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

Kerala High Court: Instant writ petition was registered suo motu, taking note of the menace of drug consumption and trade in State. The Bench of S. Manikumar, CJ., and A.M. Shaffique, J., observed the difficulties faced by Police officials while using “Abon Kits” to spot cases drug consumption. The Bench suggested,

“Efforts have to be taken to identify whether any ‘user-friendly’ device, at the same time ‘less expensive’, is available, and if so, to cause it to be procured and make the same available to the Police, Excise, and such other departments for extensive use.”

 Ramachandran, former District Police Chief, addressed a letter to Judges of High Court highlighting various aspects of drug abuse in Kerala. The letter had thrown light on increasing rate of crimes committed by youths under the influence of drugs and its alarming growth in children/students of both genders. Pursuant to the letter and observing that issues concerning rampant drug abuse were recently reported in the editorials of major newspapers, the Court had registered suo moto petition in the matter.

The Bench observed reports of various organizations on this matter. International journal of community medicine and public health had reported that 31.8% of Kerala youth abuse any one of the substances-alcohol, smoking, pan chewing, narcotics— irrespective of time and frequency in lifetime. Report of the State Special Branch,  suggested that around 400 institutions in the State were affected by drug abuse and out of the education institutions, 74.12% are schools,  20.89% are colleges and professional institutions, and 4.97% are other institutions viz., ITI, Polytechnics etc. The report of NCRB had noted that in 2017 Kerala’s incidence rate for NDPS cases (cases per lakh people) was 16.6 percent, second only to Punjab’s 20.2 per cent.

The report also revealed that a range of drugs from Ganja, Hashish to Synthetic Drugs were used by the student community. The report further revealed that in most of the cases detected in the college campuses, the seizure was below 1 kg of ganja, which was bailable, and this encourages a person to engage in drug abuse.

“Apart from the narcotic and synthetic drugs usage being rampant among the student community, inhaling of Noxious chemicals like whitener, ink, fevicol, varnish solution used for repairing tyre puncture, were being used by the students for getting intoxication.

Noticing that the above substances did not come under the purview of NDPS Act, no legal action could be initiated; the Bench suggested three main strategies for drug prevention:

  • Mass media campaigns to inform and warn the public of the dangers of drug use.
  • Educating children at school about drugs.
  • Efforts to raise awareness and change the attitude in targeted groups, such as vulnerable and disadvantaged young people.

In Binu v. Union of India, 2011 SCC OnLine Ker 4151, this Court had expressed, nobody ha a right to expose the gullible population to the perils of drug abuse and push them into a condemned world of no return. The deleterious effects of these toxins on the human system have been scientifically proved.

Narcotic drugs and psychotropic substances have a sure tendency to depersonalize those who consume them and reduce them to worthless freaks of nature. Some of these drugs are so potent that even the first dose produces addiction with a craving for excess. Adolescents constitute the first causality among the vulnerable sections.”

Considering the entire material on record, the Bench issued following directions be complied with strictly, in letter and spirit, in accordance with law, within a period of three months:

  1. State should to adopt a method of establishing Campus Police Units, to conduct regular checking inside educational institutions. Measures should also be taken to make it easier for the police personnel to enforce NDPS Act, 1985, in the educational institutions.
  2. State was also directed to convene a meeting of all the key officials from the Department of Home Affairs, Excise, Health, Law, Education and representative of State Mental Health authority, Department of Social Justice, and chalk out programmes, to ensure reduction in the incidence of Substance abuse among teenagers and youth and for the implementation of the suggestions made above.
  3. The Universities/Colleges/School authorities should be provided with guidelines as a charter of duties and responsibilities, to make the campuses of the educational institutions, drug free.
  4. Police officials should seek the services of Student Police Cadets, NCC, NSS etc., to tide over the situation that the students are unaware of the legal repercussions of the usage and trafficking of drugs, and the health and career hazards caused due to the usage of drugs.
  5. Police was also directed to introduce a special scheme to ensure that the premises of the educational institutions and Universities are drug free and should initiate steps to conduct anti-drug programmes in the institutions, propagate health awareness campaigns, and use the assistance of social media.
  6. Police Chief was further directed to establish counselling and rehabilitation mechanisms, to save the students who were already using drugs and addicts, and for that purpose, the co-operation of University authorities, affected students, and their parents be elicited.[Suo Motu v. State of Kerala,  2021 SCC OnLine Ker 665, decided on 10-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Hot Off The PressNews

On 2nd December, 2020, the United Nations Commission on Narcotic Drugs (CND), by a vote of 27-25 with one abstention, agreed to follow the recommendations of the WHO and delete cannabis and cannabis resin from Schedule IV of the 1961 Convention but maintain it in Schedule I of the 1961 Convention.[1]

An article on the official UN website states that, ‘the CND has opened the door to recognizing the medicinal and therapeutic potential of the commonly-used but still largely illegal recreational drug’.[2]

Schedule IV is for that category of drugs which are considered to have particularly dangerous properties and limited or no therapeutic purposes. By removing cannabis from Schedule IV, therapeutic qualities of cannabis have been acknowledged, thus strengthening the international imperative for ensuring access to cannabis-based medicines[3]. However, the drug is still classified under Schedule I therefore, it’s sale and production etc will still be under strict controls.

