Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Kesang Doma Bhutia and Moushumi Bhattacharya, JJ. allowed a bail application of the petitioner suffering from 100% speech and hearing impairment under Section 439 of the Code of Criminal Procedure, 1973 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

It was brought to the notice of the Court that he had been in custody for 440 days and has suffered from various ailments while in custody.

The Court considering the physical condition of the petitioner and a recent order of the Supreme Court in Rockysingh Jalindersingh Kalyani v. State of Maharashtra, Criminal Appeal No.176 of 2022 where Supreme Court also took into account the physical condition of the person suffering from disability, allowed the bail application.[Parimal Sardar v. State of West Bengal, CRM(NDPS) 56 of 2022, order dated 18-04-2022]

Mr Arjun Chowdhury, Mrs Pratusha Dutta Chowdhury: For the Petitioner

Mr Aditishankar Chakraborty, Mr Sourav Ganguly: For the State


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)

Orissa High Court: Sashikant Mishra J. allowed the interim application (I.A.) and granted the relief sought and thereby cancelled the bail bonds executed erroneously.

The criminal petition i.e. CRLMC was filed by the petitioners under Section 482 Criminal Procedure Code i.e. Cr.P.C. to challenge the orders dated 06-09-2020/08-09-2020, 02-03-2021 and 03-05-2021 passed by the  Sessions Judge-cum-Special Judge, Malkangiri. The present application was filed by the State seeking recall of order dated 18-11-2021 passed in the above CRLMC mainly on the ground that such order was obtained by the accused petitioners by misleading the Court.

Counsel for petitioners submitted that the petition (I.A.) is not maintainable in law for the reason that as per Section 362 of Cr.P.C., the Court has no power to recall its own order after the same has been pronounced as it would amount to sitting in appeal over its own order.

Coounsel for respondents submitted that the averments contained in the CRLMC petition are product of misrepresentation of facts, inasmuch as, it is stated that the accused persons were arrested on 06-09-2020 but were produced on 08-09-2020 and accordingly, 180 days period was due to expire on 03-03-2021. Mr. Mishra further submitted that the petition for extension of time was filed and allowed before expiry of the 180 day period and charge sheet was also submitted before expiry of the extended period and therefore, no indefeasible right whatsoever accrued in favour of the petitioners for being released on default bail. But by completely misrepresenting such facts they have obtained the order, which is nothing but a fraud played on the Court and therefore, the order should be recalled.

Section 362 of Cr.P.C., which reads as under:

“362. Court not to alter judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

 

The Court relied on judgment R. Rajeshwari v. H.N. Jagdish, (2008) 4 SCC 82 wherein it was held that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinarily, exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it.

The Court observed that even otherwise Section 362 of the Code places a bar on the Court to ‘alter’ or ‘review’ its order or judgment. Once the judgment is pronounced and signed the Court becomes functus officio and therefore, no further alteration or review of the same is permissible save and except to correct clerical or arithmetical errors.

The Court stated that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice. In case any of the three conditions exist, the High Court would be justified in exercising its jurisdiction.

The Court further observed that the impugned order was passed on erroneous premises as charge sheet was submitted two days after expiry of the extended period and since, the accused persons had not been produced nor their right to be released on default bail informed to them, the CRLMC was allowed by holding that they were entitled to be released on bail.

The court after perusing facts, calculating dates, analysing case laws observed that Court is unable to persuade itself to believe that it was a bonafide error on the part of the accused persons to miscalculate the date, rather, having regard to all the facts and circumstances noted hereinabove, it becomes more than evident that they had done so deliberately in order to obtain a favourable order. This is nothing but playing fraud on the Court. It goes without saying that but for such deliberate mis-presentation this Court would not have passed the order in question.

The Court stated that an order obtained by fraud cannot be allowed to subsist as it would amount to perpetrating a gross illegality. Even otherwise, the High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a duty to keep its records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a superior Court and a Court of record.

The Court made it amply clear that in the instant case, the order in question was passed exercising power under Section 482 of the Code which is indisputably, a plenary power. Therefore, once it comes to light that the party concerned was not entitled to the order passed in its favor, which is nothing but an abuse of the process of Court, it would be perfectly legal as also justified in invoking the very same power under Section 482 of the Code so as to prevent such abuse and to secure the ends of justice. True, such power has to be exercised sparingly but if the circumstances so warrant, the Court is expected to rise to the occasion to set right the wrong.

The Court thus held “it becomes evident that the accused petitioners were not entitled to default bail but had obtained such order by deliberately misrepresenting facts before this Court. As such, the order in question cannot be allowed to subsist and deserves to be set aside.”

