NDPS Act

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. dismissed the petition as the petitioner failed to cross the hurdle of Section  37 of NDPS Act, and was not entitled for bail.

 The facts of the case starts  on 26-05-2019, when the Police party headed by inspector/in charge of Police Station Jogindernagar, District Mandi, had erected/laid a barrier and apprehended a car which was being driven by one Tule Singh who started stammering and his body language and gesture raised suspicion after which police asked for registration certificate and other records, failing to produce which, the police searched the car in the presence of two independent witnesses and recovered charas and opium of commercial quantity. On conducting further raids, financial investigation and call record analysis it was revealed that Ram Singh alias Om Prakash i.e the bail petitioner who sold the recovered contraband.  The petitioner who along with the main accused, is under incarceration has again come up before this Court seeking bail, on the grounds that this Court has granted bail to one of the co-accused.

Counsel Vinod Chauhan representing the bail petitioner submitted that the petitioner is also entitled for bail on the grounds of parity as the co-accused has been granted bail.

Counsel Nand Lal Thakur,  Ashwani Sharma, Ram Lal Thakur and Rajat Chauhan representing the respondents contended that this Court had granted bail to co-accused as he was able to cross the rider of Section 37 of the NDPS Act.

The Court summarised the law and laid down guiding principles relating to rigors of Section 37 of NDPS Act, while granting bail involving commercial quantities in the NDPS Act:

a) The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

b) In case the Court proposes to grant bail, two conditions are to be mandatory satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin, (2018) 13 SCC 738].

c) Apart from granting opportunity to the Public Prosecutor, the other twin conditions which really have relevance are the Court’s satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721].

d) The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

e) Twin conditions of Section 37 are cumulative and not alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

f) If the statements of the prosecution witnesses are believed, then they would not result in a conviction. [Babua v. State of Orissa, (2001) 2 SCC 566].

g) At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Rattan Mallik, (2009) 2 SCC 624].

h) While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798].

i) In case of inconsistency, Section 37 of the NDPS Act prevails over Section 439 CrPC. [Narcotics Control Bureau v Kishan Lal, (1991) 1 SCC 705].

j) Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84].

In view of the above, petition was dismissed and bail not granted.[Om Prakash v. State of Himachal Pradesh, 2020 SCC OnLine HP 1088 , decided on 10-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed the petition on the merits of the case.

The facts of the case are that on 22-08-2019 a police team laid a nakka at Una to Mehatpur Road and apprehended a Tata Safari in which the driver and a female namely Mahinder Singh Patiyal  and Neelam were caught with 11 bags of white cement but could not give any satisfactory reply. Police on further search found cannabis weighing 2.630 grams covered in an iron sheet inside a bag hidden under the reserve tyre. A mobile phone along with currency notes amounting to Rs 92,820 were also recovered. Mahinder Singh Patiyal and the female petitioner were arrested. It was revealed to the police that many cases under NDPS Act and Excise Act have been registered against accused Mahinder Singh Patiyal and in one of the case he has been convicted and a case under Sections 498A and 504 IPC read with Section 34 IPC has also been registered against him. The present petition has been filed for grant of bail by the female apprehended namely Neelam.

The counsel N.K. Thakur and Divya Raj Singh representing the petitioners argued that the petitioner has been falsely implicated in the present case. It was further argued that the petitioner is permanent resident of District Mandi, Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice.

The counsel S.C. Sharma, P.K. Bhatti and Kamal Kishore representing the respondents stated that the petitioner was found involved in a serious offence, huge quantity of charas was recovered from the joint possession of the petitioner and co-accused Mahinder Singh Patiyal and the case being at initial stage she may tamper with the prosecution evidence and may also flee from justice.

High Court on hearing the arguments on both sides observed that considering the quantity of recovered contraband, i.e., 2 kgs 630 grams, which is a commercial quantity and the manner in which it was concealed in the vehicle rules out the possibility that the petitioner was unaware about the recovered contraband. The Court further stated that as the trial is in the initial stage of investigation, petitioner has the opportunity to tamper with evidence and flee from justice.

In view of the above facts and arguments, the instant petition is dismissed and bail refused. [Neelam v. State of Himachal Pradesh, 2020 SCC OnLine HP 937 , decided on 10-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. rejected bail and dismissed the petition.

