drugs

Case BriefsSupreme Court

Supreme Court: In a case where a Pakistan national was convicted under the NDPS Act by two Courts in two different trials and it was argued that the sentences should run concurrently, the bench of MR Shah* and BV Nagarathna, JJ has held that the offences under the NDPS Act are very serious in nature and against the society at large, hence, no discretion under Section 427 CrPC shall be exercised in favour of such accused who is indulging into the offence under the NDPS .

Factual background

In the case that dates back to 1999, the appellant – accused was convicted by two different courts in two different trials for the offences with respect to the different transactions.

  1. Amritsar Court: Sentenced to undergo 12 years RI for the offence under Section 23 and Section 21 of the NDPS Act by Amritsar Court for having in possession of 4 kg of heroin.
  2. Delhi Court: Sentenced to undergo 15 years RI for the offence under Section 29 read with Section 21(c) of the NDPS for having 750 grams of heroin.

The judgments in both the cases were delivered one after another and in the subsequent judgment by the Delhi court there is no specific order passed stating that the sentences have to run concurrently.

It was argued that the conduct of the appellant, who was 30 years of age when he was convicted and presently, he is 52 years old, in jail is good and there is no adverse remark made against him by the Jail Superintendent. Hence, the two sentences which the appellant is now undergoing, may be held to run concurrently under Section 427 Cr.P.C.

Analysis

Section 427 of Cr.PC – Explained

Under Section 427 of Cr.PC, when a person who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been   previously sentenced.  Meaning thereby the sentences in both the conviction shall run consecutively.

However, there is an exception to that, namely unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Further, as per Sub-section (2) of Section 427 of Cr.PC, when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Therefore, in aforesaid two cases only the subsequent sentence shall run concurrently with previous sentence. Otherwise the subsequent sentence shall run consecutively and the imprisonment in subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced.

Principles laid down in a series of Supreme Court Rulings

(i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

(ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

(iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 of Cr.PC;

(iv) under Section 427 (1) of Cr.PC the court has the power and discretion to issue a direction that all the   subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.

Discretion under Section 427 CrPC

Even otherwise as observed hereinabove under Section 427 (1) of Cr.PC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous sentence in that case also, the discretion has to be exercised judiciously depending upon the nature of offence or the offences committed.

“No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole.”

Therefore, it was noticed that while awarding the sentence or punishment in case of NDPS Act, the interest of the society as a whole is required to be taken into consideration and even while applying discretion under Section 427 of Cr.PC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in the narcotic drugs and psychotropic substances.

Hence, even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed.

Ruling on facts

The Court outrightly rejected the submission of the appellant – accused that his subsequent sentence to run concurrently with the previous sentence as,

  • the appellant has been convicted with respect to two different transactions, there are different crime numbers and the cases have been decided by the different judgments.
  • there is no specific order or direction issued by the court while imposing the subsequent sentence that the subsequent sentence to run concurrently with the previous sentence.

[Mohd. Zahid v. State through NCB, 2021 SCC OnLine SC 1183, decided on 07.12.2021]

Counsels

For appellant: Advocate Sangeeta Kumar

For State: Advocate Akaanksha Kaul

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Punjab and Haryana High Court: Manoj Bajaj, J., directed for disciplinary action against the Presiding Officer of the Trial Court who had granted bail to one accused in an NDPS case by neglecting the materials on record.

The case against the petitioner was that when he was signalled to stop by the Police for search of contraband, he had suddenly run his vehicle over police party with intention to kill and the person sitting behind driver seat fired firearm shot at police party. Also, during search of the vehicle about 320 kgs. 150 grams Ganja was recovered from it. Consequently, a case was registered against the petitioner under Sections 20, 25, 27, 61 NDPS Act, 1985, Section 25 Arms Act, 1959, Sections 307 and 420 of Penal Code, 1860.

The petitioner had sought for concession bail on parity as, by an 01-11-2021, the Additional Sessions Judge had granted bail to the co-accused, namely, Pardeep. The petitioner contended that the prosecution had set up a common case against both the accused persons. The petitioner also contended that the contraband recovered would not fall within the definition of Ganja.

Findings of the Court

Finding the argument that the recovered contraband would not fall within the ambit of NDPS Act,1985 as misplaced, the Bench observed that as per FSL report, the sample tested was identified as `Ganja’.

The Bench opined that as per the definition under S. 2(iii)(b) of NDPS Act, though seeds and leaves in the absence of fruiting tops may not fall within the definition of Ganja, but where the seeds or leaves are accompanied by tops, the said material would not be excluded from the definition of Ganja. The physical appearance of the material as contained in the FSL report; i.e. recovered from accused described it as “greenish brown vegetative material having flowering/fruiting tops and seeds etc.”  

Therefore, the order relied by the petitioner revealed that the Trial Court proceeded to grant regular bail to co-accused Pardeep on the ground that neither the applicant was arrested from the Tempo Traveller, nor the FSL report relating to alleged contraband had been received. Further, the Trial Court had also noted the clean antecedents of the co-accused and the fact that the alleged supplier did not name the said co-accused as a reason to extend concession bail to the co-accused.

Noticeably, the observation that the co-ccused, Pardeep was not arrested from the Tempo Traveller gives an impression that he was not present at the spot, whereas as per prosecution, the driver had tried to escape in a violent manner in order to avoid arrest and seizure of contraband. Strangely, the FSL report was filed on 03-06-2021 before the Trial Court, but it was not referred to at all by the Presiding Officer, who extended the bail with the observation that the report was yet to be filed. As a result, the Bench opined that the order dated 01-11-2021 had been passed by the Additional Sessions Judge in an arbitrary manner by twisting the facts in order to extend the benefit of regular bail to the co-accused.

Decision

Holding that the Presiding Officer had extended the concession of regular bail to the co-ccused, Pardeep by deliberately ignoring the material on record, and exercised the discretion in favour of accused by violating the sound judicial principles and that amounts to grave misconduct on his part, the Bench directed for a disciplinary action against the Presiding Officer. The regular bail granted to the co-accused, Pardeep by the Trial Court was cancelled and he was directed to surrender before the Trial Court. The bail application of the petitioner was withdrawn. [Ajay Kumar v. State of Haryana, Criminal Misc. No.31752 of 2021, decided on 01-12-2021]

Kamini Sharma, Editorial Assistant ahs reported this brief.

