Supreme Court Annual Digest 2025: Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS)

Interim release of vehicles involved in NDPS cases - Four Scenarios of Seizure - The Court identified four scenarios where contraband is seized from a vehicle: (i) Owner or agent is the accused. (ii) Vehicle is stolen by the accused. (iii) Contraband is found with a third-party occupant without the owner's knowledge. The Court held that in the third and fourth scenarios, where the owner is not implicated, the vehicle should normally be released on interim custody with appropriate conditions. The Court rejected the State's argument that vehicles should not be released due to the risk of reuse, noting that such a stance would lead to absurd outcomes, such as seizing private planes or ships used unknowingly in drug trafficking. Keeping the vehicle in police custody would serve no purpose and only lead to its deterioration. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Interim release of vehicles involved in NDPS cases - No Specific Bar under NDPS Act - Whether a vehicle seized under the NDPS Act can be released to its owner during the pendency of the trial. The appellant owned a truck purchased on an EMI basis, which was his sole source of income. The truck was stopped at a police checkpoint, and 24.8 grams of heroin were found concealed in the vehicle. The main accused was arrested, but the appellant and his driver were not implicated in the crime. The appellant sought the release of the truck, which had been lying unused at the police station, citing natural wear and tear. The High Court dismissed the appellant's petition, leading to the present appeal before the Supreme Court. Appellant relied on Sections 451 and 457 of Cr.P.C. and precedents to argue for the interim release of the vehicle, emphasizing that the appellant was not involved in the crime and that the vehicle was deteriorating in police custody. The State contended that the NDPS Act is a special law that does not permit interim release of vehicles used in drug trafficking, as they are critical evidence and may be reused for illegal activities. Held, the Court found no explicit prohibition in the NDPS Act against the interim release of seized vehicles. Section 51 of the NDPS Act allows the application of Cr.P.C. provisions, including Sections 451 and 457, for the custody and disposal of property. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Interim release of vehicles involved in NDPS cases - The Supreme Court allowed the appeal and directed the trial court to release the vehicle to the appellant on interim custody under the following conditions: (i) The vehicle must be videographed and photographed, with the inventory authenticated by the Investigating Officer, owner, and accused. (ii) The appellant must furnish an undertaking not to sell or transfer the vehicle until the trial concludes. (iii) The appellant must surrender the vehicle or pay its value if directed by the court after the trial. The Court emphasized that the release of the vehicle would benefit the owner, the financier, and society at large, while ensuring that the vehicle remains available for trial purposes if needed. This judgment clarifies that vehicles seized under the NDPS Act can be released to their owners during the pendency of the trial, provided the owner is not implicated in the crime and appropriate conditions are imposed to safeguard the interests of justice. The decision balances the stringent provisions of the NDPS Act with the practical need to prevent unnecessary hardship to innocent vehicle owners. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 – Held, NDPS Act does not divest the Special Courts under the NDPS Act of their jurisdiction to entertain an application for interim custody or release of a seized conveyance under Section 451 & 457 CrPC - The Rules of 2022, being subordinate legislation, are only supplemental to the scheme of disposal contemplated under the NDPS Act and cannot supersede the provisions of the parent legislation - The Rules are notably silent on the rights of persons whose property (like a conveyance) is affected by the disposal process - A conjoint and holistic reading of Sections 60(3) and 63 of the NDPS Act makes it abundantly clear that the power to determine whether a seized conveyance is liable to confiscation vests in the Special Court, not in any administrative or executive authority such as the DDC- i. Section 60(3) provides a defence to the owner to prove that the conveyance was used without their knowledge or connivance and that they had taken all reasonable precautions; ii. Section 63 mandates that no final order of confiscation can be passed without affording an opportunity of hearing to the person claiming ownership - Mere fact that a vehicle may be liable to confiscation under Section 60 cannot, by itself, operate to deny interim custody to a bona fide owner in the absence of an express bar under the NDPS Act - Confiscation is a measure resulting in deprivation of property and must be preceded by a prior hearing to ensure an innocent owner is not subjected to undue hardship - When the owner of a vehicle establishes that it was used for transporting narcotics substances without his knowledge or connivance, he cannot be denied interim custody of the vehicle pending trial- Appeal allowed. [Relied on Bishwajit Dey v. State of Assam 2025 INSC 32; (Criminal Appeal No. 1305 of 2025) Paras 13-19, 24- 34] Denash v. State of Tamil Nadu, 2025 LiveLaw (SC) 1032 : 2025 INSC 1258

