A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 54 -- NDPS -- Conscious possession of contraband – Burden of proof -- It is the burden of the prosecution to establish that the contraband was seized from the conscious possession of the accused -- Only when that aspect has been successfully proved by the prosecution, the onus will shift to the accused to account for the possession legally and satisfactorily.

(Para 16)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 35 -- NDPS – Culpable mental state – Presumption of – In any prosecution under the NDPS Act, the court shall presume that the accused had the requisite mental state, including intention, knowledge, and motive, unless the accused can prove otherwise -- This shifts the burden of proof onto the accused to demonstrate that they lacked knowledge or intent regarding the possession of the drugs.

(Para 20)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 54 -- NDPS -- Conscious possession of contraband – Requirement of -- Conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance but is also aware of its presence and nature -- It requires both physical control and mental awareness -- Conscious possession implies that the person knew that he had the illicit drug or psychotropic substance in his control and had the intent or knowledge of its illegal nature.

(Para 21)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) -- NDPS – Recovery of 20 kg of ganja -- Acquittal – Taxi driver – Conscious possession -- Courts below convicted the appellant solely for the reason that the appellant was not able to give details of the passengers -- Contraband was seized from the taxi while he was carrying two passengers who fled from the scene -- It was not expected of any taxi driver to give details of the passengers, as ordinarily, no taxi driver/owner before allowing the passenger to board the taxi ask for such details from the passenger(s) -- No effort was made to search out the two passengers who may reveal the truth -- No incriminating material was seized from the person of the appellant and he had not made any effort to run away, moreover, the two bags from which the contraband was seized were not found to be hidden but were rather visible -- Conviction order, set aside.

(Para 2, 6-9)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 51 – Code of Criminal Procedure, 1973 (2 of 1974), Section 451, 457 – Return of seized vehicle – Superdari – There is no specific bar/ restriction under the provisions of the NDPS Act for return of any seized vehicle in the interim pending disposal of the criminal case -- In view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case -- Trial Court has the discretion to release the vehicle in the interim.

(Para 22, 23)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 51, 60 – Code of Criminal Procedure, 1973 (2 of 1974), Section 451, 457 – Return of seized vehicle – Superdari – Vehicles in police custody are stored in the open -- If the Vehicle is not released during the trial, it will be wasted and suffering the vagaries of the weather, its value will only reduce -- On the contrary, if the Vehicle in question is released, it would be beneficial to the owner (who would be able to earn his livelihood), to the bank/financier (who would be repaid the loan disbursed by it) and to the society at large (as an additional vehicle would be available for transportation of goods) – Appeal allowed, trial Court directed to release the Vehicle in the interim on superdari after preparing a video and still photographs of the vehicle and after obtaining all information/documents necessary for identification of the vehicle, which shall be authenticated by the Investigating Officer, owner of the Vehicle and accused by signing the same – Conditions imposed.

(Para 34-36)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 52A -- NDPS – Samples from contraband – Compliance/ Non-compliance/ Delayed compliance of Section 52A of NDPS Act – Effect of – Law summarised:

(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (2016) 3 SCC 379), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.

(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.

(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution’s case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.

(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.

(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.

(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.

(Para 50)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 37, 52A, 54 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS – Commercial quantity -- Regular bail – Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act -- Granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside – Matter remanded back to High Court.

(Para 39, 40)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 52A, 54 – NDPS -- Procedural irregularity – Effect of -- Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail -- The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible u/s 54 of the NDPS Act.

(Para 39 (III)-(vi))

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 58 – Code of Criminal Procedure, 1973 (2 of 1974), Section 251, 252, 253, 254, 255, 256 -- NDPS case -- Punishment for vexatious entry, search, seizure or arrest – Jurisdiction of Special Judge -- Special Judge could not have conducted the proceedings against the appellant/ Superintendent of Police  for the offence punishable u/s 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate -- Procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed -- Notice issued by the learned Special Judge to the appellant u/s 58 of the NDPS Act and all subsequent proceedings quashed and set aside.