The facts of the case are that, the petitioner, a driver by profession resident of Haryana was apprehended for alleged possession of 1 Kilogram 008 Grams of opium and was arrested under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Dharampur, District Solan, H.P. and was in judicial custody. The petitioner earlier preferred for regular bail before the Special Judge-III, Solan, which was rejected. Hence, the instant bail petition was filed.

The petitioner was represented by counsel Vivek Sharma and the respondent was represented by counsel R.P. Singh, Raju Ram Rahi and Gaurav Sharma.

It was submitted that petitioner is driver by profession and is in habit of consumption of opium. It was further stated that he has been booked for possession of poppy straw in 2017 but was acquitted of the charges later and has also been found in possession of 15 bottles of country liquor in the same year and was fined Rs 1500. It was further stated that the explanation with respect to source of contraband was also found false.

The Court based on the facts and submissions, observed that the reverse onus is on the petitioner under the NDPS Act, and the balance of convenience is not in his favour.

In the light of given facts and arguments the bail is rejected and petition dismissed. [Ashish v. State of Himachal Pradesh, 2020 SCC OnLine HP 692 , decided on 15-06-2020]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J. allowed an appeal filed by the appellant against the order of the Special Judge (NDPS) whereby he was convicted under Narcotic Drugs and Psychotropic Substances Act, 1985 for being found in illegal possession of LSD liquid and charas.

The appellant was represented by Caroline Collasso, Advocate who contended that his prosecution was based on total falsity as there were several discrepancies and lacunae in the case. S.R. Rivankar, Public Prosecutor, urged the Court to pass necessary orders.

Discussing the scope of Section 50 of NDPS Act, the High Court relied on Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380, and noted that it is obligatory upon the officer concerned to apprise the suspect of his right to be searched before a Gazetted Officer or Magistrate. The Court was of the opinion that the mandatory requirement of Section 50 was not satisfied in the present case, and therefore the impugned order was liable to be set aside.

Apart from that, it was pertinently noted that the charge against the appellant was itself defective, in the sense that, it nowhere revealed that the contents of the charge were explained to the appellant in the language understood by him and after following the same, he pleaded not guilty. The charge which was farmed was in the English Language. And it was an uncontroverted fact, the appellant who was a Japanese National did not know English. More surprisingly, the Advocate appearing for the appellant did not argue the matter on charge and left it to the Court, which also could be said to be against the right of the accused to be heard at the time of the framing of the charge. The Court observed it as apparent that the charge was farmed sans giving a proper hearing to the appellant.

In such view of the matter, the Court quashed the conviction and sentence awarded to the appellant and set aside the impugned order. [Yusuji Hinagata v. State, 2019 SCC OnLine Bom 2474, decided on 01-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Kuldip Singh, J. quashed the order of the lower court on the ground that there was no finding to prove that the petitioner will create any law and order in the society.

A petition was made against the order passed by the District Magistrate in which prayer of the petitioner for grant of parole was declined.

The State in its reply bought in the notice to the court that parole was rejected on the ground that petitioner was involved in offence under NDPS Act and in the event of release on parole he might create law and order problem in society. It was also submitted that the address of the convict was verified and he was not the habitual offender.

The Court opined that as the report shows that the petitioner was granted the parole three times earlier and he surrendered within time, there was no ground to reject the present petition. It was further held that when it is stated that he is not a habitual offender, the apprehension of the State that he will create law and order problem is without any material and basis. Thus the impugned order was quashed and the petitioner was ordered to be released on parole to meet his family and attend domestic affairs. [Hans Raj v. UT, Chandigarh, 2019 SCC OnLine P&H 1309, decided on 25-07-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed a habeas corpus petition and quashed detention order of a person who had been under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. (hereinafter “the Act”).

Petitioner herein (detenue) was supplying 50 bottles of fenoerox to retailers as per the order placed with his employer. He was stopped by the police and booked under Section 8 read with Section 22 of Act; and was taken into preventive detention under Section 3 of the Act. He filed the instant petition challenging the detention order on the ground that detaining authority had not applied its mind to the provisions of the Act and particularly Article 22(5) of the Constitution of India. Further, the allegations mentioned in the grounds of detention were vague. Lastly, the detaining authority had not recorded its satisfaction to the effect that ordinary law is not sufficient to prohibit the detenue to repeat the offence. Thus, the order was bad in law and liable to be set aside.