Appearance by:

For the Petitioner: Dushyant Saharan, Advocate

For the State: Bhupender Singh, DAG, Haryana

For the Co-accused: R.A.Sheoran, Advocate

Case BriefsHigh Courts

Bombay High Court: Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Crucial Question:

A question which would have a bearing in several Narcotics Drugs and Psychotropic Substances (NDPS) cases, in which blotter paper containing Lysergic Acid Diethylamide (LSD) is seized, arose in the present petition.

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Analysis, Law and Decision

What is LSD?

It is an extremely potent hallucinogen, synthetically made from lysergic acid, found in ergot, a fungus grown on rye and other grains.

Its effects, often called a ‘trip’ can be stimulating, pleasurable and mind altering or it can lead to an unpleasant, sometimes terrifying experience called ‘a bad trip’.

Unlike toilet paper or even tissue paper, blotter paper appears to be made out of an extra-absorbent material and generally includes ingredients such as rice, cotton and even flax seed. It is impossible to visually identify the strength or type of drug when buying.

Further, it is stated that LSD is often added to absorbent paper, such as blotter paper. As noted above, the paper is divided into small, decorated squares (or tabs) with each square representing one dose called a ‘hit’. LSD can also be found in thin squares of gelatin. LSD is taken by mouth and swallowed or also licked off blotter paper.

LSD is a potent, long-lasting psychoactive substance.

Court stated that LSD put on a blotter paper, is capable of being swallowed, after placing it on the tongue. It is thus evident that the blotter paper is capable of being swallowed and is used as one of the methods for consuming LSD.

Merely because the said blotter paper can be licked or put in a glass of water, does not necessarily mean that the blotter paper has to be excluded whilst determining the LSD on the blotter paper.

High Court opined that, a blotter paper, a carrier material, ingested with LSD, forms an integral part of the ingestion by the user of the drug and thus, constitutes preparation of the psychotropic substance i.e. LSD.

Elaborating further, Court added that once it is accepted that a blotter paper ingested/impregnated with LSD, is used as a medium of consumption, the same will squarely fall within the definition of the term ‘preparation’, as defined in Section 2 (xx) of the NDPS Act.

Hence,

The blotter paper impregnated or ingested with LSD will have to be considered as a whole, whilst determining whether the quantity is a small or commercial quantity.

With respect to the findings of Supreme Court in Hira Singh  v. Union of India, 2020 SCC OnLine SC 382, the object and legislative intent behind enacting the NDPS Act, High Court held that the blotter paper forms an integral part of the LSD, when put on a blotter paper for consumption and, as such, the weight of the blotter paper containing LSD will have to be considered for the purpose of determining small or commercial quantity of the offending drug. [Narcotics Control Bureau v. Anuj Keshwani, 2021 SCC OnLine Bom 4548, decided on 29-11-2021]

Advocates before the Court:

Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar, Mr. Advait Sethna, Mr. Shreeram Shirsat, Ms. Smita Thakur, Mr. Pranav Thacker and Mr. Amandeep Singh Sra for the Petitioner

Mr. Rizwan Merchant a/w Mr. Taraq Sayed, Ms. Gayatri Gokhale and Ms. Zainba Abdi for Respondent No.1

Mr. S. S. Hulke, A.P.P for the Respondent No. 2– State

Case BriefsHigh Courts

Punjab and Haryana High Court: B.S. Walia, J., held that merely informing that accused has rights under the NDPS Act, without specifying what rights he has will not constitute compliance with the mandatory requirement under Section 50 sub- Section (1) NDPS Act.

The sole argument of the petitioner was that although the alleged recovery from him was of 523 grams of heroin powder and from his co-accused was of 394, 20, and 803 grams respectively, i.e. commercial quantity, since the petitioner was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate if he so desired, therefore, there was non-compliance with Section 50 NDPS Act, consequentially, the bar under Section 37 NDPS Act would not apply, resultantly the petitioner was entitled to grant of bail during the pendency of the trial.

On the contrary, the State had referred to the notice u/S 50 NDPS Act to contend that the petitioner was informed, of apprehension of the police that he had some intoxicating material/heroin with him, his rights, besides option to get his search conducted by a Magistrate or Gazetted Officer for which the said Officer could be called on the spot, therefore in the circumstances, there was due compliance with the mandate of Section 50 NDPS Act.

In State of Delhi v. Ram Avtar, (2011) 12 SCC 207, the Supreme Court had observed that, “……while discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.”

Noticeably, though the notice under Section 50 of the NDPS Act was sent to the petitioner apprising him of his rights but the said notice was absolutely silent as to what rights were apprised to the petitioner as also whether he was apprised of his right under Section 50 NDPS Act, to be searched in the presence of a Magistrate or a Gazetted Officer.

Observing that the impugned notice merely mentioned the petitioner having been informed of his rights as also the option if he so desired to get his search conducted by a Magistrate or Gazetted officer, the Bench stated,

“To my mind, merely informing the petitioner that he had rights under the NDPS Act, without specifying what rights the petitioner had under the NDPS Act, would not constitute compliance with the mandatory requirement under Section 50 sub- Section (1) NDPS Act.”

Hence, noticing that the mandatory requirement under Section 50(1) NDPS Act not having been complied with and the punishment provided for an offence under the NDPS Act being very stringent, the Bench held that failure to comply with Section 50 NDPS Act had rendered the recovery of the illicit article suspect. The Bench stated,

“Since, the requirement under Section 50 NDPS Act is not merely a technical breach, and the petitioner is not involved in any other case under the NDPS, therefore, in the circumstances…it can safely be recorded that this Court is satisfied that there are reasonable grounds to believe that the petitioner is not guilty of such offence and that he is not likely to commit any such offence while on bail.”

Considering that the petitioner had been in custody since 21-01-2021, and the investigation was complete, and a Challan had been presented, the Bench directed to release the petitioner on regular bail on his furnishing bail bond and surety bond to the satisfaction of the Trial Court. [Sunil v. State of Haryana, CRM-M No.28067 of 2021, decided on 02-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Preetinder Singh Ahluwalia, Advocate and Shaurya Puri,

For the State: Gurbir Singh Dhillon, AAG Haryana (Argued by Mr. Naveen Kumar Sheoran, DAG, Haryana)

Case BriefsHigh Courts

Punjab and Haryana High Court: Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

The petitioner had approached the Court for seeking default bail in a case under Section 20(b) of the NDPS Act. The contention of the petitioner was that the challan had been filed without the FSL report, and therefore, he would be entitled to default bail in terms of Section 167(2) CrPC. The allegation against the petitioner was that 1kg 600 grams of ‘ganja’ was recovered from him.

