Punajb and Haryana High Court
Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Advocates who appeared in this case :

Parminder Singh Sekhon, Advocate, for the petitioner;

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

Case BriefsHigh Courts

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

Background of the case

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

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

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

Analysis and decision

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

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

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

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

Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. disposed of a PIL which was filed highlighting an important matter of public interest.

It was believed that there may be concerted moves by inimical interests to push drugs and psychotropic substances in the North- East, particularly in and around Shillong which attracts tourists and a lot of the younger crowd. The Court was satisfied that with the assistance of learned Amicus Curiae and the several meetings conducted with State and private officials at various levels, including the welcome participation of the defence personnel, the need to be on the guard may have been realised by the State administration.

The Court noted that steps have been taken to ensure that the drug menace does not set deep roots in the State or around the city. Both the police and the civil administration have indicated several checks and guards having been put in place and constant monitoring. Even the Army, Air Force and the paramilitary forces which are present in the State have participated in the meetings and have introduced measures to augment the civilian government’s efforts in such regard.

The Court however added one additional point for the State to set up adequate number of rehabilitation centres with appropriate facilities.[M. Kharkongor v. State of Meghalaya, 2022 SCC OnLine Megh 211, decided on 26-05-2022]

For the Petitioner: Mr S.P. Mahanta, Amicus Curiae with Mr M. Lyngdoh

For the Respondent: Mr S. Sengupta, Addl. Sr.GA with Ms S. Laloo, GA, Dr. N. Mozika, ASG with Ms K. Gurung

Suchita Shukla, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

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

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

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

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

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved an Agreement between India and France on the Prevention of the Illicit Consumption and Reduction of Illicit Traffic in Narcotic Drugs, Psychotropic Substances and Chemical Precursors, and related offences. The Agreement is aimed at enhancing mutual cooperation between the two countries in the prevention of the illicit consumption of, and reduction of illicit traffic, in narcotic drugs, psychotropic substances and chemical precursors and related offences through exchange of information, expertise and capacity building. Establishment of effective institutional interaction and curbing transnational narcotics trafficking including disruption of terrorist financing structures is also envisaged through this Agreement.

[Press Release no. 1523083, dt. 07-03-2018]