(Para 2, 26)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 -- NDPS – Independent witness – Relevancy of -- Non-association of independent witnesses is not fatal and the prosecution case cannot be discarded due to the non-association of independent witnesses -- However, the Court will have to carefully scrutinize the testimonies of the police officials.

(Para 24)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS – Acquittal -- Recovery of contraband – Doubt upon – Independent witness – Non-examination of – Effect of -- Police party was not carrying any sewing machine with them -- Police officials also admitted that the parcel was machine stitched from two sides -- No explanation was given by the police official as to how the parcel could have been machine stitched on the spot without any sewing machine -- This shows that either the parcel was already lying with the police official or the proceedings were not conducted on the spot and the testimonies of the police officials regarding the fact that the proceedings were conducted on the spot is highly suspect -- Prosecution witnesses have given different versions regarding the circumstances surrounding the recovery -- Inconsistencies would assume significance in the absence of independent witnesses – Acquittal, upheld.

(Para 30)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 22 – NDPS – Acquittal – Safe custody of sample – Requirement of – FSL Report – Seized material deposited in Malkhana on 25.05.2013 – On 27.05.2013, 10 samples were taken by SHO for resealing and then returned – I.O. not placed on record either the Malkhana Register or its extract in respect of taking out of samples for resealing and their redeposit in Malkhana on 27.05.213 – Held, prosecution is under obligation not only to prove that after the samples were extracted, they were kept in safe custody so as to negate any chance of tampering with the samples but also is under obligation to ensure that the material recovered from the accused only is sent to FSL -- Prosecution not proved its case beyond all reasonable doubts that the recovered material only was sent to FSL for chemical analysis -- Proof of FSL report would be of no consequence -- Appellant deserves benefit of doubt, conviction order set aside, discharged.

(Para 20-25)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 21(c), 22(c), 23(c), 25, 27-A, 29 -- Prisons Act, 1894 (9 of 1894), Section 42, 52-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS – Regular bail -- Recovery of 1600 grams of heroin from co-accused -- Petitioner in custody since 18.09.2023; challan was presented on 12.03.2024 followed by framing of charges on 07.06.2024 -- Till date none of the 31 prosecution witnesses examined – No recovery of any contraband or even mobile handsets was affected from the petitioner; the petitioner is being sought to be linked to the co-accused only on the basis of some mobile calls made between him and them – Bail allowed.

(Para 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21(b) – Code of Criminal Procedure, 1973 (2 of 1974), Section 397, 401, 451 -- NDPS Case – Superdari of motorcycle -- Motor cycle owned by petitioner seized by the police in criminal case under NDPS Act -- Trial will take time to conclude -- Even if the said motor cycle is a case property, it cannot be kept in the malkhana for indefinite period -- Application filed by the petitioner seeking release of his motor cycle on supurdari allowed.

(Para 7-9)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 378 – Appeal against acquittal – Power of -- Appellate court has the full power to review or re-appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction in exercise of such power by the appellate court and the appellate court may reach at it is own conclusion on the same set of evidence, both on question of facts as well as on law.

(Para 14)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 50 – NDPS – Recovery of Charas from rucksack/ pitthu-bag -- Right to be searched before Magistrate or Gazetted officer -- It was a case of chance recovery and the contraband was recovered from the rucksack, which the accused was carrying with him on his right shoulder and not from his personal search -- Personal search of the accused was conducted after recovery of the contraband -- Section 50 of NDPS Act is not applicable.

(Para 20)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20, 35, 54 – NDPS – Recovery of 840 gram Charas from rucksack/ pitthu-bag – Presumption -- It is not the case of the accused that the said bag did not belong to him -- From the front pocket of the bag, his voter ID was recovered -- Once a physical possession of the contraband by the accused has been established, the onus is upon the accused to prove that it was not a conscious possession – Accused has only pleaded that a false case has been lodged against him -- Accused held guilty. Madan Lal’s case (2003) 7 SCC 465 relied.