Section 8(c), 21(c), 23(c), and 29 - Unlawful Activities (Prevention) Act, 1967 (UAPA); Sections 17, 18, and 22C - Penal Code, 1860; Section 120B - Supreme Court refuses bail in 2,988 kg heroin seizure case at Mundra Port (2021) but holds NIA's allegation of terror-financing linkage with LeT as premature and speculative; no compelling evidence at this stage to connect the accused to the prescribed terrorist organizations; liberty granted to re-approach after 6 months or trial advancement. (Para 34) Harpreet Singh Talwar @ Kabir Talwar v. State of Gujarat, 2025 LiveLaw (SC) 556 : 2025 INSC 662

Section 8(C), 21 and 29 - Respondent was arrested by the Narcotics Control Bureau (NCB) in a joint operation where 1280 grams of brown powder (allegedly heroin) was seized. Two samples sent for testing to the Central Revenues Control Laboratory (CRPL) returned negative for narcotic substances. Despite this, the NCB sought re-testing of a second set of samples, which also tested negative. The respondent was released after four months of confinement, and the NCB filed a closure report. The High Court, while adjudicating the bail application that had become infructuous, awarded Rs. 5,00,000/- as compensation for wrongful confinement. Held, the High Court overstepped its jurisdiction by awarding compensation in a bail application, especially since the bail application had become infructuous due to the respondent's release from custody. Re-testing of samples, despite the first negative report, was improper, but compensation claims should be pursued under appropriate legal avenues, not in bail proceedings. The Supreme Court set aside the High Court's order granting compensation, holding it to be beyond the scope of Section 439 CrPC. Appeal partly allowed; compensation order set aside. (Para 2 & 7) Union of India v. Man Singh Verma, 2025 LiveLaw (SC) 265 : 2025 INSC 292

Section 8(c) of the NDPS Act applies to all substances listed in the NDPS Act's Schedule, irrespective of their omission in the NDPS Rules. The accused must prove that their dealing was for authorized medical or scientific purposes and complied with the NDPS Act, Rules, or orders to avoid liability. (Para 90) Directorate of Revenue Intelligence v. Raj Kumar Arora, 2025 LiveLaw (SC) 434 : 2025 INSC 498

Section 8(c) - Whether dealing with a psychotropic substance listed in the Schedule to the NDPS Act, but not in Schedule I of the NDPS Rules, constitutes an offence under Section 8(c) of the NDPS Act. Held, dealing in a psychotropic substance like Buprenorphine Hydrochloride, listed in the NDPS Act's Schedule but not in Schedule I of the NDPS Rules, constitutes an offence under Section 8(c) of the NDPS Act unless done for medical or scientific purposes, in accordance with the Act, Rules, or orders, and with proper authorization. The Court overruled the trial court and High Court's reliance on State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355, affirming Union of India & Anr. v. Sanjeev V. Deshpande, (2014) 13 SCC 1, which held that all substances in the NDPS Act's Schedule are prosecutable. The charges under the NDPS Act against the Respondent were reinstated, and the High Court's decision was set aside. (Para 38, 54, 90, 156) Directorate of Revenue Intelligence v. Raj Kumar Arora, 2025 LiveLaw (SC) 434 : 2025 INSC 498

