Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21,22,29 – NDPS matter -- Possession of 4,000 tablets containing Clavidol (Tramadol) and 05 grams of heroin – Petitioner, who is a lady with two minor children, is in custody for over 11 months, she 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 – Concession of regular bail granted to the petitioner.

(Para 2-7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 15, 22 – NDPS matter – Regular bail -- 55 strips of Spasmo Proxyvon Plus capsules (total 1320 in number) and 14 plastic vials of Corex Syrup were recovered -- Petitioner was not arrested on the spot, there is no question of effecting any recovery of contraband from his conscious possession – Petitioner was arrested on 16.07.2019 -- Disclosure statement of the co-accused is not sufficient enough to establish the petitioner's culpability satisfactorily -- Petitioner is involved in nine other criminal cases, however, there is no mention of the petitioner being involved in any other case under the NDPS Act -- Long detention undergone by the petitioner, as also the fact that the trial is not likely to be commenced or completed in a reasonable time on account of the ongoing COVID-19 Pandemic -- Ordered to be released on regular bail.

(Para 2-7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 15 -- 50 kg of Poppy husk weighed with bag -- Default bail – Regular bail -- In case the poppy husk had been weighed separately from the bags wherein it was contained, it would not have come under the commercial quantity -- Challan ought to have been presented within a period of 60 days, considering the fact that the recovery was not of commercial quantity, which has not been done -- There is delay in the presentation of challan – Bail allowed.

(Para 5-7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 61 – Anticipatory bail -- 450 tablets of tramadol recovered from co-accused, who apprehended at the spot, named another person from whom he purchased – Later petitioner has been implicated on the statement of other co-accused – On direction, petitioner joined Investigaiton and released on ad-interim bail – In view that petitioner joined investigation and not required for custodial interrogation, the Covid-19 Pandemic, the order granting interim bail to the petitioner is made absolute.

(Para 2-6)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – NDPS case -- Conviction for 1 year – Sentence reduced to already undergone --  Appellant has undergone about 09 months, is a very poor person and has his own family to support -- Appeal partly allowed and the sentence reduced to the period already undergone by him – Fine also reduced from Rs.8,000/- to Rs.4,000/- to be deposited by appellant within a period of 03 months.

(Para 14, 15)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Tramadol tablets (282 grams) – Regular bail -- Intoxicating tablets containing tramadol with a total weight of 282 grams has allegedly been recovered from her – Petitioner is a lady with two minor children, is in custody for over 09 months, she 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 -- Fit case to grant the concession of regular bail to the petitioner.

(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, 61, 85 – Alprasafe (2900 tablets of 05 mg each) were recovered from two – Regular bail -- Petitioner is in custody since 21.04.2020 -- Applicability of provisions of NDPS Act or Drugs and Cosmetics Act, is a debatable question that will be adjudicated at the trial only -- In the present scenario of Covid-19 pandemic where the Courts are working with restrictions and taking up only urgent matters, there is no likelihood of commencing or concluding of trial in near future -- Petitioner is a widow with minor children -- FSL report has yet not received to ascertain the quantity of the alleged scheduled drug contained therein -- Petition is allowed.

(Para 1,2,5)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 18 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Recovery of 2 ½ kilograms of opium – Regular bail – By consideration the fact that petitioner is in custody since 22.09.2019; that petitioner is no more required by the Investigating Agency for investigation purpose; that challan has been presented in the Court; that trial has already commenced and since consequent trial of the case would take sufficient time to conclude, no useful purpose would be served by detaining the petitioner in custody further, thus, he deserves the concession of bail – Regular bail granted.

(Para 2, 6,7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 18, 50 – NDPS matter – Joint Memo of recovery – Regular bail -- Consent memo and recovery memo shows that a joint memo was prepared and even a joint consent was taken from the accused persons – High Court has issued guidelines from time to time with regard to investigation to be carried out in the NDPS cases, however, it appears that the investigating officers are not following the same -- Petition allowed -- Petitioner is ordered to be released on regular bail.