(Para 28-30)

Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) Section 491, 492, 528 – Constitution of India, Article 21 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 61, 85 – Solitary absence of the petitioner/ accused -- Forfeiture of bail bond -- Many a times, the accused can be prevented by sufficient reasons to put an appearance before the Court on a given date and, therefore, it necessarily cannot be construed as a deliberate and willful absence -- Procedure must be compatible with Article 21 of the Constitution of India i.e. it must be fair, just and not suffer from the vice of arbitrariness or unreasonableness --  Petitioner himself come forward and has undertaken to appear before the trial Court on each and every date -- Petition allowed, impugned order set aside.

(Para 10-12)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS Case – Regular  bail -- Recovery of 3.17 Kg. of charas – Sample was not taken from each piece or each strip, 100 gram sample was randomly taken -- It cannot be said that each sample is the representative sample of the allegedly recovered quantity of the applicant -- Bail allowed. Gaunter Edwin Kircher’s case (1993) 3 SCC 145 relied.

(Para 4-9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 29, 37 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Commercial quantity – Regular bail – Rigors of Section 37 of NDPS Act -- Petitioner is in custody for last 1 year and 10 days -- Charges framed on 08.04.2024, out of a total of 18 prosecution witnesses, none has been examined so far -- Trial is likely to take a considerable time, thus his further incarceration would be violative of his right enshrined under Article 21 of the Constitution of India -- Rigors of Section 37 of NDPS Act can be diluted bearing in mind the right to a speedy trial – Bail allowed.

(Para 8, 9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 43 -- NDPS Case – Search and seizure – Procedure of -- Material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for believing and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure -- While acting u/s 43 of the NDPS Act, the empowered officer has the power of seizure of articles etc., and the arrest of a person, who is found to be in possession of any narcotic drugs and psychotropic substances in a public place where such possession appears to him to be unlawful.

-- A nakka was set up on Highway and at the instance of the secret informer, a truck was stopped and the driver of the truck was apprehended -- State has rightly submitted that the provisions of Section 43 of the NDPS Act would be applicable and provisions of Section 42 of the NDPS Act are held to be not applicable.

(Para 2, 8, 9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 451, 482 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 20, 29, 60 -- NDPS Case – Superdari of vehicle -- Confiscation of vehicle – Ground of -- Release of vehicle cannot be denied to the applicant on the ground that the vehicle is liable to be confiscated; rather a duty has been cast upon the Court to immediately release the vehicle to the rightful owner until the question of confiscation of the vehicle is decided by the Competent Court -- Pendency of the confiscation proceedings has nothing to do with the release of the vehicle -- Subject to the furnishing of sapurdari bond in the sum of Rs.2,50,000/-, vehicle ordered to be released.

(Para 8-14)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 22 – Code of Criminal Procedure, 1989 (XXIII of 1989), Section 437, 439 -- NDPS – Commercial quantity -- Regular bail – Inventory report not signed by accused -- A person who conducts search is supposed to sign the recovery memo -- Drug Inspector has conducted search, but the recovery memo not signed by him – Bail allowed.

(Para 2, 7, 8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 20, 29 – NDPS -- Acquittal – Recovery of 1.25 kg of Charas in random check – As per Logbook entry, the police party was traveling during the relevant point of time towards a different destination -- This is also the evidence of DW-1 and 2 -- DW-1 is the SHO and DW-2 was the driver of the official vehicle -- All the witnesses belonged to the police department -- No independent witnesses to support the case of the prosecution -- Even the undisputed document marked and the statement given by the two police witnesses do not support the case of the prosecution -- Conviction set aside and the appellants acquitted.

(Para 5-9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 50 – NDPS -- Recovery from Bag – Compliance of Section 50 of NDPS Act – Requirement of -- If the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed u/s 50 of the NDPS Act was not required to be complied with.