Reliance was placed by the petitioner on State of Haryana v. Dildar Ram, CRM-M-25600-2021, wherein it had been held that filing of the challan without FSL report would not be regarded as a complete challan and, therefore, the accused would be entitled to default bail in terms of Section 167(2) CrPC. Similarly, in Ajit Singh v. State of Punjab, CRR No.4659 of 2015, it was held that the report of the FSL with regard to the nature of the recovered substance would go to the root of the matter and, therefore, a challan filed without the FSL report with regard to the nature of the substance would be an incomplete challan and would not satisfy the requirement envisaged under Section 167(2) CrPC.

In Ajit Singh v. State of Punjab, CRR No.4659 of 2015, the Court had observed the following:

“We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner’s report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused’s culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused’s involvement in the commission of offence under the Act.”

In the light of the above judgment, the Bench held that since the challan had been filed without the FSL report in the instant case, the petitioner would be entitled to be released on default bail in terms of Section 167(2) CrPC.  Accordingly, the petitioner was ordered to be released on default bail on his furnishing requisite bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.[Bhim Sain v. State Of Haryana, CRR No. 1300 of 2021, decided on 28-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: V.B. Godara, Advocate

For the Respondent: Aditi Girdhar, AAG, Haryana

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application which was filed for grant of regular bail for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act, 1985”).

FIR stated that Sub-Inspector along with other police officials were present at Ataria for routine checking. The applicant was coming from Ataria with a bag. On suspicion, he was apprehended and 430 gram of charas was recovered from his bag.

Counsel for the applicant, Mr Anil Kumar submitted that the applicant had been implicated in this matter; he is a student; no contraband was recovered from his possession; the applicant had no criminal history; mandatory provisions of the Act, 1985 were not complied with.

A.G.A. for the State, Mr Pratiroop Pandey fairly conceded that the applicant had no criminal history but opposed the bail application.

The Court concluded that in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram of charas was small quantity and greater than one kg of charas was commercial quantity (Entry No.23).

Court further added that Refusal of bail is a restriction on the personal liberty of an individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the investigation is not punishment. The main purpose is manifestly to secure the attendance of the accused.

Court allowed the bail application holding that there was no reason to keep applicant behind the bars for an indefinite period.

[Harish Melkhani v. State of Uttarakhand, 2021 SCC OnLine Utt 1146, decided on 07-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Central Government after consultation with the Ayurveda, Siddha, Unani Drugs Technical Advisory Board, notifies Drugs (4th Amendment) Rules, 2021 to amend the Drugs Rules, 1945.

 

The amendment modifies the following provisions:

  1. Rule 153 dealing with Application for licence to manufacture Ayurvedic (including Siddha) or Unani drugs. The fee has been revised from one thousand to two thousand.
  2. Inserted a new provision Rules 153 B dealing with Application for Certificate of Good Manufacturing Practices for Ayurvedic, Siddha or Unani drugs manufacturing unit.
  3. Rule 154 dealing with Form of licence to manufacture Ayurvedic (including Siddha) or Unani drugs has been amended to make modifications in the period in which a licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25D  from the date of receipt of the application or from the date of compliance by the applicant of shortcomings. Earlier, the period was 3 months but now the period has been modified to two months.
  4. Rule 154 A dealing with Form of loan licence to manufacture for sale of Ayurvedic, Siddha or Unani drugs has been modified to insert the period within which a loan licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25E. The Loan License shall be issued within a period of two months from the date of receipt of the application or from the date of compliance of shortcomings.
  5. Rules 155 dealing with Certificate of renewal and 155A dealing with Certificate of renewal of a loan licence of the principal rules, shall be omitted.
  6. Rule 156 dealing with duration of license has been amended to modify the vaildity period from 5 years to remain perpetually valid.

Provided that the licencee shall submit a self declaration of adherence to the conditions of licence and the
provisions of the Drugs and Cosmetics Act and the rules made thereunder, every year from the date of issue of licence in form 25 D or from the date of submission of last self declaration, as the case may be .

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, Cj., and G. S. Kulkarni, J., expressed its displeasure on casual attitude of the authorities in complying with the Court’s orders. The Bench, while criticizing the strategy adopted by the State government for allocation of Remdesivir drug to the hospitals, said,

“The allotment of Remdesivir appears to have been made on the basis of ‘functional bed capacity’ of each of the hospitals. Such allocation whether would cater to the actual need of the patients has not been explained to us.”

The Bench observed that the data furnished by the State Government did not reflect a clear picture in regard to availability of ‘Remdesivir’to the needy patients, as the same had been done on the basis of ‘functional bed capacity’ of each of the hospitals. Expressing displeasure on the effectiveness of such allocation, the Bench directed the State to file an affidavit indicating whether it would cater to the actual need of the patients. The Bench clarified it to the government,

“Our concern would be solely that no patient who is in actual need of the drug in the course of his treatment is deprived of the availability of such drug. It may also happen that such drug being allocated on the basis of ‘functional capacity’ may result into allocation in a hospital wherein there is no real time requirement of the said drug.”

Noticing that the numbers of active patients are reduced almost by two lakhs, the Bench opined that proportionately the Oxygen requirement also ought to have reduced. Hence, the State government was directed to place on record the correct position in regard to the availability of Oxygen.

With regard to the extra legal supply of the medicine/drug Remdesivir at the hands of political and film personalities, the Bench directed the central as well as the state government to submit their records as to how such drug, which is in such short supply, is available to these personalities for distribution to public at large. The Bench further asked reports on whether Remdesivir as supplied by these personalities would suffice the medical test of being non-spurious and genuine. Commenting on a recent trend of submitting “brief notes” in compliances of Court’s order, the Bench expressed its displeasure over such practices and said, “the compliances should be placed on record by way of affidavits. Henceforth we do not permit and continue this practice of submitting ‘brief notes’.”

