NDPS Act

Violation
Op EdsOP. ED.

   

Introduction

Narcotic drugs and psychotropic substances are commonly used for an ample number of medical and scientific uses (even in that case one has to obtain the required permit or authorisation) however they cannot be used or are abused and trafficked since they could be harmful to any society. India after the enactment of the Narcotic Drugs and Psychotropic Substances Act, 19851 (NDPS Act) has taken a strict approach through the statutory control over narcotic drugs which has also been envisaged under Article 47 of the Indian Constitution.2 It mandates that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. It is a special Act, and it has been enacted with a view to making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.ces.

The same principle of preventing the use of drugs except for medicinal use was also adopted in the three drug-related international conventions, namely, the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified the abovementioned conventions.

Look out circular (LOC) is issued to make sure that an individual (accused) who is absconding or wanted by law enforcement agencies is restricted to leave the country. It is mainly used at immigration checkpoints at international airports and seaports by the immigration branch. The look out circular is issued under Section 103 of the Passports Act, 1967 by the Ministry of Home Affairs (MHA) after considering the report provided by the Narcotics Control Bureau in the cases of NDPS.

Since the NDPS Act is a special Act passed by the legislature that has laid down its own procedure and implementation in terms of search and seizure and investigation. However, in cases of NDPS where a crime has a jail term of fewer than 7 years then investigating authorities could serve notice to the accused under Section 41(a) of the Criminal Procedure Code (CrPC)4 under the head “When police may arrest without warrant”. Bail provision and admissibility of the confession made by the accused under Sections 375 and 676 of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC.

Does an issuance of Look Out Circular violate Articles 19 and 21

The objective behind the NDPS Act is simply to consolidate and amend laws relating to narcotic drugs which aim to prohibit the consumption, trafficking, and cultivation of drugs; including manufacturing, distribution, sale, and purchase. Issuance of LOC in the NDPS Act is similar to that of other cases involving preventing an individual from absconding from the jurisdiction. The look out circular is different from an arrest since LOC does not necessarily lead to arrest. LOCs can be of different types. They can seek to merely restrict a person against whom it has been issued with an objective to inform the investigation agencies concerned. The performa of the LOC also contains a request to detain the individual at the local police/investigation agency, which generally leads to arrest.

It is an established law that Articles 197 and 218 are an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. For instance, if the investigation agency has failed to establish any evidence against the accused therefore the procedure laid down by the law of the country includes providing the right to be heard and every other procedural law then it would defeat the purpose of Articles 19 and 21 and could violate the right to free movement.

The right to travel abroad has been held to be a fundamental right protected under Article 21 of the Constitution of India. The Supreme Court in Satwant Singh Sawhney v. D. Ramarathnam9, after analysing various English judgments as well as judgments passed by the various High Courts in India concluded that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law.

The Supreme Court in Maneka Gandhi v. Union of India10 held that the right to travel abroad as a fundamental right guaranteed under Article 21 of the Constitution of India, vide para 35 of the said case the Supreme Court held as follows:

35. … the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or Article 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport can be impounded under Section 10(3)(c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of “interests of the general public”.

Further, in Priya Parameswaran Pillai v. Union of India11 the Delhi High Court held that the extent of abuse of the process was evident. The petitioner, an environmental activist, was termed an “exceptional case” as defined under the OM for indulging in “anti-national activities”. Accordingly, Ms Pillai was not informed about the LOC. The Delhi High Court held that the actions of the respondents were in violation of Ms Pillai's fundamental rights under Articles 21, 19(1)(a) and 19(1)(g) of the Constitution, and called for the withdrawal of such a LOC.

Further, in the judgment of Karti P. Chidambaram v. Bureau of Immigration12, the Madras High Court held that it is quite clear, that it can no longer be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While it may be true that the right to go abroad does not include the right to freedom of speech and expression; in some cases, the curtailment of the right to travel abroad could impact a citizen’s right of free speech and expression.

Also, in the judgment of Satwant Singh Sawhney v. D. Ramarathnam13, the Supreme Court held that the right to travel abroad was a part of personal liberty under Article 21 of the Constitution; in which Court relied on CBI v. Asif Khader14, it was submitted that there are prescribed guidelines for issuance of LOC and the respondent's case does not come under any of the requirements of the guidelines and therefore, there is no justification on the part of the petitioner in issuing a LOC which has the effect of restricting the movement of the respondent and thereby violating the right guaranteed to the respondent under Article 21 of the Constitution.

On the other side trail of judgments that favour the issuance of LOC, the Supreme Court while upholding the Madhya Pradesh Police Regulations in Gobind v. State of M.P.15 had struck a note of caution and vide para 28, observed as follows:

28. The right to privacy, in any event, will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.

Further, in Nikesh Tarachand Shah16 the Supreme Court while considering the question of fundamental rights pertaining to life and personal liberty, held that fundamental rights, particularly Article 21 of the Constitution, were nothing less than sacrosanct and that constitutional courts would come to the aid of a person who is able to demonstrate the violation of such sacrosanct rights.

Therefore, it can be said that after all, it all depends on judicial pronouncement since considering the factual scenario on case-to-case basis, a judicial mind should be applied to whether the procedure established by law has been followed or not and if not then it could well be said that it violates Article 19 read with Article 21 of the Indian Constitution.

What circumstances urge the issuance of LOC

The Allahabad High Court in G.S.C. Rao v. State of U.P.17 has held that such LOCs cannot be issued as a matter of course, but only when reasons exist where the accused deliberately evades arrest or does not appear in the trial court. In these circumstances, it was held in G.S.C. Rao case18 that condition precedent for issuance of the LOC was absent and the same was held liable to be set aside.

Further in the judgment of Sumer Singh Salkan v. Director19, where the Delhi High Court held that the respondent could not have issued a look out circular in the absence of any material fact and evidence with the respondent to conclude that the petitioner is deliberately evading arrest/trial. In Sumer Salkan case20, the following questions arose for consideration:

A. What are the categories of cases in which the investigating agency can seek recourse of look out circular and under what circumstances?

B. What is the remedy available to the person against whom such look out circular has been opened? What is the role of the court concerned when such a case is brought before it and under what circumstances, the subordinate courts can intervene?

Those questions were answered as follows:

A. Recourse to LOC can be taken by investigating agency in cognizable offences under the Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest.

B. The person against whom LOC is issued must join the investigation by appearing before IO or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered the issuance of LOC and explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where the case is pending or has jurisdiction over the police station concerned on an application by the person concerned.

The Delhi High Court21 held that “Recourse to an LOC can be taken by (an) investigating agency in cognizable offences under (the) Penal Code (IPC) or other penal laws, where the accused was deliberately evading arrest or (was) not appearing in the trial court despite non-bailable warrants and other coercive measures, and there was likelihood of the accused leaving the country to evade trial or arrest,” and thus directed the Ministry of Home Affairs to formulate guidelines for the same since it is strict in nature and misusing such stringent laws can be proved to be draconian law.

Therefore, as per the existing MHA guidelines and court directions from time to time, a look out circular can be issued in respect of a person who,

(a) is accused of a cognizable offence and is evading arrest; or

(b)is accused of a cognizable offence and is not appearing in a court for trial; or

(c)is accused of a cognizable offence and is likely to abscond or leave the country to avoid his arrest; or

(d)is an anti-national.

Conclusion

The aim and objective of the NDPS Act is to strictly prohibit the consumption, possession and trafficking of illicit drugs and psychotropic substances and commission of crime in this act would be treated severely. Thus, the investigation officer as well enjoys greater power in the sense of investigation including search and seizure and arrest. However, arrest issued under CrPC is distinctive in nature and its implementation that from look out circular since it does not restrict your movement per se but only restrict one to evade the arrest or fleeing away from jurisdiction.

It is well-settled law that Article 19 read with Article 21 is an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. Thus, issuing a look out circular explicitly does not violate Article 19 read with Article 21 of the Indian Constitution but only if it is in violation or breach of any procedure laid down by the law. Specifically, in the case of the NDPS Act the investigation officer vests with enormous power with respect to search and seizure and submitting reports relying on which a LOC is issued thus several procedures have been laid down along with circumstances in which LOC can be issued clarified by Delhi High Court judgment and MHA guidelines. Thus, if the procedure has been followed the issuance of LOC does not violate any right since rights also come with reasonable restrictions. For example, bail provision and admissibility of the confession made by the accused under Sections 37 and 67 of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC. Thus, procedure laid in CrPC and the NDPS Act (special Act) is distinctive in nature and thus followed differently.

† Fifth year law student, BA LLB (Hons.), NALSAR University of Law, Hyderabad. Author can be reached at <yashvardhan.garu@nalsar.ac.in>/<yashvardhangaru1@gmail.com>.