India was among  the majority at the United Nations which voted to remove cannabis and cannabis resin from the list of most dangerous substances. 27 out of 53 member states including US and most European states voted to remove from Schedule IV where it was listed alongside deadly, addictive opioids, including heroin. The vote was close as 25 nations including China and Pakistan voted against the move, with Ukraine abstaining.

Under India’s Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, following the 1961 Convention, the production, manufacture, possession, sale, purchase, transport, and use of ganja (flowering or fruiting tops) and charas (separated resin) is illegal but use of seeds and leaves (for making bhaang etc) is not prohibited but under Government control.

The reclassification of cannabis from Schedule IV to Schedule I by the UN agency will not immediately change its status worldwide as individual countries continue with existing regulations. As many nations follow the lead of international protocols while legislating, this may bring a change to local laws of states in the future.


Nilufer Bhateja, Associate Editor has put this story together 

[Image by David Gabrić/Unsplash]

[1] United Nations Commission on Narcotic Drugs, Press Statement – 2 December 2020 

[2] UN commission reclassifies cannabis, no longer considered risky narcotic. UN News, 2 December 2020

[3] UN green lights medicinal cannabis but fails to challenge colonial legacy of its prohibition ,TNI, 02 December 2020

Also read: Cannabis: Your guide to what’s legal and what’s not in India

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 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that to prove the case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act), the ownership of the vehicle is not required to be established and proved.

The Court was hearing the case wherein accused were convicted for commission of offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance – Ganja.  As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motorcycle. It was argued that the prosecution having failed to prove the ownership of the motorcycle (vehicle) and/or failed to recover the motor cycle   subsequently, vitiates the prosecution case.

Taking note of the fact that in the present case the appellant and the other accused persons were found on the spot with the contraband articles in the vehicle, the Court said that it is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Therefore, merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot.

[Rizwan Khan v. State of Chhattisgarh, 2020 SCC OnLine SC 730, decided on 10.09.2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Surinder Gupta, J. dismissed an appeal filed against order of the trial court whereby the application filed by the prosecution under Section 311 CrPC was allowed.

The petitioner was facing the trial under Section 18 Narcotic Drugs and Psychotropic Substances Act, 1985.  As per the prosecution, the contraband recovered from the petitioner was initially deposited with MHC Dharam Singh and was later on handed over to HC Kulwant Singh. As such, being a material witness, MHC Dharam Singh was required to be examined to complete the link evidence in the case. The petitioner argued that the prosecution had closed its evidence. Thereafter, statement of the petitioner under Section 313 was recorded. Arguments were partly heard in which the petitioner raised an issue that the link evidence was missing in the case. It was alleged that in order to fill in the lacunae, the application under Section 313 was filed by the prosecution which was allowed by the trial court vide the order impugned.

The High Court perused the facts of the case and noted that it was apparent that the trial court found MHC Dharam Singh as a material witness. The instant was not a case where the petitioner was taken by surprise as the prosecution witness (Investigating Officer) had already disclosed that the case property (contraband recovered) was deposited with MHC Dharam Singh. It was a mere lapse that he was not examined before the conclusion of the prosecution evidence. The Court was of the view that the mere fact that application was moved after arguments had been partly heard or at the stage of defence evidence, is no reason to decline such application or curtail powers of the court to summon material witness. No error was found in the order of the trial court impugned herein. Accordingly, the revision petition was dismissed holding it to be sans merit. [Satyawan v. Vikas,2018 SCC OnLine P&H 1220, dated 01-06-2018]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur JJ., while setting aside the conviction and sentence imposed upon the appellant, stated that the evidence placed are too flimsy and contradictory to inspire confidence.

The factual matrix of the case was that the appellant was detained by the Air Intelligence Unit (AIU) at the NSCBI Airport while he was proceeding towards immigration and subsequently on interrogation and suspicion of possession of contraband a complaint was filed under Sections 21(b) and 23(b) of the NDPS Act. An X-Ray was conducted of the abdomen of the appellant further on being detained under surveillance at the AIU office, 49 pieces of bullet shaped capsules were allegedly recovered from the appellant’s stool. The contents which were recovered consisted of ‘Hashish’.

The appellant had denied all the charges by stating that the procedure to recover contraband was in violation of Section 103 of the Customs Act, also no order of the Magistrate in terms of Section 103(6) of the mentioned Act was obtained.

Therefore, the Court denying the contentions of the respondents and giving due consideration to the circumstances and facts of the case, stated that the appellant was kept under surveillance at the AIU office until the time he defecated ejecting the contraband from his body. The said move by the authorities was said to be a violation of the statutory scheme but also an infringement of the fundamental right under Article 21 of the Constitution of India, especially on no permission been taken from the magistrate for the same.

“Procedure entailing recovery of Narcotics/contraband from the body of the suspect requires invasion into the physical body of the suspect and an encroachment into his privacy such exercise should be in strict compliance with statutory safeguards”. [Mursaleen Mohammad v. Union of India,2018 SCC OnLine Cal 4885, dated 19-06-2018]