Concluding Remark:

 IO being a responsible police officer in charge of investigating an offence as heinous as one under the NDPS Act carrying stringent punishment, is not expected to show such irresponsible conduct in calculating the time-period for completion of investigation while making prayer for extension of such time. There is no gainsaying about the ill-effect of such callousness and irresponsible conduct. The case at hand is a case in point. This Court therefore hopes and trusts that the higher police authorities shall take note of this lapse and issue necessary instructions to be followed by the IOs, particularly in NDPS cases [Saba Bisoi v. State of Odisha, 2022 SCC OnLine Ori 948, decided on 15-03-2022]

Appearances

For Petitioners : M/s. Jugal Kishore Panda, S.S. Dash, B. Karna & A.P. Dash

For Opp. Parties : Mr. S.K. Mishra


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

A petition under Section 439 of Criminal Procedure Code, 1973 sought interim bail in an FIR registered under Sections 468, 471, 201 of the Penal Code, 1860 (IPC) and Sections 20, 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS).

Background


One Danveer was involved in an illegal interstate supply of drugs to foreigners in various states in India for the purpose of rave parties. Hence raid was conducted. Charas/hasish of total weight 2.210 kgs was found.

In view of the above, the petitioner was arrested, and first bail application was moved by the petitioner before the trial court and the same was dismissed, later the second application was also dismissed. Further, even the third bail application was dismissed.

Petitioner approached this Court by way of interim petition for interim bail. This Court had converted the instant interim bail application into one for regular bail.

Analysis, Law and Decision


High Court referred to the Supreme Court decision in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, wherein the petition had been instituted with the aim to ensure that undertrial prisoners who had been languishing in jail for an extended period of time were granted bail despite the stringency of the provisions for bail under the NDPS Act. The underlying reason for the same was to uphold the right to personal liberty and the right to speedy trial of an undertrial under Article 21 of the Constitution of India.

In view of the above Supreme Court decision, it was categorically noted that,

“…where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years.”

Further, the Bench expressed that,

“It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial.”

High Court opined that the petitioner was entitled to release on account of inordinate delay in trial and prolonged judicial custody.

“Right to speedy trial is an intrinsic part of Article 21 of the Constitution of India.”

Further, the High Court added that the Courts must remain cognizant of the deleterious impact of drugs on society, it is also important to keep in mind that deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution.

The Bench found the present case fit for granting bail, subject to the following conditions:

a)  The Petitioner shall furnish a personal bond in the sum of Rs 1,00,000 with two sureties of the like amount, one of them should be the relative of the Petitioner, to the satisfaction of the Trial Court;

b)  The Petitioner is directed to deposit his passport with the Trial Court.

c)  The Petitioner is directed to reside in Delhi till further orders and the address shall be verified by the learned Trial Court at the time of acceptance of bail bonds.

d)  The Petitioner shall report to the concerned Police Station twice in a week, that is, on every Wednesday and Friday at 10:30 AM, and the Police is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities;

e)  The Petitioner shall not leave NCT of Delhi without the prior permission of the trial Court;

f)  The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;

g)  The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;

h)  In case it is established that the petitioner has indulged in similar kind of offences or tried to tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.

In view of the above observations, the application was disposed of. [Anil Kumar v. State, 2022 SCC OnLine Del 778, decided on 21-3-2022]


Advocates before the Court:

For the Petitioner:

Mr. Rajinder Singh and Mr. Piyush Gupta, Ms. Himanshi Batheja, Advocates.

For the Respondent:

Mr. Amit Chadha, APP for the State with SI Thakur Singh, PS Special Cell

Case BriefsHigh Courts

Punjab and Haryana High Court: Expressing that, State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking, Harnaresh Singh Gill, J., held that in order to curb the menace of drug trafficking the accused person are to be dealt with stringently even at the stage of granting her/him bail in NDPS Act cases involving commercial quantity.

Petitioner sought bail in a case registered under Sections 21 and 29 of the NDPS Act, 1985. The prosecution case was that 19000 intoxicating capsules ‘RIDLEY’ were recovered from the petitioner and the co-accused.

High Court stated the recovery effected in the present matter fell under the commercial quantity.

Section 37 of the NDPS Act barred the grant of bail to the accused in cases involving commercial quantity.

Another point the Court noted was that the petitioner was also involved in another case of similar nature, which had shown his tendency of committing repeated offence (s) of similar nature.

Bench denied concession of regular bail to the petitioner. [Harbhajan Singh v. State of Punjab, 2022 SCC OnLine P&H 526, decided on 14-2-2022]


Advocates before the Court:

Mr. Ritesh Pandey, Advocate, for the petitioner.

Mr. Davinder Bir Singh, DAG, Punjab.

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., rejected a bail application which was filed for releasing the accused on bail who had been undergoing imprisonment since 16-09-2021 under NDPS Act, 1985. Successive applications of the accused for pre-arrest bail were rejected.

