The Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) aims at restricting production, cultivation, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance by individuals, and regulation of operations relating to such substances. When a matter related to the NDPS Act comes before the Court, it is not easy to convince the Court to grant bail, specifically for NDPS bail in matters involving commercial quantity of contraband.
Similarly, the procedural aspects to be followed by investigating agencies as per the NDPS Act are also a bit diverse from other criminal matters. What remains similar is the burden of proof upon the prosecution. Therefore, whenever there is some confusion or gap vis à vis provisions of NDPS Act and the particular facts of the case, specific orders and judgments of Supreme Court on NDPS Act come to the rescue of parties. Even those of High Courts support the stance if the specific case so requires.
Here in this blog, some of the important NDPS decisions of the Supreme Court and High Courts in 2023 have been jotted down covering a variety of matters related to bail, specific provisions, conviction or acquittal in NDPS case.
Quashing of case/ Acquittal in NDPS Case
Highlighting the prosecution’s miserable failure in knitting together the circumstances and pointing towards the hypothesis of appellants’ complicity beyond reasonable doubt, finding the link evidence to be completely missing, Punjab and Haryana High Court set aside conviction and acquitted the appellants convicted and sentenced under Sections 15, 61 and 85 of NDPS Act.
[Arjun Singh v. State of Punjab, 2023 SCC OnLine P&H 1044]
In a matter involving cultivation of appellant’s land by two accused persons wherein, ganja plants were being raised along with cotton crop, Andhra Pradesh High Court pointed out that it was not a case where the appellant was physically found in the land cultivating Ganja, nor that he was physically giving instructions to the two accused for carrying out agricultural operation. It further highlighted the gap by Excise Party not examining any revenue officials to ascertain the person in possession of the land in question. While the Trial Court put a negative burden upon the appellant regarding being owner or possessor of the land, the High Court found the said approach against the law. The Court opined that there was no legally admissible evidence against the appellant to convict him under Section 20(a)(i) of the NDPS Act and accordingly acquitted him.
[K. Chinna Rami Reddy v. State, 2023 SCC OnLine AP 3876]
In a challenge against detention order under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Jammu and Kashmir and Ladakh High Court quashed the order while noting that the live link between the petitioner’s illicit activities was snapped, and that the Daily Diary Reports (DDRs) presented was vague and bereft of necessary details regarding specific criminal activities.
[Kewal Krishan v. Home Department, 2023 SCC OnLine J&K 941]
NDPS Bail 2023: Grounds for bail in NDPS Act Case
In a matter involving offences under Section 8 read with Section 18 and 25 of NDPS Act, Supreme Court noted that the trial was not likely to be concluded sooner, and the accused was incarcerated for over six years as an under-trial prisoner. Thus, the accused was granted bail being subject to appropriate bail conditions.
[Deva Ram v. State of Rajasthan, 2023 SCC OnLine SC 1267]
While analyzing Section 42 of NDPS Act dealing with the power of entry, search, seizure and arrest without warrant or authorization, the Court considered facts of the case involving commercial quantity of contraband and expressed doubt on the recovery of contraband from a 22-year-old young boy having no criminal antecedents, and granted bail to the petitioner.
[Shivraj Gorakh Satpute v. State of Maharashtra, 2023 SCC OnLine Bom 1996]
The matter involved recovery of illegal Ganja of 173.05 Kg, and the accused appellant was suffering from spinal disorder seeking bail on medical grounds. Keeping in view the nature of illness, the Court deemed it appropriate for the petitioner to avail remedy for appropriate treatment according to his specific requirements. Hence, the Court ordered the petitioner to be released on interim bail for 6 weeks.
[Sanjay v. Union of India, 2023 SCC OnLine SC 840]
In a petition seeking regular bail for offences under Sections 8(c), 21(c), 23(c), 27(a), 29 of the NDPS Act, involving smuggling heroin concealed in licorice roots (mulathi), Delhi High Court highlighted material on record which suggested that the petitioner had clean antecedents, a reputation in the industry, and no apparent connection with other accused persons. The Court opined that the petitioner was entitled to be enlarged on bail.
