NDPS Act: All India Annual Digest 2024

SUPREME COURT

Interpretation of the NDPS Act - The NDPS Act must be interpreted strictly, focusing on its purpose, object, and societal impact. A literal interpretation is necessary to avoid frustrating the Act's objectives. The judgment addresses several key points regarding the interpretation and application of provisions under the NDPS Act. Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033

Section 37 - Consideration of Bail Applications - Mandatory Nature of - Section 37 of the NDPS Act, which outlines conditions for granting bail, is mandatory. Courts must record findings as required under this section before granting bail to the accused. Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033

Section 52A - Purpose of - Impact of Procedural Irregularities - Section 52A was introduced to facilitate the early disposal of seized contraband as part of India's compliance with international conventions on narcotics. Delays or procedural lapses under Section 52A are treated as procedural irregularities and do not vitiate the trial or automatically justify bail. Procedural lapses during search, seizure, or compliance with Section 52A do not render evidence inadmissible or invalidate the trial. Courts must consider the overall evidence and assess if serious prejudice has been caused to the accused. Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033

Section 37, 52A and 54 - Statutory Presumptions - Bail Decisions and Compliance with Section 37 - Courts must consider the statutory presumptions under Section 54 of the NDPS Act alongside other evidence before deciding on bail. The High Court's order granting bail, based merely on non-compliance with Section 52A, disregards the mandatory provisions of Section 37. The Court remanded the case for fresh consideration of the bail application in accordance with the law, with specific instructions to evaluate the merits and mandatory requirements. Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033

Section 37, 52A and 54 - Quashing of High Court Order - Remand Directions - Extension of Interim Bail - The High Court's order granting bail solely on delayed compliance with Section 52A, without adherence to Section 37, was held erroneous. The matter has been remanded for fresh consideration. The High Court must reconsider the bail application on its merits, strictly adhering to the law, within four weeks. The matter should be placed before a different bench for impartial reconsideration. Interim bail for the respondent has been extended for four weeks, subject to the High Court's decision on the application within the stipulated period. The appeal has been allowed, and the High Court's bail order has been set aside, emphasizing strict adherence to the statutory framework of the NDPS Act in deciding bail matters. Narcotics Control Bureau v. Kashif, 2024 LiveLaw (SC) 1033

Addressing the Menace of Drug Abuse and Illicit Drug Trade in India - The Court, while adjudicating cases related to the cancellation of bail and the investigation of offenses under the NDPS Act, expressed grave concern over the proliferation of substance abuse and its profound impact on Indian society. Recognizing the constitutional mandate under Article 47, the judgment emphasizes the State's duty to combat drug abuse and protect the nation's youth from its devastating consequences. The extensive impact of drug abuse on public health, national security, and socio-economic stability, exacerbated by the lucrative nexus between drug trafficking and terrorism. Statistical insights from the MoSJE 2019 Report reveal alarming rates of substance use disorders, with millions affected, particularly by opioids and cannabis. Root causes of juvenile addiction, such as peer pressure, academic stress, and familial dysfunction, demand a multi-stakeholder intervention strategy. The role of parents, educational institutions, local communities, NGOs, and legal authorities is pivotal in prevention, awareness, and rehabilitation efforts. The Court urges a balanced approach that focuses on rehabilitation rather than stigmatization of victims, fostering constructive citizenship among the youth to resist the allure of drugs and its glorification in popular culture. The judgment underscores the urgency for collaborative action, policy implementation, and community engagement to curb the menace of drug abuse and safeguard the future of India's youth. Ankush Vipan Kapoor v. National Investigation Agency, 2024 LiveLaw (SC) 999

Section 42, 43, 44, and 58 – Abuse of Power – Violation of Principles of Natural Justice - The appellant, along with other police officers, was found liable under Section 58 of the NDPS Act for maliciously fabricating a prosecution case involving the recovery of a commercial quantity of opium, allegedly planted in conscious possession of an accused. The trial court observed that the actions of the officers, including the then Superintendent of Police, Deputy Superintendent of Police, and Investigating Officer, were vexatious and lacked bona fide exercise of powers under Sections 42, 43, and 44 of the Act. Held, the judgment was legally unsustainable due to multiple legal infirmities, procedural lapses, and gross violation of the principles of natural justice, thereby rendering the conviction and subsequent actions untenable. Separate notices issued under Section 58 of the NDPS Act for proceedings against the concerned police officers set aside. Bharti Arora v. State of Haryana, 2024 LiveLaw (SC) 986 : AIR 2025 SC 137

Section 69 – Protection of Actions taken in Good Faith – Scope and Presumption - Section 69 of the NDPS Act provides immunity from legal proceedings to the Central and State Governments, their officers, or any person acting under the Act, for actions done in good faith. The Court observed that good faith, as defined under Section 3(22) of the General Clauses Act, requires acts to be performed honestly, even if negligently, provided there is no malice, ill will, or intention to deceive. Good faith is presumed unless rebutted by cogent and clinching evidence. The Court emphasized that immunity applies only to official acts performed with genuine belief and due care, free from malice or ill motive. For immunity to be dislodged, there must be material attributing unreasonable or malicious intent to the act. The presumption of good faith cannot be negated by merely alleging wrongdoing or erroneous decisions unless supported by substantive evidence indicating bad faith or improper motives. Immunity under Section 69 protects official actions in good faith unless clear evidence demonstrates malice or malicious intent. Bharti Arora v. State of Haryana, 2024 LiveLaw (SC) 986 : AIR 2025 SC 137

Section 58 - Violation of Principles of Natural Justice – Impact of Adverse Observations without Hearing – Necessity for Opportunity to be Heard - The judgment emphasized the foundational principle that justice must not only be done but also be seen to be done. Adverse findings or observations against an individual, particularly in a quasi-judicial context, without affording them notice or an opportunity to be heard, are in direct violation of natural justice. In this case, the Special Judge recorded findings implicating the appellant under Section 58 of the NDPS Act solely based on arguments presented during the final hearing, without prior notice or hearing, thereby breaching the principles of fairness and impartiality. The court reiterated that such actions undermine the integrity of judicial processes, referencing established precedents that prohibit courts from passing disparaging remarks against individuals or authorities without due process. Strict adherence to natural justice is indispensable to maintain public confidence in the judicial system. Bharti Arora v. State of Haryana, 2024 LiveLaw (SC) 986 : AIR 2025 SC 137

Section 58 - Judicial Determination – Predetermined Actions and Non-Application of Mind – Quashing of Proceedings - The Supreme Court set aside the High Court's judgment and the orders of the Special Judge, finding that the latter acted in a predetermined manner, failing to consider critical facts such as pending appeals against the conviction/acquittal judgment. Observations made in the earlier judgment and the subsequent proceedings initiated under Section 58 of the NDPS Act were quashed due to a lack of proper reasoning and non-application of mind. The Court underscored the principle that judicial orders must reflect impartiality and adherence to due process. This decision reaffirms the importance of fairness, procedural propriety, and the avoidance of prejudgment by judicial authorities. Bharti Arora v. State of Haryana, 2024 LiveLaw (SC) 986 : AIR 2025 SC 137

Section 50 – Bail – Procedural Compliance – Commercial Quantity - The Supreme Court set aside the High Court's order granting bail to the respondent in a case involving recovery of 500 grams of heroin (commercial quantity). The High Court had held that the use of the term "any Gazetted Officer" instead of "nearest Gazetted Officer" in the notice under Section 50 of the NDPS Act contravened the provision. The Supreme Court clarified that the intent of Section 50 is to inform the suspect of their right to be searched before an independent authority, such as a Gazetted Officer or Magistrate, without unnecessary delay. Strict compliance was observed in this case, and the respondent had not exercised the option. The Court noted the respondent's involvement in another NDPS case and emphasized the seriousness of the offense. Directions were issued for the respondent to surrender, failing which the authorities were instructed to ensure his detention. The trial was directed to proceed expeditiously, and liberty was granted to the respondent to seek bail in case of prolonged trial due to reasons not attributable to him. Appeal allowed. Bail order set aside. Directions for respondent's surrender and expeditious trial issued. State of NCT of Delhi v. Mohd. Jabir, 2024 LiveLaw (SC) 956