Huge quantity of contraband including 100 bottles of Phensedyl in a carton, 4375 bottles of Phensedyl of different batch in different cartons, 300 bottles of Escaf cough syrup etc. were recovered from inside the vehicle of the accused which were hidden beneath the vegetables. During investigation accused, husband of the owner of the offending vehicle surrendered at the police station who was granted default bail by the Special Court.

Counsel appearing for the petitioner contends that the investigating agency has by this time laid charge sheet against the petitioner and therefore further detention of the petitioner would amount to pre trial detention which does not have the sanction of law. Counsel urges that the informant police officer has categorically asserted in his FIR that after the offending vehicle was intercepted and caught by the police patrolling party, there was only one person inside the vehicle who fled away from the place of occurrence and his identity could not also be established.

Counsel for the State contended that NDPS Act is a special statute and section 37 of the Act has imposed heavy restrictions on bail to an accused charged under the said statute.

The Court noted that in the present case, the substance recovered by the investigating agency is of huge quantity which is reported to be a psychotropic substance under the NDPS Act. Even though the accused has raised a plea that he was not involved in any manner in the alleged transportation of the contraband, such plea of the accused cannot be accepted at this stage in view of the materials available against him. The investigating agency has collected sufficient materials to prove his association with the offending vehicle as its driver. Wife of the co-accused has categorically asserted that the petitioner was a driver of her vehicle. Having denied his association with the offending vehicle, petitioner claimed that he left the job of driving the vehicle long back. The veracity of such statements can only be ascertained in the course of trial during the examination and cross examination of witnesses. An elaborate examination of evidence touching the merit of the case and a detailed exposition thereof would not be appropriate at this stage because such observations are likely to prejudice the accused petitioner in the course of trial.

The question which fell for consideration of this court was whether the accused has qualified the tests provided under section 37(1)(ii) of the NDPS Act.

The Court found that there was no scope for this court to hold that there were reasonable grounds for believing that the petitioner was not guilty of the charge of offence brought against him and he was not likely to commit any offence while on bail. The Court finally rejected the bail application.[Priya Lal Halder v. State of Tripura, 2022 SCC OnLine Tri 62, decided on 09-02-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s) : Mr B. Deb and Mr S. Rahman

For Respondent(s) : Mr R. Datta, P.P. Mr S. Debnath, Addl. P.P. and Mr S. Ghosh


Also Read:

S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

An application under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR under Sections 22 of the Narcotics, Drugs and Psychotropic Substances Act, 1985.

Factual Matrix

ASI Pawan Kumar received information that a person from Rohini Delhi was involved in sale and supply of Ecstasy (a party drug) in Delhi-NCR and would come near an apartment to deliver the same to someone else. On receiving the said information, the raid was conducted.

On conducting a formal search in light of provisions of NDPS Act, 100 Pills of Ecstasy were recovered and the same was seized. Hence, the FIR under Sections 22/29 of the NDPS Act was registered and further investigation of the case was carried out.

Accused disclosed that he had received the above-mentioned contraband from the applicant and later the applicant was apprehended and on recovering 20 grams of 3,4-Methylenedioxymethamphetamine (MDMA) from his possession, he was arrested.

In view of the above, charges were framed for the commission of offences under Sections 22 and 29 of the NDPS Act.

Analysis, Law and Decision

In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable, High Court expressed while referring to Section 37 of the NDPS Act.

Section 37 NDPS Act does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two-fold conditions prescribed under the Section have been met.

Before granting bail, the Court must be satisfied with the scheme of Section 439 CrPC.

The Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds‟ for such satisfaction.

Elaborating further on the term “reasonable grounds”, Court expressed that, the said term is not capable of any rigid definition nor of being put into any straight-jacket formula, but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts.

High Court noted that the main accused was charged with the possession of a larger quantity of contraband and on the basis of whose statement the applicant was arraigned and raised has already been released on bail. Hence the applicant’s application merited indulgence of this Court on the ground of parity.

“Reasonable Grounds” in the present matter were found by the Court.

The applicant had been incarcerated for more than 4 years as an undertrial, whereas on date, two of the witnesses have been examined and the trial remains pending.

On observing the above, Court expressed that,

Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India, and the same needs to be given effect by this Court in letter and in spirit, else it will remain as a dead letter of law. 

Supreme Court’s decision in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 was cited wherein detailed guidelines were laid down with respect to speedy trial. The said guidelines were also upheld by a 7- Judge Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.

Conclusion

Applicant was in jail for more than 4 years and out of 14 witnesses only 2 were examined to date and no possibility of trial to be concluded in the near future

Hence, the applicant cannot be incarcerated for an indefinite period and the Court must step in to ensure speedy justice to the applicant.