In regard to the issue of the dashboard indicating the correct figures of availability of beds, the Bench urged the Municipal Corporations concerned and the State Government to have expert opinion of all the stakeholders so that the dashboard reflects the correct picture. The Court suggested the authorities to get inputs of the Air Traffic Controller/Civil Aviation Department and the Railways for correct reflection of the data, information and technology used by them for preparation of up-to-date dashboards. The Bench opined that such facility should not only meet urgent requirement during the pandemic, but it should be available throughout for times to come in regard to all kinds of ailments requiring hospitalization. Hence, the Union of India, State Government, Municipal Corporations and all other authorities were directed to deliberate on such issues and make an endeavor to prepare an ideal dashboard.

[Sneha Nirav Marjadi v. State of Maharashtra, 2021 SCC OnLine Bom 734, order dated 19-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Simil Purohit a/w Arshil Shah, Nirav Marjadi, Dharmapal
Dave, Parisha Shah, Pariket Shah, Vishal Raman, Smita
Durve and Drasti Jani
Counsels for the State:  Akshay Shinde, B Panel Council with Addl. G.P. Geeta Shastri
For Municiple Council of Greater Mumbai: A.Y. Sakhare with Rohan Mirpury and K. H.
Mastakar
Counsels for UOI: ASG Anil C. Singh a/w Aditya Thakkar with D. P. Singh, Yash Momaya i/b  Gul Asnani
Counsel for Pune Municipal Corporation: Abhijit Kulkarni

Counsel for the Intervener: Nitin P. Deshpande

Case BriefsSupreme Court

Supreme Court: In a case where a man was held guilty for being found in possession of 1 kg heroin which is four times more/higher than the commercial quantity, the bench of MR Shah* and Dr. DY Chandrachud, JJ has held that persons dealing with narcotic drugs are hazard to the society and therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is required to be taken in consideration.

Why was NDPS Act, 1985 enacted?

Before the NDPS Act came into existence,  the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that

(i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well- organized gangs of smugglers;

(ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries;

(iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments.

Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. Thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied.

Why Courts should be slow in mitigating the punishment?

In a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society.

Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole.

Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment.

Ruling on facts

In the present case, the appellant was the sole bread earner of the family and was a poor man. In such circumstances, the Court held that

“merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act.”

Even otherwise, in the present case, the Special Court, has taken into consideration the fact that the accused is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.

[Gurdev Singh v. State of Punjab, 2021 SCC OnLine SC 285, decided on 06.04.2021]

*Judgment by Justice MR Shah

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted bail to a person from whom LSD drops of LSD solution and charas was recovered on not finding the same to be under the commercial quantity.

On personal search, 10 square pieces of papers containing LSD drops of LSD solution were found with the applicant. Subsequently, on the same day, 13 pieces of brown colour papers each containing LSD drops of LSD solution were also recovered. Additionally, 970 gms of charas, kept in the cupboard was recovered.

In view of the above, the applicant was apprehended for the offences punishable under Sections 8(c), 20(b), 22(c) and 29 of the Narcotics Drugs and Psychotropic Substances Act.

Applicant submitted that the quantity of contraband recovered was less than the ‘commercial quantity’ and therefore rigors of Section 37 of the NDPS Act cannot be made applicable in his case.

Further, he added since the trial is also over, his presence can be secured by imposing certain conditions.

Analysis and Decision

Bench observed that the most common form of LSD is a drop of LSD solution dried into a piece of paper or gelatin sheet, pieces of blotting papers which release the drop when swallowed/consumed.

Process of drying LSD solution on a piece of paper, merely facilitates consumption of drug. The said process neither changes the substance of the drug nor its chemical consumption.

Court opined that once the piece of paper is swallowed it causes the release of the drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither “preparation”, within the meaning of Section 2(xx), nor a “mixture” within the meaning of the NDPS Act.

Bench dismissed the findings of Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise.

It was also noted that the Chemical Analyser’s report had shown the quantity of LSD drops solution to be 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Hence, the rigors of Section 37 of the NDPS Act would not be applicable in the instant case.

Since the applicant had no criminal antecedents, hence he was admitted to bail with certain conditions. [Hitesh Hemant Malhotra v. State of Maharashtra, Criminal Bail Application No. 352 of 2020, decided on 01-12-2020]

Advocates who appeared in the matter:

Advocate for the applicant: Suhas Oak i/by Vinod Utekar

APP for the State: Prajakta P. Shinde

Also Read:

Unmasking the Narcotics Drugs and Psychotropic Substances Act, 1985 [Explainer on certain provisions]

Case BriefsHigh Courts

Bombay High Court: Sarang Kotwal, J., while addressing the bail application filed by Actor Rhea Chakraborty in the Sushant Singh Rajput death case, considered several questions of law in regard to NDPS Act.

The present bail application was in regard to the case registered with Narcotics Control Bureau (NCB) for the offences under Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985.

ANALYSIS

Counsel for the applicant Satish Maneshinde raised the issue, whether NCB was competent to conduct the investigation. ASG urged that the Supreme Court in  Rhea Chakraborty v. State of Bihar,  2020 SCC OnLine SC 654 directed that the CBI should investigate any other case registered on the death of actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death.

Further, the ASG stated that the investigation conducted by NCB does not relate to the death of Sushant Singh Rajput and the consumption of drugs by the later actor was only part of the investigation. The said investigation ran deep into uncovering a chain of illicit traffic and drugs.

Bench opined that the contentions raised by the ASG have to be accepted and Mr Maneshinde’s submission that NCB is not empowered to investigate are to be declined.

Bail provisions under the NDPS Act are laid under Section 37 of the said Act.

In accordance with the said Section, Court is required to provide an opportunity to the Public Prosecutor to oppose the relief. Further, the Court should be satisfied about two conditions:

  • Reasonable ground for believing that the applicant is not guilty of the offence.
  • The applicant is not likely to commit any offence while on bail.

Bench has decided the present matter based on the guidelines mentioned in the Supreme Courts decision of Union of India v. Rattan Mallik, (2009) 2 SCC 624.

Questions to be decided in the present application:

  • Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the Applicant is claiming her release on bail as a matter of right.
  • If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of the NDPS Act are applicable.
  • If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.

Whether all the offences under the NDPS Act are non-bailable?

Applicant’s Counsel stated that the offences involving small quantities of contraband are bailable and he relied on this Court’s decision in Stefan Mueller v. State of Maharashtra, 2010 SCC OnLine Bom 1974.