(Para 4-7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 37 -- NDPS matter – Commercial quantity -- Regular bail – Recovery of heroin weighing 322 grams and 66 mili gram from two accused – Disclosure statement implicating the petitioner as the person from they borrowed the heroine -- Recovery of 53 grams 63 mili grams from petitioner -- Prima facie, due to inadmissibility of disclosure statements of co-accused in evidence against the petitioner, the petitioner cannot be said to be in conscious possession of commercial quantity of heroin allegedly recovered from his co-accused and Section 37(1)(b) of the NDPS Act will not be applicable qua the petitioner – Petition allowed, the petitioner is ordered to be released on bail.

(Para 9)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 25, 50 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Recovery of 60 Kgs. of Dodapost -- Investigating Officer, when apprehended both the petitioners, gave them notice u/s 50 of the Act, in which the petitioners gave consent to be searched by the Investigating Officer and not before a Gazetted Officer or a Magistrate and thereafter, the same Investigating Officer conducted the search and recovered 60 Kgs. of Dodapost from the petitioners – Charges have been framed, however, no prosecution witness has been examined so far – Without commenting upon merits, considering the facts that the petitioners are in judicial custody since 25.11.2019 and conclusion of trial is likely to take some time, the petitions allowed.

(Para 4-8)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 37 – NDPS matter – Accused was minor -- Regular bail -- Petitioner was a minor on the date of the alleged offence though have been treated as a major -- Petitioner and the other co-accused were apprehended in possession of 850 tablets of Clovidol-100, however, no specific overt act is attributed to the petitioner -- A juvenile who is accused of a bailable or non-bailable offence would ordinarily be entitled to be released on bail if the Court is convinced that such release would not be likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or defeat the ends of justice – No other case against him under the Act of 1985 -- No evidence of Section 37 of the Act of 1985 being attracted to the case on hand – Furthermore, no basis for the opinion formed by both the Courts below that the release of the petitioner would be likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger -- Continued incarceration of the petitioner is neither required nor desirable – Petitioner shall be released on regular bail.

(Para 1-5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Indian Penal Code, 1860 (45 of 1860), Sections 188, 269, 270 -- Disaster Management Act, 2005 (53 of 2005), Section 51 – Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Sections 20, 29 -- Accused in custody since 11.04.2020 -- Since the investigation is complete and the challan has already been presented and the trial is likely to take some time to conclude as due to COVID-19 situation, Courts are not working at their full strength and not taking up regular hearing matters, therefore, no useful purpose would be served in keeping the petitioner behind bars -- Petitioner is directed to be released on regular 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, 61, 85 – Regular bail -- 85 injections of Avil and 85 injections of Buprenorphine each containing 2 ml. are stated to have been recovered from the petitioner – Petitioner is in custody for over one year and four months; he is not involved in any other case under the NDPS Act -- Orders of the Coordinate Benches, the COVID-19 pandemic and the conclusion of the trial is likely to take some time -- Concession of regular bail granted to the petitioner.

(Para 1,5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 21 – Anticipatory bail – Three other cases -- 1.7 kg of Heroin recovered from co-accused – Petitioner was never apprehended at the spot and that the only evidence against him is in the shape of disclosure statement, the admissibility and veracity of which would be tested during the course of trial – For other three cases, he was never arrested at the spot and has been granted anticipatory bail – Petition is accepted and it is ordered that the petitioner in the event of his arrest shall be released on bail.

(Para 3, 7, 8)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 22 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Anticipatory bail – Co-accused was apprehended while in possession of 12 injections of Bupronorphine (2 ml each), 12 injections of Avil (10 ml each) and 50 grams of ‘Heroin’ -- Upon interrogation she disclosed that she had purchased the aforesaid contraband from the petitioner -- Since the petitioner was never arrested at the spot and no recovery was effected from him and he is nominated on the basis of disclosure statement made by co-accused, it will certainly be debatable as to whether the aforesaid disclosure statement would be admissible in evidence against the petitioner or not -- Petitioner is not involved in any other case, it is a fit case for grant of anticipatory bail to the petitioner.

(Para 7)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 21,61,85 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Recovery of 400 grams of heroin – Custody since 12.08.2019 -- Regular bail -- FIR of 12.8.2019 do not give any time and place of apprehending the petitioner -- No independent person has been joined in the proceedings – Case property was produced before the Magistrate and the representative samples were drawn on 13.08.2019 and samples were ultimately sent to FSL only on 16.08.2019 -- Challan has been presented on 23.01.2020 -- Petitioner is not involved in any other case – Contended that according to instructions/notification No.1/88 issued by the Narcotics Control Bureau, the samples are required to be sent to FSL within 72 hours, the non-compliance would entail in grant of regular bail to the petitioner at this stage – Without adverting to the merits of the case, petitioner ordered to be enlarged on bail.

