had not been duly explained to him, which was evident from the fact that the\n\nofficial of the SSB who signed it had certified that the translation had been explained\n\nin Manipuri to Mohd. Arif Khan (co-accused). The name of the respondent as noted\n\nearlier is Md. Nawaz Khan. The High Court allowed the application for bail and\n\nobserved thus:“Considering the rival submissions of learned counsel for\n             parties, going through the recovery memo, alleged statement\n             of the applicant recorded underSection 67of the NDPS Act\n             and the certification of Shri L.H. Kapin, it is evident that\n             indisputably the alleged contraband was recovered from the\n             wiper fitted on the front bonnet of the vehicle, which was\n             being driven by Rafiuddin and the applicant was sitting in the\n             said vehicle along with Arif Khan. Admittedly, nothing was\n             recovered from the possession of the applicant. Further, in\n             the search memo prepared by the officials, they categorically4mentioned that, since the persons were not well conversed\n                      with the Hindi or English language, Shri LH. Kapin, personnel\n                      of SSB IV Battalion, Lucknow was requested to arrive on the\n                      spot for explaining the contents. A perusal of Annexure No. 3\n                      of the counter affidavit goes to show that the name of the\n                      applicant is mentioned on the statement, but it also reveals\n                      that while certifying this statement, Shri LH. Kapin mentioned\n                      in his certification that "Translated the statement as stated by\n                      Md. Arif Khan and after recording of stated read over the\n                      statement and made understand in Manipuri Language."Thus, since the statement was explained to Mohd. Arif Khan\n                      and not to the applicant as also that this statement was filed\n                      along with the complaint before the court below, oral\n                      argument of the learned counsel for the respondent at this\n                      juncture, cannot be accepted that due to mistake, the name of\n                      Mohd. Arif Khan is mentioned in place of Mohd. Nawaz\n                      (applicant). It is also undisputed that the applicant does not\n                      have any criminal antecedent.”\n\n8         Mr SV Raju, Additional Solicitor General 8 appearing on behalf of the appellant\n\nsubmitted that in view of the decision inTofan Singh v. State of Tamil Nadu9,\n\nwhere it was held that a confessional statement made underSection 67of the\n\nNDPS Act will not be admissible in evidence, he does not seek to place reliance on\n\nthe statement of the respondent. At the same time, it was urged that the High Court\n\nwhile granting bail has lost sight of three crucial circumstances namely:(i)         A huge contraband of morphine weighing 3.300 kg has been recovered\n\n                      from the vehicle;(ii)        The respondent was admittedly travelling in the vehicle all the way from\n\n                      Dimapur in Nagaland to Rampur in Uttar Pradesh; and(iii)       The complaint tabulates the call data records of the cell phones used\n\n                      by the accused. The accused persons were found to have been in8“ASG”9(2021) 4 SCC 1.5touch with each other and a flow chart has been set out in the\n\n              complaint.9     In addition, it was urged that:\n\n\n      (i)     The decisions of this Court have held that compliance with theprovisions ofSection 42of the NDPS Act is warranted where a private\n\n              vehicle is sought to be searched in a public place;(ii)    As a matter of fact the contents of the complaint would indicate that\n\n              there was compliance with the provisions ofSection 42of the NDPS\n\n              Act;(iii)   Several decisions of this Court indicate that whether the provisions of\n\n              Section 42 of the NDPS Act have been complied with is a matter of\n\n              trial; and(iv)    A presumption underSection 54of the NDPS Act would arise in\n\n              respect of the possession of a narcotic drug which is found to be in the\n\n              conscious possession of the accused.On the above grounds, the learned ASG submitted that no case for the grant\n\n      of bail exists, particularly, having regard to the provisions ofSection\n\n      37(1)(b)(ii)of the NDPS Act.10    Apart from the above circumstances, it has been submitted that the\n\nrespondent, after having been released on bail, has consistently avoided appearing\n\nbefore the Sessions Judge at Lucknow as a result of which charges could not be6framed and eventually a non-bailable warrant has been issued against the\n\nrespondent.11        On the other hand, Mr Rakesh Dahiya, learned Counsel appearing on behalf\n\nof the respondent submitted that the contraband in the present case was found\n\nconcealed in the vehicle in which the respondent was travelling. Thus, it cannot be\n\nstated