Court cited the decision of Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein the ambit and scope of Section 50 of the NDPS Act was decided.

In the above decisions of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 the amendment Act of 1988 was considered in detail and in clear terms, it was mentioned with no uncertainty that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.”

The above, categorical statement shows that Section 37, makes all offences non-bailable and lays down stringent conditions for grant of bail.

Hence, the High Court in the present matter, stated in view of the above that there is no further scope to argue that only some offences under the NDPS Act are non-bailable and other offences where punishment is less than three years are bailable as per Part II of the Schedule of CrPC.

Applicant’s Counsel particularly, Advocate Subodh Desai and Taraq Sayed contended that the above observations were ‘fleeting reference’ and do not have a binding effect.

To the above contention, bench stated that

Even obiter dictum of the Supreme Court is binding on this Court.

Supreme Court’s decision in Municipal Committee v. Hazara Singh, (1975) 1 SCC 794 was referred.

Further, the Court added that the observations in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 are in the nature of ratio decendi and they cannot be termed as fleeting reference.

In the case of Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638,  it was observed that even obiter of Supreme Court is of considerable weight.

Interplay between Sections 27A & 37

Applicant’s counsel raised another issue:

Section 37 indicates that rigours in granting bail are applicable for the offences involving commercial quantity and this concept will apply even to Sections 19, 24 and 27A of NDPS Act if only the offences involve commercial quantity.

Supreme Court in the decision of Union of India v. Niyazuddin Sk., (2018) 13 SCC 738 has enumerated the offences where special rigours apply.

“6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said section. They are:

  1. In the case of a person accused of an offence punishable under Section 19,
  2. Under Section 24,
  3. Under Section 27-A and

  4. Of offences involving commercial quantity.”

Hence the Supreme Court observed that there are 4 categories and the offences involving commercial quantity is a separate category that has no direct connection with the earlier 3 categories i.e. Section 19, 24 and 27A.

Scope of Section 27A of the NDPS Act

Section 27A states the Punishment for financing illicit traffic and harbouring offenders.

As per NCB, the applicant financed procurement of drugs for Sushant Singh Rajput and harboured him knowing that he was consuming drugs and therefore she has committed offence punishable under Section 27A.

Legislature wanted to attack the basic cause of illicit traffic o drugs. Therefore a separate Section 27A was introduced to check these activities which were the root cause of illicit traffic. “Financing” and “harbouring” such activities were, therefore specifically mentioned under Section 27A.

The word “financing” would necessarily refer to some activities involving illegal trade or business.

Hence, the allegations against the applicant of spending money in procuring drugs for Sushant Singh Rajput will not mean that she had financed illicit traffic.

Section 27A indicates that financing is in respect to illicit traffic through which the financer expects monetary or other returns. This Section makes harbouring a punishable offence.

Further, Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities.

Court observed that,

Section 27A will have to be interpreted harmoniously with other Sections as well as Objects and Reasons of the Act so that it attacks the illicit drug trafficking, but, does not extend to sentencing another accused more severely than the main offender.

Bench also disagreed with the submission that giving money to another for consuming drug would mean encouraging such habit and would mean “financing” or “harbouring” as envisaged under Section 27 A of the NDPS Act.

Allegations against the applicant

Applicant on some occasions had used her own money in procuring drugs and facilitated through her brother. For the said purpose, Sushant Singh Rajput’s employees were also used.

Bench stated that the applicant’s acts will not fall under Section 27A of NDPS Act.

The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh Rajput. It is NCB’s own case that the drugs were already consumed and hence there was no recovery.

There is nothing at this stage to show that the Applicant had committed any offence involving commercial quantity of contraband.

Court found that that there are reasonable grounds for believing that the applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity.

Applicant was not part of the chain of drug dealers, she did not forward the drugs allegedly procured by her to somebody else and has no criminal antecedents.

While granting bail, Court imposed the following conditions:

  • Applicant is directed to furnish PR bond in the sum of Rs 1,00,000 with one or two sureties in the like amount.
  • Applicant shall deposit her passport with the investigating agency.
  • Cannot leave the country without prior permission of Special Judge for NDPS.
  • Applicant shall attend the investigating agency on the first Monday of every month for a period of 6 months.
  • After her release on bail, the Applicant shall mark her presence at the nearest Police Station from her residence anytime between 11:00 a.m. to 5:00 p.m. to show her availability, for a period of ten days from her release.

[Rhea Chakraborty v. Union of India, 2020 SCC OnLine Bom 990, decided on 07-10-2020]

Also Read:

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., addressed a petition while reiterating the Supreme Court’s position in regard to Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 in view of bail.

Petition was filed under Section 439 Criminal Procedure Code, 1973 to enlarge the petitioner on bail. The case was registered for the offence under Section 20(b)(c) read with Section 8 (c) of the Narcotics Drugs and Psychotropic Substances Act, 1985.

Petitioner contended that nothing was recovered from him and he was implicated in the commission of offence only for monetary benefit, whereas A1 and A2 were found transporting Ganja in contravention of the NDPS Act, 1985 which constitute an offence punishable under Section 20(b)(c) read with 8(c) of NDPS Act.

It was stated that in case the petitioner was granted bail, there was every possibility of interfering with further investigation in the matter.

Court’s Analysis and Decision

Bench stated that unless it will be satisfied with the requirement under Section 37 of the NDPS Act, the petitioner cannot be enlarged on bail as a matter of course in view of the Supreme Court’s decision in State of Kerala v. Rajesh, 2020 SCC OnLine SC 81 which relied upon the decisions reported in Satpal Singh vs. State of Punjab, (2018) 13 SCC 813 and Union of India v. Ram Samujh, (1999) 9 SCC 429, wherein it was held that,

“The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with non-obstanate clause”

“…The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.”

Hence in view of the above-stated reasons, and the principle laid down by the Supreme Court, bail was denied to the petitioner. [Chipurupalli Dali Naidu v. State of Andhra Pradesh, 2020 SCC OnLine AP 966, decided on 21-09-2020]

Op EdsOP. ED.

Narcotics Drugs and Psychotropic Substances Act, 1985 – What is it?

The aim and purpose of introducing this Act has been to induct stringent provisions which would regulate and prohibit the operations relating to narcotics drugs and psychotropic substances.