Section 8 r/w. 15 and 54 – Conscious Possession – Presumption under Section 54 – Burden of Proof - The appellant was convicted under Section 8 read with Section 15 of the NDPS Act for possession of 50 kg of poppy husk. The prosecution's case rested on the recovery of the contraband from the appellant's possession while he was traveling on a train. The appellant argued that he was not in conscious possession of the contraband, claiming the cartons could have belonged to any passenger. The Supreme Court upheld the conviction, holding that the prosecution had established conscious possession. The Court emphasized that "possession" under the NDPS Act implies not just physical possession but also awareness of the nature of the substance possessed. Once physical possession is established, the burden shifts to the accused to explain how they came into possession and prove lack of awareness of the contraband's nature. The Court noted that the appellant's explanation for being found with the cartons was unconvincing. The Court further relied on Section 54 of the NDPS Act, stating that when the accused is found in possession of a prohibited article and fails to provide a satisfactory explanation, a presumption arises that the accused has committed an offense under the Act. The Court rejected the appellant's arguments and dismissed the appeal. Rakesh Kumar Raghuvanshi v. State of Madhya Pradesh, 2025 LiveLaw (SC) 100 : 2025 INSC 96

Section 20 – Absence of evidence linking accused to contraband - Acquittal – The appellant, a taxi driver, was convicted under the NDPS Act for the recovery of 20 kilograms of ganja from his vehicle after two passengers fled upon interception by the police. The appellant argued that he was unaware of the contraband as it belonged to the fleeing passengers. No incriminating material was found on his person, and he did not attempt to flee. Held, merely failing to provide details of the passengers, did not establish the appellant's connection to the contraband, especially since no effort was made to trace the passengers. It was unreasonable to expect a taxi driver to know the details of his passengers. The conviction was set aside as the prosecution failed to establish any direct link between the appellant and the contraband. The appeal was allowed, and the appellant was acquitted of all charges under the NDPS Act. Sri Shankar Dongarisaheb Bhosale v. State of Karnataka, 2025 LiveLaw (SC) 64

Section 22 and 29 - Appeal against rejection of anticipatory bail - Allegation of recovery of 550 tablets of Tapentadol Hydrochloride from a vehicle – Tapentadol Hydrochloride is not included in the list of psychotropic substances under the NDPS Act – Accused was entitled to pre-arrest bail - Appeal allowed. (Para 7) Kulwant Singh v. State of Punjab, 2025 LiveLaw (SC) 387

Section 32B - Factors to be taken into account for imposing higher than the minimum punishment - Appellant was convicted under Section 21(c) of NDPS Act and was sentenced to 12 years of rigorous imprisonment - High Court reduced the sentence to 10 years and held that without keeping aggravating factors as provided in clause (a) to (f) of Section 32B, Trial Court can't impose a higher sentence than prescribed minimum – Held - that Section 32B does not restrict Trial Court's power in awarding a sentence higher than the minimum of ten years - that in addition to various relevant factors, Court may also take into account the factors prescribed in Section 32B and consider quantity of contraband, nature of the narcotic or psychotropic substance, the antecedents etc, it may deem fit to impose punishment which can be more than the minimum - Held that in Rafi Qureshi vs. Narcotic Control Bureau Eastern Zonal Unit (2019) 6 SCC 492, it was held that section 32B inherently preserves the Court's discretion to consider other relevant factors beyond those listed warranting a sentence higher than the statutory minimum, despite the absence of any aggravating factors - Held High Court did not correctly interpret Section 32B, still Court did not interfere with the order of High Court reducing sentence - Petition dismissed. [Relied Gurdev Singh v. State of Punjab (2021) 6 SCC 558; Para 13-15, 17-19] Narayan Das v. State of Chhattisgarh, 2025 LiveLaw (SC) 729 : 2025 INSC 872

Section 37(1)(b) – Grant of Bail in Offences Involving Commercial Quantity – Twin Conditions – The Supreme Court set aside the High Court's orders granting bail, holding that the High Court failed to properly apply the statutory bar under Section 37 - The twin conditions—recording a satisfaction that there are reasonable grounds to believe the accused is not guilty and that he is not likely to commit any offence while on bail—must be demonstrably complied with - Held that the High Court's conclusion that there was no material to show knowledge was arrived at without discussion of the respondent's statements under Section 67 of the NDPS Act and circumstances relied upon by the prosecution, such as the respondent placing orders, controlling logistics, coordinating with the overseas supplier, and being present when the consignment was opened - Noted that High Court did not examine whether the circumstances, taken at face value, could prima facie indicate conscious control or involvement sufficient to attract the presumption of culpable mental state under Section 35 of the NDPS Act - Matter remitted to the High Court for fresh consideration of the prayer for bail, requiring a complete and fair appraisal of the rival contentions based on the material, and adhering to the parameters of Section 37. [Paras 15-22] Union of India v. Vigin K Varghese, 2025 LiveLaw (SC) 1101 : 2025 INSC 1316

