A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 53, 67 – Code of Criminal Procedure, 1973 (2 of 1974), Section  161, 164, 173 – Indian Evidence Act, 1872 (1 of 1872), Section 25 – Constitution of India, Article 14, 20(3) and 21 – NDPS case -- Statement/ Confession made before officers under NDPS Act –

-- Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not ?

-- Whether the statement recorded by the investigating officer u/s 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer?

-- Whether such a statement is to be treated as statement u/s 161 of the Code or it partakes the character of statement u/s 164 of the Code? –

To arrive at the conclusion that a confessional statement made before an officer designated u/s 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India – Judgment in Kanhaiyalal (2008 (4) SCC 668) then goes on to follow Raj Kumar Karwal (1990 (2) SCC 409) do not state the law correctly, and are thus overruled -- Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled – Judgments of Noor Aga (2008 (16) SCC 417) and Nirmal Singh Pehlwan’s case (2011) 12 SCC 298 are correct in law. Held,

(i) That the officers who are invested with powers u/s 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded u/s 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

(Para 2, 152-155)

(Majority judgment)

Reference answered.

Provisions of the Cr.P.C do not apply to an inquiry/investigation under the NDPS Act except to the limited extent provided in Section 50(5) and 51 -- Section 173 of the Cr.P.C has not been made applicable to the NDPS Act -- Judgment in Raj Kumar Karwal (1990 (2) SCC 409), which has reaffirmed the verdict of three Constitution Benches does not require reconsideration -- Nor does Kanhaiyalal (2008 (4) SCC 668) require reconsideration.

(Para 270-271)

(Minority judgment)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22(b) -- NDPS case – Interim bail awaiting FSL report -- Petitioner in judicial custody since 10.06.2020 -- Petitioner restricted his prayer to the extent that the petitioner may be released on interim bail till the report of FSL is received – Division Bench of High Court in case of 'Inderjeet Singh @ Laddi's case 2014(3) RCR (Criminal) 953 has held that the accused-petitioner can be granted interim bail till the report of FSL is received -- Accordingly, the petitioner ordered to be released on interim bail till receipt of the FSL report.

(Para 7, 11,12)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 22, 25, 61, 85 29  -- Arms Act, 1959 (54 of 1959), Section 25 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail -- State submitted that number of cases are pending against the petitioner – Held, recovery in the present case was only 50 grams of intoxicant powder (heroin), which is stated to be non-commercial -- Petitioner is in custody for the last one year – Petition for regular bail allowed.

(Para 1-4)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 29 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail -- Recovery of 500 grams of Heroin -- Petitioner in custody for 01 year, 09 months and 20 days – Two more cases registered against him, but petitioner is on bail – As against total 10 witnesses only 01 witness has been examined -- Trial is not likely to be concluded in the near future -- Court deemed it appropriate to admit the petitioner on bail.

(Para 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22, 29 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail – Parity with similarly situated co-accused – Right of -- Once, a similarly situated co-accused has already been granted the bail, the same could not be denied to the petitioner unless and until any differentiating fact is pointed out -- No differentiating fact has been pointed out between the petitioner and co-accused -- Hence, the petitioner has been able to make out a case for the grant of bail on the ground of parity with co-accused – Without commenting upon the merits of the case, petitioner ordered to be released on regular bail

(Para 13,14)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail – 1500 intoxicating tablets recovered – Keeping in view that the petitioner is a licensed chemist, entitled to the possession of such tablets and was apprehended while travelling, therefore, his culpability is subject to evidence at the trial -- Petitioner is behind the bars for more than one year, it would be travesty of justice to keep him in custody for more time -- Efforts are being made by the authorities to decongest the jails to prevent the further spread of malady (Covid-19), petitioner is ordered to be released on regular bail.

(Para 4, 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail – Recovery of 7600 intoxicating tablets -- Recovery already stands effected -- Petitioners are in custody since 25.08.2019 -- FIR is based on secret information, thus, culpability, conscious possession of which accused if any, would be determined at the time of trial -- Since, the petitioners are behind the bars for more than one year and in view of present COVID-19 pandemic and the efforts of the authorities in decongesting the jail which are busting the seams and the ratios cited for parity, Court deems it fit to allow the regular bail to the petitioners.