Let’s understand the basics of NDPS through some of the definitions laid down under Section 2 of the NDPS Act, 1985:

CANNABIS

Section 2(iii) Cannabis (hemp):

(iii) “cannabis (hemp)” means—

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish:

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared thereform;

(iv) “cannabis plant” means any plant of the genus cannabis;

2[(iv-a) “Central Government factories” means factories owned by the Central Government or factories owned by any company in which the Central Government holds at least fifty-one per cent. of the paid-up share capital;]

COCA

(v) “coca derivative” means—

(a) crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of cocaine;

(b) ecgonine and all the derivatives of ecgonine from which it can be recovered;

(c) cocaine, that is, methyl ester of benzoyl-ecogonine and its salts; and

(d) all preparations containing more than 0.1 per cent of cocaine;

(vi) “coca leaf” means—

(a) the leaf of the coco plant except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed;

(b) any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine;

COMMERCIAL QUANTITY

(vii-a) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;

ILLICIT TRAFFIC

([ viii-b]) “illicit traffic”, in relation to narcotic drugs and psychotropic substances, means—

(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances;

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or

(v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv);

other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder, and includes—

(1) financing, directly or indirectly, any of the aforementioned activities;

(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and

(3) harbouring persons engaged in any of the aforementioned activities;]

(xii) “medicinal cannabis”, that is, medicinal hemp, means any extract or tincture of cannabis (hemp);

OPIUM

(xv) “opium” means—

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 8 talks about the prohibition of certain operations.

No person shall –

(a) cultivate any coca plant or gather any Portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance

The said Sections contains the following exceptions:

Medical or Scientific Purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder.

Certain relevant case laws:

► Nature and Scope.— Section 8(c) lays down that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import, inter-State, export-inter-State, import into India, export from India or trans-ship any narcotic drug or psychotropic substance, except for medical or scientific purpose and in the manner and to the extent provided by the provisions of the Act, A. Vidya Prakash Goud v. State of A.P.,2003 SCC OnLine AP 1431

► Prohibition in relation to cannabis.— The Amendment Act does not create any new offence for the reasons that ingredients of the offence under the substantive provision, namely, Section 8 remain the same. The only quantum of punishment has been changed by the amending Act. Quantum of punishment has to be determined with reference to relevant provision in Section 20 as it stood at the time of the commission of offence, Supdt., Narcotic Control Bureau v. Parash Singh, (2008) 13 SCC 499.

► Exceptions.— Exceptions contained, held, must be judged on the touchstone of, first, whether drugs are used for medicinal purposes, and second, whether they come within the purview of the regulatory provisions contained in Chs. VI and VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985, State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356.

► Test for conscious possession.— Once an article is found in possession of accused, it can be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meanings in different contexts and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all statutes. A servant of a hotel cannot be said to be in possession of contraband belonging to his master, unless it is proved that it was left in his custody over which he had absolute control, Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347 : (2011) 3 SCC (Cri) 181.

► First-time offenders.— Appellants who were convicted under and sentenced to 15 yrs’ RI with fine of Rs 1.5 lakhs for carrying commercial quantity of brown sugar from one State to another as were first-time offenders, having no past antecedents of involvement in offence of like nature sentence deserves to be reduced to the minimum prescribed period of 10 yrs’ RI, Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570.

► Substances to which prohibition under Section 8(c), applicable.— Prohibition under Section 8(c) would be attracted to prohibited substances which are not mentioned in Schedule to NDPS Rules but are mentioned in Schedule to NDPS Act, and substances intended for medicinal and scientific purposes because they are prohibited under NDPS Act. NDPS Act does not contemplate framing of rules for prohibiting various activities dealing with narcotic drugs and psychotropic substances. It only contemplates framing of rules permitting and regulating any activity of dealing with such substances. Section 8(c) prohibits in absolute terms certain activities (like the present case involving import into and export out of India of any narcotic drug and psychotropic substances). Rules created under the NDPS Act cannot be understood to create rights and obligations contrary to those contained in the parent Act. Further held, mere fact that the dealing in narcotic drugs and psychotropic substances is for a medicinal or scientific purpose does not by itself lift the embargo created under Section 8(c). Such dealing (in present case import and export of prohibited substances for medicinal and scientific purposes) must be in the manner and extent provided in the NDPS Act, Rules or Orders. But the rules like Rule 53 or Rule 64, NDPS Rules cannot be the source of authority for prohibiting or dealing with narcotic drugs or psychotropic substances, Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1.

► Recovery of ganja.— It is enough to establish possession of place of recovery on part of accused and it is not necessary to establish ownership thereof on part of accused, Arutla Shankaraiah v. State of A.P., (2015) 15 SCC 235.

► Heroin.— Heroin is a chemical composition, not a Nitrogen-based compound, Laxmi Nagappa Koli v. Narcotic Control Bureau, (2015) 13 SCC 598 : (2016) 1 SCC (Cri) 656.

► Reversal of conviction.— In case of Alleged recovery of contraband from suitcase, statement of official witness, found impaired due to infirmities, is not safe to rely upon and pass conviction order. When statements of independent panch witnesses, depicting a different picture than one portrayed by official witness, as to recovery and seizure and recovery of narcotic substance, not proved beyond reasonable doubt, reversal of conviction by High Court, confirmed, Union of India v. Leen Martin, (2018) 4 SCC 490.

► Transportation of poppy straw.— Conviction under Section 8 r/w Section 15(c) for transportation of poppy straw (commercial quantity) in contravention of licence, confirmed. Furthermore, sentence cannot be reduced below the statutory minimum of 10 yrs mandated in Section 15(c), Gangaram v. State of M.P., (2019) 6 SCC 244.

Section 27 elaborates on the punishment for consumption of any narcotic drug or psychotropic substance.

  • Rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both; and
  • where the narcotic drug or psychotropic substance consumed is other than cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance with imprisonment for a term which may extend to 6 months, or with fine which may extend to Rs 10,000, or with both.

► Nature and scope.— Section 27 is in the nature of exception with reference to Section 20(b)(ii) of the Act and the burden to bring the case within the scope and ambit of Section 27 of the Act is certainly on the accused as compared to the burden on the prosecution, Arun Kambli v. State of Goa, 1999 SCC OnLine Bom 602.

► Condition precedent for applying Section 27(a), held, is that accused must show that seized goods had been kept for his personal consumption and not for sale, Karim Hussain Sohra Sindhi v. State of Gujarat, (2003) 10 SCC 49.