Sections 22(c), 29 and 67 - Conviction based on inadmissible evidence - Acquittal - The Supreme Court set aside the conviction of the appellant under Sections 22(c) and 29 of the NDPS Act due to the absence of legal evidence. The prosecution failed to establish beyond a reasonable doubt that the psychotropic substance (pentazocine) transported by the co-accused was supplied by the appellant or that the appellant was part of a criminal conspiracy. The appellant's statement recorded under Section 67 of the NDPS Act, being inadmissible as per Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, could not be relied upon. Additionally, the non-examination of crucial witnesses and the lack of recovery of incriminating material from the appellant further weakened the prosecution's case. The Court emphasized that the charge framed did not include allegations under Section 29, and no evidence of conspiracy was produced. The appeal was allowed, and the appellant was acquitted of all charges. Statements recorded under Section 67 of the NDPS Act are inadmissible as confessions (Tofan Singh principle). Failure to establish the appellant's involvement in transportation or conspiracy necessitates acquittal. Non-framing of charges under Section 29 was irrelevant due to the lack of evidence of conspiracy. Ajay Kumar Gupta v. Union of India, 2024 LiveLaw (SC) 888

Section 20(b)(ii)(B) and Section 50 – The respondent was convicted by the Trial Court for possession of 2.05 kgs of Ganja. The High Court acquitted the respondent, holding the search and seizure illegal due to non-compliance with Section 50. The State appealed to the Supreme Court. Held: The Supreme Court restored the conviction, holding that Section 50 formalities do not apply to recoveries from a bag. The respondent, who had already served four years, four months, and 21 days in prison, was sentenced to the period already undergone. Judgment of acquittal set aside. Conviction restored with modification of sentence to the period already undergone. The fine of Rs. 50,000 was upheld with a default imprisonment clause. Appeal allowed. State of Kerala v. Prabhu, 2024 LiveLaw (SC) 640

Section 50 – Whether recovery from a bag requires compliance with Section 50 - The Court reiterated that compliance with Section 50 is not mandatory when the recovery of contraband is made from a bag carried by the accused, not from the person of the accused. (Referred : Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856). State of Kerala v. Prabhu, 2024 LiveLaw (SC) 640

Sections 20 and 29 - The appellant had been convicted by the Trial Court for possession of 1.25 kg of "charas" and sentenced to 10 years of rigorous imprisonment. The appellant contested the conviction based on discrepancies in the police logbook, which showed that the police were at a different location at the time of the alleged seizure. Held, the High Court had erred in brushing aside crucial documentary evidence (the logbook) and statements of the police witnesses, which contradicted the prosecution's case. Given the absence of independent witnesses and the unreliability of the prosecution's evidence, the Court set aside the conviction and acquitted the appellant of all charges. Prakash Singh v. State of Himachal Pradesh, 2024 LiveLaw (SC) 616

Section 37(1)(b)(ii) - Bail - HIV positive - Legality of granting bail - The High Court granted bail considering HIV-positive status as the sole ground. Subsequently, the accused was granted bail again in connection with FIR involving a commercial quantity of heroin without due consideration of the stringent requirements under Section 37(1)(b)(ii) of the NDPS Act. Held, In cases involving commercial quantities of narcotics, bail can only be granted if both conditions under Section 37(1)(b)(ii) of the NDPS Act are met: reasonable grounds for believing the accused is not guilty and that they are unlikely to commit any offence while on bail. It reiterated that these conditions are cumulative, not alternative. The High Court's decision to grant bail solely based on the accused's HIV-positive status, without adherence to Section 37(1)(b)(ii), was erroneous and warranted interference. Consequently, the impugned bail order was set aside, directing the accused to surrender before the trial court within a week, with instructions to expedite the trial as per Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017. State of Meghalaya v. Lalrintluanga Sailo, 2024 LiveLaw (SC) 492

Section 37 & 52 – Applicability of Section 437(3) in cases of NDPS Act – Once a case is made out for a grant of bail in accordance with Section 37, the conditions of bail will have to be in terms of Section 437(3) of the CrPC. The reason is that because of Section 52 of the NDPS Act, the provisions of the CrPC apply to the arrests made under the NDPS Act insofar as they are not inconsistent with the NDPS Act. (Para 4) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

It is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a 'certificate of assurance' from the Embassy/High Commission should be incorporated. It will depend on the facts of each case. Held, grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence the condition is deleted. (Para 11.1 & 12) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 37 – Constitution of India; Article 21 - Bail on grounds of undue delay in Trial despite bar in NDPS Act – Failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered. Held, section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, does not fetter the grant of bail to an accused on the ground of undue delay in the completion of the trial. Direction given to enlarge the petitioner on bail. Ankur Chaudhary v. State of Madhya Pradesh, 2024 LiveLaw (SC) 416

Section 63 – Order of confiscation and auction of article is challenged – The court cannot order confiscation of an article until the expiry of one month from the date of seizure or without hearing any person who may claim any right thereto. Held, the appellant is the registered owner of the article and has a right to be heard by the court before the final order of confiscation is passed and the seized vehicle is put to auction. Hence, the order passed by the trial court to the extent it orders confiscation and auction of the dumper is set aside. (Para 13, 14 & 15) Pukhraj v. State of Rajasthan, 2024 LiveLaw (SC) 395

Can accused get default bail if FSL report isn't submitted with chargesheet within prescribed time? The Supreme Court refers to the Larger Bench. Hanif Ansari v. State (Govt of NCT of Delhi), 2024 LiveLaw (SC) 302

Actions of the authorities concerned within the meaning of the NDPS Act 1985 must be towards ensuring of upholding the rights of the accused in order to allow the accused to have a fair trial. (Para 24) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Sections 41 & 42 – Mandatory compliance of procedure before search – Power of Magistrate and an Officer of Gazetted rank to issue warrant – Empowers a Magistrate to issue search warrant for the arrest of any person or for search, whom he has reason to believe to have committed any offence under the provisions of the NDPS Act 1985. As per Section 41(2), such reason to believe must arise from either personal knowledge or information given by any person to him and is required to be reduced into writing. The search conducted at the house of Accused No. 01 and Accused No. 04 was not based on the personal knowledge, rather it was an action bereft of mandatory statutory compliance of Section 41(2). The raid at the house of the Accused No. 01 and Accused No. 04 is in violation of the statutory mandate of Section 41(2) of the NDPS Act 1985. (Para 32, 42, 46 & 47) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 42(1) – Power of search and seizure under Section 41(2) of the NDPS Act 1985, is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. Article 20(3) of the Constitution would not be affected by the provisions of search and seizure. The statutory provisions conferring authorities with the power to search and seize are a mere temporary interference with the right of the accused as they stand well regulated by reasonable restrictions emanating from the statutory provisions itself. (Para 41) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 42(1) – Power of entry, search, seizure and arrest without warrant or authorisation – The provision obligates an officer empowered by virtue of Section 41(2) to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1), in case an empowered officer proceeds on his personal knowledge. The grounds of belief is to be conveyed to the immediate official superior, prior to the search and in case of any inability to do so, the Section 42(2) provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso. Absolute non­compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. (Para 31) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 67 – Evidentiary value of confessional statements recorded under Section 67 – Information received under section 67 is not in the nature of a confessional statement. Such statements cannot be used against the accused. (Para 51 & 53) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

The bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985. (Para 50) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298 : AIR 2024 SC 2778

Section 67 - Confession statements are not admissible evidence. The authorities / officers of the Narcotics Control Bureau must comply and abide by the judgment in Toofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. Sharik Khan v. Narcotics Control Bureau, 2024 LiveLaw (SC) 216

Section 52A – Safe custody of sample packets – Proceedings required to be followed as per Section 52A of the NDPS Act, by the investigating officer of preparing an inventory and obtaining samples in presence of the jurisdictional magistrate is not followed. Due to lack of proper procedure followed, the FSL report is held to be nothing but a waste paper and cannot be read in evidence. Glaring loopholes in the prosecution case give rise to an inescapable inference that the prosecution has failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of the seizure till the same reached the Forensic Science laboratory (FSL). (Para 21 & 22) Mohammed Khalid v. State of Telangana, 2024 LiveLaw (SC) 183 : (2024) 5 SCC 393

