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World Drug Day: 20 Important Judgments On The Narcotic Drugs and Psychotropic Substances Act
Muneeb Rashid Malik
26 Jun 2023 7:44 AM GMT
“The Narcotic Drugs and Psychotropic Substances Act has been enacted with the object of meeting the unprecedented challenge of illicit traffic in narcotic drugs and psychotropic substances. Drug abuse has been recognized as the single most powerful social offender in recent times creating unimaginable extent of damages on frighteningly large sections of the society. Its effect on the...
“The Narcotic Drugs and Psychotropic Substances Act has been enacted with the object of meeting the unprecedented challenge of illicit traffic in narcotic drugs and psychotropic substances. Drug abuse has been recognized as the single most powerful social offender in recent times creating unimaginable extent of damages on frighteningly large sections of the society. Its effect on the people addicted to it, is catastrophic for which the international conventions as to traffic on such drugs and substances have come into existence.” - Bidyadhar Dolai v. The State, 1993 Cri LJ 260.
The Supreme Court of India and various High Courts of the country have pronounced numerous judgments in the matters related to the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Therefore, on the International Day against Drug Abuse and Illicit Trafficking, also known as World Drug Day, it would be apposite to briefly discuss the important pronouncements.
The story of the prosecution should be very convincing if the Court has to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses.
Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724.
The Supreme Court held that if the Court has to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. Corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. Section 54 of the NDPS Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the NDPS Act, it must first be established that a recovery was made from the accused.
The test which the Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail.
Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, LiveLaw 2021 SC 489.
The Supreme Court held that the test which the Supreme Court and the High Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. The Bench observed that stringent parameters for the grant of bail under the NDPS Act have been prescribed in order to curb the menace of drug-trafficking in the country. The Bench further observed that under Section 37(1)(b)(ii) of the NDPS Act, the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are; the Prosecutor must be given an opportunity to oppose the application for bail; and there must exist reasonable grounds to believe that the person is not guilty of such an offence and he is not likely to commit any offence while on bail.
The interest of society as a whole is required to be taken into consideration while awarding the sentence/punishment in case of the NDPS Act.
https://www.livelaw.in/news-updates/poverty-accused-ndps-act-not-mitigating-factor-172215
Gurdev Singh v. State of Punjab, LiveLaw 2021 SC 196.
The Supreme Court held that while awarding the sentence/punishment in case of the NDPS Act, the interest of the society as a whole is required to be taken into consideration and while striking a balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always tilt in favour of the suitable higher punishment. The Bench observed that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable, it causes deleterious effects and deadly impact on the society, they are a hazard to the society. The Bench further observed that organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.
The officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act.
Tofan Singh v. State of Tamil Nadu, Criminal Appeal No. 152 of 2013.
The Supreme Court held that the officers who are invested with powers under section 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. It was also held that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. The judgments in Raj Kumar Karwal v. Union of India and Kanhaiyalal v. Union of India were overruled. It was held that to arrive at the conclusion that a confessional statement made before an officer designated under section 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.
Ownership of the vehicle is not required to be established to prove the case under the NDPS Act.
Rizwan Khan v. State of Chhattisgarh, Criminal Appeal No. 580 of 2020.
The Supreme Court held that to prove the case under the NDPS Act, the ownership of the vehicle is not required to be established and proved. It is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Merely because the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated.
Where the informant himself is the investigator, that cannot vitiate the investigation on the ground of bias.
Mukesh v. State (Narcotic Branch of Delhi), Special Leave Petition (Criminal) Diary No. 39528/2018.
The Supreme Court held that in a case where the informant himself is the investigator, that cannot vitiate the investigation on the ground of bias, or the like factor and the question of bias or prejudice would depend upon the facts and circumstances of each case. It was held that 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 and the matter has to be decided on a case-to-case basis. The Bench also held that a contrary decision of the 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 were specifically overruled. The Bench observed that considering the NDPS Act being a special Act with special procedure to be followed, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated, and the accused is entitled to acquittal.
The quantity of neutral substance(s) is to be taken into consideration along with actual content by weight of the offending drug, while determining the small or commercial quantity.
Hira Singh and Anr. v. Union of India and Anr., Criminal Appeal No. 722 of 2017.
The Supreme Court held that 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. The Bench also held that the decision in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau 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.
Once possession is established, the person who claims that it was not a conscious possession has to establish it.
https://indiankanoon.org/doc/489126/
Madan Lal v. State of H.P., Criminal Appeal No. 786 of 2002.
The Supreme Court held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the NDPS Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 of the NDPS Act where also presumption is available to be drawn from possession of illicit articles. The Bench observed that whether there was conscious possession has to be determined with reference to the factual backdrop and the expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds.
While considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of not guilty.
https://indiankanoon.org/doc/775230/
Union of India v. Rattan Mallik, Criminal Appeal No. 137 of 2009.
The Supreme Court held that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of not guilty. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said conditions is for a limited purpose and is confined to the question of releasing the accused on bail. The Bench observed that the expression reasonable grounds has not been defined in the NDPS Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with.