(Para 7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167 (2) – Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36A (4) -- Default bail – Compulsive bail – In common legal parlance, the right to bail under the Proviso to Section 167(2) is commonly referred to as ‘default bail’ or ‘compulsive bail’ as it is granted on account of the default of the investigating agency in not completing the investigation within the prescribed time, irrespective of the merits of the case. Held,

-- Once the accused files an application for bail u/s 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.

-- The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

-- However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

-- Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

(Para 6, 18)

B. 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 -- Appellant was remanded to judicial custody on 04.08.2018, hence the mandatory period of 180 days prescribed for filing of final report u/s 167(2), CrPC (excluding the date of remand) was completed on 31.01.2019 – Appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019 -- Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019 -- Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed -- It was only thereafter that the additional complaint came to be lodged against the Appellant – Held, appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019 – Petitioner was held entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.

(Para 3.3, 3.4, 17-19)

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 22, 25, 29, 61 -- NDPS case -- Interim bail for marriage of younger sister – Petitioner is the only male member in the family -- No doubt, the petitioner is found involved in recovery of huge quantity of contraband, but noticing the fact that there are certain customary rites/rituals which can only be performed by a brother in the marriage of his real sister, Court deems it appropriate to grant interim bail to the petitioner for a period of one week from the date of his release.

(Para 12, 13)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22-B – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- NDPS case – Anticipatory bail – Interim order that no recovery effected from the petitioner and he has been roped in on the basis of the disclosure statement of the co-accused, which is yet to be proved and further that he  is not involved in any other case and petitioner is ready to join the investigation, direction given in the event of his arrest, petitioner order to be released on interim bail to the satisfaction of the Arresting Officer/Investigating – Thereafter, petitioner has joined the investigation and no further interrogation is required, at this stage – Order granting interim bail to the petitioner is made absolute.

(Para 2-4)

Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3, 4 – Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18, 21, 25, 29 -- Arms Act, 1959 (54 of 1959), Section 25 -- Parole to meet family members -- Petitioner has been sentenced to R.I. for 12 years u/s 18/21/25 and 29 of the NDPS Act and Section 25 of the Arms Act -- Petitioner is not facing trial in any other case – Petitioner confined in jail over 5 years and 7 months and that there is nothing adverse on his conduct and behaviour in prison -- Petitioner be released on parole for 6 weeks.

(Para 2-5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22, 25 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case -- Interim bail -- Considering the fact that the petitioners have been in custody for the last more than 01 year and 06 months; the petitioners are not involved in any other case and conclusion of the trial would take time due to COVID-19 situation, the petitioners were directed to be released on interim bail till 14.01.2021 –Trial Court, after assessing the situation may continue with the interim bail granted to the petitioners till further orders and in case, the trial Court resumes recording evidence, it will be open for the trial Court to cancel such interim bail.

(Para 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 50 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular Bail -- Joint offer of search – Recovery of 100 kg of Poppy Husk from the dicky of the car -- It will be debatable as to whether a joint offer as extended in the present case is valid or not -- Even otherwise, the petitioner has been in custody since 06.10.2018 -- Though the case is at the stage of evidence, yet the trial will take time to conclude, especially due to prevailing situation of Covid-19 -- Thus, no useful purpose would be served by keeping the petitioner behind the bars -- Petition allowed and the petitioner is ordered to be released on regular bail.

(Para 9,10)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS case -- Recovery of Charas weighing 1 kg 100 grams – Regular bail -- Petitioner was arrested on 15.04.2019 and considering the health condition of the petitioner, interim bail was granted on 20.01.2020 -- As against total 13 witnesses cited by the prosecution, 06 witnesses have been examined, trial is not likely to be concluded in the near future -- Court deemed it appropriate to admit the petitioner on regular bail.

(Para 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail -- Recovery of 510 intoxicant tablets of Tramadol – Petitioner is in custody for a period of 1 year, 2 months and 22 days and no other case has been pointed out against the petitioner -- No prosecution witness has been examined so far -- Considering the fact that trial in the case is not likely to be concluded in near future due to Covid-19 pandemic, this Court deems it appropriate to release the petitioner on regular bail.

(Para 6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18, 29 – NDPS case – Regular bail -- Recovery of contraband from co-accused – Petitioner nominated on disclosure statement of co-accused – Petitioner in custody since 08.05.2020; investigation is complete as the challan has already been presented; no recovery was effected from him and conclusion of trial will take sufficient time because of limited working of the courts due to Covid-19 pandemic -- Petition allowed and the petitioner is directed to be released on regular bail.