that it was the respondent who was in conscious possession of the\n\ncontraband. Learned counsel submitted that the respondent is neither the driver nor\n\nthe owner of the vehicle and in this backdrop, the order of the High Court enlarging\n\nhim on bail cannot be faulted.12        At the present stage, it is material to note that:(i)     The vehicle which was intercepted at Lucknow was proceeding from\n\n                  Dimapur (Nagaland) towards Rampur (Uttar Pradesh);(ii)    The quantity of 3.300 kg of a narcotic substance which is a commercial\n\n                  quantity was found concealed in the vehicle;(iii)   The respondent is not an unknown passenger but a person who,\n\n                  according to the prosecution, was closely in contact with the co-accused.13        The principles that guide this Court while assessing an order of the High\n\nCourt granting bail have been succinctly laid down inPrasanta Kumar Sarkar v.\n\nAshis Chatterjee10 . In Prasanta Kumar (supra), while the trial court dismissed\n\nseveral bail applications that were filed by the accused who was charged for the10(2010) 14 SCC 4967commission of an offence punishable underSection 302of the Indian Penal Code\n\n1860 11, the High Court allowed the bail application. Justice DK Jain, speaking for the\n\ntwo-judge Bench, observed:“9. … this Court does not, normally, interfere with an order\n                  passed by the High Court granting or rejecting bail to the\n                  accused. However, it is equally incumbent upon the High\n                  Court to exercise its discretion judiciously, cautiously and\n                  strictly in compliance with the basic principles laid down in a\n                  plethora of decisions of this Court on the point. It is well\n                  settled that, among other circumstances, the factors to be\n                  borne in mind while considering an application for bail are:(i) whether there is any prima facie or reasonable ground to\n                  believe that the accused had committed the offence;(ii) nature and gravity of the accusation;(iii) severity of the punishment in the event of conviction;(iv) danger of the accused absconding or fleeing, if released\n                  on bail;(v) character, behaviour, means, position and standing of the\n                  accused;(vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses being\n                  influenced; and(viii) danger, of course, of justice being thwarted by grant of\n                  bail.”\n\n14        The decision in Prasanta Kumar (supra) was referred to in a judgment of this\n\nCourt inMahipal v. Rajesh Kumar @ Polla & Anr. 12, where the High Court had\n\ngranted bail to an accused who was charged with the commission of an offence\n\npunishable underSection 302of the IPC. One of us (Justice DY Chandrachud),\n\nspeaking for the Court held and laid down the standard for adjudicating a plea for\n\nthe cancellation of bail :“14. The provision for an accused to be released on bail\n                  touches upon the liberty of an individual. It is for this reason11“IPC”12(2020) 2 SCC 1188that this Court does not ordinarily interfere with an order of\n                  the High Court granting bail. However, where the discretion of\n                  the High Court to grant bail has been exercised without the\n                  due application of mind or in contravention of the directions of\n                  this Court, such an order granting bail is liable to be set aside.\n                  The Court is required to factor, amongst other things, a prima\n                  facie view that the accused had committed the offence, the\n                  nature and gravity of the offence and the likelihood of the\n                  accused obstructing the proceedings of the trial in any\n                  manner or evading the course of justice. The provision for\n                  being released on bail draws an appropriate balance between\n                  public interest in the administration of justice and the\n                  protection of individual liberty pending adjudication of the\n                  case. However, the grant of bail is to be secured within the\n                  bounds of the law and in compliance with the conditions laid\n                  down by this Court. It is for this reason that a court must\n                  balance numerous factors that guide the exercise of the\n                  discretionary power to grant bail on a case-by-case basis.\n                  Inherent in this determination is whether, on an analysis of\n                  the record, it appears that there is a prima facie or reasonable\n                  cause to believe that the accused had committed the crime. It\n                  is not relevant at this stage for the court to examine in detail\n                  the evidence on record to come to a conclusive finding.