†† Third year law student, BA LLB (Hons.), B.R. Ambedkar National Law University, Sonepat.

1. Narcotic Drugs and Psychotropic Substances Act, 1985.

2. Constitution of India, Art. 47, Directive Principal of State Policy contains provisions for public health, standard of living and prohibition of intoxicating drinks and drugs.

3. Passports Act, 1967, S. 10.

4. Criminal Procedure Code, 1973, S. 41(a), under head “When police may arrest without warrant”.

5. Narcotic Drugs and Psychotropic Substances Act, 1985, S. 37, under head “Offences to be cognizable and non-bailable”.

6. Narcotic Drugs and Psychotropic Substances Act, 1985, S. 67, under head “Power to call for information, etc.”

7. Constitution of India, Art. 19, Right to freedom of speech and expression.

8. Constitution of India, Art. 21, Right to protection of life and personal liberty.

9. AIR 1967 SC 1836.

10. (1978) 1 SCC 248.

11. 2015 SCC OnLine Del 7987.

12. 2018 SCC OnLine Mad 2229.

13. AIR 1967 SC 1836.

14. 2021 SCC OnLine Kar 15228.

15. (1975) 2 SCC 148.

16. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

17. 2018 SCC OnLine All 5991.

18. 2018 SCC OnLine All 5991.

19. 2010 SCC OnLine Del 2699.

20. 2010 SCC OnLine Del 2699.

21. Sumer Singh Salkan v. Director, 2010 SCC OnLine Del 2699.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: While deciding the instant application for anticipatory bail wherein the Court deliberated on what constitutes ‘Ganja' as per the provisions of Narcotics and Psychotropic Substances Act, 1985; the Bench of Bharati Dangre, J., observed that upon reading of Section 2(iii)(b) of NDPS Act, Ganja is the flowering or fruiting tops of a cannabis plant; however, when there are no accompanying flowering or fruiting tops, then the seeds and leaves of a cannabis plant are to be excluded from the definition of Ganja.

Facts of the case: On 17-04-2021, the Narcotics Control Bureau (NCB) received intel regarding a possible availability of huge quantity of Ganja at the house premises of the applicant in the morning of 18-04-2021. It was alleged that the applicant was involved in selling Ganja from the said house in small packets to the customers, with the help of his two associates.

A team was formed, and a search was carried out into the suspected house premises. The search led to green leafy substances being found in 3 kattas. The leafy substance was purported to be ganja and was sent for testing in order to ascertain its identity. The analysis of the substance reported it to be “in the form of soft greenish heterogeneous mixture flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant (…) the sample under reference answer positive test for Ganja (Marijuana)”.

Contentions: The counsel for the applicant submitted that the seized substance does not match the definition of Ganja as provided in the NDPS Act. It was argued that mere leaves and seeds, in absence of fruiting and flowering tops, would not bring the substance within the purview of the term Ganja.

Per contra, the respondents submitted that even though the Panchnama did not mention the details of the recovered substance, the tests conducted on the substance revealed it to be a contraband i.e., Ganja.

Observations and Decision: Perusing the facts of the case, contentions and the analysis report of the seized substance, the Bench observed that-

  • Whether a substance is ‘Ganja' or not, the same will have to be determined on the facts of each case. Perusing Section, the Court further observed that it is implied that if seeds and leaves of cannabis plant are accompanied by flowering tops or fruiting tops, then it would amount to Ganja. However, when the seeds and leaves are not accompanied by the tops, then it will not be considered as Ganja. It would have to be ascertained that whether the flowering or fruiting tops of the cannabis plant are accompanied by the seeds and leaves.

  • The Court also noted that the report of analysis of the substance refers to the sample which is a heterogeneous mixture of flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant and that this entire mixture weighed 43 kgs. It was observed that there was a discrepancy between what was seized and what was analyzed, thus prima-facie satisfying the Court that there are reasonable grounds for believing that the applicant is not guilty of offence of dealing in commercial quantity of contraband.

  • The Court also observed that it is the duty of the NCB to be assured of what substance is seized and what is forwarded for analysis, as it cannot be left for the Trial Courts to do guess work on the nature of the substance. Furthermore, relying on the proposition laid down in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, regarding consideration of bail application with reference to Section 37 of the NDPS Act, the Court stated that it is necessary to look into the nature of accusations and evidence collected by the prosecution during the course of investigation; and circumstances peculiar to particular cases shall be determined in the backdrop of the fact whether suspicion of the prosecution about indictment of applicant is prima-facie correct.

  • With the above-mentioned observations, the Court allowed the application and bail was granted to the applicant with conditions attached.

[Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770, decided on 29-08-2022]

Advocates who appeared in this case :

Mithilesh Mishra i/b Sadiya Khan, Advocate, for the Applicant;

Shreeram Shirsat a/w Amandeep Singh, Advocate, Sra for Respondent No.1;

S.V. Gavand, APP, Advocate, for the State.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. directed to release a Nigerian National on bail who was arrested in 2020 under the Narcotic Drugs and Psychotropic Substances Act, 1985 after discovering that there was a typing error in the forensic analysis report of the seized substances.

On specific information received that a Nigerian National (the applicant) would be coming on the given spot at the given time to sell cocaine, a team was formed by the ATS and raid was conducted. On personal search the alleged contraband purported to be cocaine concealed in blue coloured plastic bag weighing around 116.19 gms and a transparent plastic pouch containing Saffron coloured heart shape pills weighing around 40.73 gms and some pink coloured Ecstasy tablets weighing around 4.41 gms were recovered. He was arrested and FIR was lodged on 23-10-2020.

Directorate of Forensic Science Laboratory’s report regarding the materials seized was held to be sufficient to charge the applicant under section 8C, 20, 22 of Narcotic Drugs and Psychotropic Substances Act (the Act). After the expiry of more than one year, the Assistant Director realized the mistake committed by him while issuing his report and he addressed a communication to the Sr. PI, ATS clarifying that there was a typing mistake and he expressed his apology while issuing a corrigendum.

The Court in the wake of the corrigendum noted that the substance which was alleged to be contraband and recovered from the applicant at the time when the raid was conducted, does not fall within the purview of the Act.

The Court observed that the error, which is sought to be explained and projected as a typing error, is a blatant mistake, which is admitted by the Assistant Director after more than a year, of incarceration of the applicant. It deserves to be looked at seriously, but for the said report, the applicant could not have been detained.

“Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a fundamental right, enshrined in Article 2, it is available to every person, citizens and foreigners alike. The State Authorities, though supreme and in-charge of the law and order situation, which includes implementation of various statutes intended to achieve specific purpose and particularly a special statute like NDPS are expected to behave in a responsible manner.”

The Court asked the State to come up with a proposal as to how it wants to compensate the applicant for realizing that his incarceration was unnecessary as the raid did not lead to recovery of any contraband/psychotropic substance covered under the NDPS Act. The applicant was granted bail.

[Novafor Samuel Inoamaobi v. State of Maharashtra, Bail Application NO. 2816 of 2021, decided on 10-08-2022]

Ashwini Achari with Taraq Sayed i/b Advait Tamhankar for the applicant.

A.A. Takalkar, APP for the State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli*, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.  

Although the Court reiterated that a confessional statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is inadmissible, it found other materials against the respondent, sufficient to indicate his involvement in the alleged crime.   

Background  

The instant appeal had been filed by the Narcotics Control Bureau (NCE) to assail the impugned order of the Delhi High Court granting post-arrest bail to the respondent. The respondent is facing trial for the offences under Sections 8/22 and 29 of the NDPS Act. 

The NCB had recovered a parcel containing 50,000 Tramadol tablets weighing 20 kgs on the basis of secret information stating that one Gaurav Kumar Aggarwal in Agra had booked a parcel suspected to contain NRX tablets to be delivered to one Manoj Kumar (respondent herein) at Ludhiana, Punjab. The accused, Gaurav Kumar Aggarwal revealed that the recovered drug was booked by the respondent from one Promod Jaipuria, a resident of Jaipur.  

To unveil the whole racket, NCB conducted a raid at the godown of Promod Jaipuria during which a cache of drugs covered under the NDPS Act, was recovered, which included 6,64,940 tablets of different psychotropic substances including Tramadol, Zolpidem, and Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the search conducted by the NCB officials at the premises of the co-accused, Manoj Kumar at Ludhiana. 

Noticeably, the respondent had approached the Special Judge, NDPS twice with his application for bail, and both the applications were dismissed by the Special Judge. However, in a petition filed under Section 439 CrPC, 1973, the High Court allowed the respondent’s bail application.  