Section 37 – Bail to the accused charged in connection with offence involving commercial quantity of a narcotic drug or psychotropic substance – In case of recovery of huge quantities of narcotic substance, the Courts should be slow in granting even regular bail to the accused, more so when the accused is alleged to be having criminal antecedents. The Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act that there are grounds for believing that the accused is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. The High Court not only omitted to record any such satisfaction, but has rather completely ignored the factum of recovery of narcotic substance, multiple times the commercial quantity. The impugned order is cryptic and perverse on the face of the record and cannot be sustained. Thus, the same is quashed and set aside. State v. B. Ramu, 2024 LiveLaw (SC) 128

HIGH COURTS

ALLAHABAD HIGH COURT

NDPS Act | Samples Not Drawn In Magistrate's Presence As Per S. 52A Can't Be Treated As Primary Evidence During Trial: Allahabad HC

Case title - Satyapal And Anr. vs. State of U.P. 2024 LiveLaw (AB) 82 [CRIMINAL APPEAL No. - 6549 of 2018]

Case citation: 2024 LiveLaw (AB) 82

The Allahabad High Court reiterated that samples not drawn from the bulk in the presence of a Magistrate as per the mandate of Section 52A of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) can't be treated as a valid piece of primary evidence in the trial.

For context, Section 52A (2), (3) and (4) of the provide that when seized contraband is forwarded to the officer-in-charge of the nearest police station, the officer must draw samples from the seized goods in the presence of a magistrate who shall certify its correctness. It is further provided that the inventory or the photographs of the seized substance and any list of samples in connection thereof on being certified by the Magistrate shall be recognized as primary evidence in connection with the offences alleged under the NDPS Act.

Restrictions On Grant Of Bail U/S 37 NDPS Act Do Not Apply To Constitutional Courts: Allahabad High Court

Case title - Vimal Rajput vs. State Of U.P. Thru. Addl. Chief Secy. Home 2024 LiveLaw (AB) 392

Case citation: 2024 LiveLaw (AB) 392

The Allahabad High Court has observed that the restrictions on the grant of bail contained under Section 37 of the Narcotic Psychotropic Substances Act, 1985 (NDPS Act) only apply to the special courts dealing with NDPS cases and do not apply to the Constitutional Courts (High Courts and Supreme Court).

“I am of the considered view that the restrictions contained in Section 37 of the NDPS Act were meant to be applicable to Courts other than the Constitutional Courts and in view of the provision contained in Section 36-A (3) of NDPS Act, those restrictions do not apply to the Constitutional Courts,” a bench of Justice Subhash Vidyarthi concluded.

NDPS Act | Can Convict Accused Based On Testimony Of Police/DRI Witnesses If It Inspires Confidence: Allahabad HCv

Case title - Baijnath Prasad Sah Kanoo vs. Union Of India Thru. Intelligence Officer Directorate Revenue Intelligence Lko and connected matters 2024 LiveLaw (AB) 408

Case citation: 2024 LiveLaw (AB) 408

The Allahabad High Court has observed that an accused's conviction in a case under the Narcotic Drugs and Psychotropic Substances Act may safely be based on the testimony of police witnesses or witnesses of the Directorate of Revenue Intelligence (DRI) if such testimony inspires confidence.

With this, a bench of Justice Mohd. Faiz Alam Khan upheld the conviction of 3 men who were found guilty of the offences under Section 8(c)/20(b)(ii)(c)/25 of the NDPS Act and were sentenced to 10 years of rigorous imprisonment.

Violation Of S. 50 NDPS Act, Discrepancies In Prosecution's Evidence: Allahabad HC Acquits Accused In 33 Year Old Case

Case title - Ikrar And Another vs. Union of India 2024 LiveLaw (AB) 472

Case citation: 2024 LiveLaw (AB) 472

The Allahabad High Court acquitted an accused in a 33-year-old case under the NDPS Act. It noted that Section 50 of the Act was violated and that the prosecution had failed to establish its case beyond a reasonable doubt.

“(Section 50 of the NDPS Act) is a crucial safeguard to ensure the fairness of the search process and to protect the rights of the accused. In this case, there is clear non-compliance with this mandatory provision, rendering the search and subsequent seizure legally flawed. The prosecution's failure to adhere to this statutory requirement further weakens its case,” a bench of Justice Shamim Ahmed noted in its 17-page order.

BOMBAY HIGH COURT

[NDPS Rules] Even If Exporter Has License To Sell Drugs For Medical Purpose, Separate Authorisation To Export Is Mandatory: Bombay High Court

Case Title: Gudipati Subramaniam v. Union of India and Anr.

Citation: 2024 LiveLaw (Bom) 269

The Bombay High Court denied bail to an exporter and an Iraqi national who were arrested by Mumbai Customs' Central Intelligence Unit for alleged attempt to illegally export 4,224 kg of psychotropic substance in February 2023.

Justice NJ Jamadar held that obtaining authorization under Rule 58 of the NDPS Rules, 1985 for export of psychotropic substances is mandatory even if the exporter has a licence to possess and sell the drugs for medicinal purposes.

“The use of the terms 'licence', 'permit' or 'authorization;, disjunctively, indicates that these terms have not been used interchangeably…If the submissions sought to be canvassed on behalf of accused Nos.1 and 4 that a 'licence' subsumes in its fold the “authorization” envisaged by Rule 58 of the NDPS Rules, 1985, the Parliament would not have used the terms licence and authorization disjunctively. On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited”, the court stated.

The court however, granted bail to co-accused freight manager Ravi Kavthankar, noting that it was "debatable" whether he was aware of the alleged offences.

Company, Its Officials Must Update Themselves With Ever-Changing Laws, Ignorance Not An Excuse For Breaking It: Bombay High Court

Case Title: Ajay Melwani vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 380

The Bombay High Court on Monday while refusing to quash a First Information Report (FIR) against a businessman observed that ignorance of law is not an excuse for breaking it. A division bench of Justices Ajay Gadkari and Dr Neela Gokhale refused to quash an FIR lodged against one Ajay Melwani, who was booked under relevant provisions of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, for exporting a banned chemical to a company based in Italy. The bench while dismissing his plea, even refused to accept his argument that he was unaware of the notification issued by the Indian Government mandating a 'no objection certificate' for permitting export or production of the said product.

Young Generation Will Be Destroyed If NDPS Act Is Not Implemented Scrupulously: Bombay High Court

Case Title: Kailas Pawar vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 601

The Bombay High Court recently called for a 'scrupulous' implementation of the provisions of the Narcotics Drugs and Psychotropic Substances Act (NDPS) as its failure may result in the rampant use of drugs, which will not only destroy the edifice of our society but also the younger generation, which is the future of the country.

Sitting at Nagpur, single-judge Justice Govind Sanap while hearing a criminal appeal against conviction of two men under the NDPS for possessing 39 kilograms of ganja.

Delivering Child In Jail Will Certainly Impact Both Mother And Child: Bombay High Court Grants Bail To Pregnant Prisoner

Case Title: SS vs State of Maharashtra 

Citation: 2024 LiveLaw (Bom) 615

The Nagpur bench of the Bombay High Court on Wednesday (November 27) granted six months bail to a pregnant prisoner for her delivery, observing that delivering the child in the jail atmosphere would certainly impact not only the mother but also the child.

Single-judge Justice Urmila Joshi-Phalke granted bail to a woman booked under the stringent Narcotics Drugs and Psychotropic Substances (NDPS) Act.

CALCUTTA HIGH COURT

NDPS Act | Calcutta High Court Upholds Arrest Warrant Against UAE Resident Who Facilitated Delivery Of MDMA, LSD Through 'Dark Web'

Citation: 2023 LiveLaw (Cal) 15

Case: Saran Gopal Krishnan Vs Narcotics Control Bureau, Kolkata.