Section 37 - Held, bail or suspension of sentence may be granted to a convict under the NDPS Act, despite Section 37's stringent conditions, if the convict has served a significant period of incarceration and the appeal is unlikely to be heard soon. The Court dismissed the Narcotics Control Bureau's appeal, upholding the High Court's order suspending a 10-year sentence after 4.5 years of imprisonment, emphasizing that prolonged denial of bail could violate Article 21 rights. No rigid rule requires a convict to serve half their sentence for bail or sentence suspension during an appeal's pendency. Appellate courts retain discretion to grant relief based on the case's merits, as a rigid approach in fixed-term sentence cases could result in convicts serving their entire sentence before the appeal is heard, infringing Article 21 rights. [Para 5 - 7] Narcotics Control Bureau v. Lakhwinder Singh, 2025 LiveLaw (SC) 191 : 2025 INSC 190

Section 37 - Mandatory Conditions for Bail - Release on bail for offences involving commercial quantity is the exception, and negation of bail is the rule – Held, the provisions of the NDPS Act must be interpreted literally and not liberally to prevent frustrating the object, purpose, and preamble of the Act - The issue of long incarceration or delay in trial (accused in custody for 1 year and 4 months and charges not framed) does not dispense with the mandatory requirement of Section 37 in a case involving a commercial quantity and prima facie evidence of organized drug trafficking - Since the accused was charged with offenses punishable with ten to twenty years rigorous imprisonment, it could not be said that the Respondent has been incarcerated for an unreasonably long time - An undertaking given by the accused's brother (a Sepoy in the Indian Army) to ensure compliance with bail conditions is of no relevance because the brother cannot be imprisoned if the accused absconds - Despite long custody and delayed framing of charges, the allegations are serious, as the recovery was much in excess of the commercial quantity and the accused allegedly got cavities ingeniously fabricated below the trailer to conceal the contraband - Appeal allowed. [Relied on Narcotics Control Bureau vs. Kashif (2024 SCC OnLine SC 3848; Paras 11-15] Union Of India V. Namdeo Ashruba Nakade, 2025 LiveLaw (SC) 1109

Section 42 - Search and Seizure – Competency of In-Charge SHO - Held: In the absence of the designated Station House Officer, the In-Charge Station House Officer is competent to exercise powers under Section 42 of the NDPS Act, including conduct of search, seizure and arrest without warrant, provided he belongs to the category of officers empowered by the State Government notification issued under the said provision. The Supreme Court set aside the High Court order quashing the FIR on the ground that the search was conducted by an unauthorised officer (In-Charge SHO). The Court clarified that Section 42 does not require the search to be carried out exclusively by the officer actually posted as SHO; an officer holding temporary charge as SHO, duly authorised under the notification, is equally competent. State of Rajasthan v. Gopal, 2025 LiveLaw (SC) 552