Contentions of the Parties  

NCB argued that the High Court had completely overlooked the fact that it was on the basis of the disclosures made by the respondent himself that huge quantities of narcotic drugs and injections were seized from the godown of the co-accused, Promod Jaipuria who was subsequently arrested by the Department; therefore, the High Court had committed a grave error by not applying the terms and conditions imposed under Section 37 of the NDPS Act.  

On the contrary, the respondent submitted that the consignment in question was neither booked by him nor for him and that he had no connection with the other co-accused persons. Further, no recovery was made from him and nothing was found in the search conducted at his residence and shop.  

Provisions for Bail under NDPS Act  

The Court observed that not only are the limitations imposed under Section 439 CrPC to be kept in mind while considering a bail application under NDPS Act but also the restrictions placed under Section 37 (1) (b) of NDPS Act to be factored in. Section 37 (1) (b) of NDPS Act states:  

“(i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release; and 

(ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.  

Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.”  

Relying on Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549, and State of Kerala v. Rajesh, (2020) 12 SCC 122, the Court stated that the expression “reasonable grounds” in Section 37 (1) (b) would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence.  

The Court clarified that the entire exercise that a court is expected to undertake at the stage of bail under Section 37 of NDPS Act is to see the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail. 

Admissibility of Confessional Statements made under S. 67 NDPS Act 

The Court opined that the High Court could not be faulted for holding that NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down in Tofan Singh v. State of T.N., (2013) 16 SCC 31, wherein a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act.  

Therefore, the Court held that the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, would have to be kept aside.  

Findings and Conclusion  

Considering the other materials submitted by NCB to contest the bail of the respondent, the Court noted the following:  

  1. It was the disclosures made by the respondent that had led NCB to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups.  
  2. It was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on.  
  3. The CDR details of the mobile phones of all co-accused including the respondent showed that they were in touch with each other.  

Hence, the Court opined that even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. 

Calling the observation made in the impugned order that since nothing was found in the possession of the respondent, he is not guilty of the offence he had been charged with a premature assumption, the Court stated that the narrow parameters of bail available under Section 37 of the Act has not been satisfied in the instant case. Further, the Court stated, 

“The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”  

In the backdrop of above, the Court set aside the impugned order releasing the respondent on post-arrest bail. The bail bonds were declared cancelled and the respondent was directed to be taken in custody forthwith. 

[Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, decided on 19-07-2022] 

*Judgment by: Justice Hima Kohli 

Appearance by:  

For NCB: Jayant K. Sud, Additional Solicitor General 

For the Respondent: P.K. Jain, Advocate-on-Record 

Kamini Sharma, Editorial Assistant has put this report together 

Punajb and Haryana High Court
Case BriefsHigh Courts

Punajb and Haryana High Court: In a petition filed under section 439 CrPC for grant of regular bail under Sections 22, 25, 27-A and 29 of the NDPS Act, Jasjit Singh Bedi, J, reiterating the observations made by various Courts including the Supreme Court on the mandatory compliance of section 42 of the NDPS Act by the concerned authority (in this case, the police), enlarged the petitioner-accused on bail. The Court observed that,

“Violation of the mandatory provisions of the Act would entitle the accused to the grant of bail even if the recovery is of commercial quantity of contraband”

The brief facts of the case are that a secret informer informed the police about the accused-petitioner’s habitual selling of intoxicating tablets and it was further informed by him that the accused-petitioner was going to sell the tablets to his customers arriving in a white colour Activa scooter on the side of the drain bridge at Bathinda road. Founding the information reliable, a ruqa was sent to the police station concerned for registering the FIR against the accused-petitioner. During the course of investigation the check post was installed and the accused-petitioner was apprehended and 2000 strips, each strip containing 10 tablets i.e. 20,000 intoxicating tablets of Tramadol Hydrochloride labeled as Radol-100 were recovered from him. During the interrogation, he disclosed the names of co accused persons in the present case.

The counsel for the accused applicant made a submission that since no communication of the secret information received was sent to the superior officer within 72 hours and no reasons were recorded as to why warrants/authorization could not be obtained prior to conducting the raid/setting up of a naka after sunset, the search and seizure was completely vitiated as Section 42 of the NDPS Act has been violated and the mandatory provisions of the act would entitle the accused-petitioner to the grant of bail even if the recovery is of commercial quantity of contraband.

The counsel for the state on the other hand contended that since the plastic bag containing the intoxicating tablets had fallen on the ground and when the active scooter slipped it could not be said that the contraband was kept or concealed in any conveyance and, therefore, Section 42 of the NDPS Act would not be attracted. He further contended that due to heavy recovery being effected from the accused-petitioner, he could not be enlarged on bail.

The Court referred to various judgments of the Supreme Court and the High Courts, wherein it was held that delayed compliance with a satisfactory explanation for the delay can still be countenanced but total non-compliance with the provisions of Section 42(2) is impermissible, etc. On finding that the secret information was never received in writing, the Court held that there has been complete non-compliance of the provisions of Section 42(2) of the NDPS Act.

The Court, hence, recorded a prima facie satisfaction under Section 37 of the NDPS Act that there are reasonable grounds to believe that the petitioner is not guilty of the offence and was not likely to commit any offence while on bail as he has clean antecedents. He was, hence, directed to be released on bail.

[Pankaj v. State of Punjab, 2022 SCC OnLine P&H 1296, decided on 14-06-2022]

Advocates who appeared in this case :

Parminder Singh Sekhon, Advocate, for the petitioner;

Punjab Kirat Singh Sidhu, Deputy Advocate General, for the Respondent.

Case BriefsHigh Courts

Gauhati High Court: A bail application under Section 438 of the Criminal Procedure Code, 1973, (CrPC) was denied by Sanjay Kumar Medhi, J. to a petitioner for a case registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and it was held that recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under the NDPS Act if there are other convincing and corroborating materials.

Background of the case

A Truck was intercepted near Jorabat and consequently in the search, 44,160 bottles of Eskuf cough syrup in 276 cartons were recovered without any documents. The psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. An FIR against the petitioner was registered.

The petitioners contended that though the articles are psychotropic substance it would come under the exception of Section 8 (c) of the NDPS Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules and subsequent generation of bills can at best be violation of the GST Act and cannot be violation of the NDPS Act

The State contended that the very initiation of movement of the consignment involving a huge number of bottles in cartons which admittedly is a psychotropic substance under the NDPS Act, as the cough syrup contains a substance called ‘codeine’, amounted to an offence under the NDPS Act. There were anomalies / illegalities at different stages, including GST invoices. It was further submitted that offences under the NDPS Act, are part of organized crime wherein different roles are played by different accused.

Analysis and decision

The Court affirming the contention raised by the State, noted that, “offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons.” Further, while determining the offence under the Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc.

While mere recovery and seizure of psychotropic substance cannot be a ground of arrest or detention of the accused, until and unless, there is substantive evidence to prove the conviction, in the case at hand, the offence involved in this case is one under the NDPS Act and the quantity involved was a commercial quantity of chemical manufacture drugs.

Considering the law, coupled with the facts of the case, the Court observed that for purposes of bail under Section 37 of the NDPS Act, the petitioner should have satisfied the Court that he is not guilty of the offence, and he is not likely to commit this offence further. The same was not established by the petitioner. The Court noted that, since the very object of the NDPS Act is to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole; therefore, the court, in view of the facts and contentions presented before it, rejected the petitioner’s plea for anticipatory bail.

[Amal Das v. State of Assam, 2022 SCC OnLine Gau 764, decided on 06-05-2022]

Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of S.H. Vora and Sandeep N. Bhatt, JJ., dismissed an application for special leave to appeal which was filed feeling aggrieved and dissatisfied with the judgment and order in NDPS Case whereby the trial Court acquitted the respondent 2 herein-original accused 2 of the offences punishable under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

Case of the complainant was that all the original three accused committed the offence punishable under Sections 8(c), 20(b) and 29 of the NDPS Act; in as much as; when accused 3 was searched; found with contraband Charas weighing 7.79 Kg from the bag held by him. On a trial, accused 3 and 1 were found guilty for the offences punishable under the NDPS Act; whereas the respondent 2-original accused 2 was given benefit of doubt.

Advocate Mr Pandya for the applicant-original complainant, submitted that the acquittal recorded qua respondent 2-original accused 2 was bad in law and against the evidence on record; inasmuch as; the trial Judge has overlooked the provisions of Section 67 of NDPS Act though the learned trial Judge found and observed that the provisions of Sections 42 and 50 of the NDPS Act which were mandatory provisions of the Act is complied with. It was further urged by him that respondent 2; being wife of accused 1, she had knowledge of the contents of the bag where-from the contraband Charas was found and therefore she was said to have culpable intention.

