NDPS Act

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.

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]

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

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]

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]

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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha, J., while allowing the present application for bail under Section 439 Criminal Procedure Code, 1973 made significant observations with respect to default bail under Section 167(2) Criminal Procedure Code and protection guaranteed by Article 21 of the  Constitution of India.

 Brief Facts

The facts of the case are briefly enumerated hereunder;

  1. That the petitioner accused 2 and 3 were arrested and produced before the Court on 28-12-2019 on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”)
  2. That as per Section 36A(4), the respondent was required to file charge-sheet by 27-06-2020 but an application was filed before the Special Judge for NDPS cases, seeking an extension of time.
  3. That an order with respect to the aforementioned application was passed, dated 1-06-2020, granting an extension of time by another 90 days, to the respondent authority.
  4. That the present petition is moved under Section 439 CrPC, praying to enlarge the petitioner on bail exercising right against the same under Section 167(2) CrPC.

 Issue

  1. Whether the petitioners are entitled to grant of bail as per Section 167(2) r/w Section 36A(4) of the NDPS Act due to non-completion of the investigation?

 Observation

The Court cited the following cases pursuant to its decision;

  • Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Highlighting the prerequisite of granting an extension of time to the investigative authorities, the Court said, “when a report is submitted by the Public Prosecutor to the designated Court, for extension under Clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to oppose the extension of time on legitimate grounds available to him.”
  • Sanjay Dutt v. State, (1994) 5 SCC 410; Clarifying on what shall be considered as an aforementioned notice, the Court held, “requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered is sufficient for the purpose.”
  • Sanjay Kumar Kedia v. Intelligence Officer, NCB,2010 Cri.L.J 2054; In this case, the Court relying on the decision in Hitendra Vishnu, said that the proviso inserted as (bb) in sub-section (4) of Section 20 of TADA was pari-pateria with proviso to sub-section (4) of Section 36A of NDPS Act and an extension in such cases can be granted only upon satisfaction of certain conditions.
  • Kasi v. State; 2020 SCC OnLine SC 529, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) CrPC is eclipsed by the judgment of the Supreme Court dated, 23-03-2020 in Suo Moto WP(C) No. 3 of 2020, it was held “Para 17. The order dated 23-03-2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The IO could have submitted/filed the charge sheet before the Magistrate.” Therefore, even during the lockdown as has been done in so many cases the chargesheet could have been filed/submitted and the IO was not precluded from filing the same. There is no contradiction at all with respect to the extension of limitation order by the Supreme Court order dated 23-03-2020 and the statutory protection granted under Section 167(2) CrPC.
  • The Court also observed that the right of accused under Section 167 CrPC can be denied only when the accused fails to furnish bail as mentioned under Explanation I to the said Section. It was further said that proviso to Section 167(2) CrPC is beneficial legislation made to cure the mischiefs of the preliminary investigation.

Decision

While allowing the present petition, securing bail bond and sureties, the Court reiterated the observation of the Supreme Court where it was categorically stated, “Personal Liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to the procedure established by Law. So long as the language of Section 167(2) of CrPC remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights.” The Court further said that the present instance is an indirect frustration of the petitioner’s right under Section 167(2) CrPC and it is “really shocking to note that even after expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused has been produced before the Court.” [Sayeed Majid Ahamad v. State of Karnataka, Crl Pet. No. 4398 of 2020, decided on 05-10-2020]

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Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., while dismissing a criminal petition for enlargement on bail, said, “There are prima facie materials against the petitioner; Section 37 of the NDPS Act is very much attracted.”

Brief Facts

1. That the Police Inspector received credible information on 11-6-2020 that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.
2. That subsequently, the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.
3. That the present criminal petition is instituted to enlarge the petitioners on bail, on the ground (i) non-compliance of standing instructions; FSL report pending (ii) no registration of FIR prior to search (iii) contraband substances were not seized from the ‘conscious possession’ of the accused.