(Para 4-9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 37 -- Alprazolam recovered – Regular bail -- Alleged recovery from the petitioner is 110 grams of intoxicant material which is ultimately found to be Alprazolam as per report of FSL – Keeping in view the recovery of contraband which is marginally higher than the commercial quantity, petitioner enlarged on regular bail.

(Para 4,9)

Code of Criminal Procedure, 1973 (2 of 1974), Section 438, 446 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22 -- Non-appearance of accused -- Forfeiture of bail bond -- Summoned through non-bailable warrants – Anticipatory bail – Maintainability of -- Held, it is always open to approach the Special Court at the first instance to show the grounds as such for non-appearance and pray for necessary relief – Having not approached, anticipatory bail petition as such for the said relief is not maintainable.

(Para 1-5)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22(C), 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without Chemical Examiner report – Default bail – Right of --  Held, State is bound to annex the report of Chemical Examiner along with the challan u/s 173 Cr.P.C. -- On the other side, if the report is not accompanied with the challan, then the prosecution can seek time for placing on record the said report – When the first application for grant of default bail was filed, no application for extension of time was made by the prosecution – Held, petitioner deserves the concession of bail under the provisions of Section 167 (2) Cr.P.C., Ajit Singh’s case CRR No.4659 of 2015 = Law Today Live Doc. Id. 14121 relied.

(Para 2-6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 29 – Regular bail -- 7040 intoxicant tablets and 3000 intoxicant capsules recovered from co-accused, no recovery from the petitioner -- Interim bail granted by the Ld. Trial Court on 03.09.2019, thereafter, surrendered on 17.02.2020, not misused the concession of interim bail – In the disclosure made by the main accused, there is no allegation that petitioner facilitated or abated the commission of the offence – Mere allegation is that petitioner also used to purchase the contraband from “K” -- “K” is found to be innocent during investigation -- Charges are yet to be framed, trial will take sufficient long time -- Further incarceration would not serve any purpose – Petitioner ordered to be released on bail.

(Para 8,9)

A. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 2(viia), (xxiiia), 21, 22, 23, 24, 27, 43 – Interpretation of NDPS Act – Literal interpretation -- Provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act.

(Para 8)

B. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 2(viia), (xxiiia), 21 -- Small or Commercial quantity -- Mixture of narcotic or psychotropic substance with neutral substance –  Decision in the case of E. Micheal Raj (2008) 5 SCC 161, taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is  not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law.

(Para 10(i))

C. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 2(viia), (xxiiia) – Small or Commercial quantity – Mixture of narcotic or psychotropic substance with neutral substance – Held, in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances.

(Para 10 (ii))

D. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 2(viia), (xxiiia), 21 – Constitution of India, Article 226 -- Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001 – Challenge to -- Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001 -- Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act.

(Para 10 (iii) &(iv))

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 42 -- Recovery of contraband -- Delay in sending the samples -- Delay in sending the sample parcels to the office of Chemical Examiner will render the case of the prosecution to be doubtful in the event the material on record indicates that the case property was tempered with or any prejudice has been caused to the appellant.

(Para 15)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 25, 60(3) – NDPS matter -- Confiscation of trucks -- Owner of truck was not present at the time of recovery -- Lack of material on record to indicate that he was having knowledge that the contraband was being carried in his vehicle -- Moreover he has not been sought to be prosecuted u/s 25 of the Act – Held, confiscation can only be ordered after affording reasonable opportunity of being heard to the person who claims ownership rights over the vehicle liable to be confiscated -- Nothing to indicate that any such opportunity of hearing was afforded to the owners of the trucks -- Confiscation of the trucks cannot be sustained in the eyes of law.

(Para 20)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without CFSL report – Default bail – Right of -- Report u/s 173 (2) of the Cr.P.C. was filed by the police before expiry of the period of 60 days without the CFSL report, which cannot be said to be incomplete -- Accused is not entitled to bail u/s 167 (2) of the Cr.P.C. on the ground of filing of incomplete report.