CHHATTISGARH HIGH COURT

S.52A NDPS Act Mandates Samples To Be Drawn In Presence Of Judicial Magistrate, Not Gazetted Officer: Chhattisgarh High Court

Case Title: Chandrashekhar Shivhare and Anr vs Intelligence Officer

Citation: 2024 LiveLaw (CH) 17

The Chhattisgarh High Court has made it clear that the mandate of Section 52A NDPS Act qua drawing of samples from alleged contraband is fulfilled only when the same is done in presence of a Judicial Magistrate, not in presence of a Gazetted Officer.

Underscoring the critical importance of adhering to the statutory procedures outlined under the Act, a Division bench of Chief Justice Ramesh Sinha and Justice Sachin Singh Rajput observed,

"No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act."

DELHI HIGH COURT

Bar On Grant Of Bail Under Section 37 Of NDPS Act Can't Be Invoked Where Evidence Against Accused Is Unbelievable: Delhi High Court

Title: VINOD NAGAR v. NARCOTICS CONTROL BUREAU

Citation: 2024 LiveLaw (Del) 188

The Delhi High Court has said that the bar provided under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, cannot be invoked in a case where evidence against the accused “appears to be unbelievable” and “does not seem to be sufficient for the purpose of conviction.”

“The Courts are not expected to accept every allegation made by the prosecution as a gospel truth,” Justice Amit Mahajan said while granting bail to a man in an NDPS case.

Section 37 Of NDPS Act Doesn't Fetter Grant Of Bail On Ground Of Undue Delay In Completion Of Trial: Delhi High Court

Title: VISHWAJEET SINGH v. STATE (NCT OF DELHI) and other connected matter

Citation: 2024 LiveLaw (Del) 231

The Delhi High Court ruled that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, does not fetter grant of bail to an accused on the ground of undue delay in the completion of trial.

Delhi High Court Grants Three Weeks Parole To NDPS Convict For Arranging Funds For Payment Of Fine

Title: HARISH YADAV v. STATE OF NCT OF DELHI

Citation: 2024 LiveLaw (Del) 289

The Delhi High Court has granted three weeks parole to a man convicted under the NDPS Act on the ground of arranging funds for payment of fine in terms of the sentence awarded to him, as well as for re-establishing social ties with his family.

Justice Anoop Kumar Mendiratta observed that there were sufficient reasons for releasing the convict on parole, subject to him furnishing a personal bond of Rs. 25,000 to the satisfaction of the concerned jail superintendent.

Delhi High Court Permits 73-Yr-Old NDPS Convict To Travel Abroad For Performing Hajj, Says It Is Religious Duty Of Every Muslim

Title: SYED ABU ALA v. NCB

Citation: 2024 LiveLaw (Del) 334

The Delhi High Court has permitted a 73 year old man, convicted under the NDPS Act in 2010, to travel abroad for a month to Saudi Arabia for performing Hajj or Umrah pilgrimage.

“The Hajj pilgrimage holds immense significance in the Islamic faith, representing one of the five pillars of Islam, and is a religious duty for every Muslim,” Justice Swarana Kanta Sharma said.

Delhi High Court Permits 73-Yr-Old NDPS Convict To Travel Abroad For Performing Hajj, Says It Is Religious Duty Of Every Muslim

Title: SYED ABU ALA v. NCB

Citation: 2024 LiveLaw (Del) 334

The Delhi High Court has permitted a 73 year old man, convicted under the NDPS Act in 2010, to travel abroad for a month to Saudi Arabia for performing Hajj or Umrah pilgrimage.

“The Hajj pilgrimage holds immense significance in the Islamic faith, representing one of the five pillars of Islam, and is a religious duty for every Muslim,” Justice Swarana Kanta Sharma said.

Gauhati High Court

[NDPS Act] Gauhati High Court Sets Aside Conviction Of Accused Due To Non-Compliance With S. 52A, Doubts On Validity Of Seizure

Case Title: Vikky Pachauri & Anr. v. Union of India

Citation: 2024 LiveLaw (Gau) 24

The Gauhati High Court recently set aside the conviction of two accused persons under Section 20(C) read with Section 29 of the NDPS Act on the ground that seizure of the contraband from the possession of the accused persons is doubtful and there was no compliance of Section 52A of the NDPS Act.

Trial Court Believed Prosecution Story In Haste, Convicted Without Seeking Production Of Contraband: Gauhati HC Overturns NDPS Conviction

Case Title: Kendarnath Chetry @ Khem v. The State of Assam

Citation: 2024 LiveLaw (Gau) 79

The Gauhati High Court recently set aside the conviction and sentence order passed by the Trial Court under Section 20 (b) (ii) (c) of NDPS Act on the ground that the seized contraband were not produced before the Trial Court and no inventory was prepared by the magistrate.

JAMMU & KASHMIR AND LADAKH HIGH COURT

Drug Possession | Degree Of Evidence To Justify Preventive Detention Under PITNDPS Much Lower Than Other Detention Laws: J&K High Court

Case Title: Gourav Khajuria Vs UT of J&K

Citation :2024 LiveLaw (JKL) 227

The Jammu and Kashmir and Ladakh High Court emphasized that the degree of evidence required to justify preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998 (PITNDPS Act), is considerably lower than what might be needed under other detention laws.

Deficiency To Prove Safe Custody And Timely Submission Of Contraband Samples Can Render Prosecution's Version Doubtful: J&K High Court

Case Title: State of J&K Vs Parshottam Singh

Citation: 2024 LiveLaw (JKL) 245

Upholding the acquittal of two individuals accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the Jammu and Kashmir and Ladakh High Court underscored the prosecution's obligation to demonstrate that the contraband was kept in safe custody and that samples were forwarded to the Forensic Science Laboratory (FSL) without delay.

Presumptions Under NDPS Act Are Rebuttable Not Absolute, Prosecution Must First Establish Prima Facie Case: J&K High Court

Case Title: State through P/S Pulwama Vs Nazir Ahmad Rather

Citation: 2024 LiveLaw (JKL) 258

The Jammu and Kashmir and Ladakh High Court while upholding the acquittal of three individuals accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 ruled that the presumptions under Sections 35 and 54 of the NDPS Act are rebuttable, not absolute.

The court emphasised that the prosecution must first establish a prima facie case against the accused before the burden shifts to the defense.

Powers Of Divisional Commissioners To Detain Under PITNDPS Remain Intact Even In Post-Reorganization Phase: J&K High Court Clarifies

Case Title: Dilawar Javid Bhat Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 317

Dismissing a petition challenging a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) the Jammu and Kashmir and Ladakh High Court clarified that the authority of the Divisional Commissioners to issue detention orders under PITNDPS remains intact despite the J&K Reorganization Act, 2019, unless specifically superseded by corresponding Central laws.

“Undermines Faith Of Common Man In Criminal Justice”: J&K High Court Calls For SITs To Address “Casual Probes” In NDPS Cases

Case Title: UT Of J&K Vs Irfan Qayoom

Citation: 2024 LiveLaw (JKL) 344

Emphasising the urgent need for specialized investigative teams to handle cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act the Jammu and Kashmir and Ladakh High Court observed that casual, unfair, and non-scientific investigations in NDPS cases creates a sense of insecurity and undermine the faith of the common man in the administration of the criminal justice.

KARNATAKA HIGH COURT

Karnataka HC Quashes Order Directing Freezing Of Startup Company's Bank Account After Director Was Accused Under NDPS Act

Case Title: M/s Ownpath Learning Private Limited AND State By Intelligence Officer & ANR

Case No: Writ Petition No 14764 OF 2023.

Citation No: 2024 LiveLaw (Kar) 39

The Karnataka High Court set aside an order freezing the bank accounts of a startup company after one of the directors was booked for offences punishable under the Narcotics Drugs and Psychotropic Substances Act (NDPS).

A single-judge bench of Justice M Nagaprasanna allowed the petition filed by M/s. Ownpath Learning Private Limited and said “Freezing the bank accounts of the Petitioner - Company in respondent No.2 Bank, is quashed.”