Observations

1. The panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to Section 42(1) of the NDPS Act. It further states that the search was made in the presence of a gazetted officer, therefore there is due compliance of all the requirements envisaged under NDPS Act.

2. With respect to the contention that, the substances seized were not in the ‘conscious possession’ of the accused, the Court said,

“If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

3. Ben Okoro v. State of Karnataka, Crl. P. No. 8644 of 2017, In this case, bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per standing Instruction No. 1/1988.

4. Kelsi Katte Mohammed Shakir v. Superintendent of Customs, Crl. P. No. 5402 of 2018, The position in the above-mentioned case was reiterated.

5. However, in Nonso Joachin v. State of Karnataka, following the Supreme Court decision in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, The Court said,

“If the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating the existence of prima facie materials about the involvement of the petitioners in commission of offences.”

6. The Court while citing, Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Court made the following observation,

“The focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action.”

Decision
Observing that there are prima facie materials against the petitioner, the Court dismissed the instant criminal petition on the lack of merits. [Tasleem N.P v. State of Karnataka, 2020 SCC OnLine Kar 1533, decided on 01-10-2020]

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Case BriefsHigh Courts

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

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

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

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

Court’s Analysis and Decision

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

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

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

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

Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., allowed an application that was made in order to reduce the amount of sureties for bail. The petitioner was in judicial custody under Sections 8/20 of the Narcotics Drugs and Psychotropic Substances Act, 1985, had challenged the order passed by the Special Court Dehradun, by which, his request to reduce the amount of sureties had been rejected.

The applicant was enlarged on bail by this Court, but he could not get his freedom back because he could not arrange for sureties. D.A.G. for the State, V.K. Gemini, had argued that applicant was a resident of Uttar Pradesh and a commercial quantity of charas was recovered from him. If he was released on bail, he may not appear. But after orders of the Court he was granted bail he was required to submit sureties by the concerned court, but as stated, he could not manage the sureties consequently he moved an application from jail that the amount of sureties may be reduced, but this application was rejected by the court concerned. Thus, the instant application was filed.

The Court while relying on the judgment in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47, quoted that,

“It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony:

Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.

This system has endued-archaic, unjust and virtually unexamined -since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any More likely to flee before trial.

He stays in jail for one reason only-because he is poor . . . .”

The Court while reducing the amount of the sureties disposed of the application observed that they cannot deny freedom to a person just because he is poor.[Ajeet Pal v. State of Uttarakhand, 2020 SCC OnLine Utt 537, decided on 10-09-2020]

Suchita Shukla, Editorial Assistant has put this story together.

Op EdsOP. ED.

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

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

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

CANNABIS

Section 2(iii) Cannabis (hemp):

(iii) “cannabis (hemp)” means—

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

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

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

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

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

COCA

(v) “coca derivative” means—

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

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

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

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

(vi) “coca leaf” means—

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

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

COMMERCIAL QUANTITY

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

ILLICIT TRAFFIC

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

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

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

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

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

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

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

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

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

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

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

OPIUM

(xv) “opium” means—

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

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

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

Section 8 talks about the prohibition of certain operations.

No person shall –

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

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

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

The said Sections contains the following exceptions:

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

Certain relevant case laws:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Drugs

Small Quantity

Punishment

Commercial Quantity

Punishment

Intermediate (In-between

smaller & commercial

quantity)

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

  

 

 

 

 

 

 

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

  

 

 

 

 

 

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

Heroin

 

 5g 250g
Opium

 

 25g 2.5kg
Morphine

 

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

 

 100g 1kg
Coca leaf

 

 100g 2kg
Cocaine

 

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

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

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

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

† Legal Editor, EBC Publishing Pvt. Ltd.

Hot Off The PressNews

Narcotics Control Bureau (NCB) had sought 14 days Judicial Custody of Actress Rhea Chakraborty for being involved in the procurement and distribution of Drugs.