[…]16. Where a court considering an application for bail fails to\n                  consider relevant factors, an appellate court may justifiably\n                  set aside the order granting bail. An appellate court is thus\n                  required to consider whether the order granting bail\n                  suffers from a non-application of mind or is not borne out\n                  from a prima facie view of the evidence on record. It is\n                  thus necessary for this Court to assess whether, on the basis\n                  of the evidentiary record, there existed a prima facie or\n                  reasonable ground to believe that the accused had committed\n                  the crime, also taking into account the seriousness of the\n                  crime and the severity of the punishment.”\n                                                         (emphasis supplied)\n\n15        The dual test propounded in Mahipal (supra) was subsequently followed by\n\nthis Court inPrabhakar Tewari v. State of Uttar Pradesh13.13(2020) 11 SCC 648916        With regard to the grant of bail for offences under theNDPS Act, inUnion of\n\nIndia v. Shiv Shanker Kesari14 this Court observed that bail may be cancelled if it\n\nhas been granted without adhering to the parameters underSection 37of the NDPS\n\nAct. Further, inUnion of India v. Prateek Shukla15 , one of us (Justice DY\n\nChandrachud), speaking for a two-judge Bench, noted that non-application of mind\n\nto the rival submissions and the seriousness of the allegations involving an offence\n\nunder theNDPS Actby the High Court are grounds for cancellation of bail.\n\n\n17Section 37of the NDPS Act regulates the grant of bail in cases involving\n\noffences under theNDPS Act.Section 37reads as follows:“(1) Notwithstanding anything contained inthe Codeof Criminal\n                  Procedure, 1973 (2 of 1974),—(a) every offence punishable under this Act shall be cognizable;(b) no person accused of an offence punishable for\n                  [offences undersection 19orsection 24orsection 27Aand\n                  also for offences involving commercial quantity] shall be\n                  released on bail or on his own bond unless—(i) the Public Prosecutor has been given an opportunity to\n                     oppose the application for such release, and(ii) where the Public Prosecutor opposes the application,\n                     the court is satisfied that there are reasonable grounds\n                     for believing that he is not guilty of such offence and that\n                     he is not likely to commit any offence while on bail.\n                  (2) The limitations on granting of bail specified in clause (b) of\n                  sub-section (1) are in addition to the limitations underthe Codeof\n                  Criminal Procedure, 1973 (2 of 1974) or any other law for the\n                  time being in force on granting of bail.(emphasis supplied)14(2007) 7 SCC 79815(2021) 5 SCC 4301018    UnderSection 37(1)(b)(ii), the limitations on the grant of bail for offences\n\npunishable underSections 19,24or 27A and also for offences involving a\n\ncommercial quantity are :(i)    The Prosecutor must be given an opportunity to oppose the application\n\n             for bail; and(ii)   There must exist ‘reasonable grounds to believe’ that (a) the person is\n\n             not guilty of such an offence; and (b) he is not likely to commit any\n\n             offence while on bail.19    The standard prescribed for the grant of bail is ‘reasonable ground to believe’\n\nthat the person is not guilty of the offence. Interpreting the standard of ‘reasonable\n\ngrounds to believe’, a two-judge Bench of this Court in Shiv Shanker Kesari\n\n(supra), held that:“7. The expression used inSection 37(1)(b)(ii)is “reasonable\n             grounds”. The expression means something more than\n             prima facie grounds. It connotes substantial probable\n             causes for believing that the accused is not guilty of the\n             offence charged and this reasonable belief contemplated in\n             turn points to existence of such facts and circumstances as\n             are sufficient in themselves to justify recording of\n             satisfaction that the accused is not guilty of the offence\n             charged.8. The word “reasonable” has in law the prima facie meaning of\n             reasonable in regard to those circumstances of which the actor,\n             called on to act reasonably, knows or ought to know. It is difficult\n             to give an exact definition of the word “reasonable”.“7. … In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states\n                that it would be unreasonable to expect an exact definition of\n                the word ‘reasonable’. Reason varies in its conclusions\n                according to the idiosyncrasy of the individual, and the times11and circumstances in which he thinks. The reasoning which\n                 built up the old scholastic logic sounds now like the jingling of\n                 a child's toy.”\n              (See Municipal Corpn. of Delhi v. Jagan Nath Ashok\n              Kumar[(1987) 4 SCC 497] (SCC p. 504, para 7) andGujarat\n              Water Supply and Sewerage Board v. Unique Erectors (Gujarat)\n              (P) Ltd. [(1989) 1 SCC 532]\n\n              […]10. The word “reasonable” signifies “in accordance with reason”.