In view of the above discussion, the applicant was granted bail and the Court laid down emphasis on parity and clean antecedents of the applicant.

The applicant was directed to furnish a personal bond of Rs 50,000, with two sureties of like amount and bail conditions, were laid down.

While allowing the application, Court directed Trial Court to conclude the trial expeditiously. [Mahesh v. State (GNCTD), 2022 SCC OnLine Del 394, decided on 8-2-2022]


Advocates before the Court:

For the Petitioner:

Mr. Akshay Bhandari and

Mr. Digvijay Singh, Advocates

For the Respondent:

Kusum Dhalla, APP for the State

Case BriefsHigh Courts

Punjab and Haryana High Court: In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked,

“…the said discrepancy reflects nothing else but their callously casual approach towards their official duty which is least expected from them because they are duty bound to check the crime graph in the State specially in the circumstances when the drug menace has become deep rooted and is taking its toll like a slow poison for the young generation upon which every nation pins hopes for a bright and secure future.”

Factual Background

On receipt of secret information three persons were arrested under Sections 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was on their discloser statement that the contraband was supplied to them by the petitioner 1-Sandeep Kumar, the petitioner 1 was apprehended and 1500 Clovidol 100-SR tablets, packed in 150 strips and 600 white colour loose intoxicant tablets were recovered at his instance. On his disclosure statement the petitioner 2, Amit Sharma was also nabbed and 300 white colour loose intoxicant tablets recovered from him.

Urging for bail the petitioners contended that the sample of ‘CLAVIDOL 100-SR’ tablets, allegedly recovered from them was found to be containing ‘Pregabalin’ and the sample of the loose intoxicant tablets, contained ‘Tramadol Hydrochloride’ and the average weight of those loose tablets was reported to be 403.48 mg. The petitioners submitted the salt ‘Pregabalin’, as reportedly found in said 1500 ‘CLAVIDOL-100 SR’ tablets, does not fall within the purview of the Act and the total weight of the said 600 loose tablets, comes out to be 242.088 gms which was less than the commercial quantity of the said salt (Tramadol Hydrochloride), i.e 250 gms.

Observations and Order

Noticeably, the Trial Court had framed the charge against petitioners under Section 22 of the Act only for their having been found in possession of 600 and 300 loose tablets, containing ‘Tramadol Hydrochloride’, respectively, while specifically mentioning therein that 1500 tablets containing Pregabalin, as recovered from accused-petitioner Sandeep, do not fall within the purview of the Act and the petitioners have not been charge-sheeted under Section 29 of the Act meaning thereby that the Investigating Agency, in its own wisdom and also for the reasons best known to it, had not presented the Challan against both the petitioners under the said provision, i.e Section 29 of the Act.

Therefore, keeping in view the factum of the petitioners having been charge-sheeted under separate heads for the recovery of the said contraband and the period of their incarceration, the Bench granted bail to both the petitioners and ordered that the petitioners be released on regular bail.

Callous Conduct of Authorities

Further, noticing that the Assistant Commissioner Drugs, Food & Drug Administration had issued a letter to M/s Yorks Pharma for cancelling the permission to manufacture the formulations containing ‘Tramadol Hydrochloride’ salt including ‘CLAVIDOL 100-SR’ tablets, on account of the alleged contravention of the Drugs and Cosmetics Act, 1940 and Rules 1945, while further directing it to stop the manufacturing of all the drug formulations containing the said salt and observing that as per FSL reports, the ‘CLAVIDOL-100 SR’ tablets, i.e the tablets with the same brand name, contain ‘Pregabalin’, the Bench ordered that Department is supposed to check and supervise the manufacturing of the drugs in the State so as to ensure the strict compliance of the relevant law/Rules. The Bench remarked,

“Subsequent use of the same brand name, i.e ‘CLAVIDOL-100 SR’ by the above-said manufacturer for manufacturing the tablets containing a different salt is likely to lead to grave consequences as the same can result in serious health hazards for the patients as well as the public at large.”

However, on being reprimanded by the Court the authorities concerned had issued another letter to the afore-named manufacturer qua the cancellation of the permission granted to it for manufacturing the drug formulations containing ‘Pregabalin’.

Criticizing the conduct of on the part of the Authorities, the Bench stated,

“It is highly deplorable and it speaks volumes of their questionable acts and omissions which pose a serious challenge for the State in tackling with the drug menace which seems to be touching new heights with every passing day.”