According to the media reports, She has been allegedly charged for Sections 8(c), 20(b) (ii), 22, 27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Her Bail plea was also rejected.

Rhea was summoned and her voluntary statement was recorded under Section 67 of NDPS Act on 06-09-2020, 07-09-2020 and 08-09-2020.

NCB states that Rhea is an active member of the drug syndicate connected with drug supplies.

Here’s an explainer for the Sections under which Rhea Chakraborty has been charged:

Section 8(c) of the NDPS Act:

8. Prohibition of certain operations.—No person shall—

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

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

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

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

Section 20(b) (ii) of NDPS Act, 1985:

Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—

1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to clause (b),—

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 27(A) of the NDPS Act:

Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viii-a) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 29 of the NDPS Act:

29. Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which—

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

Image Credits: Hindustan Times

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi J., granted bail on grounds of non-service of notice on the accused which is violative of the most cardinal principle of natural justice.

The facts of the case are that while the informant in the instant case along with his staff was on patrolling duty they detained the accused on suspicion and discovered eleven polythene packets containing 270kg 200gms of Ganja. They were charged under Section 20(b)(ii) of the N.D.P.S. Act and subsequently arrested. The Petitioner along with other accused persons were forwarded to the Court of Sessions Judge-cum-Special Judge, Koraput, Jeypore who directed S.I. Sima Pradhan of Jeypore Sadar P.S to commence investigation. An application for extension of the submission of charge sheet was filed which was subsequently granted through ex parte proceedings without issuing notice to the accused persons. Aggrieved by the same, the present petition for grant of bail under Section 439 CrPC, 1973 has been preferred before the court.

Counsel for the petitioner Jyotirmaya Sahoo and S.K Pattnaik submitted that the court has erred in passing the ex parte order which is in violation of Section 36 A(4) of the N.D.P.S. Act which mandates that an opportunity of hearing must be given to the accused before granting an extension for a further period of 60 days for completing the investigation. Due to this violation, the petitioner is entitled to be enlarged on bail.

Counsel for the respondent Tapas Kumar Praharaj submitted that the Petitioner is a resident outside the state hence there are higher chances of fleeing from justice and considering the nature and gravity of the offence, the Petitioner ought not be released on bail.

 Seeking extension for default in filing of chargesheet vis-à-vis grant of bail

In Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; Pappu Ram v. State of Rajasthan, 2017 SCC Online Raj 3418;  Arvind Kumar Saxena v. State, 2018 SCC Online Del 7769 and Venkatesh v. State, 2019 SCC OnLine Mad 995 it was clarified that although a default in filing the chargesheet would confer an indefeasible right of the accused to be admitted to bail. However, if an accused fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet has been filed. On the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet.

Non-issuance of notice to the accused at the stage of hearing the application for extension of time

In Pradip Maity v. Union of India, 2010 SCC OnLine Cal 1503 it was held that before the grant of extension of time, notice should be issued to the accused so that he may have an opportunity to oppose the extension which is sine qua non for seeking extension under section 36A(4) of the N.D.P.S Act. Any sort of violation thereof would entitle the benefit to the accused to get enlarged on bail.

 Rejection of bail application by Special Judge

In Union of India v. Thamisharasi (1995) 4 SCC 190 it was held that the only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the charge sheet within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The reasoning behind such a view is that till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him under Section 37(1)(b) of the NDPS Act. It is held that such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.

On hearing the arguments and authoritative pronouncements Court summarized the legal principles on the same, violation of which will accrue the right to bail. These are as follows:

  1. Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;
  2. Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;
  3. A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,
  4. An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.
  5. In cases where any such default occurs, the question of it being contested doesn’t arise and a right accrues in favour of the accused.
  6. The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.
  7. Violation of any of the aforesaid would be construed as a “default” and the accused become entitled to admitted to bail by such a default.
  8. When an application under Section 167(2) CrPC r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending

 The Court held that in case there is a violation of any of the above, an indefeasible right to bail will be accrued to the accused. The Court further applied the aforesaid parameters in the instant case and laid down that there have been such “defaults” in the instant case, especially non-service of a notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the petitioner and hence he is enlarged on bail.