\n              In the ultimate analysis it is a question of fact, whether a\n              particular act is reasonable or not depends on the circumstances\n              in a given situation. (See Municipal Corpn. of Greater\n              Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]11. The court while considering the application for bail with\n              reference toSection 37of the Act is not called upon to record a\n              finding of not guilty. It is for the limited purpose essentially\n              confined to the question of releasing the accused on bail that the\n              court is called upon to see if there are reasonable grounds for\n              believing that the accused is not guilty and records its satisfaction\n              about the existence of such grounds. But the court has not to\n              consider the matter as if it is pronouncing a judgment of acquittal\n              and recording a finding of not guilty.”\n                                                            (emphasis supplied)\n\n20    Based on the above precedent, the test which the High Court and this Court\n\nare required to apply while granting bail is whether there are reasonable grounds to\n\nbelieve that the accused has not committed an offence and whether he is likely to\n\ncommit any offence while on bail. Given the seriousness of offences punishable\n\nunder theNDPS Actand in order to curb the menace of drug-trafficking in the\n\ncountry, stringent parameters for the grant of bail under theNDPS Acthave been\n\nprescribed.21    In the present case, the High Court while granting bail to the respondent\n\nadverted to two circumstances, namely (i) absence of recovery of the contraband12from the possession of the respondent and (ii) the wrong name in the endorsement\n\nof translation of the statement underSection 67of the NDPS Act.\n\n\n22        We shall deal with each of these circumstances in turn. The respondent has\n\nbeen accused of an offence underSection 8of the NDPS Act, which is punishable\n\nunderSections 21,27A,29,60(3)of the said Act.Section 8of the Act prohibits a\n\nperson from possessing any narcotic drug or psychotropic substance. The concept\n\nof possession recurs inSections 20to22, which provide for punishment for offences\n\nunder the Act.In Madan Lal and Another v. State of Himachal Pradesh16 this\n\nCourt held that\n\n                  “19. Whether there was conscious possession has to be\n                  determined with reference to the factual backdrop. The facts\n                  which can be culled out from the evidence on record are that all\n                  the accused persons were travelling in a vehicle and as noted by\n                  the trial court they were known to each other and it has not been\n                  explained or shown as to how they travelled together from the\n                  same destination in a vehicle which was not a public vehicle.20.Section 20(b)makes possession of contraband articles an\n                  offence.Section 20appears in Chapter IV of the Act which\n                  relates to offences for possession of such articles. It is submitted\n                  that in order to make the possession illicit, there must be a\n                  conscious possession.21. It is highlighted that unless the possession was coupled with\n                  the requisite mental element i.e. conscious possession and not\n                  mere custody without awareness of the nature of such\n                  possession,Section 20is not attracted.22. The expression “possession” is a polymorphous term which\n                  assumes different colours in different contexts. It may carry\n                  different meanings in contextually different backgrounds. It is\n                  impossible, as was observed in Supdt. & Remembrancer of Legal16(2003) 7 SCC 46513Affairs, W.B. v. Anil Kumar Bhunja[(1979) 4 SCC 274 : 1979\n                  SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely\n                  logical and precise definition of “possession” uniform[ly]\n                  applicable to all situations in the context of all statutes.23. The word “conscious” means awareness about a particular\n                  fact. It is a state of mind which is deliberate or intended.\n\n                  […]26. Once possession is established, the person who claims that it\n                  was not a conscious possession has to establish it, because how\n                  he came to be in possession is within his special knowledge.Section 35of the Act gives a statutory recognition of this position\n                  because of the presumption available in law. Similar is the\n                  position in terms ofSection 54where also presumption is\n                  available to be drawn from possession of illicit articles.”