Mandatory To Get Magistrate's Certification On Seized Contraband Before Sending It To FSL For Analysis: Karnataka High Court

Case Title: Shahrukh Ayub Khan & ANR AND State of KarnatakaCase No: CRIMINAL APPEAL NO. 200230 OF 2023 (374) C/W CRIMINAL APPEAL NO. 200147 OF 2023

Citation No: 2024 LiveLaw (Kar) 335

The Karnataka High Court has said that it is mandatory for authorities to prepare an inventory of seized contraband material and get it certified before the jurisdictional Magistrate before sending it to the Forensic Science Laboratory, for chemical examination.

A single judge bench of Justice S Vishwajith Shetty allowed the appeal filed by two accused Shahrukh Khan and another and acquitted the accused who were charged under sections 20(b)(ii), 20(B) and 20(C) of the Narcotic Drugs and Psychotropic Substances Act.

Karnataka HC Quashes Drug Case Against Columbia University Student, Says Uncorroborated Confession Of Co-Accused Not Sufficient To Implicate Him

Case Title: PARITOSH CHANDRASHEKAR KULKARNI AND State of Karnataka

Case No: CRIMINAL PETITION No. 1850 OF 2023

Citation No: 2024 LiveLaw (Kar) 352

The Karnataka High Court has quashed proceedings initiated under provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act against a student who is pursuing higher studies at Columbia University, USA.

A single judge bench of Justice M Nagaprasanna said, “The petitioner, who is a student pursuing his Masters elsewhere, beyond the shores of the nation, should not be made to suffer for the voluntary/confessional statements of the co-accused.”

[NDPS Act] Trial Court Can Order Release Of Seized Vehicle From Interim Custody Till Disposal Of Main Case: Karnataka HC

Case Title: Kawal Jeet Kaur AND State of Karnataka

Case No: CRIMINAL PETITION NO.200895 OF 2024

Citation No: 2024 LiveLaw (Kar) 366

The Karnataka High Court has clarified that the trial court has the power to release the vehicle from interim custody, under Section 451, 457 of the Criminal Procedure Code, till disposal of the main case registered under provisions of the Narcotics Drugs and Psychotropics Substances Act (NDPS).

A single judge bench of Justice K Natarajan held thus while allowing a petition filed by Kawal Jeet Kaur the RC holder of a vehicle which was seized by the Excise Range Office after arresting its drivers who were found in possession of contraband.

Owner Of Premises Where Drugs Are Found Can Only Be Prosecuted If He Knowingly Permitted Use For Commission Of Offence: Karnataka HC

Case Title: R Gopal Reddy AND Mohammed Mukaram

Case No: WRIT PETITION No.13943 OF 2024

Citation No: 2024 LiveLaw (Kar) 391

The Karnataka High Court has reiterated that the owner or occupier of a premise only if he knowingly permits it to be used for commission of the offence under the Narcotic Drugs and Psychotropic Substances Act (NDPS), would he become punishable.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by one R Gopal Reddy and quashed the proceedings initiated against him under Sections 8(c), 22(b), 22(C), 22(A), 27(B), 25, 27 of the Act.

It said, “There should be more than prima facie material to hold that the owner or occupier of the premises was in complete knowledge of what was happening in the premises, as Section 25 creates a vicarious liability against the person who is the owner who has knowingly permitted usage of premises, knowledge pervades the provision of law.”

Karnataka High Court Directs Creation Of Online System For Expeditious Testing Of Drug Samples By Govt Analyst, Uploading Of Reports

Case Title: M/S ZIM LABORATORIES LTD & Others AND Union of India

Case No: CRIMINAL PETITION NO. 8341 OF 2018

Citation No: 2024 LiveLaw (Kar) 393

The Karnataka High Court has directed the Drugs Controller General (India) to ensure that an efficient online system is created, whereby the drug samples which are sent for test/analysis are expeditiously tested and analysed by the Government Analyst within sixty days, and the reports sent by them are available online on a real-time basis.

A single judge bench of Justice N S Sanjay Gowda issued the directions while quashing the prosecution initiated against M/s Zim Laboratories Ltd and its Chairman and Managing Direction and others, under Section 27D of the Act.

Karnataka HC Orders Departmental Inquiry Against Policemen For Filing False Chargesheet Under NDPS Act Against Students, Affecting Their Careers

Case Title: Hanumantha & ANR AND State of Karnataka & ANR

Case No: CRIMINAL PETITION NO. 11994 OF 2023

Citation No: 2024 LiveLaw (Kar) 403.

The Karnataka High Court has directed initiation of Disciplinary proceedings/departmental inquiry against three policemen for having filed a false charge sheet against two persons claiming they consumed Ganja, even when the FSL report clearly opined no presence of any form of contraband in their body.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by Hanumantha and another and quashed the prosecution lodged against them under Section 27 of the Narcotics Drug And Psychotropic Substances Act (NDPS).

Voluntary/Confessional Statement Made U/S 67 Of NDPS Act Cannot Be Used As Evidence Against Accused: Karnataka High Court

Case Title: Saikat Bhatacharyya AND Union of India.

Case no: CRIMINAL PETITION NO. 3 OF 2024

Citation No: 2024 LiveLaw (Kar) 443

The Karnataka High Court recently allowed a petition filed by a 25-year-old and quashed the proceedings initiated against him under provisions of the Narcotics Drugs and Psychotropics Substances Act (NDPS), after a parcel containing ganja was seized from a courier company having his mobile number on it.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by Saikat Bhatacharyya and quashed the proceedings under section 8(c) r/w Section 20(b)(ii)(A), 23(a), 27, 27A, 28 and 29 of the Act.

The court said “The proceedings against the petitioner cannot be permitted to be continued, as there is not an iota of corroboration that would pin down the petitioner to the offences, except the voluntary/confessional statement of the petitioner recorded under Section 67 of the Act, which is clearly hit by Section 25 of the Evidence Act.”

Karnataka High Court Quashes Rape Case Against Fiance Who Absconded After Engagement Upon Being Booked In An NDPS Case

Case Title: Ejas PP AND State of Karnataka & ANR

Case No: CRIMINAL PETITION NO. 12157 OF 2024

Citation No: 2024 LiveLaw (Kar) 507

The Karnataka High Court quashed a rape case registered by a woman against her fiance–who had absconded post their engagement after he was booked in a case under the NDPS Act–noting that the complainant's statement that she did not want to pursue the case further.

Justice M Nagaprasanna allowed the petition filed by the petitioner and quashed the case registered against him under Sections 354(A)(Sexual harassment and punishment for sexual harassment), 376(rape), 493 (Cohabitation caused by a man deceitfully inducing a belief of lawful marriage) of the Indian Penal Code.

The court after going through the records said, "After the registration of the crime in Crime No.191/2021, it transpires that the jurisdictional Police at Andhra Pradesh filed a 'B report' in the case that was registered in Crime No.87/2021.The realization dawned on both of them that they have to get married and they got married after filing of the 'B report' as aforesaid. By then, the complainant had registered the crime...In these circumstances where the offences are not even met to its remotest sense, permitting the husband now to undergo trial would leave the child and complainant in the lurch. In the light of the aforesaid circumstance of marriage between the petitioner and the complainant, I deem it appropriate to obliterate the crime against the petitioner.”Kerala High Court

KERALA HIGH COURT

Redeployment To Special Squad Doesn't Take Away Abkari Officer's Authority But He Must Act Within Bounds Of Duties Assigned To Squad: Kerala HC

Case Title: Gangadharan v State of Kerala

Citation: 2024 LiveLaw (Ker) 10

The Kerala High Court has made it clear that an Abkari Officer already appointed under the Abkari Act will not lose his authority to act as an Abkari Officer upon redeployment to a Special Squad.

Justice Sophy Thomas however added that upon redeployment, the officer is expected to act within the bounds defined for the squad.

The Special Squad in this case was constituted to prevent and detect offences under the Abkari Act and the NDPS Act which were rampantly affecting the younger generations in the society.

“When an Abkari Officer already notified under Section 4 of the Abkari Act as per SRO 234/67 is redeployed to a Special Squad, he need not be again notified as an Abkari Officer to perform the duties and functions as a member of the Special Squad, because by such redeployment, he will not lose his authority as an Abkari Officer. But when he is redeployed to the Special Squad, he has to act within the parameters of the duties and functions, assigned to the Squad, and he cannot cross the borders.”