(Para 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 67 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 482 – NDPS – Anticipatory bail -- Confessional statement made by co-accused u/s 67 of NDPS Act is a very weak piece of evidence and cannot be a basis for the conviction of a person and has to be weighed very cautiously alongwith other piece of evidences -- No recovery effected from the possession of petitioner and has only been nominated as an accused subsequently on the disclosure statement of coaccused – Anticipatory bail allowed.

(Para 4, 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 52A -- NDPS case -- Second sample to FSL – Permissibility of -- As per the FSL report, nothing to indicate, any damage to the seals or that the sample was in a damaged condition -- Merely because the presence of Codeine is not mentioned in the FSL report in the sample of Rexcof would not amount to compelling circumstances under which the second sample was required to be sent for reanalyses to CFSL, Chandigarh – Application of prosecution for re-testing dismissed by Ld. Trial Court, upheld.

(Para 1, 12, 13)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21(b) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 374, 389 -- NDPS Case -- Suspension of sentence -- Recovery of 18.17 grams of heroin – Conviction for 4 years – Appeal against conviction – Appeal raises arguable issues -- The applicant has undergone an actual sentence of 06 months and 10 days and there is no other case registered against him -- Hearing of the appeal is likely to take some time -- Sentence suspended.

(Para 2, 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Constitution of India, Article 21 -- NDPS Case – Commercial quantity – Regular bail -- Petitioner has already incarcerated 2 years and 11 days in custody and not involved in any other case -- Probability of his false implication cannot be ruled out particularly in the light of the fact that police party was in a private vehicle, details of which have not been mentioned – Charges framed on 13.2.2023, wherein out of 9 prosecution witnesses, only 2 have been examined so far, meaning thereby the trial will take long time which tantamount to violation of right to life and liberty as has been enshrined in Article 21 of the Constitution of India even including the right to speedy trial -- “Bail is a rule, jail is an exception” is the basic principle of criminal jurisprudence – Petitioner ordered to be released on regular bail.

(Para 5-9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 18, 18(b), 29 – Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS – Commercial quantity – Regular bail –  Trial delayed due to the repeated and continuous non-appearance of the prosecution witnesses, the State cannot justifiably oppose the prayer of the petitioner for bail -- Petitioner in custody since 13.09.2022, there is no foreseeable conclusion to the trial in the near future -- Court deemed it appropriate to allow the petition by dispensing with the conditions of Section 37 of the NDPS Act -- Petitioner admitted to bail.

(Para 7-9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 20, 27-A, 29, 60, 37 -- Constitution of India, Article 21 -- NDPS Case – Regular bail – Commercial quantity -- Petitioner is in custody since 08.09.2021 i.e. for the last more than 2 years and 10 months -- Out of 16 witnesses cited by the complainant, statement of only one witness has been concluded -- Charge framed way back on 18.07.2022 -- Conclusion of the trial is likely to take long time -- Petitioner is the first offender and has not been found to be involved in any other case -- Rigors of Section 37 of the NDPS is required to be balanced with Article 21 of the Constitution of India, which provides fundamental right to life and liberty -- Right to speedy trial forms a facet of Article 21 -- Petitioner admitted to regular bail.

(Para 7-12)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21(c), 29 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Interim regular bail -- Bhog ceremony of father -- Petitioner is involved in two NDPS cases including the present one -- Superintendent, Central Jail, directed to make all necessary arrangements for taking the petitioner, in custody, to attend the Bhog ceremony with police escort.

(Para 3,4)

Code of Criminal Procedure, 1973 (2 of 1974), Section 374, 389 – Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8(c), 21(c), 52A – NDPS case – Suspension of sentence – Appeal against conviction – Sample of contraband – Non-compliance of procedure -- Appellant sentenced to undergo 15 years’ R.I. with a fine of Rs.1,00,000/- with default stipulation of six months’ R.I. -- Appellant has already undergone almost three years and is in custody since the date of judgment and order i.e. 30.08.2022 continuously -- Court prima facie satisfied that provisions of Section 52A (2) of the Act were not complied with --  Bail allowed.