\n\n\nWhat amounts to “conscious possession” was also considered inDharampal Singh\n\nv. State of Punjab17 , where it was held that the knowledge of possession of\n\ncontraband has to be gleaned from the facts and circumstances of a case. The\n\nstandard of conscious possession would be different in case of a public transport\n\nvehicle with several persons as opposed to a private vehicle with a few persons\n\nknown to one another.In Mohan Lal v. State of Rajasthan18 , this Court also\n\nobserved that the term “possession” could mean physical possession with animus;\n\ncustody over the prohibited substances with animus; exercise of dominion and\n\ncontrol as a result of concealment; or personal knowledge as to the existence of the\n\ncontraband and the intention based on this knowledge.17(2010) 9 SCC 60818(2015) 6 SCC 2221423        We have referred to the above precedents to reiterate the governing\n\nprinciples. At this stage of the proceedings, it needs only to be clarified that the trial\n\nis to take place this Court where evidence will be adduced.\n\n\n24        As regards the finding of the High Court regarding absence of recovery of the\n\ncontraband from the possession of the respondent, we note that inUnion of India v.\n\nRattan Mallik19, a two-judge Bench of this Court cancelled the bail of an accused\n\nand reversed the finding of the High Court, which had held that as the contraband\n\n(heroin) was recovered from a specially made cavity above the cabin of a truck, no\n\ncontraband was found in the ‘possession’ of the accused. The Court observed that\n\nmerely making a finding on the possession of the contraband did not fulfil the\n\nparameters ofSection 37(1)(b)and there was non-application of mind by the High\n\nCourt.25        In line with the decision of this Court in Rattan Mallik (supra), we are of the\n\nview that a finding of the absence of possession of the contraband on the person of\n\nthe respondent by the High Court in the impugned order does not absolve it of the\n\nlevel of scrutiny required underSection 37(1)(b)(ii)of the NDPS Act.\n\n\n26        With regard to the statement underSection 67of the NDPS Act, the High\n\nCourt has placed abundant reliance on the inclusion of Mohd. Arif Khan’s name in\n\nplace of the respondent’s name in the endorsement of translation on the statement\n\nof the respondent. In Tofan Singh (supra), a three judge Bench of this Court held\n\nthat a statement underSection 67of the NDPS Act is inadmissible. The ASG19(2009) 2 SCC 62415submitted that independent of the statement, there are valid reasons to deny bail on\n\nthe basis of the material which has emerged at this stage.\n\n\n27        Another submission that has been raised by the counsel for the respondent\n\nboth before the High Court and this Court is that due to non-compliance of the\n\nprocedural requirement underSection 42of the NDPS Act 20, the respondent should\n\nbe granted bail.Section 42provides that on the receipt of information of the\n\ncommission of an offence under the statute, the officer will have to write down the\n\ninformation and send it to a superior officer with 72 hours. It has been submitted by\n\nthe respondent that though the information was received by the Zonal Director, the\n\ninformation was put down in writing by an officer who was a part of the team\n\nconstituted on the receipt of the information. The written information was then sent\n\nto the Zonal Director. This CourtKarnail Singh v. State of Haryana21 held that\n\nthough the writing down of information on the receipt of it should normally precede\n\nthe search and seizure by the officer, in exceptional circumstances that warrant\n\nimmediate and expedient action, the information shall be written down later along\n\nwith the reason for the delay:20“42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an\nofficer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs,\nrevenue intelligence or any other department of the Central Government including para-military forces or armed\nforces as is empowered in this behalf by general or special order by the Central Government, or any such officer\n(being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any\nother department of a State Government as is empowered in this behalf by general or special order of the State\nGovernment, if he has reason to believe from persons knowledge or information given by any person and taken down\nin writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence\npunishable under this Act [..];(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief\nunder the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”21(2009) 8 SCC 53916“35. […](c) In other words, the compliance with the\n                  requirements ofSections 42(1)and42(2)in regard to writing\n                  down the information received and sending a copy thereof to\n                  the superior officer, should normally precede the entry,\n                  search and seizure by the officer. But in special\n                  circumstances involving emergent situations, the recording of\n                  the information in writing and sending a copy thereof to the\n                  official superior may get postponed by a reasonable period,\n                  that is, after the search, entry and seizure. The question is\n                  one of urgency and expediency.