A private vehicle would not come within the expression public place as explained in Section 43 of the NDPS Act.
Boota Singh & Others v. State of Haryana, Criminal Appeal No. 421 of 2021.
The Supreme Court held that the explanation to Section 43 of the NDPS Act shows that a private vehicle would not come within the expression public place as explained in Section 43 of the NDPS Act. The Bench held that on the strength of the decision in State of Rajasthan v. Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act, but this case would come under Section 42 of the NDPS Act. The Bench also held that the decision of Karnail Singh v. State of Haryana as followed in State of Rajasthan v. Jagraj Singh alias Hansa is clear. Total non-compliance of Section 42 of the NDPS Act is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn in Karnail Singh v. State of Haryana but in no case, total non-compliance of Section 42 can be accepted.
Once it is established that the seized ‘poppy straw’ tests positive for the contents of ‘morphine’ and ‘meconic acid’, no other test would be necessary for bringing home the guilt of the accused.
State of Himachal Pradesh v. Nirmal Kaur @ Nimmo, 2022 LiveLaw (SC) 866.
The Supreme Court held that once a Chemical Examiner establishes that the seized ‘poppy straw’ indicates a positive test for the contents of ‘morphine’ and ‘meconic acid’, it is sufficient to establish that it is covered by subclause (a) of Clause (xvii) of Section 2 of the NDPS Act and no further test would be necessary for establishing that the seized material is a part of ‘papaver somniferum L’. In other words, once it is established that the seized ‘poppy straw’ tests positive for the contents of ‘morphine’ and ‘meconic acid’, no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the NDPS Act. It was observed that while interpreting the provisions of the statute, the court has to prefer an interpretation which advances the purpose of the statute.
No discretion is to be exercised in favour of accused who are indulged in offences under the NDPS Act, but the Court cannot be oblivious of the other facts and circumstances.
Budhiyarin Bai v. State of Chhattisgarh, 2022 LiveLaw (SC) 667.
The Supreme Court held that the offences under the NDPS Act are very serious in nature and against society at large and no discretion is to be exercised in favour of such accused who are indulged in such offences under the NDPS Act. It is a menace to society; no leniency should be shown to the accused persons who are found guilty under the NDPS Act. But while upholding the same, the Court cannot be oblivious of the other facts and circumstances as was projected in the present case that the old illiterate lady from rural background, who was senior citizen at the time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that the prosecution failed to examine and taking note of the procedural compliance as contemplated under Sections 42, 50 and 55 of the NDPS Act, held the appellant guilty for the reason that she was residing in that house but at the same time, this fact was completely ignored that the other co-accused were also residing in the same house and what was their trade, and who were those persons who were involved into the illegal trade providing supplies of psychotropic substances, prosecution has never cared to examine. The Supreme held that, taking in totality of the matter and the background facts which have come on record that she was an illiterate senior citizen on the date of the incident, having no criminal record, and was from the rural background, completely unknown to the law and unaware of what was happening surrounding her, all these incidental facts have not been considered by the learned trial Court while awarding sentence to the appellant. In the given facts and circumstances, while upholding conviction of the appellant, and considering the old age of the accused appellant, who is a poor illiterate lady completely unaware of the consequences, the Bench considered it appropriate that the sentence of the accused appellant be reduced to 12 years’ rigorous imprisonment and a fine of Rs. 1 lakh and in default, to further undergo rigorous imprisonment of six months which shall meet the ends of justice.
The expression “reasonable grounds” would mean credible and plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence.
Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613.
The Supreme Court held that at the stage of examining an application for bail in the context of Section 37 of the NDPS Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. The expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 of the NDPS Act would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.Preventive Detention will get vitiated if vital facts are suppressed by the sponsoring authority.
Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813.
The Supreme Court held that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. In the present case, at the time when the detaining authority passed the detention order, this vital fact, namely, that the appellant detenu had been released on bail by the Special Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985, had not been brought to the notice and on the other hand, this fact was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending. The Bench observed that the preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to.
A plain and literal interpretation of the conditions under Section 37 of the NDPS Act would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.
Mohd. Muslim Hussain v. State (NCT of Delhi), 2023 LiveLaw (SC) 260.
The Supreme Court held that a plain and literal interpretation of the conditions under Section 37 of the NDPS Act (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 of the NDPS Act can be considered within constitutional parameters is where the court is reasonably satisfied on prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during the investigation. Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A CrPC which is applicable to offences under the NDPS Act too.
Special Court can order criminal prosecution against the investigating officer for failure to file chargesheet within the stipulated period.
https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-police-officer-prosecution-delay-ndps-act-chargesheet-section-59-229037Ashish Devidas Morkhade v. State of Maharashtra, Criminal Revision Application No. 106 of 2022.
The Bombay High Court upheld an order directing criminal prosecution of the investigating officer under Section 59 of the NDPS Act for his prima facie failure to file the chargesheet within the stipulated period. Under Section 59, an officer who fails to perform his duty prescribed under the act or who connives with an accused can be punished with imprisonment for a term extendable up to one year and/or with fine. As and when it is found by any Court at any stage of proceeding that the actionable wrong within the meaning of Section 59 of the NDPS Act has been committed then in that event it has to be approached and dealt with firmly by initiating an appropriate action.