(Para 29)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 – NDPS case -- Recovery of 1 Kg 800 gms of ganja – R.I. for one year and fine of Rs. 5,000/- and in default further S.I. for a period of 2 weeks – Appellant is not a previous convict, he is a poor person having his wife, who has since died – Appellant has undergone actual imprisonment for a period of 08 months and 04 days – Quantity of contraband is marginally above the small quantity and in such circumstances, some more leniency in the matter of sentence can be extended to the appellant -- Sentence of the imprisonment reduced to the period already undergone without alteration with regard to the sentence of fine.

(Para 3, 11-13)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 37 -- NDPS matter -- Commercial quantity – Regular bail -- Petitioner is in custody since 1.1.2019 and the investigation is already complete and the charges have already been framed on 4.5.2019 and out of 11 witnesses cited by the prosecution none has been examined till date -- It is not the case of the prosecution that in case the petitioner is enlarged on bail then he may tamper with the evidence or influence the witnesses or he may repeat the offence -- Apart from that even the provisions of Section 50 of the NDPS Act were not complied with which may result in vitiating the trial itself and becomes a good ground for presuming that petitioner is not guilty and therefore, it would be certainly a fit case where departure can be made under the provisions of Section 37 of the NDPS Act -- Petitioner ordered to be released on bail.

(Para 8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18 (c) – NDPS case -- Sentence reduced to already undergone --  Recovery of 700 gram from appellant and 300 gram of opium from co-accused – Conviction for one year RI and fine of Rs.10,000/-, in default thereof, to further undergo RI for 02 months – FIR relates to the year 2016 -- Sentence undergone 4 month, 17 days -- It is a fit case wherein sentence can be reduced to the period already undergone -- Sentence of fine and default clause shall remain intact -- Appellant be released forthwith on deposit of fine.

(Para 8)

A. Narcotic Drugs and Psychotropic Substances, Act 1985 (61 of 1985), Section 22, 41, 50 -- Personal Search – Procedure of -- Personal search of the juvenile was conducted by Lady Constable, though there was no recovery -- On search of the box which was put in a carry bag, fifteen injections of Buprenorphine 2 ML each were recovered – Police was required to comply with the provisions of Section 50 of the NDPS Act -- Investigating officer did not record reasons for his belief which necessitated the search of the juvenile without producing her before the nearest Gazetted Officer or Magistrate and no such copy of reasons to belief was sent to the superior officials within 72 hours -- Search and seizure proceedings get vitiated as the very purpose of introducing an independent official witness in the form of a Gazetted Officer or a Magistrate during the search and seizure gets defeated – Acquittal order upheld.

(Para 11, 12)

B. Narcotic Drugs and Psychotropic Substances, Act 1985 (61 of 1985), Section 22 -- Acquittal of accused – Interference in appeal -- Even if a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused -- In the cases of acquittal, there is double presumption of innocence; and secondly, the accused having secured an acquittal, the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible -- Finding of acquittal recorded by the trial Court cannot be said to be perverse and the same is affirmed.

(Para 12)

Narcotic Drugs and Psychotropic Substances Rules, 1985, Section 15, 25, 29 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- NDPS case – Commercial quantity – Regular bail – Recovery of four bags containing 35 kgs. each of poppy-husk from co-accused -- Petitioner implicated on the basis of disclosure statement of co-accused and there is no other material/evidence connecting him with his co-accused and the narcotic substances recovered -- Petitioner was not arrested from the spot and no recovery was made from him -- Rigors of Section 37 (1)(b) of the NDPS Act are not applicable qua the petitioner and in any case the same stand satisfied by due implication – Trial against him is likely to take long time -- Petitioner ordered to be released on regular bail.

(Para 2, 8, 9)

A. 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 -- Conviction of petitioner u/s 22 of NDPS Act for 10 years -- Temporary release – Parole -- Apprehension of threat -- Petitioner involved in three other cases (NDPS), out of which he was acquitted in one case and in the remaining two cases, he was convicted and sentenced to the period already undergone and was ordered to pay fine which he has deposited – Likelihood of his involvement in similar offence while on parole is not be taken as an active and real apprehension of threat to the security of the State or to the maintenance of public order -- Merely on apprehension, benefit of parole cannot be denied.

