Sujit Tiwari v. State of Gujarat and Another · 2020 INSC 101

Facts

Following intelligence concerning a suspicious vessel, the Indian Coast Guard intercepted MV Hennry on 29 July 2017, where the master and seven Indian crew members were unable to produce the relevant licences, permits or voyage documents, before concealed packets containing approximately 1,445 kilograms of narcotic substance were located in specially altered parts of the ship. The Narcotics Control Bureau subsequently investigated the recovery, filed a complaint against the persons allegedly involved in the voyage and proposed disposal of the consignment, included Sujit Tiwari who was the master's brother despite his having occupied a position different from those aboard the vessel.

According to the account attributed to the master, heroin had been loaded at Gwadar for a voyage initially directed towards Egypt, although the master and crew later decided to bring the consignment to India where they expected to obtain substantially greater proceeds through prospective buyers. The prosecution alleged that Sujit knew about the illegal venture, assisted his brother through communications concerning the crew, thereby participated in the conspiracy which had led to the unusually large recovery.

Sujit had been arrested on 4 August 2017 and remained imprisoned for more than two years when the Supreme Court examined his request for release, against a background in which the alleged connection to the venture depended principally upon messages and a statement subsequently retracted. Although the scale of the consignment supplied the setting for the prosecution, the Court confined its factual examination to what was necessary to decide this particular accused's bail application rather than attempting to determine every participant's responsibility.

Issues

The central question was whether the restrictions governing bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 prevented release where the applicant's alleged contribution was substantially different from that of the master, crew and persons connected with the proposed sale. This required a provisional assessment of the material linking Sujit to the drug conspiracy, taking account of the statutory requirements concerning reasonable grounds for believing that the accused was not guilty and the likelihood of further offending while released.

A separate question raised in argument concerned default bail under Section 167 of the Code of Criminal Procedure, 1973 read with Section 36A of the NDPS Act, because the defence asserted that investigation had not been completed within the prescribed period. The judgment recorded the dispute over that contention, although the reasoning which ultimately supported release addressed the individual merits of Sujit's position rather than resolving the competing interpretations of the default bail provisions.

Submissions

The appellant maintained that there was insufficient material connecting him with the offence, while also contending that the continued incompleteness of investigation entitled him to default bail under the procedural provisions governing the permitted investigation period. Those were distinct submissions because one questioned the strength of the alleged involvement, whereas the other asserted a right arising from the manner and timing of the investigation.

The prosecution opposed release by invoking Section 37, relying upon the conspiracy allegation within a case involving a very substantial narcotics consignment. In response to the default bail argument it submitted that the complaint had been filed within time, which it considered sufficient to defeat that claim even if further investigation remained incomplete.

Reasoning

Recognising the statutory restrictions at the outset, the Court examined the appellant's position without treating the quantity recovered from the vessel as a substitute for the evidence of his own participation. The relevant inquiry remained whether the material concerning this accused justified the restrictive consequence urged by the prosecution, since a common prosecution involving several individuals did not eliminate differences between their alleged roles.

The Court took the appellant's statement under Section 67 into consideration for this application despite its retraction, while expressly declining to settle admissibility because that question had been referred to a larger Bench. Consequently the decision neither held that every such statement was admissible nor rested on a conclusive ruling excluding this one, since the Court assessed the available allegation without prejudging the separately pending legal controversy.

Even on that approach, the Court found that beyond the limited messages and the retracted statement there was little additional evidence connecting Sujit with the conspiracy, which made his case materially different from the allegations against those who had controlled or accompanied the voyage. The prosecution's own account indicated uncertainty concerning knowledge at different stages, since even the master was said initially to have learnt of the cargo from the owner before the later decision to divert the ship towards India.

The particular communication attributed to Sujit concerned forwarding a crew list after removing certain names, allegedly to facilitate disembarkation, rather than his having personally transported or received the recovered heroin. While that communication required consideration within the prosecution narrative, the Court did not regard it as conclusively establishing at the bail stage that he knew drugs were being smuggled into India.

The expectation of receiving an enormous amount through an illegal activity could suggest awareness that the brother's enterprise was unlawful, although awareness of some unlawful activity did not necessarily establish awareness of the specific narcotics conspiracy alleged. This distinction mattered because the Court was considering the relationship between the material and the charged offence, which required greater precision than assuming that knowledge of illegality automatically proved knowledge of every feature of the consignment.

Against that evidentiary background the Court identified a reasonable possibility of acquittal, taking account of the appellant's distinct alleged role, his age of approximately twenty five years, his educational background and his imprisonment exceeding two years. Those circumstances formed a combined assessment of this record rather than a declaration that youth, education or a fixed duration of custody independently displaced Section 37 in every prosecution.

The judgment's repeated reservation concerning the merits preserved the difference between an assessment sufficient to justify bail and a final determination of innocence after trial. Its discussion therefore supports careful examination of individual involvement under the statutory restriction, while leaving the prosecution free to establish its allegations through the trial process.

Decision

The Court directed release upon a bond of ten lakh rupees with two sureties in the same amount to the satisfaction of the Special Judge at Porbandar, coupled with restrictions intended to secure continued availability and protect the investigation. The appellant was required to deposit his passport if he held one, remain either in Porbandar or Kolkata, supply his telephone number without changing it unless the trial court permitted the change.

Daily reporting at the designated investigating authority in Porbandar or the specified police station in Kolkata accompanied obligations to join investigation whenever called, refrain from interference, avoid delaying the trial once it began. These conditions gave practical effect to the Court's decision to release the appellant while retaining supervision appropriate to the pending proceedings, without converting the provisional assessment into an exemption from participation in the case.

The Narcotics Control Bureau was permitted to seek cancellation before the Special Judge if the conditions were violated, through which the order retained an express response to misuse of liberty. The appeal was disposed of on those terms, with the default bail contention remaining a recorded argument rather than a separately established holding of this judgment.