► Section 27: Ingredients of.— Under Section 27 the following ingredients should be fulfilled.—

(a) The person has been found in possession of any narcotic drug or psychotropic substance in ‘small quantity’;

(b) Such possession should be in contravention of any provision of the Act or any rule of order made or permit issued thereunder; and

(c) The said possession of any narcotic drug or psychotropic substance was intended for his personal consumption and not for sale or distribution. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145 (150): 1993 SCC (Cri) 803.

► Section 27, Explanation (1): Small quantity.— Where two pieces of charas weighing 7 gms and 5 gms respectively were recovered from the accused, but only one piece weighing less than 5 gms was sent for chemical analysis it could not be said 12 gms of narcotic drug was recovered from the accused. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145: 1993 SCC (Cri) 803.

► Section 27, Explanation (2): For his personal consumption and not for sale or distribution.— Where the quantity of the narcotic drug seized from the accused was proved to be less than 5 gms and the prosecuting case itself and the version of the accused was that it was meant for personal consumption of the accused, his conviction under Section 27 and not under Section 20(b)(ii) of the Act is proper. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, (1993) 3 SCC 145: 1993 SCC (Cri) 803.

► Commencement of subsequent term of imprisonment.— When a person already undergoing a sentence of imprisonment sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of imprisonment to which he was previously sentenced. Only in appropriate cases, considering facts of the case, can court make the sentence run concurrently with an earlier sentence imposed. Investiture of such discretion presupposes that such discretion be exercised by court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently, would depend upon nature of offence/offences and facts and circumstances of each case. Anil Kumar v. State of Punjab, (2017) 5 SCC 53.

One of the drawbacks of that this Act brings with it is that it presumes the guilt of the accused which brings complete responsibility of proving an individual’s innocence on him. Bail cannot be given to accused of offences which fall under Sections 19, 24 or 27A of the NDPS Act and those relating to commercial quantities of drugs.

Drugs

Small Quantity

Punishment

Commercial Quantity

Punishment

Intermediate (In-between

smaller & commercial

quantity)

Maximum of 1-year rigorous imprisonment or a fine up to Rs 10,000 or Both.

  

 

 

 

 

 

 

Rigorous imprisonment from 10 years (min) to 20 years (max) and a fine from Rs 1 lakh to 2 lakhs.

  

 

 

 

 

 

Rigorous imprisonment that may extend to 10 years & fine that may extend to Rs 1 lakh.

Heroin

 

 5g 250g
Opium

 

 25g 2.5kg
Morphine

 

 5g 150g
Ganja (cannabis) 1kg 20kg
Charas (cannabis resin)

 

 100g 1kg
Coca leaf

 

 100g 2kg
Cocaine

 

 2g 100g
Amphet-Amine 2g 50g
LSD 2mg 100mg

Offences under commercial quantities are non-bailable under Section 37 NDPS Act 1985. However, if the court finds that the accused is not guilty of offence or is not likely to indulge in the sale/ purchase of narcotic drugs, bail can be granted.

Further, punishment for several offences under Sections 15–23 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, lesser and immediate quantity,

NDPS Act has been in the news and several media reports for past few weeks due to some high profile cases being on the radar, hence to get clarity on certain important provisions of the Act, the above short explainer will definitely give an understanding of what the NDPS Act is all about.

† Legal Editor, EBC Publishing Pvt. Ltd.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has held that Medical Oxygen IP and Nitrous Oxide IP falls within the ambit of ‘drugs’ under Section 3(b)(i) of the the Drugs and Cosmetics Act 1940 and are consequently covered in Entry 88 of the Andhra Pradesh Value Added Tax Act 2005. It said,

“Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act.”

The Court noticed that the comprehensive nature of the definition of ‘drugs’ under Section 3(b)(i) includes both medicines and something other than medicines, but which are used for treatment. A substance may be a product, which though not specifically used as a medicine is used for diagnosis, treatment, mitigation or prevention of diseases. Where a product other than a medicine is intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder, the same would be a „substance? falling within the ambit of Section 3(b)(i).

Explaining the law on interpretation, the Court said that the words of a statute should be first understood in their natural, ordinary or popular sense and phrases and sentences should be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. It, hence, noticed,

“The ordinary or popular understanding of the term medicine is characterized by its curative properties in general and specifically, its use for or in diagnosis, treatment, mitigation or prevention of any disease or disorder.”

Medical Oxygen is used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. In order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects.

[State of Andhra Pradesh v. Linde India Ltd.,  2020 SCC OnLine SC 362, decided on 13.04.2020]

Case BriefsForeign Courts

Supreme Court of Singapore: The Bench comprising of CJ Sundaresh Menon and Judith Prakash JA and Tay Yong Kwang, JJ., allowed an appeal filed against the order of the lower court whereby the trial court had convicted the respondent for attempting to import into Singapore a Class C controlled drug and sentenced the respondent for 15 years’ imprisonment.

The main issue that arose before the Court was whether the respondent had rebutted the presumption of knowledge of the nature of the drug under Section 18(2) of the Misuse of Drugs Act.

The Court observed that as per Section 18(2) of the Misuse of Drugs Act, the person who is found in possession of a certain class of drugs is presumed to have knowledge of the nature of drugs in his/her possession and in order to rebut this presumption, the respondent must give an account of what he thought it was. The Court observed that the respondent was in possession of illegal drugs and a mere statement that he did not know about the nature of drugs in his possession or that he had never heard of diamorphine or heroin, does not automatically rebut the presumption under Section 18(2). The respondent claimed that the drugs he was carrying were not diamorphine, however, if he did not know what diamorphine was then a statement about the drugs not being diamorphine is not sufficient. It was incumbent upon the respondent to find out the nature of drugs he was carrying before importing them into the territory of Singapore.

The Court held that the respondent failed to rebut the presumption under Section 18(2) of the Act. For this simple reason, the Court allowed the appeal and convicted the respondent on the original charge of importation of diamorphine under the Misuse of Drugs Act. [Public Prosecutor v. Gobi A/L Avedian, [2018] SGCA 72, order dated 25-10-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajeev Sharma and Lok Pal Singh, JJ., was deciding a public interest litigation-writ petition that highlighted the opening of a liquor vend in the heart of Almora town near the District Hospital and Girls Inter College. The bench directed the State to curb the menace of free availability of narcotics including liquor to the youth.