(Par 2-5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 -- NDPS case – Supplier of contraband – Regular bail -- Petitioner provided 200 intoxicating capsules (Salt Tramadol) to co-accused -- Name of the petitioner was disclosed by co-accused and he is behind bars since 04.08.2020 -- Main accused has already been granted the concession of regular bail -- Trial of the case will take long time, no useful purpose would be served by keeping the petitioner in custody -- Petition allowed, petitioner is ordered to be released on bail.

(Para 6-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Commercial quantity – Regular bail -- Recovery of 53.1 kg Poppy Straw is marginally above the commercial quantity – Petitioner remained in detention for almost 07 months – Not involved in any other case under the NDPS Act -- Charges have been framed, trial is likely to take its own considerable time due to ongoing Covid-19 Pandemic -- Regular bail allowed.

(Para 2-5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21, 25, 60 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 397, 401 -- NDPS case – Confiscation of Car – Release on sapurdari till confiscation order is passed -- Final order for confiscation may also take such long time that the car in question may become wholly unserviceable, complete junk and of no use for being taken over by the state on such confiscation -- It will be appropriate that the car is released on sapurdari to the registered owner on additional conditions, besides usual terms and conditions – Revision petition allowed and the car in dispute is ordered to be released on sapurdari.

(Para 11,12)

Code of Criminal Procedure, 1973 (2 of 1974), Section 389 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 – Commercial quantity -- Conviction for R.I. for 10 years along with fine of Rs.1 lac – Suspension of sentence during the pendency of appeal – 66 kgs poppy husk allegedly recovered from the cabin of the truck – Appeal admitted along with stay of recovery of fine on 20.02.2020 – Applicant/appellant no. 1 already undergone 02 years, 03 months and 03 days of actual sentence as on 19.08.2020 -- He is not involved in any other NDPS case, though he is involved in the offence under IPC -- Appeal is of the year 2020, it may take some time in its final culmination -- Application allowed -- Remaining sentence of the applicant-appellant No.1 ordered to be suspended, during the pendency of the appeal.

(Para 3-9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 21, 29, 61, 85 – Commercial quantity – Recovery of 350 grams intoxicant powder, having salt Diacetylmorphine – Regular bail -- Regular trials are not being taken up by the trial Courts -- Accordingly, considering the long custody of about 2 years, 3 months and 15 days, there being no other case against the petitioner and the trial not likely to be concluded in the near future on account of Covid-19 pandemic, High Court deemed it appropriate to admit the petitioner on bail.

(Para 9, 12)

Code of Criminal Procedure, 1973 (2 of 1974), Section 451 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 60 – NDPS case – Seizure of vehicle -- Release of vehicle on Sapurdari –Merely because vehicle was carrying narcotic substance and the same has been seized under the Act cannot be a ground for declining the release of vehicle on sapurdari -- Condition of the vehicle is likely to deteriorate while in custody on account of non-user thereof -- Aspect of confiscation of the vehicle can be looked at the appropriate stage but it cannot be termed to be a circumstance to deny the release of vehicle on sapurdari -- Vehicle ordered to be released on sapurdari.

(Para 2-7)

A. Binding precedent -- Power of smaller Bench to say ‘per incuriam’ – A judgement may be held to be per incuriam in case it failed to notice an earlier binding precedent which covered the field -- Even in such a situation a smaller Bench cannot say that the judgement of a larger Bench is per incuriam -- The only course available to it is to make a reference to the larger Bench.

(Para 10)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167, 173 -- NDPS case – Challan without report of the Chemical Examiner/Forensic Science Laboratory -- Incomplete challan -- Default bail -- By virtue of the doctrine of stare decisis, the Single Bench judgements in Akash Kumar alias Sunny (Law Today Live Doc. Id. 14977) and Shankar (CRM No. M-44412 of 2019/20th December 2019) are binding as they lay down a proposition of law although at variance with the law laid down by the Division Bench in Ajit Singh alias Jeeta (Law Today Live Doc. Id. 14121) -- Smaller Bench could not have declared the judgement of a larger Bench to be per incuriam -- Judicial discipline demands that a reference be made to a Division Bench regarding the validity and correctness of the aforementioned Single Bench judgements -- File sent to Hon'ble the Chief Justice with a request to constitute a Division Bench for consideration of this matter -- Meanwhile, direction given that petitioner be released on bail

(Para 11,12)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Acquittal by Trial Court – Power of appellate court -- View taken by the trial court was not at all possible, having regard to the evidence on record – High Court rightly set aside the same – Submission that even assuming that other view is possible, same is no ground to interfere with the judgment of the trial court rejected.