[Vipin Mittal v. National Investigating Agency, 2023 SCC OnLine Del 3270]
Meghalaya High Court granted bail to NDPS accused due to special consideration since she was suffering from Human Immunodeficiency Virus (‘HIV’) and undergoing treatment for the same. However, while allowing bail in NDPS matter, the Court imposed bail conditions while she was allowed to recuperate from her suffering in an environment congenial to her.
[Lalrintluanga Sailo v. State of Meghalaya, 2023 SCC OnLine Megh 562]
The prime accused in the instant matter was found in possession of concealed 40.5 Kg of Ganja, Kerala High Court pointed towards the thin line of difference between ‘setting aside of an unjustified, illegal, or perverse order by a superior court’ and ‘cancelling bail by Court on the ground of accused’s or because of some new facts requiring such intervention’ as explained in Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 and found the cancellation of bail by the Special Judge to be justified for being involved in another crime while being on bail.
[Navas v. State of Kerala, 2023 SCC OnLine Ker 3670]
No person accused of trading commercial quantity of narcotics to be released on bail without Court’s satisfaction of reasonable grounds proving innocence
In a matter involving 1005 Kg ganja with the accused being revealed to be the kingpin and organizer of ganja trade, of Supreme Court made it clear for the Courts to grant bail in matters involving commercial quantity of narcotics only in cases where there is satisfaction regarding innocence of the persons involved.
[Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346]
Noting the fact that the accused was involved in another NDPS matter and absconding the same, the Court pointed towards the unlikeliness in being implicated in multiple FIRs at the whims and fancies of the Investigating Agency, the Court refused to grant bail.
[Mohd. Rayyan Ansari v. State of Haryana, 2023 SCC OnLine P&H 1904]
In a matter wherein the accused along with 5 others was alleged to be transporting contraband ganja, weighing around 476 kgs to Punjab, Orissa High Court expressed that the case could not be falsified in its entirety since other witnesses were yet to be examined and the witnesses examined so far did not support the applicant’s case. Thus, the Court refused to extend bail while particularly eyeing at the large quantity of contraband.
[Bama Devi v. State of Odisha, 2023 SCC OnLine Ori 6429]
NDPS Procedural Provisions
In an appeal filed by Union Government against the bail order passed by Bombay High Court, granting bail to Bollywood actress Rhea Chakraborty, Supreme Court’s division bench agreed to keep open the question of law regarding interpretation of Section 27-A of NDPS Act under which a person can be sent to jail for a maximum of 20 years for financing illicit traffic and harbouring offenders, and kept the question open for challenge at an appropriate time.
The Trial Court allowed detention of accused for another 180 days without informing the accused or his counsel to affirm information regarding pendency of application under Section 36-A(4) of NDPS Act, Kerala High Court quashed the orders for extending detention, and thereby released the accused on regular bail.
[Sabarinath v. State of Kerala, 2023 SCC OnLine Ker 3666]
Every Panch, Sarpanch, other village officer of any description and landholder duty bound to immediately furnish information of illegal cultivation: HC
In a case dealing with illegal cultivation of opium poppy, Madhya Pradesh High Court held that Ss. 46 and 47 of NDPS Act casts legally bound duty on every Panch, Sarpanch, other village officer of any description and landholder to immediately furnish information of illegal cultivation as soon as it comes within their knowledge and not to neglect the same, whether knowingly or unknowingly or intentional or accidental, to forward to the Authority concerned.
[Gopal Krishna Gautam v. Union of India, 2022 SCC OnLine MP 4405]
In a first, Supreme Court allowed bail to an accused in NDPS matter while directing him to make available his location through mobile phone by pairing it with the mobile phone of the investigating officer round the clock.
[Puranmal Jat v. State of Rajasthan, 2023 SCC OnLine SC 1418]
After considering the fact that the recoveries made from the accused were in ‘small quantity’ and observing that the statements recorded under Section 67 of the NDPS Act were inadmissible in evidence according to Section 25 of the Evidence Act, 1872 (‘IEA’), Delhi High Court granted bail to the said accused.
[Jasbir Singh v. Narcotics Control Bureau, 2023 SCC OnLine Del 134]