(Para 1, 5, 11-14)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 22, 37 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS Case – Regular bail – Commercial quantity – Bail in such cases may not be granted, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail -- But, denial of bail does not give unfettered liberty to the prosecution to keep a person in custody without conducting a trial -- Applicant is in custody for more than a year -- In between, for more than six months, no progress was made in the case, the trial has yet not concluded -- Bail allowed.

(Para 5-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 50 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS Case -- Regular bail -- Recovery of 400 grams smack – Recovery Memo not signed by Gazetted officer – Provisions of Section 42 of NDPS Act not complied with – Applicant deserves to be enlarged on bail – Bail  application allowed.

(Para 5-9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21 – Code of Criminal Procedure, 1973 (2 of 1974), Section 82, 482 – NDPS Case – Jump of bail – Proclaimed offender -- Due to communication gap with his counsel, the petitioner could not appear in Court on 6.10.2023 and his bailable warrants were issued for 13.12.2023 -- On 13.12.2023 he was out of station due to some household work -- Resultantly, his bail and surety bonds were cancelled and warrants of arrest were issued and thereafter, proclamation was issued and he was declared proclaimed offender – Petitioner undertakes that he is ready and willing to surrender before the trial Court – Order declaring proclaimed offender set aside subject to surrendering of the petitioner within 7 days with cost of Rs.10,000/-

(Para 2-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439, 482 -- NDPS Case -- Interim bail – Birth of daughter – Recovery of 530 grams of Heroin – Without adverting to the merits of the case and considering the fact that a baby girl is born to the petitioner who has been in custody for more than 5 months deserved to be released on interim regular bail to enable him to share his love and affection to the newly born baby -- Petitioner ordered to be released on interim regular bail for a period of two weeks.

(Para 2-5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 22, 29 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS Case – Commercial quantity -- Regular bail -- According to the FIR, narcotic substance in commercial quantity was recovered from the possession of the co-accused on 28.04.2023 -- It is he who revealed that he had purchased narcotic substance from the applicant – Contention that applicant at the relevant time was in jail – Bail allowed.

(Para 1-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22, 29(c), 37 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS Case – Regular bail – Commercial quantity – Petitioner involved on disclosure statement of co-accused -- No recovery from petitioner, admissibility of the disclosure statement suffered by the co-accused would be debatable – No other case, petitioner in custody since 06.05.2024 -- Quantity of Tramadol recovered from the co-accused is a commercial quantity but this alone would not be sufficient to deny the concession of regular bail to the petitioner – Bail allowed.

(Para 1, 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21(b) – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS – Regular bail -- Recovery of 10.9 grams of heroin -- Petitioner was apprehended on 15.03.2024 -- No other criminal case and she is a lady aged about 69 years -- Challan has already been presented and the petitioner is no more required for further investigation – Prosecution has cited 14 witnesses and it will take sufficient long time to examine them – Bail allowed.

(Para 1, 4, 5)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 37 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS Case – Regular Bail -- Commercial quantity – Rigour of Section 37 of NDPS Act – Applicability on High Court/ Supreme Court -- Provisions of Sections 36-A and 37 have to be read together and interpreted harmoniously so that Section 36-A(3) does not become redundant or otiose -- Restrictions contained in Section 37 of the NDPS Act were meant to be applicable to Courts other than the Constitutional Courts and in view of the provision contained in Section 36-A (3) of NDPS Act, those restrictions do not apply to the Constitutional Courts.

(Para 36)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 20, 23, 29, 37, 52A, 68, 76 – Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal), Rules, 2022, Rule 3, 9, 10, 11 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail – Commercial quantity -- Samples in presence of Magistrate – Non-compliance of – In recovery memo, packets recovered were not numbered serially for the purpose of identification, as provided in Rule 3 (2) of the 2022 Rules -- Samples were not drawn in presence of a Magistrate, as provided in Section 52-A of the NDPS Act and Rule 9 of the 2022 Rules -- Although 14 packages are claimed to have been seized from the applicant, samples have not been drawn from all the packets and a single sample has been drawn, that too not in duplicate and thus the authorities have violated Rule 10 of the 2022 Rules -- Authorities themselves have violated the mandatory provisions contained in Rules of 2022 -- Applicant has no previous criminal history and he is languishing in jail since 28.01.2024 -- Bail application allowed.