[Sandeep Kumar v. State of Punjab, 2022 SCC OnLine P&H 325, decided on 27-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner 1: Keshavam Chaudhari, Advocate

For Petitioner 2: Parminder Singh Sekhon, Advocate,

For the State: Samina Dhir, DAG

Case BriefsSupreme Court

Supreme Court: In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

Factual Background

  • The respondent had travelled twice to Mauritius in the guise of doing business in scrap metal. On the third occasion, he was found to be in possession of 152.8 grams of heroin and was arrested. The Supreme Court of Mauritius convicted the Respondent and sentenced him to imprisonment for 26 years.
  • On 09.10.2015, an undertaking was given by the Respondent that he will abide by the terms and conditions of the sentence adaptability order issued under the agreement/treaty on transfer of sentenced prisoners entered into between India and Mauritius while making a request for his repatriation to India. Subsequently, his repatriation to India was approved on 04.03.2016 and a warrant of transfer was issued on 24.10.2016.
  • After the transfer of the Respondent to India under the 2003 Act, the Respondent preferred a representation to the Ministry of Home Affairs, Government of India for reduction of sentence from 26 years to 10 years which is the maximum punishment prescribed under Section 21 (b) of the NDPS Act as applicable for the quantity of heroin seized from the Respondent.
  • By an order dated 03.12.2018, his representation for reduction of sentence term was rejected.

Analysis of the provisions of the Repatriation of Prisoners Act, 2003

The object of the 2003 Act is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. One of the salient features of the 2003 Act is also that the enforcement of sentence of the repatriated prisoner has to be governed by the law of the receiving State, however in doing so, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State.

While operating in accordance with this object and feature, Section 12 of the 2003 Act makes it clear that the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions that may be agreed between India and the State. The decision to be taken by the Government on the representation preferred for transfer, therefore, shall be subject to the agreement entered into between Republic of India and Republic of Mauritius regarding the transfer of prisoners.

Article 8 of the said agreement categorically states that while continuing the enforcement of the sentence, India shall be bound by the legal nature and duration of the sentence as determined by transferring State.

On a combined reading of Section 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be deduced: –

  1. Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India.
  2. The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12 (1) of the 2003 Act, meaning thereby that the acceptance of transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State i.e., India.
  3. On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed.
  4. The warrant which is to be issued has to provide for the nature and duration of imprisonment of prison in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States.
  5. The imprisonment of the transferred prisoner shall be in accordance with the warrant.
  6. The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of the imprisonment is incompatible with Indian law as to its nature, duration or both.
  7. In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting state, as far as possible.

Applicability of the law to the case at hand

Considering the law and the facts of the case, it was held that the sentence imposed by the Supreme Court of Mauritius in this case is binding on India. A warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years. As per Section 13(4), the sentence shall be 26 years.

“The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law.”

Reference to Indian law in Section 13 (6) of the 2003 Act is not restricted to a particular Section in NDPS Act. Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence.

“Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible.”

The adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to reduction of sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement. The Court held that te reasons recorded by the Central Government to reject the request for scaling down the sentence are in accordance with the provisions of the 2003 Act and the agreement entered into between India and Mauritius as discussed above. Hence, the Court upheld the order of the Central Government.

[Union of India v. Shaikh Istiyaq Ahmed, 2022 SCC OnLine SC 36, decided on 11.01.2022]


*Judgment by: Justice L Nageswara Rao


Counsels

For appellant: ASG Madhvi Divan

For respondent: Senior Advocate A.M. Dar

Case BriefsSupreme Court

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

Factual background

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

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

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

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

Analysis

Section 427 of Cr.PC – Explained

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

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

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

Principles laid down in a series of Supreme Court Rulings

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

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

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

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

Discretion under Section 427 CrPC

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

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

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

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

Ruling on facts

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

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

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


Counsels

For appellant: Advocate Sangeeta Kumar

For State: Advocate Akaanksha Kaul


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

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

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

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

Findings of the Court

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

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

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

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

Decision

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


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance by:

For the Petitioner: Dushyant Saharan, Advocate

For the State: Bhupender Singh, DAG, Haryana

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

High Court Round UpLegal RoundUp

Allahabad High Court


POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

Read more…

Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd.(2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

Read more…

Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

Read more…

 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

Read more…

Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

Read more…


Bombay High Court


 NDPS

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

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

Read more…

Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

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

Read more…

Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Read more…

Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Read more…

Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

Read more…

Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…


Calcutta High Court


 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Read more…

Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

Read more…

Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

Read more…

State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Read more…


Delhi High Court


 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…

Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Read more…

Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

Read more…

Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Read more…

Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

Read more…

Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Read more…

Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…

INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…

Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…

Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

Read more…

Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Read more…


Jammu and Kashmir and Ladakh High Court


Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

Read more…

Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

Read more...