The Court noted that on scrutiny the Trial Judge had found that respondent 2 was merely a companion of her husband accused 1 and she was not an accomplice in the crime. The court was of the opinion that no doubt, the moment the person had intention or knowledge of the fact, he or she is said to have culpable intention but in the case at hand accused 3 was holding the bag with key and he did not part with the key and therefore the Officer broke open the lock and thus respondent 2 being companion of her husband and except for her presence as her husband’s companion right from the receipt of information, her conscious possession as understood under the law does not surface even reasonable doubt.

Court further held that the submissions based on confessional statement of respondent 2 so as to implicate her in offence need not be taken any further relying on the judgment  of Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 because the confessional statement was recorded when respondent 2 was in custody and therefore, it was a weak piece of evidence.

The Court reiterated the relevant part in the Supreme Court judgment of Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and held that in the present case the counsel had not been able to point out as to how the findings recorded by the trial Court were perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

“It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.”

Court while dismissing the application observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the trial Court was possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.[Union of India v. State of Gujarat, R/Criminal Misc. Application No. 1478 of 2022, decided on 23-03-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: While laying down the detailed reasons of bail in the infamous Aryan Khan case, Nitin W. Sambre, J., held that,

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

Instant applications were filed under Section 439 of the Criminal Procedure Code for grant of bail for the offence punishable under Section 8 (c) read with Section 20 (b), Sections 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Applicants were apprehended while they were about to board or had already boarded a Cruise from Mumbai to Goa. Further, it was stated that from Accused 2 – Arbaaz 6 grams of charas, and from Accused 3 – Munmun 5 grams of charas was recovered.

It was claimed that complete and correct grounds of arrest were not communicated and that being so, arrest of the applicants was rendered illegal.

Analysis, Law and Decision

Whether there is enough material to ascertain whether there is enough material on record to prima facie infer that the applicants have hatched a conspiracy and that the prosecution was justified in invoking provisions of Section 29 of the NDPS Act?

For inferring the act of hatching conspiracy on the part of the applicants and co-accused, there has to be positive evidence about:

  • An agreement to do an unlawful act or to do lawful act by unlawful means
  • Such agreement must precede with meeting of minds.
  • Agreement can be expressed or implied or in parts.

High Court stated that on perusal of having gone through WhatsApp chats extracted from accused 1’s phone, nothing objectionable could be noticed to suggest that applicants 1 and 2 or all three applicants along with other accused persons in the agreement have meeting of minds and have hatched conspiracy committing the offence in question.

“Hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit unlawful act.”

A very significant observation was that the investigation carried out till this date suggested that applicant/accused’s 1 and 2 were travelling independent of accused 3 and there was no meeting of minds on the aforesaid issue.

Conspiracy

With respect to conspiracy against the applicants, there was an absence of material on the record of applicants having such meeting of minds with other accused who were named in the offence.

Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs.

 Bench stated that Additional Solicitor General was justified in relying on the Supreme court decision in State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516, to claim that a high degree of evidence was not required at this stage of the proceedings to establish the case of conspiracy, however, this Court is required to be sensitive to the fact that there has to be the presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants.

Court prima facie did not notice any positive evidence against the applicants.

High Court opined that the claim put forth by the respondent that applicants should be considered to have intention to commit an offence under NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected.

Claim put forth by the Respondent that Accused persons have accepted their involvement in the crime was also liable to be rejected in view of the Supreme Court decision in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31.

“…such confessional statements can be considered by the investigating agency only for the investigation purpose and cannot be used as a tool for drawing an inference that Applicants have committed an offence under the NDPS Act…”

 Concluding the matter, Bench held that Section 37 prima facie will not be attracted as this Court had already observed that there was no material on record to infer that applicants hatched a conspiracy to commit an offence.

“Difficult to infer that applicants are involved in an offence of commercial quantity.”

[Aryan Shah Rukh khan v. Union of India, 2021 SCC OnLine Bom 4127, decided on 28-10-2021]

To read the conditions on which all the three applicants were granted bail, refer to the below link:

https://www.scconline.com/blog/post/2021/10/29/read-the-14-bail-conditions-in-the-aryan-khan-case/

Advocates before the Court:

Mr. Mukul Rohatgi Sr. Counsel a/w Mr. Amit Desai Sr. Counsel, @ Mr. Satish Maneshinde @ Mr. Rustam N. Mulla @Ms. Anandini Fernandes @Ms. Ruby Singh Ahuja @Mr. Sandeep Kapur @Mr. Gopalakrishna Shenoy, @Mr. Harshad Gada @ Ms. Namita Maneshinde @Mr. Sohan Kinkhabwala @ Mr. Nikhil Maneshinde, @ Mr. Deepal Thakkar @Mr. Yuvraj Dhole @ Shanice Mansukhani i/by Ms. Anandini Fernandes, Advocates for Applicant in BA/3624/2021.

Mr. Ali Kaashif Khan Deshmukh @ Mr. Ravi P. Singh @ Mr. Harsh G. Sheth @ Ms. Riya Jain @ Ms. Halima Khan, Advocates for Applicant in BA/3625/2021.

Mr. Amit Desai, Sr. Counsel i/by Adv. Taraq Sayed @ Mr. Gopalkrishna Shenoy @ Mr. Advait Tamhankar @ Ms. Lochan Chandka @ Ms. Alisha Parekh @ Ms. Ashwini Achari @ Ms. Bhumika Gada @ Mr. Sachin Shete, Advocates for Applicant in BA/3642/2021.

Mr. Anil C. Singh, Additional Solicitor General @ Adv. Mr. Advait M. Sethna @ Mr. Shreeram Shirsat, @ Mr. Aditya Thakkar, @ Mr. Pranav Thakur @ Ms. Smita Thakur @ Mr. Amandeep Singh Sra, @ Miss Ruju Thakker @ Mr. Pranav Gohil and Mr. Tanay Mandot for Respondent/ NCB in all the above BAIL APPLICATIONS.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., came down heavily on State Authorities for discrepancies in investigation of the NDPS cases in the State of Punjab. The Bench stated,

“Even the recent reply by the Joint Commissioner (Drugs) Food and Drugs Administration acknowledged the fact of recovery of 12.00 lacs tablets of ‘TRAMADOL’. Shockingly, in the affidavits, nothing is stated where the recovered stock of 12.00 lacs of TRAMADOL tablets has gone and even no batch number, etc., is given.”

Slamming the State authorities, the Bench added,

“This is a serious lapse and inaction on the part of the Punjab Police as well as the Drug Controller and this clearly reveals that everything is not normal with the investigation of the NDPS cases in the State of Punjab.”

Background

The instant petition was filed praying for grant of regular bail by the petitioner-Sarabjit Singh who was in custody in relation to offences under Sections 20/22/61/85 of the NDPS Act.

Noticeably, a Team headed by two Drug Inspectors, along with one Intelligence Officer of NCB, Special Task Force, and other police officials had visited shop of the petitioner, where he had stocked allopathic drugs. The petitioner had produced RMP certificate, which did not authorize him to practice allopathic modern systems of medicine. During the investigation, the aforesaid drugs were recovered and since some of the drugs were covered under the NDPS Act, the FIR was registered under the NDPS Act.

Observation and Analysis

Noticing that there are increasing number of cases in the State of Punjab, wherein, primarily the carriers of drug are arrested by the police under the NDPS Act, however, the suppliers or source of acquiring drugs in majority cases do not come to fore which lead to acquittal in many cases, the Bench stated, .

“It is worth noticing that on an average out of every 10 cases listed before the Criminal Benches of this Court, 08 are from the State of Punjab and 01 case either from U.T., Chandigarh or State of Haryana.”

In Akash Medical Store v. State of Punjab, 2012 SCC OnLine P&H 13366, the Court had observed,

“All such retailers/stockists who are found to be in possession of habit forming drugs, which are not supported by purchase bills or any such stock of drugs which cannot be traced to their origin of purchase, should straightway lead to a presumption not only of a violation of terms of the license, but also to be a violation of the provisions of N.D.P.S. Act and F.I.R. should be registered but as a safeguard the F.I.R. should be registered only after such a licencee has been given adequate opportunity to produce records upto the appellate authority.”

Emphasizing over the news report published in ‘The Tribune’, that on the direction given by the Court, Amritsar (Rural) police had booked a Sub-Inspector and Assistant Sub-Inspector of Punjab Police under the NDPS Act for unnecessarily searching, detaining and arresting a person of two different Police Stations in Amritsar, the Bench expressed concern over false implication of innocent persons under NDPS Act by the Punjab Police, especially of Amritsar District. Pointing towards the lackadaisical attitude of the authority the Bench stated,

“…(although) there was a huge recovery of 12.00 lacs ‘TRAMADOL’ tablets in the case at hand, surprisingly, the affidavit of the Director Bureau of Investigation, which was filed about 1½ years ago, though, stated that an offence under Section 22/32 of the NDPS Act was made out, no FIR had been registered till date.”