Z.A. Qureshi, learned counsel for the  petitioner contended that the impugned order of detention or the grounds of detention formulated by the detaining authority did not indicate any compelling reason necessitating preventive detention of the petitioner after he had already been taken in custody by police for alleged commission of offence under Sections 8 and 22 of the NDPS Act. Thus, his preventive detention was illegal for the same having been passed at a time when petitioner was in the custody of the authorities of the State. It was also contended that the ground for detention was vaguely stated as “exploiting the young generation making them dependent on drugs and to make them habitual addicts”, which incapacitated the petitioner to make an effective representation in terms of Article 22(5) of the Constitution of India.

Javaid Iqbal, learned counsel for the respondent submitted that the detention order was proper as activities of the petitioner were prejudicial to the State. In this regard, he placed reliance on Sections 6, 9, 10 and 11 of the Jammu and Kashmir Prevention of Illicit Traffic Substance Act, 1988.

The Court opined that normally preventive detention of a person, who is already in custody of the State agencies in connection with the commission of offence under substantive law allegedly committed, must not be ordered. Preventive detention of such a person can be ordered only if the detaining authority has “compelling reasons” to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. Reliance in this regard was placed on Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746.

It was noted that at the time of passing the detention order, the petitioner was already in custody in connection with offence under Sections 8 and 22 of NDPS Act, which is a non-bailable offence. The detaining authority had not recorded any reason to believe that there was any possibility of immediate release of the petitioner from custody. Normal law, could properly deal with the matter in hand. Further, relying on Chaju Ram v. State of Jammu and Kashmir, (1970) 1 SCC 536 it was opined that the allegations levelled against the petitioner were vague and the same invalidated his detention order.

In view of the above, the petition was allowed.[Manzoor Ahmad Khawaja  v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 579, decided on 01-07-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J., dismissed a petition seeking bail as the petitioner was a second-time offender and the possibility of him indulging in such similar offences could not be ruled out.  

In the present matter, the petitioner sought bail considering the fact that only 200 grams of charas was recovered from him, which formed the basis of the FIR. Here, the petitioners through counsel, Sheetal Vyas, submitted that since the amount in possession was less, therefore he may be released on bail. They placed reliance on Maulana Mohd. Amir Rashadi v. State of U.P., (2012) 2 SCC 382. Although, Dinesh Thakur, AAG with Amit Kumar Dhumal, DAG, counsels for the respondents, vehemently objected the grant of bail as the petitioner already stood convicted under the provisions of NDPS Act for possession of charas weighing 107 kgs. Also, the sentence imposed upon him was of more than 10 years.

The Court considering the facts and the pieces of evidence was of the view that taking into consideration the history of the petitioner, the possibility that he may again indulge in such similar offences cannot be ruled out. And held the reliance so placed on the case to be “totally misplaced” as the case was very different from the facts at hand, where in the present case the petitioner already stood convicted. Hence the petition stood dismissed.[Chande Ram v. State of HP, 2019 SCC OnLine HP 859, decided on 24-06-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed bail application of a person accused of illegal transportation of cannabis, holding that the application was devoid of merits.

The instant bail application was moved by the petitioner under Section 439 of the Code of Criminal Procedure, 1973 for releasing him on bail, in a case registered for offence under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution’s case was that around 5.650 kg of charas, enwrapped in polythene packets, was being carried by certain persons in a vehicle; when the same was seized by the police during patrolling check. While the petitioner managed to escape that day, he was arrested two months days later. The sample of recovered stuff was sent for scientific analysis and upon analysis, it was found to be a sample of cannabis.

Petitioner’s averments were that he was innocent and had been falsely implicated in the case. He was neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. Whereas, Mr. S.K. Sharma, learned counsel appearing for the prosecution, submitted that petitioner was involved in transporting a huge quantity of charas and if he is enlarged on bail, he would repeat the offence. Thus, his bail application may be dismissed.

The Court observed that “at this stage, considering the quantity of charas, i.e., 5.650 kgs, the fact that trial is likely to conclude, there is likelihood that in case the petitioner, if enlarged on bail, may flee or indulge in such activities again”. In view thereof, it was opined that it was not a fit case for exercising judicial discretion to admit the petitioner on bail.[Vinod Kumar v. State of Himachal Pradesh, 2019 SCC OnLine HP 551, decided on 29-04-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Mukta Gupta, J. dismissed a petition for grant of furlough holding that convicts under Narcotic Drugs and Psychotropic Substances Act, 1985 are not entitled to the same.

