Court’s Decision:
The Tripura High Court dismissed the pre-arrest bail application of the accused in a narcotics case involving the seizure of 14,400 bottles of Phensedyl, citing:
- His failure to cooperate with the investigation and avoid arrest despite warrants and proclamations,
- His criminal antecedents in another NDPS case, and
- The stringent twin conditions under Section 37 of the NDPS Act.
The Court held there was no scope for granting pre-arrest bail and directed the accused to surrender before the Trial Court, which shall consider any subsequent regular bail plea in accordance with law.
Facts:
A suo-moto FIR was lodged after the police intercepted a 10-wheeler dumper carrying 14,400 bottles of Phensedyl cough syrup near Mungiakami, Tripura. The driver was arrested, and the investigation linked the accused to the consignment based on co-accused statements and telephonic records. The Trial Court issued warrants and proclamations, but the accused did not surrender. The accused challenged the proclamation up to the Supreme Court, which dismissed his petition while clarifying that it should not affect other legal proceedings. The charge-sheet was filed, and the accused, citing false implication based on co-accused statements and the absence of direct recovery from him, filed a pre-arrest bail plea before the High Court.
Issues:
- Whether a pre-arrest bail application is maintainable under Section 438 CrPC in an NDPS Act case involving commercial quantity.
- Whether the accused was entitled to pre-arrest bail given his non-cooperation, prior criminal involvement, and the bar under Section 37 NDPS Act.
Petitioner’s Arguments:
The petitioner argued that:
- He was falsely implicated based on co-accused statements without direct recovery.
- As per Ravindra Saxena, Siddharam Satlingappa Mhetre, Dataram Singh, and other judgments, the court should adopt a humane approach while considering bail and protect liberty.
- Section 438 CrPC allows pre-arrest bail even after charge-sheet if the accused has not been arrested.
- Under Tofan Singh, statements under Section 67 NDPS Act are inadmissible unless corroborated.
- Mere abscondence is insufficient to deny bail.
- The accused sought the opportunity to face trial without unnecessary custodial detention.
Respondent’s Arguments:
The State opposed bail, arguing:
- The accused evaded arrest repeatedly despite warrants and proclamations.
- The case involves a huge commercial quantity of contraband, and under Section 37 NDPS Act, bail can only be granted if the court is satisfied the accused is not guilty and will not commit further offences.
- The accused has prior criminal antecedents under the NDPS Act and is charge-sheeted in another pending NDPS case.
- The Supreme Court in State v. B. Ramu emphasized caution in granting bail in commercial quantity cases.
- The accused’s conduct disqualifies him from seeking the discretionary relief of pre-arrest bail.
Analysis of the Law:
The Court considered:
- Section 438 CrPC: Pre-arrest bail is discretionary and can be granted until arrest but requires cautious application in serious offences.
- Section 37 NDPS Act: Bail in commercial quantity cases can only be granted if the court finds reasonable grounds that the accused is not guilty and will not reoffend.
- The need to balance personal liberty with public interest and the seriousness of the offence.
- Judgments cited by the petitioner (Ravindra Saxena, Siddharam Satlingappa Mhetre, Dataram Singh, Tofan Singh, Vinay Dua, Abdul Rab) highlighted liberty considerations but did not override statutory limitations under Section 37 NDPS Act in serious NDPS cases.
Precedent Analysis:
- Ravindra Saxena v. State of Rajasthan (2010) 1 SCC 684 and Siddharam Satlingappa Mhetre (2011) 1 SCC 694 emphasized that anticipatory bail can be granted to protect liberty where warranted.
- Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 held that confessions under Section 67 NDPS Act are inadmissible unless corroborated.
- State v. B. Ramu (2024 SCC OnLine SC 4073) reiterated the strict conditions under Section 37 NDPS Act for granting bail in commercial quantity cases, emphasizing caution and the need for satisfaction that the accused is not guilty.
- Srikant Upadhyay v. State of Bihar (2024 SCC OnLine SC 282) clarified that pre-arrest bail is an extraordinary remedy and not a rule, particularly when the accused is absconding.
The Court relied heavily on B. Ramu and Srikant Upadhyay, holding that the statutory bar under Section 37 NDPS Act overrides general bail principles in serious narcotics cases.
Court’s Reasoning:
The Court found:
- The accused had avoided arrest, did not cooperate with the investigation, and there was no satisfactory conduct to presume compliance if released.
- The seriousness of the offence, large quantity of contraband, and prior criminal antecedents warranted refusal of bail.
- The twin conditions under Section 37 NDPS Act were not satisfied as there was no material to suggest the accused was not guilty or would not reoffend.
- Liberty is vital, but in serious offences like commercial quantity NDPS cases, public interest outweighs individual liberty where statutory bars apply.
Conclusion:
The Tripura High Court rejected the pre-arrest bail application, holding:
“Considering the materials on record at this stage, I do not find any scope to consider concession of granting pre-arrest bail in favour of the present petitioner accused.”
The Court directed the accused to surrender before the Trial Court, which shall consider any regular bail plea in accordance with law and proceed with the trial without being influenced by this order.
Implications:
- Reinforces the bar on anticipatory bail in NDPS cases involving commercial quantities unless stringent statutory conditions are satisfied.
- Clarifies that abscondence, non-cooperation, and prior criminal history can bar discretionary relief.
- Aligns with public interest in tackling narcotics-related offences while balancing procedural fairness.
- Emphasizes the role of trial courts in granting regular bail after surrender, not bypassing statutory restrictions through anticipatory bail.
FAQs:
- Can anticipatory bail be granted in NDPS cases involving commercial quantities?
No, unless the court is satisfied that the accused is not guilty and will not commit further offences as required under Section 37 of the NDPS Act. - Does abscondence affect the grant of pre-arrest bail?
Yes, consistent evasion of arrest and non-cooperation weigh heavily against granting anticipatory bail. - What should an accused do if anticipatory bail is denied in an NDPS case?
- The accused should surrender before the Trial Court and may seek regular bail, which the Trial Court will consider independently on merits.