Decision

In view of the above, the investigation was handed over to the Central Bureau of Investigation as the Court opined that it was an exceptional case as Punjab State functionaries for the reason best known to them are intentionally protecting the drug offenders. The official of Punjab Police/office of the Joint Commissioner (Drugs), Food and Drugs Administration, were directed to hand over all the documents to C.B.I., along with the recovered 12.00 lacs ‘TRAMADOL’ tablets. The CBI, was directed to register an FIR and investigate the case. It was made clear that during the investigation, the CBI

  • Shall ensure that the entire contraband recovered from M/s. Ravenbhel Pharmaceuticals Private Limited, is handed over to the CBI and in case, there is any shortage, C.B.I. will investigate whether the same is misused for implicating any innocent person;
  • In case of shortage of recovery in possession of Punjab Police/Drug Department, CBI will prepare an inventory giving batch number, date of manufacture/expiry, name of manufacturer and will check from CFSL/FSL in State of Punjab if the ‘TRAMADOL’ tablets of same batch number are involved in any other FIR in the State to find out false implication of any innocent person by using this stock;
  • In such eventuality, it will also be open to C.B.I. to check record of any Police Station or publish a notice in newspaper giving batch number and name of manufacturer, etc., so as to enable the defence counsels in different FIRs/cases to know about it and to take appropriate recourse before Court of law;
  • To look into the involvement of any public servant under the aid of Section 120-B IPC in delaying the registration of an FIR or any other investigation, which it deem fit.

However, it was clarified that the directions were only with regard to the recovery from Ravenbhel Pharmaceuticals Private Limited. [Sarabjit Singh v. State of Punjab, CRM-M No. 28183 of 2019, decided on 02-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: N.S. Mahal, Advocate

For the State: Mr Joginder Pal Ratra, DAG, Punjab, Mr C.S. Bakshi, APP, U.T., Chandigarh and Mr Chetan Sharma, AAG, Haryana

For Union of India: Mr Satya Pal Jain, Additional Solicitor General of India with Mr Rajiv Sharma, Advocate for NCB

Op EdsOP. ED.

Introduction

The present matter, Nabi Alam v. State (Govt. of NCT of Delhi)[1] was referred to the Division Bench of the High Court of Delhi by the Single Bench of Justice Suresh Kumar Kaith, to settle a question which arose because of two conflicting judgments concerning the Narcotic Drugs and Psychotropic Substances Act, 1985[2] (hereon referred to as “the NDPS Act”), of the same court with regards to the “presence of a Magistrate or gazetted officer being mandatory during the process of search and seizure of illegal substances”.

The present situation can be analysed as:

i. Whether or not, in the present scenario can it be inferred that there was non-conformity of the absolutely binding provisions of Section 50[3] of the NDPS Act.

ii. If the accused chooses not to be searched before a Magistrate or gazetted officer, and the officer conducting the search goes ahead and makes personal search of the accused, would this be substantial compliance.

The main contention of the accused in the present petition was, that waiving off of their legal right is of no consequence for observance of Section 50 i.e. the right to their own personal search in attendance of either a Magistrate or a gazetted officer (from the departments enumerated under Section 42[4] of the NDPS Act), the officer leading the search must still strive to bring the accused/suspect in the company of either a gazetted officer (from the departments enumerated under Section 42 of the NDPS Act) or a Magistrate for conducting of the personal search.

Topics to discern:

  1. The Division Bench of the Delhi High Court on the issue.
  2. Scope of Section 50.
  3. Substantial compliance of Section 50.
  4. Supreme Court cases on the issue.

The Division Bench of the Delhi High Court on the issue

The para 26 of the judgment extracted, reads as under:

  1. For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a gazetted officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires“, as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a gazetted officer or Magistrate, despite having expressly waived “such requisition“, as mentioned in the opening sentence of sub-section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a gazetted officer or Magistrate, only “if he so requires“, upon being informed of the existence of his right to be searched before a gazetted officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act.[5]

The High Court of Delhi has taken two specific phrases from Section 50:

  1. Section 50(1): If such person so requires.
  2. Section 50(2): Such requisition.

The High Court of Delhi has placed reliance on Vijaysinh Chandubha Jadeja v. State of Gujarat[6] and categorically stated that it is a settled position by the Supreme Court, that while it is mandatory to strictly comply with the provisions of Section 50, it is also observed that the accused person has been given a choice to practise this legal right and the person may choose to or not exercise that right.

Hence, according to the Court the ratio of Arif Khan v. State of Uttarakhand[7] does not provide any utility to the accused in the present scenario.

Scope of Section 50

From reading the provisions we can see that in the first instance there is a right provided to the accused which he/she can exercise by demanding to be presented before the officers mentioned in Section 50(1)[8], also that the officer concerned can detain the accused until the person can be presented before the Magistrate[9], a further reading will make it crystal clear as to why this right has been provided, as the next provision clearly stipulates that the officer concerned mentioned in Section 50(3) can either discharge the accused if he/she sees no reasonable ground to keep the accused or direct that search be taken of the accused[10].

This right has been provided to keep a check on frivolous cases, as the NDPS Act is an unforgiving piece of legislation and if the circumstance allows, and the Magistrate or gazetted officer thinks that there is no legitimate case against the accused, then he/she can be released immediately, because under the NDPS Act if a person is booked for intermediate or commercial quantity then preventive detention for such an alleged crime is extremely taxing, and moreover, getting bail is a problematic affair when it comes to the full satisfaction of court under Section 37[11] of the NDPS Act, a provision which has to be satisfied to get bail under commercial quantity and when charged with Sections 19[12], 24-A[13] & 27[14] of the Act.

In the same section, there is a provision which establishes the procedure to be followed, if such a person cannot be produced before a Magistrate without parting with the control of such illegal substances, in such a scenario the empowered officer can search the person according to Section 100 of the CrPC[15].

We can see here that Section 50 is providing a legal right to an accused against frivolous detention and arrest, and also casting a duty upon the empowered officer to strive to take the accused to the officers mentioned for the personal search of the accused.

A procedure is mentioned for a generic situation when the accused cannot be produced among such officers[16], but nowhere does the provision mention anything about completely bypassing this sacrosanct duty cast upon the empowered officer by simply getting a piece of paper signed (which could be done under duress), without any actual authenticity about waiving off of a legal right which can be done to avoid legitimate procedure.

Substantial Compliance of Section 50

What is substantial compliance

It is when an empowered officer does not follow the procedural safeguards provided under Section 50 of the NDPS Act, 1985, strictly, but rather follows them in part or in such a manner which is not totally transparent or flimsy, e.g., getting a paper signed about waiving off of the legal right to be searched in front of Magistrate or gazetted officer, without recording reasons for non-compliance.

Supreme Court has clarified in the Jadeja judgment[17] that the empowered officer who is conducting the search and seizure of illegal substances, must follow the procedure laid out under Section 50 to the letter, that after the empowered officer has satisfied the complete procedural safeguards, after that the accused person can use or not use their legal right afforded to them under Section 50.

It was in this case that the Supreme Court had finally rejected the substantial compliance theory, which was being followed as it was wrongly read into Section 50 by earlier judgments of Joseph Fernandes[18] and Prabha Shankar Dubey[19].

Supreme Court cases on the issue

To quote the Supreme Court judgment that the High Court of Delhi has utilised and relied upon in the present petition, which was Vijaysinh Chandubha Jadeja v. State of Gujarat[20],  the observation made by the Supreme Court of India was:

The empowered officer must endeavour in the first instance to bring the said suspect among a Magistrate or a gazetted officer, this must be done in order to strengthen the case of the prosecution, as these officers enjoy much more confidence of the citizens, however, no hard and fast rule can be made but doing this would grant impartiality, authenticity, worthiness, transparency to the entire proceedings.

In Arif Khan[21] it was the prosecution’s version that the accused had “waived off his right and had consented to be searched by the police officials of the raiding party”, in which there was neither a Magistrate nor a gazetted officer.

The Supreme Court in para 24 of the judgment[22] has held that “this search and recovery does not fulfil the mandatory requirements of Section 50 as prescribed by the dictum laid down in Vijaysinh Chandubha Jadeja v. State of Gujarat[23]”.

Excerpt from para 24.4 of the same judgment[24] of the Supreme Court says that

It is absolutely mandatory for the prosecution to prove that when the recovery has been affected from the person of the accused, it must be proved to have been recovered in the presence of a Magistrate or a gazetted officer.