(Para 46-51)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42 – NDPS Case -- Prior information – Search warrant – Independent witness -- Police received prior information but did not obtain the search warrant because the police apprehended that case property would be destroyed by the delay in procuring the warrant, therefore, it resorted to the provisions of Section 42(2) -- The fact that independent witnesses have not stated anything about preparing the rukka and information under Section 42(2) in their presence and sending the police official with the same shows that there was no compliance with Section 42(2) and the same is fatal to the prosecution case.

(Para 23)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS Case -- Number of person present at the spot – Inconsistency in – Effect of – Recovery of 1 Kg 200 grams of charas from accused’s house -- Inconsistency regarding the number of persons present on the spot is not minor because the presence of the persons is so intricately connected to the recovery that any inconsistency in the former would affect the latter – Inconsistency cannot be ignored.

(Para 2, 24, 26)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS Case -- Number of seals – Inconsistency in – Effect of -- Recovery of 1 Kg 200 grams of charas from accused’s house -- Inconsistency regarding the number of seals put on the parcel would show that the testimonies of the witnesses regarding the putting of the seals are not correct, which would affect the integrity of the case property adversely -- Inconsistency cannot be ignored.

(Para 2, 25, 26)

D. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS Case -- Date of arrest – Inconsistency in – Effect of -- Inconsistency regarding the date of the arrest of the accused will make the whole case of the prosecution suspect because if the accused was arrested on 06.07.2016 and was to be produced before the learned Court on 07.07.2016, the whole of the prosecution case that information was received on 07.07.2016 and recovery was effected on 07.07.2016 in the presence of the accused will become suspect -- Inconsistency cannot be ignored.

(Para 26)

E. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985),  Section 20 – NDPS Case -- Photography of search – Evidential value -- Recovery of 1 Kg 200 grams of charas from accused’s house -- Heavy reliance was placed upon photographs and video recorded the process of search -- Photographs and the video recording could have been used to lend corroboration to the testimonies of the witnesses but when the testimonies are themselves suspect, there can be no question of their corroboration -- Photographs and the video recording by themselves are not substantive pieces of evidence upon which, a conviction can be recorded.

(Para 27)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22, 29, 37 – Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Commercial quantity -- Rigors of Section 37 of the NDPS Act – Regular  bail -- Petitioner in custody since 21.05.2022 and only 03 out of 17 prosecution witnesses has been examined so far -- He is also a first-time offender with no other case registered against him -- In this situation, the rigors of Section 37 of the NDPS Act can be diluted to an extent in view of the salutary provisions of Article 21 of the Constitution of India which provides for the right to a speedy trial and the case of the petitioner can be considered for the grant of bail – Bail allowed.

(Para 8-11)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21 -- NDPS Case – Acquittal – Independent witness – Exclusive possession -- No evidence to establish that the alleged place of recovery i.e. room where a motor was situated, was under exclusive possession, usage, or ownership of the appellant – No explanation from police officials regarding the absence of independent witnesses during the operation -- No efforts were made to establish a direct connection between the appellant and the recovered contraband material – Reasonable doubt created about the genuineness of the recovery – Appellant acquitted.

(Para 9-10)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 29, 31 – Indian Evidence Act, 1872 (1 of 1872), Section 30 -- NDPS case – Acquittal – Leave to appeal – Confession/ Disclosure of co-accused -- Prosecution failed to prove beyond reasonable doubt that the money allegedly recovered from the possession of respondent-accused i.e. Rs.7,500/- had been derived from the sale of narcotics -- Confession made by one accused cannot serve as a substantive piece of evidence against a co-accused -- Its admissibility is limited only for corroborative purposes -- Acquittal order, upheld.