Section 51 - Interim release of vehicles involved in NDPS cases - Four Scenarios of Seizure - The Court identified four scenarios where contraband is seized from a vehicle: (i) Owner or agent is the accused. (ii) Vehicle is stolen by the accused. (iii) Contraband is found with a third-party occupant without the owner's knowledge. The Court held that in the third and fourth scenarios, where the owner is not implicated, the vehicle should normally be released on interim custody with appropriate conditions. The Court rejected the State's argument that vehicles should not be released due to the risk of reuse, noting that such a stance would lead to absurd outcomes, such as seizing private planes or ships used unknowingly in drug trafficking. Keeping the vehicle in police custody would serve no purpose and only lead to its deterioration. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Section 51 - Interim release of vehicles involved in NDPS cases - No Specific Bar under NDPS Act - Whether a vehicle seized under the NDPS Act can be released to its owner during the pendency of the trial. The appellant owned a truck purchased on an EMI basis, which was his sole source of income. The truck was stopped at a police checkpoint, and 24.8 grams of heroin were found concealed in the vehicle. The main accused was arrested, but the appellant and his driver were not implicated in the crime. The appellant sought the release of the truck, which had been lying unused at the police station, citing natural wear and tear. The High Court dismissed the appellant's petition, leading to the present appeal before the Supreme Court. Appellant relied on Sections 451 and 457 of Cr.P.C. and precedents to argue for the interim release of the vehicle, emphasizing that the appellant was not involved in the crime and that the vehicle was deteriorating in police custody. The State contended that the NDPS Act is a special law that does not permit interim release of vehicles used in drug trafficking, as they are critical evidence and may be reused for illegal activities. Held, the Court found no explicit prohibition in the NDPS Act against the interim release of seized vehicles. Section 51 of the NDPS Act allows the application of Cr.P.C. provisions, including Sections 451 and 457, for the custody and disposal of property. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Section 51 - Interim release of vehicles involved in NDPS cases - The Supreme Court allowed the appeal and directed the trial court to release the vehicle to the appellant on interim custody under the following conditions: (i) The vehicle must be videographed and photographed, with the inventory authenticated by the Investigating Officer, owner, and accused. (ii) The appellant must furnish an undertaking not to sell or transfer the vehicle until the trial concludes. (iii) The appellant must surrender the vehicle or pay its value if directed by the court after the trial. The Court emphasized that the release of the vehicle would benefit the owner, the financier, and society at large, while ensuring that the vehicle remains available for trial purposes if needed. This judgment clarifies that vehicles seized under the NDPS Act can be released to their owners during the pendency of the trial, provided the owner is not implicated in the crime and appropriate conditions are imposed to safeguard the interests of justice. The decision balances the stringent provisions of the NDPS Act with the practical need to prevent unnecessary hardship to innocent vehicle owners. Bishwajit Dey v. State of Assam, 2025 LiveLaw (SC) 30 : 2025 INSC 32 : AIR 2025 SC 549 : (2025) 3 SCC 241

Section 52A - Evidence Act, 1872 - Section 65B(4) – Held, non-production of contraband in trial not fatal if seizure, sample-drawing duly recorded as per Section 52A NDPS Act - Retrial may be ordered only in exceptional circumstances to prevent a miscarriage of justice, and that non-production of contraband cannot justify such a course where electronic evidence, duly certified under Section 65B of Evidence Act, along with records - Once an electronic evidence was certified under Section 65B(4) of the Evidence Act, it is admissible in evidence and there's no requirement that the evidence must be supplied to each witness - If clarification was needed, Appellate Court could have recalled witnesses or admitted further evidence under Section 391 CrPC, instead of ordering a fresh trial - Appeal allowed. [Paras 21, 25, 29, 31 - 33] Kailas Bajirao Pawar v. State of Maharashtra, 2025 LiveLaw (SC) 914 : 2025 INSC 1117

Section 52A - Principles - Burden of Proof - Chain of Custody - Substantial Compliance - Procedural safeguards for inventorying, photographing, and sampling seized narcotics must be substantially complied with. Non-compliance alone is not fatal unless it casts doubt on the prosecution's case. The accused must first establish non-compliance with Section 52A on a preponderance of probabilities. The prosecution must then prove substantial compliance or show that non-compliance does not affect the case. Proper sealing and handling of samples are critical. Any discrepancy in the chain of custody can lead to an adverse inference against the prosecution. Minor procedural lapses do not automatically vitiate the trial if the prosecution's case is otherwise credible. Rajwant Singh v. State of Haryana, 2025 LiveLaw (SC) 102