Run Away Couple

No law or religion gives a license to a father to harass his daughter”

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

Read more…


Jharkhand High Court


Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

Read more…

“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

Read more…


Karnataka High Court


Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

Read more…


Kerala High Court


Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

Read more…

Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Read more…

Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

Read more…

Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Read more…

Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

Read more…

Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

Read more…

Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

Read more…

Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

Read more…


Madhya Pradesh High Court


Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

Read more…

Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

Read more


Meghalaya High Court


Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

Read more…

Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

Read more…


Orissa High Court


Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

Read more…

Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

Read more…

Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

Read more…


Patna High Court


Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

Read more…


Punjab and Haryana High Court


Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

Read more…

NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

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

Read more…


Rajasthan High Court


Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

Read more…


Sikkim High Court


Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

Read more…


Telangana High Court


Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

Read more…

Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

Read more…


Uttaranchal High Court


Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

Read more…

Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

Read more…

Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

Read more…

Case BriefsHigh Courts

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

Crucial Question:

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

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

Analysis, Law and Decision

What is LSD?

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

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

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

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

LSD is a potent, long-lasting psychoactive substance.

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

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

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

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

Hence,

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

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


Advocates before the Court:

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

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

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

Case BriefsHigh Courts

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: V.B. Godara, Advocate

For the Respondent: Aditi Girdhar, AAG, Haryana

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., grants bail to accused Aryan Shah Rukh Khan, Arbaaz A. Merchant and Munmum Dhamecha while laying down 14 conditions.

Bail was sought by three accused, accused 1 – Aryan Shah Rukh Khan, accused 2 – Arbaaz A. Merchant and accused 3 – Munmum Amit Kumar Dhamecha by the present bail application for the offence punishable under the NDPS Act.

High Court released the above applicants on the following conditions:

(a) Each of the Applicants/Accused shall execute P. R. Bond of Rs. 1 lakh with one or more sureties in the like amount.

(b) Applicants/Accused shall not indulge in any activity similar to the activities on the basis of which the said CR stands registered against them for offences under the NDPS Act.

(c) Applicants/Accused shall not try to establish communication with co-accused or any other person involved directly or indirectly in similar activities or make any call to any person indulging in similar activities as alleged against them, through any mode of communication.

(d) Applicants/Accused shall not undertake any action which is prejudicial to the proceedings before the Hon’ble Special Court (established under the NDPS Act)

(e) Applicants/Accused neither personally or through anyone make any attempt to influence witnesses nor tamper with the evidence.

(f) Applicants/Accused shall surrender their passport before the Special Court immediately.

(g) Applicants/Accused shall not make any statement regarding the aforesaid proceedings pending before the Special Court in any form of media i.e. print media, electronic media etc. including social media.

(h) Applicants/Accused shall not leave the country without prior permission from the Special Judge for NDPS at Greater Mumbai.

(i) If the Applicants/Accused have to go out of Greater Mumbai, they shall inform the Investigating Officer; and shall give their itinerary to the Investigating Officer.

(j) Applicants/Accused shall attend the NCB Mumbai office on each Friday between 11:00 a.m. to 2:00 p.m. to mark their presence.

(k) Applicants/Accused shall attend all the dates in the Court unless prevented by any reasonable cause.

(l) Applicants/Accused shall join the investigation as and when called upon to do so before the authorities of NCB.

(m) Once the trial begins, the Applicants/Accused shall not in any manner try to delay the trial.

(n) If the Applicants/Accused violate any of these terms, NCB shall be entitled to straightaway apply to the Special Judge/Court for cancellation of their bail.

[Aryan Shah Rukh Khan v. Union of India, Criminal Bail Application No. 3624 of 2021, decided on 28-10-2021]


Advocates before the Court:

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

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

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

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

None for the Interveners.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that,

“… the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :

  1. The Prosecutor must be given an opportunity to oppose the application for bail; and
  2. There must exist ‘reasonable grounds to believe’ that

(a) the person is not guilty of such an offence; and

(b) he is not likely to commit any offence while on bail.

Important rulings

Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798

Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,

“7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

[…]

10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]

11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”

Union of India v. Prateek Shukla, (2021) 5 SCC 430

Non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail.

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

“9. … this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

  • nature and gravity of the accusation;

  • severity of the punishment in the event of conviction;

  • danger of the accused absconding or fleeing, if released on bail;

  • character, behaviour, means, position and standing of the accused;

  • likelihood of the offence being repeated;

  • reasonable apprehension of the witnesses being influenced; and

  • danger, of course, of justice being thwarted by grant of bail.”

Mahipal v. Rajesh Kumar @ Polla, (2020) 2 SCC 118

“14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

[…]

16. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.”

[Union of India v. Md. Nawaz Khan, 2021 SCC OnLine SC 782, decided on 22.09.2021]

___________________________________________________________

Counsels:

For appellants: SV Raju, Additional Solicitor General

For respondent: Advocate Rakesh Dahiya


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Experts CornerKapil Madan


Introduction


 

India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:

(i) narcotic drugs;

(ii) psychotropic substances; and

(iii) controlled substances.