In view of the above, bail is granted and the petition disposed off.[Ishwar Tiwari v. State of Odisha, BLAPL No.10152 OF 2019; decided on 20-08-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: Harnaresh Singh Gill, J., rejected the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The facts, in brevity, are that the intoxicant tablets were recovered from the car in which the applicant was sitting which led to the filing of the above stated FIR.

Counsel for the applicant, Manpreet Ghuman has contended that the recovery has been effectuated in the present case and the applicant has been languishing in police custody for the past seventeen months. Also, the challan has been presented along with the filing of the charges hence the purpose to keep the applicant behind bars has turned redundant.

Counsel for the respondent, M.S. Nagra vehemently objected to the bail application stating that the intoxicant tablets that were recovered in the present matter were of commercial quantity hence, it is not fit that the applicant be granted bail.

Upon careful perusal of the facts, circumstances and arguments advanced the Court observed that an accused does not get entitled to bail merely because of the fact that a challan has been presented or charges have been framed. It’s an inadequate ground especially in the present case where the amount of intoxicant tablets recovered from the applicant falls under the category of commercial quantity. Section 37 of the NDPS Act has specifically barred the grant of bail to an accused in case of a commercial quantity being involved.

In view of the above, Court rejected and dismissed the application for lack of merit. [Prem Singh v. State of Punjab, 2020 SCC OnLine P&H 1341, decided on 26-08-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J. allowed the application and enlarged the applicants on bail.

The applicants in the instant case were arrested for offences falling under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that the recovered contraband was heroin.

Counsels for the applicants, Mohd. Yaseer Choudhary, Syed Aaqib Mujtaba, and Ashfaq Mir argued that the said contraband, even if taken as a whole, didn’t fall within the category of commercial quantity and rather would fall within the category of the intermediate quantity. Further, the applicants had been in custody for more than eight months without trial because the proceedings not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court to date. It is further submitted that apart from the FIR, the prosecution didn’t bring forth any incriminating facts before the Court showing involvement of the applicants in any similar type of offences earlier.

The respondent-Union Territory objected by contended that filed the application was not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It was further contended that that the applicants did not deserve to be enlarged on bail as they are drug peddlers. This objection was raised by relying on the Supreme Court verdict in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.

The Court went the other direction and relied on another verdict of the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501 wherein it was held that the findings of the Court or higher court while rejecting the earlier bail application are to be considered when the bail application is filed subsequently either before the same court/ court of coordinate jurisdiction or before the subordinate court. Further, as a rule, the successive bail application is required to be heard by the same judge. Once the higher Court rejects the bail application, then the fresh bail application cannot be entertained by the subordinate court unless there is a change of circumstance/situation. Even before the same Court, the successive bail applications cannot be entertained on the same facts when the earlier bail application has been rejected. The principle of bar in entertaining successive bail application without change of circumstance shall apply in those cases where the subsequent bail application is filed before the same court or the court of co-ordinate jurisdiction. Thus if the bail application is rejected by the Court, the accused is well within his right to approach the higher court on similar facts for grant of bail but not vice-a-versa.

Furthermore, in Diwan Singh v. State of J&K, 2010(3) JKJ 367 it was held that once an anticipatory bail application is rejected by the Sessions Court on the same cause of action, fresh application before High Court can be filed.

Thus, the Court while pronouncing its decision stated that:

“The conclusion of the trial may take some time as there is no possibility of the conclusion of trial in near future so the applicants cannot be kept in custody for long time as a matter of punishment.”

Nevertheless, the Court also held that since the quantity of recovered contraband was an intermediate quantity, the rigors of Section 37 of the NDPS Act could not apply.[Liaqat Hussain v. Union Territory of J&K, 2020 SCC OnLine J&K 424, decided on 25-08-2020]

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]