Conclusion

Preventive detention under the NDPS Act, 1985 is not a magnanimous process, getting bail under the NDPS Act, 1985 in a situation where Section 37 of the Act applies, is not just a hectic but a mentally taxing affair for the accused, as the time given for filing charge-sheet is 180 days in certain cases, which can be extended up to one year in exceptional circumstances and getting bail in NDPS cases is more difficult than UAPA cases[25] as the conditions under Section 37 are extremely stringent.

The right provided under Section 50 to the accused is a legal right given to protect against illegal arrest, but, there is also a duty which is being directed towards the empowered officer which would make the officer to comply with the provisions in a strict manner, we can also gather this by reading Arif Khan judgment[26] where the Court has held that there is a responsibility cast upon the empowered officer for presenting the accused amongst a Magistrate or gazetted officer for their personal search, this has been inferred by the Court because in the earlier judgment of Jadeja case[27], the Court has observed that the empowered officer must strive to bring the accused amongst a Magistrate or gazetted officer because these officers are much more trustworthy to the general public.

So, if the Supreme Court thinks that for search and seizure a Magistrate is much more trustworthy for the general public, then, how can an unnotarised, non-stamped piece of paper which has been signed only in the presence of a police officer stating the waiving of a legal right be trusted?

The Supreme Court in the recent case of Tofan Singh v. State of T.N.[28] has held that confessions given to the police under Section 67[29] of the NDPS Act, 1985 are non-admissible as evidence as they are given to “police officers” and the empowered officers under the NDPS Act, 1985 are “police officers”. This is another instance where documents signed in police presence are not deemed to be trustworthy and cannot be treated as evidence.

Moreover, Section 50 only specifically provides for the instance where the “person so requires” but does not expressly provide for a situation where the “person does not”, the Supreme Court has answered this question in Jadeja[30] and Arif Khan[31], in the Jadeja judgment the Supreme Court completely tossed aside the substantial compliance doctrine when it comes to search of a person, it was reaffirmed by Arif Khan judgment[32], the Supreme Court has categorically held in Arif Khan that it must be proved by the prosecution that the recovery of illegal substances from the person of the accused must be in the presence of a Magistrate or a gazetted officer, while the Delhi High Court has held a contrary view.

Given the extremely rigorous and uncompromising provisions of the NDPS Act, it is only natural to expect an elevated sense of probity, seriousness and genuineness from the empowered officer conducting the search and carrying out the duty as detailed by the legislation (Narcotic Drugs and Psychotropic Substances Act, 1985) as well as the observations of the Supreme Court in an uncompromising and scrupulous manner.

The Delhi High Court has perhaps not taken all the observations of the Supreme Court in the present matter into account, the judgment of the Delhi High Court needs reconsideration as there is clear conflict and it can be inferred in the present case that there was merely substantial compliance of Section 50, which has been torn down by the Supreme Court in cases of personal search of the suspect or accused, hence, there is probability of muddying the waters even further, there is also a likelihood that this judgment might lend the police wide scope for abuse of power, and provide an excuse to bypass the whole safeguard provided under Section 50.

† Advocate, Supreme Court of India and Delhi High Court

[1] 2021 SCC OnLine Del 3055.

[2] <http://www.scconline.com/DocumentLink/206RMMRJ>.

[3] <http://www.scconline.com/DocumentLink/rMFC7htv>.

[4] <http://www.scconline.com/DocumentLink/93l1bvaf>.

[5] 2021 SCC OnLine Del 3055.

[6] (2011) 1 SCC 609.

[7] (2018) 18 SCC 380.

[8] S. 50(1) of the NDPS Act, 1985: “When any officer duly authorised under S. 42 is about to search any person under the provisions of S. 41, S. 42 or S. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in S. 42 or to the nearest Magistrate.”

[9] S. 50(2) of the NDPS Act, 1985: “If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-s. (1).”

[10] S. 50(3) of the NDPS Act, 1985: “The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.”

[11] <http://www.scconline.com/DocumentLink/2h286Qi4>.

[12] <http://www.scconline.com/DocumentLink/fY20H20h>.

[13] <http://www.scconline.com/DocumentLink/4mpCJN6g>.

[14] <http://www.scconline.com/DocumentLink/p7m2xO4X>.

[15] S. 50(5) of the NDPS Act, 1985: “When an officer duly authorised under S. 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under S. 100 of the Code of Criminal Procedure, 1973 (2 of 1974); <http://www.scconline.com/DocumentLink/DG2fI1tD>”.

[16] Ibid.

[17] Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.

[18] Joseph Fernandes v. State of Goa, 1995 SCC OnLine Bom 504

[19] Prabha Shankar Dubey v. State of M.P., (2004) 2 SCC 56

[20] (2011) 1 SCC 609.

[21] (2018) 18 SCC 380.

[22] Arif Khan, (2018) 18 SCC 380.

[23] (2011) 1 SCC 609.

[24] Arif Khan, (2018) 18 SCC 380.

[25] Union of India v. K.A. Najeeb, (2021) 3 SCC 713, para 20.

[26] (2018) 18 SCC 380.

[27] (2011) 1 SCC 609.

[28] (2013) 16 SCC 31.

[29] <http://www.scconline.com/DocumentLink/5Ibkc11X>.

[30] (2011) 1 SCC 609.

[31] (2018) 18 SCC 380.

[32] (2018) 18 SCC 380.

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumar Dubey, J., denied bail to the applicant who was arrested for the offence punishable under Sections 8, 21, 22 of the NDPS Act & Section 5/13 of M.P. Drug Control Act.

The prosecution had submitted that on the information of informant police stopped motor cycle which was being driven by applicant Rajkamal Namdev and co-accused Vikas Gupta was pillion rider and seized 30 bottles of Onerex Cough syrup (100 ml. each) containing codeine phosphate (Narcotic Substance) from their joint possession, which was illegally being carried by them on that bike.

Counsel for the applicant, Mr Vijay Chandra Rai submitted that the applicant has not committed any offence and had falsely been implicated in the offence.

Counsel for the respondent /State, Mr Sunil Gupta submitted that they were not having documents to keep the seized contents in their possession, so looking to the provisions of Section 37 of the NDPS Act, he should not be released on bail.

The Court relied on the Supreme Court judgment in Mohd. Sahabuddin v. State of Assam, (2012) 13 SCC 491. The Court further stated that the Supreme Court in State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466 had relied on in an earlier judgment of Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 where it was held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).

It was made clear that if anyone was found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

Central government notification dated 18-11-2009 stated that the percentage of a narcotic drug and psychotropic substance shall be inseparable and the whole contraband seized has to be taken into consideration that whether the same falls within the small quantity or commercial quantity or an intermediate quantity which was upheld in Harjit Singh v. State of Punjab, (2011) 4 SCC 441.

The Court also relied on Heera Singh v. Union of India, 2020 SCC Online SC 382 where it was held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances.

The Court rejected the bail application stating that police seized 30 bottles (100 ml. each) of Onerex Cough syrup containing Codeine Phosphate (manufactured drugs) from the joint possession of applicant & Co-accused so provisions of Section 37 of the N.D.P.S. Act will come into force.[Rajkamal Namdev v. State of M.P., MCRC-25233 of 2021, decided on 02-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and set aside the impugned order.

The facts of the case are such that the petitioner was found in possession of 145 strips of Spasmo Proxyvon Plus total of 1160 capsules and 90 strips total 720 capsules of Spasmo Proxyvon Plus which are prohibited psychotropic drugs. The seized quantity of the psychotropic drugs was higher than minimum quantity but less than commercial quantity.

The petitioners were charged with offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (i.e. NDPS Act). The petitioners were thereby arrested and a bail application was filed under Sections 167(2) Criminal Procedure Code i.e. Cr.PC seeking bail on the ground of non-filing of charge-sheet within 60 days from the date of police custody of accused. The Trial Court rejected the bail application. Assailing which present application was filed.

Issues

(i) Whether grant of bail as provided under Section 167(2) of the CrPC indefeasible right of the accused and prosecution can defeat the same by filing final report after expiry of maximum period prescribed under the provisions. ?

(ii) Whether the holidays will be accountable in computing the period of 60 days for granting benefit of bail and from which date the maximum period for filing of charge sheet is countable?

Issue 1

The Court relied on judgment M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 and observed that from perusal of Section 167(2) CrPC it is quite clear that if challan on the specified period is not submitted, accused is entitled to be enlarged on bail. As per the provisions of Section 167(2) of CrPC, default bail is the right of accused. The object of the provisions of Section 167(2) of CrPC is that State authority should not take any malafide belated action against accused persons.