The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth.[1] Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.


Importance of recovery in investigation of offences under NDPS Act


 

It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act  gives rise to a presumption of culpable mental state.

Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.[2]

Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.

For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.


Stringent conditions on bail under the NDPS Act


 

The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones  prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:

 

  1. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

* * *

(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious  nature of the offences.[3]

 


Safeguards available to the accused under the NDPS Act


It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse  of the penal provisions of any legislation.

The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.

Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:

  1. Section 41 of the NDPS Act, 1985

 

Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:

  1. Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.

(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.

A bare perusal of the abovementioned provision shall make it clear that:

(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.

(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.

(c) The Magistrate or the gazetted officer as the case may be  prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.

Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala[4] has held that such  authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate  to conduct the search on his behalf.

 

2. Section 42 of the NDPS Act, 1985

 

Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:

 

  1. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

The provision reproduced above may be understood in following manner:

(a) The above provision pertains only to the search of buildings conveyances and enclosed places.[5]

(b) Officer empowered under Section 41(2)  having reasonable belief owing  receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining  authorisation in the manner prescribed under the Act.

(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.

(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.

The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:

(a) Compliances under Section 42 of the Act  are mandatory in nature.[6]

(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. [7]

(c) The purpose of this provision is to provide due protection to a suspect against false implication.[8]

 

3. Section 43 of the NDPS Act, 1985

 

Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:

 

  1. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

With regards to the provision reproduced above it is pertinent to note the following:

(a)  The above provision pertains only to the search of “public place” which are defined under the provision.[9]

(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place”  to record the satisfaction or reasons to believe prior to conduct of search of a public place.[10]

 

4. Section 50 of the NDPS Act

 

Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:

  1. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

 

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

 

(4) No female shall be searched by anyone excepting a female.

 

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.

 

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

 

 

It is submitted that scope of the provision reproduced above is limited  and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.[11]


Non-compliance and its impact on bail


All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala[12] have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as  envisaged in the Act results in  vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.

Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.

However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied.  It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.


Conclusion


In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.


† Partner, KMA Attorneys.The author can be contacted at kmadan@kmalawoffice.com or +91-9971305252.

††  Senior Associate, KMA Attorneys.

†††  Senior Associate, KMA Attorneys.

[1] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.

[2] Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120.

[3] Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, 40.

[4] (2002) 9 SCC 618.

[5] Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.

[6] M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.

[7] Chhunna v. State of M.P., (2002) 9 SCC 363.

[8] Kishan Chand v. State of Haryana, (2013) 2 SCC 502.

[9] M. Prabhulal case, (2003) 8 SCC 449.

[10] State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.

[11] Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.

[12] 2021 SCC OnLine Ker 2840.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., allowed the petitioner, who was involved in NDPS case, to travel abroad to pursue higher studies. Noticing that the charges against the petitioner were not grave, the Bench observed, 

“The petitioner cannot be denied the right to go abroad to pursue studies only on the ground that he is involved in a criminal case. Looking to the gravity of charge and the young age of the petitioner and his quest to acquire quality education, the request made appears to be genuine.”

The instant revision petition was filed to challenge the order of Additional Munsiff (Forest)

Judicial Magistrate whereby the petitioner’s application seeking permit to allow him to travel abroad to pursue higher studies was dismissed.

The case against the petitioner was that he was about 60/70 grams charas was recovered from his vehicle and an FIR was registered against him under Sections 8/20/29 of Narcotic Drugs And Psychotropic Substances (NDPS), Act, 1985. The Petitioner was granted bail by the Trial Court on the condition that he should not leave the territorial jurisdiction of UT of Jammu and Kashmir during bail period. Subsequently, the petitioner filed another application before the Trial Court seeking permission to travel abroad to pursue higher studies which application came to be dismissed on the ground that the petitioner was named as an accused in a case under NDPS Act and there was high probability that he would evade process of the Court if allowed to travel abroad.

The petitioner submitted that he was a 20 year old boy who passed his class 12th examination in the year 2020 securing 86% marks. It was further submitted by the petitioner that he intended to pursue his studies abroad and had received offer letter from the University of York, London. The petitioner urged that he was ready to give an undertaking to the effect that he will cooperate with the investigation and will appear before the Police or the Court as and when required still the Trial Court had denied to grant such permission putting his career to irreparable loss.

Noticing that charge sheet had not been filed and there was likelihood that the trial would take some time to start, moreover, the charas recovered weighed 60/70 gms which fell within the definition of “small quantity”, the Bench stated that in such a situation, the charge against the petitioner could not be said to be that serious as would justify putting fetters on his right to pursue higher studies abroad.