(Para 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22(c), 25, 37 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Constitution of India, Article 21 -- NDPS Case – Commercial quantity – Regular bail -- Circumstances raises a finger of serious doubts for date and time of taking the petitioner into actual custody by the police, he was actually abducted from Delhi one day prior to showing his date of arrest, have come on record which needs to be examined by leading evidence before the trial Court – Petitioner has already incarcerated for a period of 01 year 05 months and 29 days in custody -- Petitioner not involved in any other offence -- Trial is bound to take long time -- Petitioner cannot be detained behind bars for an indefinite period -- Article 21 of the Constitution provides for a right to speedy trial even to an accused -- Judicial precedent is also to be borne in mind that “bail is a rule” and “jail is an exception” – Bail allowed.

(Para 16, 17)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36A(4) – Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) -- NDPS case – Default bail -- Extension of time for investigation for another 180 days – Report of Public prosecutor – Requirement of -- Application for extension reveals that it was prepared by the Investigating Officer and forwarded by the Public Prosecutor, with no report submitted by the Public Prosecutor as per the mandate of Section 36A(4) of the NDPS Act -- Held, there has thus, been a failure to adhere to the requirements outlined in section 36A(4) of the NDPS Act -- Order of the trial Court granting extension of time to the investigating agency for completing investigation was erroneous -- Consequently, the impugned order set aside -- As a sequel to the above, since the investigation remained incomplete on the day application u/s 167(2) of the Cr.P.C. was filed by the petitioner, he deserves to be enlarged on default bail – Default bail allowed.

(Para 11-14)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8(c), 20(b)(ii)(c), 25 and 29(1) – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS case – Regular bail -- No effective steps taken to conclude the trial -- Petitioner was arrested on 11.03.2022 and is in custody since then -- Bail declined, the Special Judge directed to make an endeavour to conclude the trial expeditiously and preferably within six months.

(Para 5, 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 18, 29, 67 – NDPS Case – Acquittal -- Confessional statement – Reliance upon -- Witnesses turned hostile, appellant was convicted and sentenced by taking recourse to Section 67 of the NDPS Act – Impugned order set aside, appellant acquitted of all the charges. Balwinder Singh (Binda)’s case (2023) SCC OnLine SC 1213 relied.

(Para 1-3)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 (c), 29 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail – High Court rejected the bail – Appellant   in custody for approximately 1 year 9 months -- Charge-sheet filed on 18.7.2022, additional charge-sheet has to be filed and 20 witnesses are to be examined in the trial -- In the earlier case the petitioner acquitted, as he is a trader dealing in medical products – Bail allowed.

(Para 3-7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21(a), 22 -- NDPS case – Recovery of unbranded loose capsules -- Out of 1130 capsules, two samples of 10 capsules each were separated and therefrom only one sample was sent to FSL -- As per report of FSL, 648 mg of “Dextropropoxyphene Napsylate”, was found in each capsule -- Entire recovery could not have been presumed to have contained the salt of “Dextropropoxyphene Napsylate” -- Ld. Special judge convicted the respondent/ accused for sentence already undergone of 06 months & 02 days besides imposition of fine of Rs.3000/- and in case of default, RI for 15 days -- No illegality or perversity – Appeal dismissed.

(Para 7-9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 91 – Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 18, 25, 29 -- NDPS case -- Summoning of call details -- High Court directed all Courts in the State of Rajasthan that whenever an application is moved to summon the Call-details by the accused during the criminal proceedings, the same shall not be deferred and will be decided forthwith -- Accused cannot invoke and would not have right to invoke Section 91 Cr.P.C. at the stage of framing of charge -- Impugned order set aside.

