Union Of India vs Ajay Kumar Singh @ Pappu

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023 [Arising out of SLP(CRL.)No.2351 OF 2023]

UNION OF INDIA … APPELLANT

VERSUS

AJAY KUMAR SINGH @ PAPPU … RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. Leave granted.

2. Heard Ms. Aishwarya Bhati, learned Additional

Solicitor General, appearing for the Union of India

and Mr. Divyesh Pratap Singh, learned Advocate-on-

Record, appearing for the respondent.

3. Signature Not Verified The appellant-Union of India has preferred this Digitally signed by NIRMALA NEGI Date: 2023.03.28 17:11:33 IST Reason: appeal against the final judgment and order dated

17.10.2022 passed by the High Court of judicature at 2

Allahabad, allowing Criminal Miscellaneous Bail

Application No.21330 of 2022 and directing for the

release of the respondent-accused Ajay Kumar Singh @

Pappu on bail.

4. The respondent-accused is alleged to be involved in

Case No.687/2021 arising out of Case No.1/2021 under

Sections 8/20/27-A/29/32 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short ‘the NDPS

Act’), Police Station-D.R.I., Varanasi.

5. The respondent-accused has been directed to be

released on bail by the impugned order keeping in

mind the larger mandate of Article 21 of the

Constitution of India in the light of the decision

of this Court passed on 11.07.2022 in Satender Kumar

Antil v. Central Bureau of Investigation and Anr. in

SLP(Crl.)No.5191 of 2021 reported in (2022) SCC

online SC 825, mainly for the reason that the main

accused persons – Om Prakash Yadav and Amit Yadav

have already been enlarged on bail.

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6. Since the respondent-accused was in custody and had

been directed to be released on bail, this Court on

13.02.2023 while issuing notice on the Special Leave

Petition passed an interim order directing the

suspension of the impugned order passed by the High

Court.

7. It may be pertinent to note that the respondent-

accused had not participated in the investigation

and had avoided his arrest for more than one year

whereupon he was arrested from a restaurant in

Raipur.

8. The background facts in a nutshell are that the

Directorate of Revenue Intelligence (DRI) Varanasi

on 11.01.2021 had information that a huge quantity

of narcotics “ganja” is likely to be transported in

a truck bearing registration no. AP-05-W-8699 from

Bhadrachalam (Andhra Pradesh) to Jaunpur in U.P. via

Varanasi. At around 6 pm on the said date, the

aforesaid truck appeared, moving towards Prayagraj

and was apprehended near Raja Talab. The person 4

driving the truck introduced himself as Om Prakash

Yadav, resident of district Ballia (U.P.). The other

person in the truck introduced himself as Amit Yadav,

helper (Khalashi). Initially, both of them denied

the transportation of ganja and informed that the

truck is loaded with cattle feed but upon search in

the presence of the officers/panchas and the above

two persons, 6 packets and 135 plastic sacks

containing 1005 packets of varying size were

recovered. Upon opening them, it was found that they

contained dry green grey-coloured grassy substance

which appeared to be ganja. The seized packets were

weighed and their gross weight was found to be

3971.600 kg.

9. The driver of the vehicle Om Prakash Yadav revealed

that he was driving the truck with the co-accused

Amit Yadav as helper of one Bittu Dada of Jamshedpur

and at the behest of Shri Ram Pravesh Yadav, resident

of Ballia, he had gone to Jamshedpur where the

acquaintance of respondent-accused gave him the 5

truck which was loaded with ganja for safe delivery

in lieu of Rs.50,000/-. He further informed that

the respondent-accused indulges in illicit trade of

ganja.

10. Similar information was revealed by the helper Amit

Yadav.

11. The information revealed by the above two accused

persons indicated that both of them knew the

respondent-accused and that they had connived with

him to transport the illicit ganja and that they were

in direct contact with the respondent-accused all

through on his mobile number. The facts as unfurled

from the complaint/FIR and the statements of the

above two accused persons recorded under Section 67

of the NDPS Act reveals that respondent-accused is

the kingpin and the organiser of the illicit trade

in ganja.

12. It is on record that the respondent-accused has been

involved in similar crimes in the past and that

several cases are pending against him. 6

13. In light of the above, the grant of bail to the above

two accused persons - the driver of the vehicle and

the helper, does not seem to be a good and sufficient

reason for granting bail to the respondent-accused.

The above two accused are not the main accused, but

the vicarious agents of the respondent-accused, who

is the main person in drug trafficking and was

involved in the above illegal transactions. The role

of the respondent-accused is clearly different from

that of the driver and the helper, the other two co-

accused. The co-accused Om Prakash Yadav in his

affidavit filed in support of his bail application

before the High Court admitted the involvement of

the respondent-accused and his role as the mastermind

of the illegal trade, as is evident from the order

of his release on bail. Therefore, the High Court

was not justified in releasing him on bail in the

same manner as the above two accused persons.

14. This apart, it is noticed that the High Court, in

passing the impugned order of bail, had lost sight 7

of Section 37 of the NDPS Act, which, inter alia,

provides that no person accused of an offence

involving commercial quantity shall be released on

bail unless the twin conditions laid down therein

are satisfied, namely,(i)the public prosecutor has

been given an opportunity to oppose the bail

application; and (ii) the court is satisfied that

there are reasonable grounds for believing that he

is not guilty of such an offence and that he is not

likely to commit any such offence while on bail.

15. For the sake of convenience Section 37(1) is

reproduced hereinbelow:-

“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 2[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 8

(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.”

16. In view of the above provisions, it is implicit that

no person accused of an offence involving trade in

commercial quantity of narcotics is liable to be

released on bail unless the court is satisfied that

there are reasonable grounds for believing that he

is not guilty of such an offence and that he is not

likely to commit any offence while on bail.

17. The quantity of “ganja” recovered is admittedly of

commercial quantity. The High Court has not recorded

any finding that the respondent-accused is not prima

facie guilty of the offence alleged and that he is

not likely to commit the same offence when enlarged

on bail rather his antecedents are indicative that

he is a regular offender. In the absence of

recording of such satisfaction by the court, we are

of the opinion that the High Court manifestly erred

in enlarging the respondent-accused on bail. 9

18. In view of the aforesaid facts and circumstances and

considering the role assigned to the respondent-

accused and the illegality committed in releasing

him on bail, we set aside the impugned final order

dated 17.10.2022 passed by the High Court of

judicature at Allahabad and allow the appeal.

19. The appeal is allowed.

………………………………………………J. [V. Ramasubramanian]

………………………………………………J. [Pankaj Mithal] New Delhi;

March 28, 2023.