S.37 NDPS Act | Long Incarceration No Ground To Grant Bail In NDPS Cases When Commercial Quantity Involved: Kerala High Court

Case Title: Jaseer SM v. State of Kerala

Citation: 2024 LiveLaw (Ker) 29

In a judgement denying bail to two accused under the NDPS Act, the Kerala High Court clarified that “Section 37 of the NDPS Act does not lay down any stipulation that the accused in entitled to be released on bail if the trial does not commence within a particular period and additionally, the accused has to satisfy the twin conditions under Section 37 in addition to Section 439 of the Code to be released on bail.”

[NDPS Act] Oral Application Sufficient For Statutory Bail When IO Fails To File Final Report On Time, Extension Not Sought: Kerala High Court

Case Title: Azharudheen v. State of Kerala

Citation: 2024 LiveLaw (Ker) 52

In a matter before the Kerala High Court, a single judge bench of Justice CS Dias held that an oral application made by the petitioner, who was accused under the NDPS Act ("Act") would be sufficient to release him on statutory bail due to the failure of the Investigation Officer to file the final report on time.

Kerala High Court Quashes Preventive Detention Of 21-Yr-Old, Appoints Advocate As His 'Mentor'

Case title: Sreejith R v State of Kerala

Citation: 2024 LiveLaw (Ker) 64

The Kerala High Court released a 21-year old boy, who was implicated in seven crimes for allegedly causing obstruction to police officer in performing official duties and under the NDPS Act, from detention under the Kerala Anti-Social Activities (Prevention) Act, 2007.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen, considering the age of the detenu, also appointed an Advocate as his 'Mentor'.

Passport Can't Be Seized Or Retained By Investigating Agency In Absence Of Any Crime Committed With It: Kerala High Court

Case Title: Davood v. State of Kerala & ors. 

Citation: 2024 LiveLaw (Ker) 65

A passport cannot be seized or retained by the investigating agencies in the absence of any crime committed or suspected to have been committed with the said document, the Kerala High Court has held.

A single bench of Justice Bechu Kurian Thomas thus allowed the petition moved by an accused booked under the NDPS Act, seeking release of his passport, his mobile phone and Bahraini identity card which was seized by the Intelligence Officer of NCB. It observed,

"The passport of an individual is an important document and is issued under the provisions of the Passports Act, 1967. In the absence of any crime committed or suspected to have been committed with the said document, a passport cannot be seized or retained by the investigating agencies. The seizure of a document, if it can be treated as a property, has to be under section 102 of the Cr.P.C and the conditions stipulated therein ought to be satisfied. A document is generally subjected to impounding under section 104 Cr.P.C and this can only be done by the Court."

The bench further clarified that a passport cannot be impounded even by the Court despite Section 104 of CrPC, as the said provision will enable the court to impound any document or thing, other than a passport. Power to impound the passport is only with the Passport Authority under section 10(3) of the Passports Act, 1967, it held.

Kerala High Court Permits Advocate To Collect Personal Belongings Of Foreign National Awaiting Deportation After Being Acquitted Of Charges Under NDPS Act

Case title: Jhonny Alexander Duran Sola v State of Kerala

Citation: 2024 LiveLaw (Ker) 68

The Kerala High Court has permitted an Advocate to collect the personal articles belonging to the Foreign National on his behalf since he was placed in a transit centre and could not move around anywhere in India and was awaiting deportation.

The foreign national approached the High Court seeking the release of his articles including documents like passport, certificate of vaccination, driving license, and currency notes which were seized at the time of arrest and were retained with the Sessions Court, Ernakulam. 

Special Court Can Invoke S.457 CrPC To Grant Of Interim Custody Of Vehicles Seized Under NDPS Act: Kerala High Court

Case Title: Pradeep B v. The District Drug Disposal Committee and ors.

Citation: 2024 LiveLaw (Ker) 142

The Kerala High Court has stated that a Special Court under the NDPS Act can grant interim custody under Section 457 of the CrPC of vehicles that have been seized under the Narcotic Drugs and Psychotropic Substances Act.

“Leaving the seized vehicle idle and exposed to sun, rain and the vagaries of nature till the completion of the legal formalities, will only result in deterioration of the vehicle and its value” observed the court. 

A bench constituting of Justices A Muhammed Mustaque, Sathish Ninan and Shoba Annamma Eapen was reviewing the decision in Shajahan v. Inspector of Excise and Others (2019), in which a Division Bench of this Court had held that a Special Court does not have the power to consider grant of release of vehicles under the NDPS Act.

Non-Explanation Regarding Nonproduction Of Remaining Contraband After Drawing Sample Creates Doubt On Prosecution Case: Kerala HC

Case Title: Manoj v. State of Kerala

Citation Number: 2024 LiveLaw (Ker) 151

The Kerala High Court allowed an appeal challenging conviction under Section 20 of the Narcotic and Psychotropic Substances Act, (NDPS Act) for non-compliance with Section 52 of the Act, which requires police officers to certify the inventory of the seized substances by a magistrate.

A single judge bench of Justice K Babu remarked that “the intention of the legislature by incorporating Section 52A in the NDPS Act is to see that the process of drawing the sample has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct”.

[NDPS Act] Must Follow Procedure For Drawing, Storing, Testing & Disposal Of Samples: Kerala HC Grants Bail For Procedural Lapse By Detecting Officer

Case title: Vaisakh v State of Kerala

Citation: 2024 LiveLaw (Ker) 155

The Kerala High Court has allowed the bail application of an accused whose crime was registered for allegedly possessing narcotics and psychotropic substances in commercial quantity.

In the facts of the case, the police officer searched and seized contraband in from two different zip lock bags from the petitioner and pillion rider, and without drawing a representative sample from both the covers, the contraband was mixed and put in a single cover without the permission of a Magistrate.

Justice C S Dias found that it was mandatory to follow the procedure laid down for drawal, storage, testing and disposal of samples seized as per Section 52 A (procedure for disposal of seized narcotic drugs and psychotropic substances) of the NDPS Act and Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022.

[NDPS Rules 2022] Accused Has Right To Seek Expeditious Testing Of Contraband Within Time Frame Stipulated Under Rule 14: Kerala High Court

Case Title: Anuraj v State of Kerala & Connected Matters

Citation: 2024 LiveLaw Ker 297

The Kerala High Court has held that a delay in testing seized drugs/substances under the Narcotic Drugs and Psychotropic Substances Act, of 1985 would cause prejudice to the accused. The Court further stated that the accused have a right to seek expeditious testing of seized drugs/substances under Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules 2022.

Justice C.S. Dias issued the following directions and also directed the Registrar (District Judiciary) to forward a copy of the judgment to Courts dealing with NDPS Cases.

[NDPS Act] Before Conducting Search Of Person, Accused Must Be Informed Of Right To Seek Presence Of Magistrate Or Gazetted Officer: Kerala High Court

Case Title: Sipahi Kumar v State of Kerala, Jaymangal Shah v State of Kerala

Citation: 2024 LiveLaw Ker 362

A single bench of Justice Mary Joseph of the Kerala High Court has held that before conducting the body search of a person, the person has to be informed of his right to have the presence of either the Magistrate or a Gazetted Officer to witness his body search.

The Court observed that unless he was informed of his right in the way he understands, the formalities under Section 50 of the Narcotics and Psychotropic Substance Act (NDPS Act) cannot be deemed to have been fulfilled.

S.52A NDPS Act: Kerala High Court Grants Bail To Accused As Seizure Officer Mixed Alleged Contraband Found In Three Separate Packets

Case Title: Amal v State of Kerala

Citation: 2024 LiveLaw (Ker) 378

The Kerala High Court has granted bail to an accused booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possession of over 100 gms contraband, noting that the Investigating Officer had mixed the content found in three separate packets.

Justice C. S. Dias cited Section 52A of the Act which requires the Investigating Officer to draw separate samples from "each of the packets", that too in the presence of the jurisdictional Magistrate and then, send the representative samples from each packet for chemical analysis.