(d) While total non-compliance with requirements of\n                  subsections (1) and (2) ofSection 42is impermissible,\n                  delayed compliance with satisfactory explanation about the\n                  delay will be acceptable compliance withSection 42. To\n                  illustrate, if any delay may result in the accused escaping or\n                  the goods or evidence being destroyed or removed, not\n                  recording in writing the information received, before initiating\n                  action, or non-sending of a copy of such information to the\n                  official superior forthwith, may not be treated as violation ofSection 42. But if the information was received when the\n                  police officer was in the police station with sufficient time to\n                  take action, and if the police officer fails to record in writing\n                  the information received, or fails to send a copy thereof, to the\n                  official superior, then it will be a suspicious circumstance\n                  being a clear violation ofSection 42of the Act. Similarly,\n                  where the police officer does not record the information at all,\n                  and does not inform the official superior at all, then also it will\n                  be a clear violation ofSection 42of the Act. Whether there is\n                  adequate or substantial compliance withSection 42or not is\n                  a question of fact to be decided in each case. The above\n                  position got strengthened with the amendment toSection 42by Act 9 of 2001.”\n\n\n\n28        Further, it was held that the issue of whether there was compliance of the\n\nprocedure laid down underSection 42of the NDPS Act is a question of fact. The\n\ndecision in Karnail Singh (supra) was recently followed by this Court inBoota\n\nSingh v. State of Haryana22.222021 SCC OnLine SC 3241729           In the complaint that was filed on 16 October 2019 it is alleged that at about\n\n1400 hours on 26 March 2019, information was received that between 1500-1700\n\nhours on the same day, the three accused persons would be reaching Uttar\n\nPradesh. The complaint states that the information was immediately reduced to\n\nwriting. Therefore, the contention thatSection 42of the NDPS Act was not complied\n\nwith is prima facie misplaced. The question is one that should be raised in the\n\ncourse of the trial.30           The following circumstances are crucial to assessing whether the High Court\n\nhas correctly evaluated the application for bail, having regard to the provisions ofSection 37:(i)        The respondent was travelling in the vehicle all the way from Dimapur in\n\n                Nagaland to Rampur in Uttar Pradesh with the co-accused;(ii)       The complaint notes that the CDR analysis of the mobile number used by\n\n                the respondent indicates that the respondent was in regular touch with the\n\n                other accused persons who were known to him;(iii)      The quantity of contraband found in the vehicle is of a commercial\n\n                quantity; and(iv)       The contraband was concealed in the vehicle in which the respondent was\n\n                travelling with the co-accused.1831      The impugned order of the High Court, apart from observing that no\n\ncontraband was found from the personal search of the respondent has ignored the\n\nabove circumstances. The High Court has merely observed that\n\n               “[…]\n              In view of the above, the twin conditions contained underSection\n              37(1)(b)of the NDPS Act stand satisfied. This Court is of the\n              view that if there is reasonable ground, the applicant is entitled to\n              be released on bail.”\n\n\n32      The High Court has clearly overlooked crucial requirements and glossed over\n\nthe circumstances which were material to the issue as to whether a case for the\n\ngrant of bail was established. In failing to do so, the order of the High Court\n\nbecomes unsustainable. Moreover, it has emerged, during the course of the hearing\n\nthat after the respondent was enlarged on bail he has consistently remained away\n\nfrom the criminal trial resulting in the issuance of a non-bailable warrant against him.\n\nThe High Court ought to have given due weight to the seriousness and gravity of the\n\ncrime which it has failed to do.33      For the above reasons, we allow the appeal and set aside the impugned\n\njudgment and order of the High Court dated 1 October 2020 in Bail No. 7379 of\n\n2019.1934    The application for bail filed by the respondent shall stand dismissed. The\n\nrespondent shall accordingly surrender forthwith.\n\n\n35    Pending application (s), if any, stand disposed of.………..………………………………………J\n                                     [Dr Dhananjaya Y Chandrachud]\n\n\n\n\n                                    ……..…..…………………………………………J\n                                    [B V Nagarathna]\n\n\n\n\nNew Delhi;September 22, 202120