Hence, considering that the petitioner was ready to give an undertaking to appear as and when required by the Police for the purpose of investigation or trial, the revision petition was allowed and the impugned order along with the order of conditional bail was set aside. The petitioner was directed to deposit a security of 1 lakh rupees.

However, before travelling abroad, the petitioner was directed to file an undertaking before the Trial Court giving detail of the place where he was going to travel along with his contact number and address and nominate a lawyer to appear and receive processes on his behalf from the police and the Court. [Jivitesh Syal v. UT of Jammu and Kashmir, 2021 SCC OnLine J&K 645, decided on 03-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ayushman Kotwal, Advocate

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition presented by the wife of the Petitioner to assail his detention ordered by District Magistrate, Pulwama under Preventive Detention law. The Bench opined,

“Two FIRs, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters.”

On the basis of communication of SSP, the detaining authority arrived at satisfaction that to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under Section 8 of the J&K Public Safety Act. As per the grounds of detention, it was alleged that the petitioner was affiliated with Jamat-i-Islami, an organization declared unlawful by Government of India, under sub-section (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act.

It is also claimed that the petitioner was involved in illicit trafficking of drugs and psychotropic substances and, in this regard, two FIRs stand registered against him NDPS Act. It is on the basis of aforesaid activities, the detaining authority had arrived at subjective satisfaction that keeping at large of the petitioner was detrimental to the maintenance of public order and, therefore, his detention under the Act necessitated.

Grounds of Challenge

The grounds of challenge which were pressed during the course of arguments by the petitioner were as under:

1) The subjective satisfaction derived by the detaining authority was vitiated for the reason that the detaining authority had clubbed two different types of activities;
2) The requisite material relied upon by the detaining authority to derive his satisfaction had not been served upon the petitioner. Even the copies of FIRs relied, referred to in the grounds of detention, had not been supplied to the petitioner;
3) The grounds of detention are totally vague, indefinite, uncertain and ambiguous and, therefore, vitiate the impugned order of detention.

Further, the petitioner argued that there was no reference to any of the activities of the petitioner which could demonstrate that even after 28-02-2019, when Jamat-i-Islami was declared as unlawful organization the petitioner had continued with his affiliation with the aforesaid organization nor the petitioner had been provided with any material which would indicate that the petitioner was ever associated with the aforesaid organization or was its member at any point of time.
Stand Taken by the Detaining Authority

The detaining authority submitted that the order of detention was based upon subjective satisfaction and the reasons that prevailed with it could not be gone into by the Court. Placing strong reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B., (1975) 3 SCC 198, it was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal and that the pendency of the prosecution is no bar to pass an order of preventive detention. It was also contended that where individual liberty comes into conflict with an interest of security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Verdict of the Court

The Bench observed that, from the grounds of detention it transpired that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. Admittedly, instead of proceeding under Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the detaining authority had placed the petitioner in preventive detention. The Bench opined,

“The incident for which FIR had been registered pertains to the year 2016 whereas the impugned order of detention had been passed on 30-09-2020. There was, thus, no proximate link between both prejudicial activities of the petitioner and the object of detention.”

Hence, it could not be said that the detaining authority had derived its subjective satisfaction on the basis of any relevant material placed before it. Though, the detaining authority had contended that preventive measures taken against the petitioner in terms of Section 107 read with Section 151 of CrPC could not succeed to deter the petitioner from acting in any manner prejudicial to the maintenance of public order, no details of any proceedings under Section 107 had been given in the grounds of detention nor copy thereof had been provided to the petitioner. As a matter of fact, no date of occurrence for which proceedings under Section 107 read with Section 151 of CrPC were initiated, had been indicated which had made the grounds of detention vague, uncertain and indefinite. The Court expressed,

“In the absence of requisite and definite material having been supplied to the petitioner, it cannot be said that the petitioner has been given an opportunity to make an effective representation against his detention, which is a constitutional right of the person detained under preventive detention.”

The Bench held that the detention order is vitiated if the requisite material relied upon was not supplied to the detenue, in that, it affects the vital constitutional right of the detenue to make an effective representation. Simply because a communicated had been issued to the detenue informing him about his right to make a representation was not sufficient.

Lastly, opining that the detention was based on stale incidents which had no proximate and live link with the activities of the detenue, the Bench quashed the impugned order and directed the respondents to release the detenue from the preventive custody forthwith.[Ishfaq Amin Bhat v. UT of J&K, WP(Crl) No.161 of 2020, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Mohammad Ayoub Bhat

For the UT: AAG Mir Suhail

Case BriefsSupreme Court

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

Why was NDPS Act, 1985 enacted?

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

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

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

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

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

Why Courts should be slow in mitigating the punishment?

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

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

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

Ruling on facts

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

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

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

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


*Judgment by Justice MR Shah