The application for drawing of sample should be made within 72 hours or near about the said time frame.
Kashif v. Narcotics Control Bureau, 2023 LiveLaw (Del) 418.
The High Court of Delhi held that - what is reasonable time depends on the facts and circumstances of each case. However, it cannot be the intention of the legislature that an application for sample collection can be moved at the whims and fancies of the prosecuting agency. Therefore, taking cue from the Standing Order 1/88, it is desirable that the application under 52A of the NDPS Act should be made within 72 hours or near about the said time frame. It cannot be the intent of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS Act. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance. Thus, a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS Act construes that a reasonable time must be read into section 52A (2) of the NDPS Act for making an application for drawing the sample and certification before the Magistrate.
Contraband of just above intermediate quantity but not sizable is an additional factor for diluting rigour of section 37 of the NDPS Act.
Fasil v. State of Kerala, 2023 LiveLaw (Ker) 208.
The High Court of Kerala held that the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: the accused should not have any criminal antecedents; the accused has been in custody for a long time, at least a period more than one year; the impossibility of trial within a reasonable time. Another aspect to be added is the quantity of the contraband. When the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the parameters stated hereinabove, for diluting the rigour under Section 37 of the NDPS Act.
The accused cannot be released automatically on statutory bail on the mere expiry of 180 days even if the prosecutor has failed to submit a report seeking extension of detention.
Subhas Yadav v. The State of West Bengal and Others, 2023 LiveLaw (Cal) 15.
The High Court of Calcutta held that the right of an accused to statutory bail upon expiry of the period of detention prescribed under section 36 A (4) of NDPS Act is an inchoate one till he avails of his right by seeking statutory bail either by way of an application or even orally. Hence, he cannot be released automatically on statutory bail on the mere expiry of 180 days even if the prosecutor has failed to submit report seeking extension of detention in terms of the proviso to section 36 A (4) of the NDPS Act before expiry of the said period. Order extending the period of detention under proviso to section 36 A (4) of NDPS Act on a report of the Public Prosecutor submitted after expiry of 180 days but prior to the accused availing of his right does not envisage retrospective operation but the total period of detention under the aforesaid provision cannot exceed one year in the whole. The right to statutory bail stands extinguished once the report of the Public Prosecutor seeking extension is filed. Hence, remand of the accused till the prayer of the prosecutor is disposed of is traceable to section 167(2) Cr.P.C. read with section 36A(4) of the NDPS Act. In the event, the application for extension is dismissed or an order extending detention is set aside by a superior court right to statutory bail revives in favour of the accused. Upon expiry of 180 days of detention, the Special Court as a cautionary measure ought to inform the accused (particularly if he is from an underprivileged section of society and is unrepresented by a counsel) of his right to statutory bail. However, failure to intimate the accused of his right by itself would not entitle him to statutory bail unless he avails of such relief. Prayer for extension of period of detention must be based on a report of Public Prosecutor which must record progress of investigation and spell out specific reasons to justify further detention beyond 180 days pending investigation. Special Court on the basis of the report of Public Prosecutor and materials in support of such plea must be satisfied of the twin requirements, i.e., (a) there is appreciable progress in the investigation and (b) there are specific/compelling reasons to justify further detention pending investigation. Each case has to be decided on its own merits. For example, failure to complete investigation solely on the score of non-submission of FSL report of the samples drawn from the contraband is an institutional shortcoming. This by itself may not justify further detention pending completion of investigation. But if the aforesaid fact situation is coupled with compelling circumstances like complexities in investigation in an organized crime racket or inter-state/ trans-border trafficking, criminal antecedents of the accused giving rise to possibility of recidivism, abscondence of co-accused, etc., constituting ‘specific reasons’ justifying further detention, the Court may be inclined to extend the period of detention and deny liberty. Prayer for extension of period of detention must be decided at the earliest without undue delay preferably within 7 days from making such application. Reasons for adjournment must be specifically stated. No written notice or copy of report of Public Prosecutor requires to be served upon the accused or his counsel but the accused or his counsel must be present personally or through video linkage at the time of consideration of the application. The accused and/or his counsel must be aware of such consideration and may raise objections, if any, with regard to compliance of mandatory requirements of law.
The exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C but is also subject to the limitations placed by Section 37 of the NDPS Act.
https://www.casemine.com/judgement/in/5f80aaa49fca190ae54bcb46
Chipurupalli Dali Naidu v. State of Andhra Pradesh, Criminal Petition No. 3860 of 2020.
The High Court of Andhra Pradesh restated the position of the Supreme Court with regard to Section 37 of the NDPS Act. The Bench reiterated that the scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail operates. The expression reasonable ground means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.
(Muneeb Rashid Malik is an Advocate and can be reached at muneebrashidmalik@gmail.com. He tweets @muneebmalikrash).