Section 52A – Sampling and Seizure – Mere non-compliance or delayed compliance with Section 52A is not fatal to the prosecution – Held, sampling at the spot, rather than before a Magistrate, does not automatically void the prosecution - If the oral or documentary evidence inspires confidence regarding the seizure and conscious possession, the conviction can be upheld - Emphasized that procedural irregularities are not fatal unless they create discrepancies affecting the integrity of the seized substance or render the prosecution case doubtful - A reduction in the weight of the sample (from "about 50g" to 40.6g) was found to be sufficiently explained by the loss of moisture and natural drying of the ganja (leaves and seeds) over a 40-day period between seizure and analysis - Slight differences in weight do not undermine the prosecution case if they are not "enormous" - Held that it lacks the discretion to reduce a sentence below the statutory minimum mandated by the legislature for the possession of a commercial quantity under Section 20(b)(ii)(C) - While humanitarian considerations (age, family status) may be relevant for executive remission, they cannot override statutory mandates - Appeal dismissed. [Relied on Surinder Kumar v. State of Punjab, (2020) 2 SCC 563; Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; Paras 23, 27, 29, 30, 32] Jothi @ Nagajothi v. State, 2025 LiveLaw (SC) 1197 : 2025 INSC 1417

Section 52A - The appellant was convicted under Section 15 of the NDPS Act for possessing poppy straw. The Special Court sentenced him to 10 years of rigorous imprisonment and imposed a fine of Rs. 1 lakh. The High Court upheld the conviction. The prosecution's case was based on the recovery of poppy straw from a car driven by the appellant, following a tip-off about his involvement in drug peddling. The co-accused was acquitted by the High Court. Whether the conviction was vitiated due to non-compliance with Section 52A of the NDPS Act, which mandates procedural safeguards for the disposal, inventorying, and sampling of seized narcotics. Held, the Supreme Court dismissed the appeal, holding that the appellant failed to establish non-compliance with Section 52A of the NDPS Act. The Court emphasized that the initial burden lies on the accused to show non-compliance on a preponderance of probabilities. In this case, no questions were raised during cross-examination regarding Section 52A, and no evidence was presented to prove procedural lapses. The Court also distinguished the case from Mohammed Khalid vs. State of Telangana, 2024 LiveLaw (SC) 183 where the conviction was set aside due to multiple loopholes in the prosecution's case, including tampering concerns. Here, the samples were properly sealed, and the chain of custody was intact. The appellant was directed to surrender to serve the remaining sentence. Appeal dismissed. Rajwant Singh v. State of Haryana, 2025 LiveLaw (SC) 102

Section 52A - Whether non-compliance with Section 52A of the NDPS Act vitiates the trial and conviction, especially when the seized contraband was allegedly mixed before sampling. Held; Section 52A of the NDPS Act is primarily for the safe disposal of seized contraband but also introduces procedural safeguards, including inventorying, photographing, and sampling in the presence of a magistrate. The procedure under Section 52A and related rules requires substantial, not strict, compliance. Non-compliance alone does not vitiate the trial unless it renders the prosecution's case doubtful. Inventory, photographs, and samples certified by a magistrate under Section 52A(4) are treated as primary evidence, even if the bulk contraband is not produced. The initial burden lies on the accused to show non-compliance with Section 52A. Once foundational facts are established, the prosecution must prove substantial compliance or that non-compliance does not affect the case. Procedural lapses under Section 52A do not automatically lead to acquittal. Courts must consider the overall evidence, including discrepancies, and ensure that the prosecution proves its case beyond reasonable doubt. Non-compliance may lead to an adverse inference, but it depends on the facts and circumstances of each case. The Court found no procedural lapse in the sampling process and upheld the conviction, emphasizing that the prosecution had established the recovery and possession of the contraband beyond reasonable doubt. The appeal was dismissed. Bharat Aambale v. State of Chhattisgarh, 2025 LiveLaw (SC) 84 : 2025 INSC 78 : (2025) 8 SCC 452

Section 69 - Protection of action taken in good faith - The Court refrained from commenting on the protection afforded to NCB officers under Section 69 of the NDPS Act, which shields officers acting in good faith from prosecution. (Para 8) Union of India v. Man Singh Verma, 2025 LiveLaw (SC) 265 : 2025 INSC 292