The petitioner was convicted for an offence punishable under the NDPS Act and was undergoing a sentence of imprisonment. He applied before the Competent Authority for grant of furlough. However, his application was rejected. Aggrieved thereby, he filed the present petition seeking a grant of furlough.

The High Court noted that according to Rule 1224 of the Delhi Prison Rules, 2018 which came into force w.e.f 1-1-2019, persons convicted for sedition, terrorist activities and under NDPS Act will not be entitled to furlough. While holding that the petitioner was not entitled to the relief sought for, the Court observed that, “furlough is a kind of remission granted as a reward for good conduct, unlike parole which can be granted in exigencies of a situation as well.” Consequently, the petition was dismissed. [Deepender Kumar v. State, 2019 SCC OnLine Del 6773, decided on 23-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Sunil Thomas, J. refused enlargement on bail of a person accused of transacting commercial quantity of the drug.

Applicant herein was caught purchasing 10.202 kilograms of hashish oil and was arrested for committing offences punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He filed an application for granting bail. At the same time, the prosecution filed an application for extension of remand period. Pending consideration of the application for extension of remand period, petitioner’s bail application was adjourned. After the extension was granted, his bail application was dismissed. Aggrieved thereby, the present bail application was filed challenging the lower court’s order on the basis of the decision in Rambeer Shokeen v. State of NCT of Delhi, 2017 SCC OnLine Del 8504.

The Court opined that petitioner’s contention had become redundant since extension for his remand, granted by the lower court, had taken effect from the date of expiry of the first statutory period. In view thereof and in view of serious nature of allegations attributed against the petitioner of having transacted commercial quantity of the drug, his application was dismissed.[Vinish Kumar v. State of Kerala,2018 SCC OnLine Ker 5092, decided on 06-12-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana, M.M. Shantanagoudar and M.R. Shah, JJ. allowed a set of appeals filed against the common judgment of the Punjab and Haryana High Court whereby it had allowed application for suspension of sentence preferred by accused persons and directed them to be released on bail.

The accused were apprehended with “manufactured drugs” and convicted by the trial court under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Aggrieved by the conviction and sentence, the accused approached the High Court. During the pendency of appeals, the High Court passed the judgment stated above observing that “manufactured drugs”, be it containing narcotic drugs or psychotropic substances, must be tried under Drugs and Cosmetics Act, 1940. Aggrieved thereby, the State preferred present appeals.

On perusal of the matter, the Supreme Court was of the opinion that the judgment of the High Court was untenable. Analysing the objectives of the two Acts, it was observed, “while Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage, the NDPS Act intends to curb and penalize the usage of drugs which are used for intoxication or for getting a stimulant effect.” In the instant case, accused were found in bulk possession of manufactured drugs without valid authorisation. It was noted that Section 80 of NDPS Act provides that provisions of the Act are in addition to and not in derogation of Drugs and Cosmetics Act. Reference in this connection was also made to Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1. Further, it is prerogative of the State to prosecute the offender in accordance with law. In such view of the matter, the judgment of the High Court was set aside and the authorities concerned were directed to take the accused in custody. [State of Punjab v. Rakesh Kumar,2018 SCC OnLine SC 2651, decided on 03-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of C. Hari Shankar, J. allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 18(b) of the Narcotic and Psychotropic Substances Act, 1985.

The appellant challenged his conviction contending the non-compliance of provisions of Section 50 of the Act. It was an admitted fact that after apprehending the appellant, he was searched by the raiding party in which opium was recovered from his possession. It is pertinent to note that as per Section 50, a person to be searched under Sections 41, 42 or 43 NDPS Act has to be searched in presence of a Gazetted Officer or a Magistrate. The prosecution, per contra, submitted that the appellant, before the search, was apprised of his right to be searched by a Gazetted Officer or a Magistrate; however, he waived off that right.

The High Court, for adjudication of the matter, perused the cases decided by the Supreme Court including Dilip v. State of M.P.,(2007) 1 SCC 450; State of Rajasthan v. Parmanand, (2014) 5 SCC 345 and Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459. Relying on the said cases, the Court held that compliance with the provisions of Section 50 was mandatory. In the instant matter, it was held there was non-compliance with the said provisions and therefore the search and alleged recovery of opium was vitiated in toto. The appellant was, therefore, held to be entitled to an acquittal from all the charges. The appeal was allowed and the judgment impugned was set aside. [Dharambir v. State,2018 SCC OnLine Del 12305, dated 13-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P. Ubaid, J. declared that re-testing cannot be allowed if the first testing clearly defined as to the composition of the item.