(Para 7-11)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20, 54 – Possession of contraband – Onus of proof -- Onus was on the accused to explain the possession and in absence of the same being discharged, presumption u/s 54 of the NDPS Act will kick in.

(Para 11)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail -- Out of 13 prosecution witnesses, 4 witnesses have been examined and 5 have been given up -- Petitioner is in custody since 16.07.2020 after availing an interim bail – Looking to the facts and in view of the situation arising out due to COVID-19 pandemic and without adverting to the merits of the case, Court deemed appropriate to enlarge the petitioner on regular bail.

(Para 7-10)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Regular bail -- Petitioner is in custody since 11.12.2019 -- Trial is likely to consume considerable time in the wake of outbreak of global pandemic, namely, COVID-19 -- Apart from that, the courts are not fully functional and are doing minimal working -- Further detention behind the bars may not be justified -- Resultantly, without meaning any expression of opinion on the merits of the case, Court ordered that the petitioner be released on regular bail. Ravi Kumar’s case 2019 (4) R.C.R. (Criminal) 714 relied.

(Para 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18 – Code of Criminal Procedure, 1973 (2 of 1974), Section 451 -- NDPS case – Release of vehicle on Superdari – Held, no useful purpose would be served by keeping the vehicle parked in the premises of police station -- Large number of vehicles are since seized by the police officials daily and, all are kept unattended -- Resultantly, with passage of time, condition of vehicle becomes beyond repair -- Owner can always be put to terms by the Court while releasing the vehicle -- Trial too is not likely to commence or conclude any time soon, due to current pandemic conditions – Vehicle/car ordered to be released on superdari.

(Para 5-6)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 29 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Recovery of 126 kg of poopy husk from co-accused -- Regular bail -- Name of the petitioner has surfaced in the case during interrogation through the disclosure statement of the co-accused -- Nothing has been recovered from the petitioner and he was not even named in the secret information – Petition allowed -- Petitioner is ordered to be released on bail.

(Para 3, 4)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 37 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 389 -- NDPS matter – Large period of custody during pendency of appeal -- Suspension of sentence -- Rigors of Section 37 would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for the same.

(Para 4, 5)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20(b)(ii)(B) -- NDPS case -- Official witness – Non-corroboration by independent witness -- It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness -- Examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case.

(Para 8.2)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20(b)(ii)(B) -- NDPS case – Non-establishment of ownership of the vehicle – Non-recovery of vehicle -- Merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated, while the prosecution has been successful in proving and establishing the recovery of the contraband articles from the accused on the spot.

(Para 11)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS matter -- Commercial quantity – Regular bail -- 650 tablets of Clovidol-100SR recovered – Charge has been framed but no witness has been examined -- Considering the quantity of contraband recovered being marginally above the commercial quantity and conclusion of the trial is likely to take long time, without any expression of opinion on the merits of the case, petitioner ordered to be released on regular bail.

(Para 2-6)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter – Fair Investigaiton -- Informant and Investigator are same – Effect of -- Observations of Supreme Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by Supreme Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts -- It cannot be said that in the aforesaid decisions, Supreme Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal.

(Para 12(I))

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter -- Informant and Investigator are same – Effect of -- In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor -- Question of bias or prejudice would depend upon the facts and circumstances of each case -- Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of Supreme Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

(Para 12(II))

Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3(4) -- Punjab Good Conduct Prisoners’ (Temporary Release), Rules, 1963, Rule 3, 4 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 61, 85 – R.I. for 10 years – involvement in other 4 cases of NDPS – Release on parole – Right of -- Held, merely because the petitioner is involved in four other cases, would not be a valid ground to deny him release on parole -- Purpose of release is to make sure that the prisoner as such meets with his family members and the general public -- It is a reformative process, whereby a convict is reintroduced to normal life -- By declining the said benefit which was duly recommended by the Superintendent of Jail, would come within the vice of irrationality and perversity, in spite of the settled position of law – Impugned order passed by the Deputy Commissioner-cum-District Magistrate, quashed -- Matter shall be reconsidered by the said District Magistrate within a period of 4 weeks, keeping in mind the observations made above and pass necessary orders.