(Paras 13)

B. Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3(1)(d) -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 -- Conviction of petitioner u/s 22 of NDPS Act for 10 years -- Temporary release – Parole -- Sufficient cause – Old aged parents – Repair of house -- Parents are of an advanced age and there is no one to take care of them at this old age and secondly, he claims that his house is in need of repairs -- Claim on both grounds has been verified by a Municipal Councillor -- Though expression “sufficient cause” as mentioned in Section 3(1)(d) of 1962 Act, has not been defined, but the reasons given by the petitioner for his release on parole will fall within the ambit of “sufficient cause” and therefore, his request is entitled to be accepted -- Petitioner is ordered to be released on parole for a period of six weeks.

(Para 14)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 42, 67 – Acquittal in NDPS matter -- Investigation by Assistant Sub-Inspector – Assistant Sub Inspector, the investigating officer of this case is a C.2 Constable which is an upper rank for the post of Constable, substantive rank still continues to be that of Constable and is drawing pay of the Constable – Provisions of the Act of 1985 are stringent and provide for severe punishment -- In such a situation, it is the duty of the investigating agency to strictly comply with the requirements of the Act – Accused acquitted.

(Para 2-7)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without Chemical examination report – Default bail – Right of -- It would not be appropriate to hold that in absence of report of the chemical examiner from the FSL or such like agencies, the accused is entitled to default bail -- Held, attention of the Division Bench in Ajit Singh @ Jeeta and another, Law Today Live Doc. Id. 14121 was not drawn to two Supreme Court judgments (Narender Kumar Amin’ case, (2015) 3 SCC 417 and Abdul Azeez P.V.’s case, (2014) 16 SCC 543, interpreting this very question of default bail in absence of report from FSL or similar agencies -- Held, that the judgment passed by the Hon'ble Division Bench is “per incuriam” -- No ground to release the petitioner on bail is made out.

(Para 6-10)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 21A, 21B, 21C, 22A, 22B, 22C, 42(1), 50 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378(2) -- NDPS case -- Acquittal of accused – Leave to appeal -- What weighed with the trial Court was the fact that both the notices u/s 42(1) and 50 of the NDPS Act were defective -- Further even on merits there was material difference in the statements of the prosecution witnesses regarding the point of time on which the notice u/s 50 was served upon the respondent/ accused – State has not been able to justify the infraction of the mandate of Sections 42(1) and Section 50 or explain the discrepancies in the statements -- Application seeking leave to appeal dismissed.

(Para 6)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18 18(b) – NDPS Matter -- Reverse burden of proof – Culpable mental state -- Prosecution shall be put to a stricter test for compliance with statutory provisions -- If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him.

(Para 9)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18 18(b) -- Search and seizure -- Recovery of contraband – Large vacant space below signature of witness – Doubt in – It is clearly abnormal and cannot be lightly wished away especially when the independent witnesses have deposed that they were not present at the time of such search and seizure -- It certainly creates a doubt with regard to the veracity of the allegations made by the prosecution.

(Para 11)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 18 18(b) – Acquittal in NDPS matter -- Identity of sample/contraband -- Late production of sample seized in court – Effect of -- No credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant – No reasonable explanation why the sample seized from the appellant and deposited in the Malkhana could not be produced in the Court except after a long gap of one year – Appeal against conviction allowed.

(Para 12-19)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 29, 61, 85 – NDPS matter – 1.5 kg of Heroin -- Regular Bail – Custody since 21.01.2018 -- Indictment of the petitioner on the basis of disclosure statement suffered by co-accused -- Petitioner was not travelling in the said bus from where the alleged contraband was recovered from possession of co-accused -- Trial of the case is likely to take time – Petition allowed, petitioner is ordered to be released on regular bail.

(Para 4,5)

A. Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 25 – Conviction under NDPS Act -- Parole – Danger to security of State – Danger to maintenance of public order – Ground of – No material in support -- Reaching the satisfaction of danger to the security of the State or maintenance of public order there has to be material before the competent authority for arriving at that conclusion -- Parole cannot be denied on mere generalization -- Accordingly this ground is not made out. Jassa Singh’s case 2016(1) Law Herald 587 relied.