The petitioner was detected of having the possession of opium after analyzing the packets he had in possession. Additionally, the sealed packets were again produced in Court for reanalyzing the percentage of ‘morphine’ contained in the ‘opium’.

The petitioner here cited a decision of the Supreme Court in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 603, where the Supreme Court held that retesting in cases like this cannot be allowed. He also stated that a total of twelve samples were collected and produced in Court. Had the six of the samples been retained then the second analysis could have been justified. But in this case, the request for collection of six new samples from the sealed properties was clearly defined as re-testing.

The Court here questioned the respondents as to why they need to re-test when the sample initially stood identified as opium and stated the request to be wrongly entertained by the lower court. Accordingly, the revision petition was allowed.[P. Abdulkhader v. State of Kerala,2018 SCC OnLine Ker 4657, Order dated 16-01-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.G. Giratkar, J. partly allowed an appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 20(b)(i)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The case against the appellant was that 24 small packets containing ganja along with some currency notes were seized from his hotel. Thereafter, he was taken to the police station and a case was registered against him. The sample of seized material was sent to chemical analyser and it was proved that the material was ganja. Charges were framed against the appellant. He was tried and convicted by the trial court as mentioned above. Aggrieved thereby, the instant appeal was filed.

On perusal of the facts, the High Court found that the conviction of the appellant was based on proper appreciation of facts and the trial court gave a well-reasoned judgment. Therefore, on the issue of conviction, the Court held that no interference with the judgment impugned was warranted. However, on the issue of quantum of sentence, the High Court considered the fact that the appellant was aged about 68 years and was facing prosecution since 2006. In such circumstances, the Court held that the ends of justice would be met if the sentence of imprisonment (3 months) which was imposed on the appellant would be reduced to the period already undergone by him, i.e., 16 days. the appeal was, thus, partly allowed. [Vitthal v. State of Maharashtra,2018 SCC OnLine Bom 3707, dated 20-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed an appeal filed against the order of the trial court whereby the appellant was convicted for an offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case was that one Romy (co-accused) was apprehended by the police while supplying contraband substance. Case property (46 grams of the contraband substance) was recovered from him. On Romy’s revealing that he is supplied the said contraband from the appellant, he was also apprehended. Case property (105 grams of the contraband substance) was also recovered from the appellant. The appellant was tried and convicted by the trial court as mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused the record and found that as per the malkhana register, the alleged recovery of case properties from the two accused was deposited at the same time on 23 August 2012. However, the recovery from Romy had already been made on the previous day, i.e. 22 August 2012. In view of the Court, the contradiction with respect to deposit the case properties in malkhana pursuant to the two recoveries goes to the root of the matter. The same creates serious doubt in the link evidence that the case properties were kept in safe custody and were not tampered with. In such circumstances, the Court held that the appellant was entitled to benefit of doubt. The appeal was allowed and the convict was acquitted of the offence. [Earnest v. State (NCT of Delhi), Crl. A. 1112 of 2016, dated 27-8-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rajbir Sehrawat, J., dealt with an application under Section 439 of CrPC.

The accused was alleged with carrying psychotropic substance with him and FIR was registered against him under Section 22 of NDPS Act, 1985. After being examined by the Chemical Examiner the substance was found to be Alprazolam after which he was kept in custody. Petitioner contended that he had been falsely implicated and denied the presence of any substance with him. His bail application by virtue of Section 37 of NDPS was rejected by Special Judge. Hence, application under Section 439 was filed before this Court.

Petitioner was in custody for one year four months and sixteen days before filing of this petition. Section 37(1)(b)(ii) contains conditions which should be satisfied by Court before granting bail.  According to this section Court requires to prima facie come to satisfaction that the accused is not guilty of the offence alleged against him. This section seems contrary to the principle of presumption of innocence in favour of the accused until proved otherwise. The second part of the section seems humanly impossible as the Court is required to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, or would not commit any offence after coming out of the custody.