(Para 18,19)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18, 61, 85 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS matter – 2nd petition for regular bail -- Recovery of 217 kgs of poppy husk -- Petitioner is in custody since 05.12.2018, conclusion of trial may take a sufficient long time -- Petition allowed, petitioner ordered to be released on bail during pendency of trial.

(Para 2-6)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18, 61, 85 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS matter – Regular bail – Recovery of 84.5 grams of opium from co-accused – Disclosure by him that contraband was purchased by him from petitioner – Keeping in view the fact that it is a case of recovery of non-commercial quantity of contraband and that the petitioner was never arrested at the spot and has been nominated on the basis of disclosure statement, the veracity and admissibility of which would be debatable -- Petitioner is ordered to be released on regular bail.

(Para 4, 5)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20(B)(II) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS matter – Regular bail -- Recovery of 1 kg and 600 grams of Ganja Phul Patti, which is marginally higher than the small quantity -- No other case pending against the petitioner under the NDPS Act -- Considering the fact that the petitioner is in custody since 14.06.2020 and the trial in the case is not likely to be concluded in near future, court deemed appropriate to release the petitioner on regular bail -- Petition allowed.

(Para 3,4)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 22, 29, 52-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case -- Second petition for regular bail – New ground for filing the petition is FSL report – Submission that sample was received after a delay of 06 days from passing of order by the JMIC and for the said period, it remained in the custody of I.O and there is no explanation in this regard -- In the FSL report, no batch number of the strips were mentioned though it is specifically mentioned in the order of JMIC and in Form 29-B – Petitioner is in judicial custody for the last 01 year, 01 month and 21 days and charged were framed on 30.01.2020 and till date, out of total 13 prosecution witnesses, none has been examined -- Petitioner is involved in one more case under the NDPS Act of non-commercial quantity and the petitioner is on bail -- Considering the long custody of the petitioner as well as the submissions made, petition allowed.

(Para 3-12)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – NDPS matter – Regular bail -- Recovery of 18 injections of Buprenorphine of 2 ml each -- Though 18 injections of Avil of 10 ml each were also recovered from the petitioner, but the same do not fall within the ambit of NDPS Act --  No other case pending against the petitioner and he is in custody since 19.06.2019 -- Considering the fact that trial in the case will take sufficient long time, petitioner released on regular bail.

(Para 6)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS matter – Regular bail -- Recovery of 50 vials of Winicirex Cough Syrup and 400 tablets of Carisoma – Petitioners are in custody since 13.06.2019 and there is no other case pending against them -- In absence of any specific allegation in the FIR as to which of the petitioners was holding the strip of the bag and considering the fact that trial in the case will take sufficient long time -- Petitioners admitted on regular bail.

(Para 4-9)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS matter – Regular bail -- 1300 tablets of Tramadol Hydrochloride total weight comes to 546.169 grams recovered – Petitioner is in custody since 28.01.2020 -- Challan has been presented and charges are yet to be framed -- Since trial in the case is not likely to be concluded in the near future and there being no other case against the petitioner – Petition allowed, petitioner admitted on regular bail.

(Para 3-7)

Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3, 4 -- NDPS matter – Pendency of 5 more FIRs – Parole to meet family – Right of -- Petitioner has undergone 3 years and 22 days out of 10 years in custody and he has not availed parole even once during these past 3 years -- Merely on apprehension that the petitioner will again indulge in selling heroin and even registration of FIRs, cannot be made a ground to deny him right to meet his family after 3 years -- Direction is given to the respondents to release the petitioner on six weeks' parole to meet his family.

(Para 5, 6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22C -- Commercial quantity -- Recovery of 1500 capsules of Ridlay Parvorin-Spas Tramadol -- 15 witnesses to be examined, petitioner in custody for more than one year -- Keeping in view that the trial will take some time for its conclusion, there is no need to detain the petitioner any longer -- Petition allowed, petitioner is ordered to be enlarged on bail.