(Para 2, 7, 8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985),  Section 20 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- NDPS Case – Appeal against acquittal – Discrepancies in sample -- Investigating Officer had taken a homogeneous sample of 100 grams out of the entire bulk -- Two separate parcels of the sample and remaining bulk were prepared and sealed -- Parcel containing of 100 grams Charas (homogeneous sample) was never sent to SFSL, report Ext. PX verifies the fact that only one parcel containing 7.900 Kgs. of Charas was received in the Laboratory – Three seal impressions were broken and the fourth though partially broken was also not legible -- Doubts created in the prosecution story by the gaps found therein -- In appeal against acquittal the appellate court cannot substitute its view with the view taken by learned trial court unless such view is illegal and perverse -- No ground to interfere with the impugned judgment – Appeal dismissed.

(Para 16-25)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20, 53A(2) – NDPS Case – Acquittal – Seal used in another FIR -- Whereas case seal ‘DJ’ was not in possession of police but was stated to have been handed over to independent witness PW-4  -- Ld. Special Judge has rightly concluded that seal impression ‘DJ’ never changed hands and it had not been handed over to witness after its use -- Once that be so, the entire case of the prosecution becomes suspect and obviously the respondent has to be given the benefit of doubt as has been given by the learned Special Judge – Acquittal order upheld.

(Para 24, 31-34)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Independent witness -- Material contradictions in the statements of the police officials regarding setting up of ‘naka’, chasing of the vehicle of the respondents and arrest -- These contradictions assume greater importance and significance when no independent witnesses, though available, have been associated at the time of the alleged recovery -- Appeal dismissed.

(Para 26-29, 37)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Accused fled away -- If the respondents had fled away from the spot where ‘naka’ had been laid, then Court see no reason why the police party should not have chased the vehicle of the respondents till the time they were not actually apprehended and why the police party simply stopped, where respondent No.2 is alleged to have thrown jute sack containing poppy straw -- Every reasonable police personnel would have continued chasing the respondents until apprehended – It makes the entire prosecution case unreliable and highly doubtful -- Appeal dismissed.

(Para 29, 37)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Facsimile of seal -- Exhibit PX is the report of the Laboratory wherein it is mentioned that the seals on the gunny bag parcel were tallied with the seal impression sent by the SHO on form NCB-1 i.e. Ext. PW16/A -- However, a perusal of Ext. PW16/A shows that facsimile of seal ‘A’ affixed on this form is not at all clear or legible -- This assumes importance because it has not at all been mentioned in the report that the seals on the gunny bag were compared with the sample seals or the sample seals were deposited in the laboratory along with the case property – Ld. Special Judge rightly observed, it cannot be said with certainty that the case property which was examined in the laboratory was the same which was allegedly recovered from the respondents -- Appeal dismissed.

(Para 32-34, 37)

D. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS Case – Appeal against acquittal -- Recovery of 15 Kg 600 grams of poppy straw – Non-examination of car -- Specific case of the prosecution that some dust of ‘Chura Post’ was lying on the rear seat of the car which car was then taken possession of by the police -- If that be so, then why photographs of the ‘Chura Post’ that was stated to be lying on the rear seat of the car were not taken and, above all, why the so-called dust of ‘Chura Post’ was not sent for chemical analysis, is not at all forthcoming – Held, there is no material on record which may remotely suggest that the respondents had kept the jute bag containing ‘Chura Post’ on the backseat of the car and thereafter had thrown the same, as alleged by the prosecution – Appeal dismissed.

(Para 35-37)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20, 21 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS Case – Regular bail -- Petitioner was found in possession of an intermediate quantity of heroin and a small quantity of Charas, hence, rigours of Section 37 of the NDPS Act do not apply -- Petitioner was selling narcotics to various persons -- Statement of any purchaser was not recorded to show that he had purchased the narcotic from the petitioner -- Version that the petitioner is a Drug Peddler is not acceptable -- Petitioner in custody since 19.10.2023 -- Result of analysis is awaited, challan is not likely to be filed soon and the trial of the case will take some time -- Petitioner was found involved in NDPS Act for the first time and he deserves a chance to reform himself -- Continued detention of the petitioner in custody will make the chance of reformation bleak as he will come in contact with the hardened criminals – Bail allowed.

(Para 11-16)