Issue 2:

The Court relied on judgment Central Bureau of Investigation v. Nazir Ahmed Sheikh, (1996) 2 SCC 367 and observed that with regard to counting of holidays for counting 60 days when 10-04-2021 and 11-04-2021 were Government Holidays, it is submitted that holidays will be counted for calculating 60 days as provisions of Section 10 of General Clauses Act are not attracted. The Court in the instant case held that period for filing of charge sheet would begin to run and be counted from the next date of arrest of the accused. However, the date of accused being sent on remand would be excluded but the date on which charge-sheet was filed is to be included.

The court observed that it is crystal clear that charge-sheet was not filed within the maximum period of 60 days. As per the law laid down by the Supreme Court right of the accused to get default bail is accrued and it is indefeasible right of the accused which cannot be defeated by the prosecution after completion period as per provisions of Section 167(2) CrPC.

The Court held “the trial Court is not justified in dismissing the aforesaid application by saying that 10.04.2021 and 11.04.2021 were holidays, therefore, charge-sheet on 12.04.2021 is filed within 60 days and by subsequent filing of charge-sheet the right of the accused was forfeited.”

[Vinay Dubey v. State of Chhattisgarh, 2021 SCC OnLine Chh 1974, decided on 09-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For Petitioners: Mr. Shailendra Dubey

For State: Mr. Rakesh Sahu

Himachal Pradesh High Court
Case Briefs

Himachal Pradesh High Court: Anoop Chitkara, J., granted bail and held that the law under Section 439 CrPC is very clear and in the eye of the law every accused is the same irrespective of their national.

The facts of the case are such that an under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of Criminal Procedure Code i.e. CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is the intermediate quantity and does not restrict bail, because the quantity greater than 250 of Heroin, falls in the category of the commercial quantity; hence the restrictions for bail imposed in Section 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

Counsel for the petitioners Mr Pushpinder Singh Jaiswal submitted that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. It was further submitted that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

Counsel for the State Mr Nand Lal Thakur, Mr Ram Lal Thakur, and Mr Rajat Chauhan submitted that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

The issue before the Court is with respect to whether the quantity attracts the rigors of Section 37 of the NDPS Act and should the bail be granted to a Nigerian national.

The Court relied on judgment Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 and observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

The Court further relied on judgment Shokhista v. State, 2005 LawSuit (Del) 1316 wherein it was held

“The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so.”

The Court thus observed that the quantity of substance involved in this case does not restrict bail and in the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

The Court held that “the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”[Collins v. State of HP, 2021 SCC OnLine HP 787, decided on 27-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: G Sri Devi, J. addressed a petition filed under Sections 437 and 439 of Criminal Procedure Code, 1973 to seek bail.

Petitioner who sought bail in the instant case had a case registered against him for the offences punishable under Sections 8(c) read with Section 21 (C) of the NDPS Act, 1985.

Inspector of Police had seized MD Drug weighing about 200 grams in a plastic cover, two mobile phones and other material from the possession of the accused.

Counsel for the petitioner submitted that petitioner had been falsely implicated in the present crime.

It was stated that in the Supreme Court decision of Sheru v. Narcotics Control Bureau, Crl. Appeal Nos. 585, 586 of 2020, dated 11-09-2020 bail was granted to a person in a case filed under the Narcotics Drugs and Psychotropic Substances Act in view of the unusual times of the COVID-19 Pandemic.

In view of the above-cited case, having regard to the fact that petitioner was in jail since 19-11-2020 and looking into the nature of allegation levelled against the petitioner and as the contraband seized from the possession of petitioner was only a little bit higher than the commercial quantity, also in view of the peculiar conditions of COVID-19 Pandemic prevailing in the country, High Court granted bail to the petitioner.

Hence, criminal petition was allowed, and petitioner was directed to be released on bail subject to the following conditions:

  • Petitioner shall be released on bail on his executing a personal bond to the tune of Rs 25,000 with two sureties for a like sum each to the satisfaction of XI Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
  • On such release, petitioner shall appear before the investigating officer till completion of investigation and submission of final report.
  • Petitioner shall appear before the Court concerned personally on each date hearing till conclusion trial
  • Petitioner shall not indulge in any similar type of activities, in future other his liberty shall stand cancelled
  • Shall not tamper with prosecution witnesses
  • Shall co-operate with the investigating agency.
  • Shall not misuse the liberty granted to him.

[Tejawath Suresh v. State of Telangana, 2021 SCC OnLine TS 549, decided on 23-04-2021]

Sri P Pratap, Advocate for the Petitioner

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and M.S. Karnik, JJ., found prima facie case against Late actor Sushant Singh Rajput’s sister Priyanka Singh.

It may be that the relations between the petitioner and the respondent 2 are strained, but we cannot overlook the serious allegations made in the complaint and materials on record and the fact that the investigation is in progress and same is not yet concluded.

In the present matter, it was stated that the petitioners suffered the untimely and unfortunate demise of their brother Sushant Singh Rajput on 14-06-2020.

Petitioners stated that they find themselves in the midst of controversy as a result of the registration of an impugned FIR based on unfounded allegations, unsubstantiated facts and a misleading complaint filed as a counterblast FIR filed by petitioner’s father against respondent 2.

Petitioners case was that the FIR was registered by respondent 1 on the complaint of Rhea Indrajit Chakraborty (Respondent 2) in a most illegal and arbitrary manner without following the due process of law.

Analysis and Decision

While perusing the facts and circumstances of the case, Bench notes that the present matter relates to the tragic incident in which the Bollywood actor Sushant Singh Rajput was found dead at his residence.

Respondent 2 filed a complaint contending that the accused persons conspired with each other and illegally procured false prescription on the letterhead of Government hospital which contained psychotropic substances that are listed in the Schedule of NDPS Act and administered the same to the late actor.

Whether filing of the second FIR or counter-complaint permissible as done by the Respondent 2?

Bench referring to the decision of Supreme Court in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, found that the filing of the counter-complaint is permissible.

Elaborating the above point in terms of the present matter, Court expressed that:

Supreme Court has laid down that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Criminal Procedure Code. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under Section 162 CrPC.

Present Petitioners are not accused in the first FIR.  2nd respondent has filed the 2nd FIR in the nature of counter-complaint in respect of the same incident having different versions of the events which are legally permissible.

Further, the Bench stated that the allegations made in the complaint revealed the exchange of messages between petitioner 1 and late actor regarding the list of medicines. The FIR consisted of the allegations pertaining to the prescription with regard to the various medications controlled under the NDPS Act. Dr Tarun Kumar prescribed medicines which were prohibited from being prescribed electronically for the purpose of anxiety.

The allegation was that the accused prescribed psychotropic substances without any consultation or examination in violation of provisions of the NDPS Act and the Telemedicine Practice Guidelines, 2020.

Bench expressed that the allegations along with other material enclosed prima facie disclose the alleged offences as against the petitioner 1.

It is a well-settled principle of law that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

 Supreme Court in the State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, settled the legal position stating that the High Court ought not to interfere with and quash the entire proceedings in exercise of power conferred by Section 482 CrPC when the matter was still at the investigation stage.

In the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, it was held that there is no denial of the fact that the power under Section 482 Cr.P.C. is of very wide amplitude but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.

Hence, Court opined that the allegations made in the complaint do constitute a cognizable offence against the petitioner – Priyanka Singh justifying the registration of a case and an investigation thereon.

With regard to petitioner 2, the allegation has been made against her based only on suspicion that the medicine might have been procured by her.

However, the complaint primarily proceeded on the allegation that the banned medicines prescribed by Dr Tarun Kumar were at the behest of petitioner No.1 who was having knowledge that the said banned medicine and heavy doses of medicine may result in a chronic anxiety attack which may damage the health of Sushant Singh Rajput.

While concluding, the Court added that:

FIR registered at the instance of the late actor’s father has already been transferred to the CBI for investigation in the light of the directions of the Supreme Court, and even Senior Advocate for the respondent 3 submitted that so far as FIR lodged by late actor’s father is concerned, the CBI is conducting investigation meticulously and professionally without being hindered by any external factor and would thoroughly look into each and every aspect relating to the death of the late actor in a fair and impartial manner.

Decision

From the reading of the complaint and materials on record, it was seen that the allegations were primarily against petitioner 1 and Dr Tarun Kumar. The FIR appeared to have been registered against the petitioner 2 only on suspicion without attributing specific overt acts qua petitioner 2 that she aided or abetted the alleged act of suicide by the late actor Sushant Singh Rajput.