The petition was filed alleging that the abovesaid liquor vend contravene the provisions of Uttar Pradesh Number and Location of Excise Shops Rules 1968, and also the instructions issued by the State Government in that matter as the said shop was established in the proximity of educational institution, which is prohibited. The High Court was of the view that such establishment should not have been permitted by the Government. Further, narcotics including liquor should not be readily available; liquor vends should be far away from educational institutions, busy hubs, commercial centers, hospitals, factories, etc.

The High Court observed that Article 47 of the Constitution, cast a duty upon the State to strive for the prohibition of consumption of liquor. It was observed that ‘drug abuse’ has broken the social fabric and destroyed many families. The Court noted that the smuggling of drugs into the State from border areas was on a rise; the police was not able to get hold of drug peddlers and especially their ‘kingpins’. The Court held that the menace of drug abuse has to be dealt with sternly. The kingpins apprehended in such cases are to be booked not only under NDPS Act but also under the Money Laundering Act which provides for prevention of money laundering and confiscation of property derived from, or involved in, money laundering and for matters connected therewith. The State was further directed inter alia to appoint more Drug Inspectors, constitute Special Operation Groups, set up check posts at Indo-Nepal Border, undertake special drives to uproot cannabis, establish Rehabilitation Center in each district, ensure that no minor is served any drug or alcoholic beverage, etc. The petition was disposed of in above terms. [Manoj Singh Pawar v. State of Uttarakhand,2018 SCC OnLine Utt 552, dated 18-6-2018]

Case BriefsHigh Courts

Patna High Court: An appeal challenging the conviction and sentence of the appellant under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985, was allowed by a Single Judge Bench comprising of Aditya Kumar Trivedi, J.

The appellant was alleged to have been caught with 30 kg of ganja. It was alleged that on receiving information as to the same, the police officials raided appellant’s shop. Though the appellant managed to escape, but 30 kg of ganja was recovered and sealed from his shop in presence of two witnesses. The appellant was charged under Section 20(c), NDPS Act. The Special Judge convicted and sentenced the appellant under the said section. Appellant challenged the decision of Special Judge.

The High Court perused the record and found that while the alleged recovery and seizure of the said contraband material, proper procedure as prescribed by the Act was not followed. Prosecution witnesses did not support the prosecution story. The delay of over six months in getting the FSL report was unexplained. The Court relied on Vijay Jain v. State of M.P., (2013) 14 SCC 527, and held that in the instant case, the prosecution was not able to connect the evidence available to the guilt of the accused. It was observed, “it is the quality and not the quantity which matters while appreciating the evidence in order to search out whether the facts in issue have been proved or not”. Further, mandatory procedures as required by the Act are to be strictly followed because the offence under Section 20(c) is technical offence prescribing stringent punishment. Having find that the investigation in the instant matter was not conducted in strict accordance with provisions of the Act, the High Court set aside the order of the Special Judge convicting and sentencing the appellant under the said section. The appeal was thus allowed. [Naresh Keshari v. State of Bihar,  2018 SCC OnLine Pat 939, dated 28-05-2018]

Case BriefsForeign Courts

Court of Appeal of Malaysia: The Bench comprising of Tengku Maimun Tuan Mat, JCA, Yaacob Haji Md Sam, JCA, Zabariah Mohd Yusof, JCA, affirmed the conviction and sentence to death in a case of possession of harmful and dangerous drugs.

In the present case, two appeals were combined on the same issue that was carrying of harmful and dangerous drugs named “Methamphetamine”. Both the convicts were convicted and sentenced to death for the offence of trafficking in dangerous drugs under Sections 39B(1)(a) and 39B(2) of the Dangerous Drugs Act 1952.

High Court’s analysis of the prosecution’s case was that the appellants were well aware of the fact of having drugs in their luggage and the reliance by the prosecution on Section 37(d) of the Act was proper. Consideration of the element of trafficking was invoked by Section 2 of the said Act. After the defence was put forward by the appellants it was found by the learned Judge that the defence was highly improbable and failed to raise any kind of reasonable doubt on the prosecution’s case, which resulted into their conviction and death sentence.

Court of Appeal did not find any appealable error on the part of the learned judge which the prosecution could establish. The important elements of the charge preferred against the appellants were:

* That the substance found were dangerous drugs as listed in the Act,

* Appellants were in possession of the said drugs,

* Appellants were trafficking in the said drugs.

Therefore, on finding no merits in the appeal filed, it was dismissed by confirming the conviction and sentence of the High Court. [Kong Rin (L) v. Public Prosecutor,2018 SCC OnLine MYCA 1, dated 08-05-2018]

Case BriefsHigh Courts

Madras High Court: While deciding upon the petition filed in public interest, praying before the Court to direct the concerned authorities to put an indelible identification mark upon the bodies of blood donors in order to curb the menace of drugs, the Division Bench of S. Nagamuthu and M.V. Muralidharan, JJ., observed that marking individuals who are donating blood, with an indelible identification mark especially in the absence of a legislation mandating the same, amounts to violation of right to privacy under Article 21 of the Constitution.

The petitioner appearing in person contended before the Court that in present times, the students are going astray. They are more into drugs and other intoxicating vices due to being misguided by unscrupulous elements of the society. The petitioner further stated that such misguided students end up becoming drug addicts and one of the sources for these students to spend money for the drugs is by way of donation of blood for which they receive money as consideration and out of the same, they purchase drugs for their consumption. The petitioner argued that putting an identification mark which would sustain for upto 3 months, upon the bodies of the donors will prevent such donors to donate blood for at least 3 months. The petitioner further prayed before the Court to direct the concerned authorities to constitute a special squad whose task will be to spread awareness amongst the youth about the harmful effects of narcotics.

Considering the plea, the Court stated that it would be a violation of fundamental right to privacy if the Court concedes to the arguments of the petitioner and directs the authorities to mark the blood donors. Therefore the Court refused to entertain this particular plea stated in the petition. However agreeing with the concerns raised by the petitioner, the Court observed that the Government sponsored sensitization events regarding the harmful effects of drugs are not enough to address the issue, and the same should be conducted with more intensity in the Colleges by involving psychologists, psychiatrists and the leading personalities of the Society. [M.Krishnaveni v. The Chief Secretary, W.P.(MD).No.1945 of 2016, decided on 02.11.2016]