(Para 7)

B. Punjab Good Conduct Prisoners’ (Temporary Release) Act, 1962 (11 of 1962), Section 3 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 25 – Conviction under NDPS Act -- Parole – Possibility of absconding -- Possibility of involving in other serious offence – Ground of -- Mere apprehension in the mind of the Authority -- No material has been referred to justify such apprehension -- Mere fact that a person is convicted for an offence does not mean that he will abscond if he is released on parole – Direction given to release the petitioner on parole.

(Para 8-10)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173 – NDPS Matter – Incomplete challan – Final report not within prescribed time -- Default bail – Right of – Although the report u/s 173 Cr.P.C was filed by the Police, however, the FSL report was not filed along with the police report; to indicate the fact that the material recovered from the petitioner was, in fact, the poppy husk – Trial Court is directed to release the petitioner on bail pending trial; on his furnishing bonds/sureties to the satisfaction of the trial Court.

(Para 2-5)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 173 – NDPS Matter – Chemical Examination Report – Requirement of -- Chemical Examiner's report is an essential; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act.

(Para 25-28)

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(2), 173 -- NDPS Matter – Investigation Report -- Chemical Examination Report – Default bail – Right of -- It is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan -- If it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court.

(Para 26)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 20, 50 – Contraband of charas -- Search before Magistrate or Gazetted officer – Non-compliance of -- Appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him u/s 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party) –Search and recovery made from the appellant does not satisfy the mandatory requirements of Section 50 for the following reasons.

-- First, appellant was not produced before any Magistrate or Gazetted Officer;

-- Second, due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer;

-- Third, none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided u/s 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer;

-- Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act.

Prosecution examined as many as five police officials of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer -- Non-compliance of the mandatory procedure prescribed u/s 50 of the NDPS Act is fatal to the prosecution case, the appellant is entitled to claim its benefit to seek his acquittal -- Conviction set aside.

(Para 26-30)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15, 52A – NDPS case -- Delay in sending sample to FSL -- Alleged recovery was effected on 12.08.2007 -- Samples were sent on 27.08.2007 to the FSL -- No explanation as to why the samples were not sent within the stipulated period of 72 hours as prescribed in the standing instructions issued by the Narcotics Control Bureau -- Samples were directly sent to the FSL without obtaining orders from the Court as mandated by Section 52A of the Act -- Therefore, an adverse inference has to be drawn against the prosecution.

(Para 13)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 15 -- NDPS case – Non-Investigaiton of owner of vehicle – No independent witness – Material contradiction – Acquittal of accused -- Owner of the vehicle was neither involved at any stage of investigation, nor was summoned by the prosecution to verify as to how the vehicle in question came into the possession of the appellants -- Recovery was allegedly effected at canal bridge, which is admittedly a public place -- In spite of that, no independent witness was joined -- As per the FIR, the recovery was effected from the car being driven by appellant No.1, whereas appellant No.2 was sitting on the rear seat and one bag each was lying on the front as well as the rear seat – However, PW5, S.I. categorically stated before the Court that both the appellants were sitting on the front seats -- This is a material contradiction which goes to falsify the case of the prosecution -- Judgment of conviction and order of sentence set aside.

(Para14-18)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 43 – NDPS case -- Power of entry, search, seizure and arrest:

-- Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure.

-- Section 43 does not contain any such provision and as such while acting u/s 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.

(Para 12)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42(1)(2) -- NDPS case -- Power of entry, search, seizure and arrest – Statutory requirement of writing down and conveying information to superior officer -- Provisions should be taken as discretionary measure:

-- If the statutory provisions u/s 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure -- These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal -- Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers.

(Para 16)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42(1)(2) -- Scope and applicability of Section 42 of NDPS Act -- Power of entry, search, seizure and arrest – Statutory requirement of writing down and conveying information to superior officer – Abdul Rashid, (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham (2001) 6 SCC 692 hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a)     The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b)    But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c)     In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d)    While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.

Reference answered in the manner aforesaid.

(Para 17)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 2(xxiiia), 2(viia), 21(b) (c) – Recovery of heroin – Mixture of Narcotic drug or a psychotropic substance with one or more neutral substance/s -- Small Quantity – Commercial quantity – Determination of -- In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance -- It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity -- Held, when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.

(Para 13-16)