Hence, on overall consideration, allegations against petitioner 2 were vague and general and the counter-complaint filed by the respondent 2 qua second petitioner is to be set aside and quashed and so far as petitioner 1 – Priyanka Singh was concerned, no merit was found in the present petition, therefore deserves to be dismissed.

Rejection of this Petition qua petitioner No.1 – Priyanka Singh shall not be construed as an impediment to petitioner No.1 to avail of an appropriate remedy in case Investigating Officer decides to file the chargesheet.[Priyanka Singh v. State of Maharashtra,  2021 SCC OnLine Bom 207, decided on 15-02-2021]

Advocates who appeared in the matter:

Mr. Vikas Singh, Sr. Advocate a/w Mr. M.V. Thorat i/b Mr. M.V. Thorat, for the Petitioners

Mr. Satish Maneshinde a/w Ms. Namita Maneshinde, for Respondent No.2.

Mr. Devdatta Kamat, Sr. Advocate a/w Mr. Deepak Thakre, PP, Mr. S.R.Shinde, APP a/w Mr. J.P. Yagnik, APP, Mr. Rajesh Inamdar and Mr. Hemant Shah, for Respondent No.1 – State.
Mr. Anil C.Singh, ASG a/w Mr. Sandesh Patil a/w Mr. D.P. Singh, for Respondent No. 3 – CBI.

Also Read:

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

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In an interesting case regarding regular bail, Jaishree Thakur, J., held that WhatsApp messages do not have any evidentiary value in the absence of certificate under Section 65B of Evidence Act, 1872.

On receipt of secret information that two consignments contained contraband, the Narcotics Bureau, Headquarters, Chandigarh arrived at the Regional Office of DTDC Courier Agency and called one Paramjit Kaur (consignor of the parcels), who confirmed that she had booked the parcels herself, on being asked by the petitioner to do so. The consignments contained contraband of Tramadol Hydrochloride 100 mg (Trade Name Clovidol-100 SR), 57,000 tablets which were of commercial quantity. Counsel for the petitioner, R.S. Rai submitted that Narcotics Bureau was relying upon the statement given by a co-accused implicating the petitioner. It was contended that the said disclosure statement could not be relied upon nor can any statement made by him in the judicial custody be relied upon as incriminating evidence against him. Reliance was placed by the petitioner on Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31, wherein the Supreme Court dealt with the question,

Whether an officer “empowered under Section 42 of the NDPS Act” and/or “the officer empowered under Section 53 of the NDPS Act” are “Police Officers” and therefore, statements recorded by such officers would be hit by Section 25 of the Evidence Act? The supreme Court, while answering the abovementioned question had held, “a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20 (3) and 21 of the Constitution of India.’’

 The respondent submitted that there were screen shots of Whatsapp messages available with it, which would connect the petitioner with the said contraband, as there was a message available showing transfer of an amount by the petitioner into the account of Harjinder Singh, husband of Paramjit Kaur.

The Court stated that complicity of the petitioner would have to be determined by the quality of evidence led during trial. The Narcotics Bureau was relying not only upon the statement given by a co-accused implicating the petitioner but also upon some screenshots of whatsapp messages. It was observed that ratio, as laid down in Tofan Singh’s case, would come to the aid of the petitioner to allow him the benefit of regular bail. The Court, while relying on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, held, “a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record. Therefore, the said message would be of no evidentiary value as on date.”  Hence, the petitioner was granted bail on execution of adequate personal/surety bond of an amount of Rs.10 Lakhs. [Rakesh Kumar Singla v. Union of India, CRM-M No.23220 of 2020 (O&M), decided on 14-01-2021]

Case BriefsSupreme Court Roundups

♦ Did you know? In the year 2020,

    • All the Constitution bench verdicts were unanimous with no dissenting opinion.
    • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

As we look forward to the new year of 2021, here is a quick recap of the Constitution bench verdicts delivered by the Supreme Court of India in 2020.

1. Questions of law can be referred to larger bench while hearing a review petition

9-judge bench: SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ

After renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected, the 9-judge bench held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges. [Read: Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held]

Read more…

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52]

2. Pleas challenging the abrogation of Article 370 not referred to a larger bench

5-judge bench: NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ

The bench refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench. Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case, the bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

“the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

Read more…

[Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1]

3. No time limit could be fixed while granting anticipatory bail

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

Read more…

[Sushila Aggarwal v. State of NCT of Delhi,  (2020) 5 SCC 1]

4. No lapse of acquisition proceedings if government has ‘paid’ compensation

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

Read more…

[Indore Development Authority v. Manohar Lal Sharma, (2020) 8 SCC 129]

5. States, and not MCI, have power to make reservation for in-service candidates in Post Graduate Medical Course 

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III.

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

 The Court, however, specifically observed and clarified that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Read more…

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699]

6. Sub-classification of Scheduled Castes| E.V. Chinnaiah decision to be revisited; Matter referred to larger bench

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the bench referred the matter to a larger bench and said,

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

[State of Punjab v. Davinder Singh, (2020) 8 SCC 1]

7. SARFAESI Act applicable to Co­operative Banks

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that ’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

Read more…  

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  (2020) 9 SCC 215]

8. Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ 

Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the bench said that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

Read more…

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383]

9. District Forum can’t extend limitation period of 45 days for filing response under Section 13 of Consumer Protection Act

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 wherein the answers to the following questions were sought:

  • whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
  • what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

Read more…

[New India Assurance v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757]

10. Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Read more…

[Mukesh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120]

11. State Government cannot fix the “minimum price” of sugarcane once Centre has already fixed it

5-judge bench: Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ,

The bench unanimously held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

By virtue of Entries 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Court, however, clarified that

“it is always open for the State Government to fix the “advised price” which is always higher than the “minimum price”, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.”

Read more…

[West UP Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548]

Also read:

Supreme Court year-end roundup| From important judgments to unmissable facts and stories, here’s a comprehensive roundup of all that happened in 2020

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Sanjay Dhar and Rajesh Bindal, JJ. while dismissing the present application seeking leave to appeal, said, “…the non-applicant cannot be convicted on the statement of co-accused recorded under Section 67 of the NDPS Act, as the same cannot be used as a confessional statement being barred under the provision of Section 25 of the Evidence Act.”

Background

Through the instant application, the applicant; Narcotics Control Bureau (NCB) seeks leave to file an appeal against the judgment dated 11-11-2019 passed by the Principal Sessions Judge, Kathua (“Special Court”) whereby the non-applicant Rafi Ahmed has been acquitted of the charges for the commission of offences under Sections 8, Section 21, Section 27, Section 28 of Narcotic Drugs and Psychotropic Substances Act, 1985.

 Observation

Court placed reliance over the case of, Toofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, wherein the Court said, “… (i) That the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”.

Decision

Dismissing the present application, the Court remarked, “…the learned Special Court has rightly acquitted the non-applicant of the charges leveled against him. The law does not allow the State to file an appeal against an order of acquittal under Section 417 CrPC. The State has to seek leave to file an appeal.”[Union of India v. Rafi Ahmed, 2020 SCC OnLine J&K 643, decided on 15-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together

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]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition, reiterated the scope and power of the High Court in entertaining a successive bail application, in addition to, the general principles governing the same.

Brief Facts

Facts of the case are enumerated herewith;

  1. That the petitioner was found in the possession of contraband substances weighing around 25kgs.
  2. That the petitioner was subsequently booked under Sections 8 and 15 of the NDPS Act and challan was thereby filed before the Court of Principal Sessions Judge, Ramban.
  3. That an application was later moved before the Court of Principal Sessions Judge, Ramban, and the same was rejected by the Court vide order dated 20-03-2020.
  4. That being aggrieved of the said order, the petitioner has filed the instant petition, for grant of bail on the grounds that the contraband allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, and therefore the rigor of Section 37 NDPS Act will not apply to the present case.

Observations

In pursuance of its decision, the Court made the following observations;

With respect to the jurisdiction of the Court on the present Bail Application, the Court said, “The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.” Reliance was placed on Gurcharan v. State (Delhi Administration), (1978) 1 SCC 118 and Devi Das Raghu Nath Naik v. State, 1987 Crimes Vol. 3 Page 363 in this regard.

Moreover reiterating the objective of granting bail, the Court observed, “It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.”

Narrowing down to the facts of the present case, the Court said, “As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of ‘commercial quantity’ and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than eleven months and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.”

Decision

Releasing the petitioner on bail, the Court said that the discretionary power of granting bail cannot be exercised on the basis of public sentiments as the guilt of the petitioner is yet to be proved. The Court further imposed necessary conditions while allowing the present application.[Manzoor Ahmad v. Union Territory of J&K, 2020 SCC OnLine J&K 570, decided on 09-11-2020]

Sakshi Shukla, Editorial Assistant has put this story together