Thus, Court observed that though this part of the Section seems unconstitutional, Court does not have the domain in this petition to deal with this issue. But observed that it had to comply with conditions of Section 37(1)(b)(ii) before granting bail, therefore, Court dealt with the issue of Whether the procedure being insisted by the State; for its plea of denying the bail to petitioner; is non-discriminatory, rational, reasonable and fair procedure or not. Court was of the view that State erred in the same and after considering the conditions of Section 37(1)(b)(ii) being fulfilled, bail was granted to the petitioner. [Ankush Kumar v. State of Punjab,2018 SCC OnLine P&H 1259, dated 09-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Abhay Manohar Sapre and UU Lalit, JJ. allowed a criminal appeal filed against the judgment passed by Punjab and Haryana High Court whereby it affirmed the appellant’s conviction for offences punishable under Section 21(c) read with Section 29  of Narcotic Drugs and Psychotropic Substances Act, 1985.

The appellant was convicted for the abovesaid offences in a criminal case registered on recovery of 3.99 kg of contraband substance-heroin from a white coloured Indica car on interception by Revenue Intelligence Officer at Hoshiarpur-Garhshankar road. The trial court convicted the appellant which  was confirmed by the High Court. It is pertinent to note that the appellant was specifically named by the co-accused Ram Kumar. Apart from such statement, nothing was brought on record to indicate the involvement of the appellant. Counsel for the appellant submitted that he was neither arrested at the site nor was the contraband material in any way associated with him. On such contention, the decision of the High Court was impugned in the instant appeal.

The Supreme Court proceeded on the footing that the statements of the co-accused were recorded under Section 67 of the Act, and on the premise that they amount to confession. It was observed that even on such a premise, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. There is no specific provision in the Act making such a confession admissible against a co-accused. The Court relied on Hari Charan Kurmi v. State of Bihar, (1964) 6 SCR 623 to hold that a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be utilized in order to lend assurance to the Court. In the absence of any substantive evidence, it would be inappropriate to base the conviction of the appellant purely on the statements of a co-accused. In the present case, the conviction having been based solely on the confession of the co-accused, the Court was of the view that the appellant was entitled to be acquitted. Therefore, the appeal was allowed and the impugned order was set aside. [Surinder Kumar Khanna v. Directorate of Revenue Intelligence,2018 SCC OnLine SC 757, dated 31-07-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhushan Barowalia, J., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 20 of NDPS Act, 1985.

The case against the appellant was that while the police was on patrol duty, the appellant saw the police and started to run. He was apprehended by the police. The appellant was carrying a bag which was searched and it was found that the appellant was carrying charas. Thereafter, the person of the appellant was searched by the police personnel without informing him about his right under Section 50 to get searched before a Magistrate or a Gazetted Officer. He was tried by the trial court and convicted under the section mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court relied on the Supreme Court decision in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, wherein it was laid down that compliance with the condition of Section 50 NDPS Act, was a mandatory provision. The purpose of the section is to inform the person to be searched about his right to get searched before a Magistrate or a Gazetted Officer. However, in the present case, there was no compliance with the mandatory provision. The High Court was of the view that such failure on part of the police, vitiated the case against the appellant due to not following the procedure laid by the law. In such circumstances, the High Court held that the appellant could not have been convicted by the trial court. Accordingly, the appeal was allowed and the impugned judgment was set aside. [Joginder Singh v. State of H.P.,  2018 SCC OnLine HP 836, dated 03-07-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of  P.K. Lohra, J., decided a revision petition for an offence under Section 8 and 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to assail the impugned order passed by the Special Judge.

The brief facts of the case are that the petitioner was an accused of an offence under the provisions of NDPS Act. Petitioner had moved his application for trial under Section 457 CrPC for the release of the vehicle which contained 37 kg poppy husk/straw in it. The petitioner has preferred this appeal for the release of his vehicle.

Learned Counsel for the petitioner stated the case of Prakash Chand v. State of Rajasthan; 2010 SCC OnLine Raj 992, in which the vehicle was seized for carrying contraband of small quantity. By taking the essence of the stated judgment, the Court acceded to the prayer of the incumbent.

Therefore, the Hon’ble Court concluded its judgment by stating that the vehicle is likely to be confiscated after the trial which leads to the conditional release of the vehicle on “NDPS Act” and interim custody of the vehicle can be granted on that basis.  Court also laid down a few conditions in which furnishing of a personal bond of a sum of Rs. 3,00,000/- along with the undertaking of ownership of the car not to be transferred or leased, further no such antisocial activity to be carried on which may constitute the offence under the NDPS Act. The High Court has thereby allowed the instant revision petition by allowing quashing of the impugned order and setting it aside. [Kamlesh v. State of Rajasthan, 2018 SCC OnLine Raj 1227, dated 16-05-2018]

Case BriefsHigh Courts

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

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

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