The bench said that an infraction of the statutory provision by the Investigating Officer had prejudiced the accused and therefore, the rigour on grant of bail under Section 37 of the NDPS Act stands diluted.

"Bench Hunting" Shakes Faith In Justice System: Kerala High Court Dismisses Third Bail Plea Of NDPS Accused

Case Title: Lijin v State of Kerala

Citation: 2024 LiveLaw (Ker) 424

The Kerala High Court has reiterated that bench hunting by filing different bail applications before different Courts has no legal sanctity and would result in anarchy and shake the faith in the justice delivery system.

The petitioner is the third accused in an offence involving possession of contraband in commercial quantity under the NDPS Act. His first bail application was dismissed by the High Court and the second bail application was dismissed by the Sessions Court.

The Court relying upon Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another (1987), Jayaraj A. v. State of Kerala (2009) and Bipin Sunny v. State of Kerala (2023) stated that the subordinate Court should not have entertained the second bail application moved by the accused after his first bail application was dismissed by the High Court. It was stated subsequent bail applications pointing out a change of circumstance have to be filed before the High Court and not before the Sessions Court to maintain judicial discipline unless otherwise permitted by the Superior Court.

A Person Cannot Be Prosecuted For Consumption Of Narcotic Drug On The Basis Of Smell Of His Breath: Kerala High Court

Case Title: Ibnu Shijil v State of Kerala

Citation: 2024 LiveLaw (Ker) 540

Kerala High Court has held that a person cannot be booked for consuming narcotic drug on the basis that the investigation officer smelt the substance from his breath. 

The Court observed that if it is allowed, a situation will arise where the investigating officer can prosecute anyone as an accused under Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act). It was noted that since sensory perceptions are subjective, reliance cannot be placed on it to identify a substance.

NDPS Act | Framing Of Charges By Court Without Jurisdiction Will Not Affect Evidence Recorded By Special Court: Kerala High Court

Case Title: Sojith v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 645

The Kerala High Court held that the framing of a charge by a Sessions Court having no jurisdiction to try the case does not affect the evidence recorded by a Special Court constituted under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

The Single Bench of Justice K. Babu noted that as per Section 464 of Code of Criminal Procedure a finding or sentence of a valid court would not be deemed invalid merely because no charge was framed or there was any error in the charge unless the Court is of the opinion that there is a failure of justice due to it. The Court observed that according to this provision, even if the trial court did not frame fresh charge, there would have been no invalidity.

[NDPS Act] Person Cannot Be Prosecuted For Allegedly Smoking 'Beedi' Containing 'Ganja' Without Forensically Examining 'Beedi': Kerala High Court

Case Title: Hamjith v State of Kerala

Citation: 2024 LiveLaw (Ker) 647

The Kerala High Court has quashed the proceedings initiated against a man for allegedly smoking a beedi filled with ganja on finding that the beedi was not subjected to forensic examination.

Justice Bechu Kurian Thomas stated that the beedi that was allegedly said to be smoked by the petitioner was not subjected to forensic examination. The Court stated thus:

“In the absence of any forensic examination of the beedi, the prosecution against the petitioner for the offence under Section 27(b) of the Act, is without any legal basis.”

Condition To Not Get Involved In Any Other Crime Not Intended To Operate Throughout Trial: Kerala HC While Setting Aside Bail Cancellation

Case Title: Visakh v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 730

The Kerala High Court has set aside an order cancelling bail of a man booked under NDPS Act, observing that there is nothing to show that the accused interfered in the investigation or trial. The bail was cancelled by the Sessions Judge on the ground that the petitioner involved himself in another crime and thereby violated the bail condition.

Justice K. Babu observed that there should be overwhelming reasons for cancelling a bail.

MADHYA PRADESH HIGH COURT

Non-Commercial Quantity, No Minimum Sentence Prescribed: MP High Court Releases NDPS Accused Imprisoned For Over 2 Yrs

Case title: Anarji vs. The State of Madhya Pradesh

Citation: 2024 LiveLaw (MP) 184

The Madhya Pradesh High Court at Indore has released an accused who was booked for the possession of 6 kgs of ganja in 2016 and had been sentenced to three years of rigorous imprisonment.

The court noted that the accused had undergone more than 2 years of imprisonment and released him from custody while enhancing the fine amount imposed by the trial court.

Law Does Not Prescribe Small Or Commerical Quantity For Opium Poppy Cultivation: Madhya Pradesh HC Allows Bail For Accused In NDPS Case

Case title: Vishram vs. State of Madhya Pradesh

Citation: 2024 LiveLaw (MP) 190

The Madhya Pradesh High Court recently granted bail to an accused in a case involving the cultivation of opium poppy under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Justice Vishal Dhagat held that due to the lack of specified quantity, either small or commercial for opium poppy within the legislation, Section 37 of the NDPS Act will not be attracted in this case. It was held that based on the absence of a specified quantity for opium poppy cultivation in the NDPS Act, the accused could be granted bail.

"Implication Was Based Primarily On Memorandum Of Co-Accused U/S 27 Of Evidence Act": MP High Court Grants Bail In NDPS Case

Case Title: Kachrulal Versus Union Of India

Citation: 2024 LiveLaw (MP) 228

The Madhya Pradesh High Court at its Indore bench granted bail to the accused, in a case under the Narcotic Drugs and Psychotropic Substances Act (NDPS). The court held that the evidence against the accused was based solely on the co-accused's memorandum which was insufficient to deny bail.

The case was focused on whether the accused's implication, based only on a co-accused's statement, met the requirements of Section 37 of the NDPS Act.

MADRAS HIGH COURT

NDPS Act | 'Conscious Possession' Along With Physical Possession Essential Element To Constitute Offence: Madras High Court

Case Title: Dharma v Inspector of Police

Citation: 2024 LiveLaw (Mad) 82

The Madras High Court recently observed that conscious possession along with actual physical possession was a necessary element for constituting an offence under the Narcotic Drugs and Psychotropic Substances Act.

Justice Vivek Kumar Singh of the Madurai bench observed that like actus reus and mens rea, which were essential elements in criminal law, in the NDPS Act, the physical, as well as the mental possession of drugs, were essential elements.

The court added that offences involving drug peddling affected the financial security of the nation and contributed to anti-national activities as it provided funds to terrorist organisations. Thus, the court highlighted that a balance had to be struck to make sure that the criminals involved in grave offences do not go unpunished and at the same time an innocent is protected from an adverse interpretation of the law. In the court's opinion, the rule of conscious possession provided this balance.

Madras High Court Directs State, DGP To Constitute High-Level Secret Committee To Monitor Police Officials Allegedly Hand-In-Glove With Drug Offenders

Case Title: G.Theeran Thirumurugan @ Thirumurugan v State of Tamil Nadu

Citation: 2024 LiveLaw (Mad) 209

The Madras High Court has directed the Chief Secretary to Government, Secretary to Government, Home Department, State of Tamil Nadu, and the Director General of Police to constitute a High-Level Secret Committee consisting of officers with integrity to monitor police officials who were suspected to be hand in glove with the drug offenders.

Though the bench of Justice P Velmurugan and Justice K Rajasekar appreciated the efforts taken by the state to control the free movement of drugs in the State, the court also noted that if the police officers were efficient and more vigilant, the free movement would be impossible. The court thus suggested setting up the secret committee.

[NDPS Act] Prima Facie Every Cell Of Magic Mushroom Contains Chemical, To Be Weighed Entirely To Ascertain Commercial Quantity: Madras HC

Case Title: Dhanaraj v The Inspector of Police

Citation: 2024 LiveLaw (Mad) 453

While hearing a bail plea under the NDPS Act, the Madras High Court recently noted that every cell of 'magic mushroom' contains psychotropic chemicals and hence the entire mushroom would have to be weighed to determine if the quantity confiscated is falling under commercial quantity.

Justice Bharatha Chakravarthy thus while dismissing a bail plea prima facie differed from the stand taken by the Karnataka High Court in Saeidi Mozdhdeh Ehsan v State of Karnataka wherein a single judge had opined that the quantity of the substance had to be taken to find out if the seized item fell within commercial quantity.