(Para 5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Arms Act, 1959 (54 1959), Section 25 -- Commercial quantity -- Recovery of 980 loose intoxicant tablets containing salt of Alprazolam – 5 grams above the commercial quantity – Keeping in view order granting concession of bail to the co-accused and the fact that the trial will take some time for its conclusion, there is no need to detain the petitioner any longer -- Petition allowed, petitioner is ordered to be enlarged on bail.

(Para 1-4)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 25 – NDPS matter – Commercial quantity – Regular bail -- Recovery of 5 grams heroin and 270 grams of intoxicant powder -- Commercial quantity is 250 grams -- Hence, the quantity recovered is marginally higher than the commercial quantity – Keeping in view recovery of marginally higher than the commercial quantity of intoxicant powder and that the trial will take some time for its conclusion, there is no need to detain the petitioner any longer -- Petition allowed and the petitioner is ordered to be enlarged on bail.

(Para 5, 6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Sections 22, 25, 37 – Commercial quantity -- Recovery of 400 strips of TREDOL-100 – Petitioner in custody since 03.07.2019 – Out of 12 witnesses, only 3 witnesses have been examined till date – Bail opposed on the ground that recovery from the petitioner is commercial in quantity and as per Section 37 of the NDPS Act, he is not entitled for concession of bail – Held, trial will take some time for its conclusion, there is no need to detain the petitioner any longer -- Petition allowed, petitioner is ordered to be enlarged on bail. Judgment dated 10.08.2020 passed in CRM-M-12541-2020 titled as Lakhwinder Singh @ Lakha V/s. State of Punjab relied.

(Para 4, 5)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- 255 gram of heroin recovered – Commercial quantity – Regular bail -- Petitioner is in custody for more than 13 months – Till date, no witness has been examined, the trial is not likely to conclude in near future and the recovery, which has been effected from the petitioner, is marginally above commercial quantity and no case pending against the petitioner -- Petition allowed, petitioner be released on regular bail.

(Para 2-5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Tablets containing Tramadol Hydrochloride with a total weight of 413.92 grams recovered -- Challan has been filed but none of the 11 prosecution witnesses has been examined – In view of the submissions, especially when the petitioner is in custody for over 10 months, he is not involved in any other case under the NDPS Act, Covid 19 pandemic and the conclusion of the trial is likely to take some time, a fit case to grant the concession of regular bail to the petitioner.

(Para 3-6)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21,22,27-A, 29, 52-A, 60 – Code of Criminal Procedure, 1973 (2 of 1974), Section 451 – NDPS matter -- Release of seized car on sapurdari -- Petitioner is running a tour and travel agency -- Registration certificate of the travel agency has been annexed -- Petitioner is on bail but his application for release of car on sapurdari has been declined -- Since trial is likely to take some time and because of COVID-19 situation, it is likely that the investigation may still take some more time -- Application of the petitioner for releasing the car on sapurdari deserves to be accepted – Direction given to release the car on supardari.

(Para 5-8)

Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 – Parole -- 10 year R.I. under NDPS Act -- Parole cannot be denied on mere generalization by recording that generally it has been seen that prisoners on release on parole engage themselves in smuggling activities causing danger to security of the country and contraband are again recovered from them – This can be ensured by asking the petitioner/convict to execute necessary bonds that while on parole he would maintain good behaviour and will not indulge in any smuggling activities, besides, asking him to furnish heavy surety – Petitioner ordered to release on parole. Order dated 22.01.2016 passed in CRWP No.1090 of 2015 (P&H DB), relied.

(Para 12,13)

A. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 8C, 20(b)(ii)(c) – Recovery of cannabis -- Prima facie case should be beyond reasonable doubt – Burden of proof on accused shift thereafter -- Stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused -- Gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.

(Para 2, 10)

B. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 8C, 20(b)(ii)(c), 37 – Constitution of India, Article 21 -- Recovery of cannabis from house -- Conscious possession of contraband – Proof of -- Fair trial – Right of -- Appellant produced the sale agreement of house in question, Exhibit P.28 with promptness the very next day -- It was never investigated for its genuineness by the police and neither were the panchayat records verified -- Voters list entry of 2008 being prior to the sale is of no consequence -- Conscious possession not established so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband -- Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt -- Appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution -- Conviction of the appellant held to be unsustainable and is set aside -- Appellant is acquitted.

(Para 2, 12-17)