Differing with the Karnataka High Court, Justice Chakravarthy observed that the penal statutes had to be construed strictly without interpreting them to "aid the accused".

Magic Mushroom Per Se Not Narcotic Drug, Quantity Of Psylocybin Present Must Be Determined To Check Commercial Quantity: Madras High Court

Case Title: S. Mohan v State

Citation: 2024 LiveLaw (Mad) 460

The Madras High Court has held that magic mushroom per se does not satisfy the requirement of a narcotic drug or a psychotropic substance under Section 2 of the Narcotic Drugs and Psychotropic Substances Act.

Justice Anand Venkatesh thus took a different stand than that taken by Justice Bharatha Chakravarthy recently wherein Justice Chakravarthy had held that prima facie every cell of magic mushroom contained chemical and should be weighed entirely to determine the commercial quantity.

Justice Venkatesh on the other hand held that magic mushroom was not per se a contraband and can be considered a contraband only when it contains psilocybin. Thus, the court held that in the absence of any material to conclude the level of psylocybin, the court could not assume that the entire magic mushroom falls within the rigours of NDPS Act.

The court also added that magic mushroom was not a mixture of narcotic drug or psychotropic substance with a neutral substance and even if it was assumed to be a mixture, mushroom was a fungi and was a natural produce and thus could not be a mixture made through preparation as provided under the Act.

Informal Opinion Rendered By Expert Not Binding On Court: Madras High Court Grants Bail To Man Found In Possession Of Magic Mushrooms

Case Title: P.Rajkumar v The State

Citation: 2024 LiveLaw (Mad) 474

The Madras High Court recently held that while considering bail applications, an informal opinion rendered by an expert was not binding on the court. It reiterated that while exercising bail jurisdiction, the court had to consider the language adopted in the enactment and only had to be prima facie satisfied whether there was a reasonable chance of conviction.

Justice Anand Venkatesh made the observations while discussing a recent judgment rendered by Justice Bharatha Chakravarthy in which the latter had an informal interaction with an expert and concluded that every cell of a magic mushroom contained chemicals and that entire quantity had to be measured to determine the commercial quantity.

The court reiterated that while considering the bail application, the court must prima facie satisfy itself on whether there was a reasonable chance for the accused to be held guilty. The court added that at the stage of bail, the court was not expected to meticulously examine the materials collected at the stage of investigation. The court added that while considering bail, the court had to look into the language adopted in the enactment.

ORISSA HIGH COURT

'Entitled To Live With Dignity': Orissa High Court Grants Bail To NDPS Accused Suffering From HIV-AIDS

Case Title: B v. State of Odisha

Citation: 2024 LiveLaw (Ori) 20

The Single Bench of Justice Savitri Ratho granted bail to a man accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 observing that his living with dignity in a congenial environment is not possible behind bars as he suffers from HIV-AIDS. The Court further highlighted the objective with which the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 was enacted by the Parliament which sought to protect the human rights of persons affected by the said virus and syndrome.

PUNJAB AND HARYANA HIGH COURT

NDPS Act | Cannabis Seeds With Flowering Tops Constitute 'Ganja', Entire Material Weighed To Determine Quantity: Punjab & Haryana High Court

Citation: 2024 LiveLaw (PH) 28

Title: Sanjay Upadhya v. State of Punjab

The Punjab and Haryana High Court has made it clear that cannabis seeds, if accompanied by flowering tops, would fall within the definition of 'ganja' under Section 2 (iii)(b) of the NDPS Act and entire weight of the material would be taken into consideration in order to ascertain the total weight of the contraband.

Justice Deepak Gupta said, "no doubt that material recovered from the petitioner included the seeds but the same were accompanied by flowering tops dried of the cannabis plant and, therefore, prima-facie the seeds accompanied by the flowering tops would fall within the definition of 'ganja' and entire weight of the material is to be taken into consideration in order to know the total weight of the contraband recovered."

Prolonged Custody Can't Be Only Consideration For Bail: Punjab & Haryana High Court Illustrates Mitigating Factors For Bail In NDPS Cases

Case Title: Baljit Singh v. State of Punjab

Citation: 2024 LiveLaw (PH) 39

The Punjab & Haryana High Court has made it clear that the prolonged custody of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) cannot be the "solitary consideration" for granting bail.

Justice Pankaj Jain said, "...prolonged custody of an accused in delayed trial is definitely one of the primary considerations while considering bail plea but the same cannot be the solitary consideration. The Courts while considering the bail plea of under-trials under the NDPS Act have to be alive to certain mitigating circumstances."

NDPS Probes In Himachal Pradesh Far Superior: High Courts Directs DGPs Of Punjab & Haryana To Send Police Officers For Training

Title: BHUPENDER SINGH v. STATE OF HARYANA

Citation: 2024 LiveLaw (PH) 67

Observing that investigations in NDPS matters in the state of Himachal Pradesh "is far superior" than the investigation done in the States of Punjab and Haryana, the Punjab & Haryana High Court has directed the DGP of both the states to take the Investigating Officer for training at Police Training Centre (PTC), Daroh Dharamshala.

A division bench of Justice Sureshwar Thakur and Justice Lalit Batra said, "Since the investigations into NDPS matters, in the State of Himachal Pradesh, is far superior to the investigation thereintos, by the investigating officers in the States of Punjab and Haryana. Therefore, this Court makes a direction, upon the Directors Generals of Police, of the State of Punjab and of the State of Haryana to, within a fortnight from today ensure, that batches of investigating officers are deputed to take mentorings at PTC, Daroh Dharamshala."

NDPS Act | Extension Of Time For Investigation Can Only Be Granted Upon Receiving Public Prosecutor's Report: P&H HC Grants Bail Over Incomplete Probe

Title: Bharat Bhushan v. State of Haryana

Citation: 2024 LiveLaw (PH) 110

The Punjab & Haryana High Court has set aside the order granting an extension of time for investigating a case under the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act, on the ground that the application seeking extension was not supported by the Public Prosecutor's report.

According to Section 36A (4) of the NDPS Act, in an offence involving commercial quantity, if it is not possible to complete the investigation within the period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

S.36A(4) NDPS Act | Public Prosecutor Not Part Of Investigating Agency, Expected To Apply Mind For Seeking Extension: Punjab & Haryana HC Reiterates

Title: PARDEEP KUMAR v. STATE OF HARYANA

Citation: 2024 LiveLaw (PH) 127

The Punjab and Haryana High Court has granted default bail to an accused in a drugs case whose plea was rejected by the Trial Court which granted an extension to the investigating agency to probe the matter.

The Court noted that the Public Prosecutor (PP) did not submit an independent report seeking time for investigating the case, which is a mandatory provision under Section 36A (4) of the NDPS Act.

S.52A NDPS Act | Contraband Becomes Primary Evidence Only When It Is Tested Through Magistrate: Punjab & Haryana High Court

KULDEEP SINGH ALIAS KEEPA V. STATE OF PUNJAB

2024 LiveLaw (PH) 164

The Punjab & Haryana High Court has set aside the conviction of a man under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) , observing that there was no evidence that magistrate was present when the sample was drawn from the bulk, hence the contraband produced by the prosecution cannot be considered as a "primary evidence."

Referring to Section 52 (4) of NDPS Act, Justice Sureshwar Thakur and Justice Lalit Batra observed, "the mere production of the certified inventory in Court, may not become primary evidence, but would become so only when at the time of drawings of the representative parcels before the learned Magistrate concerned, the apposite laboratory testings are then done, either through the learned Magistrate personally travelling along with the representative parcels, to the laboratory or his deputing a gazetted officer along with an empowered police officer to travel to the laboratory for the relevant testings being made there."

Police Was In Private Vehicle, False Case Can't Be Ruled Out: P&H HC Grants Bail To Man Booked For Possessing Commercial Quantity Of Contraband

Title: Bhupesh Kumar @ Happy v. State of Punjab

Citation: 2024 LiveLaw (PH) 174

Observing that "probability of his false implication cannot be ruled", the Punjab & Haryana High Court has granted bail to a man booked for allegedly possessing contraband of commercial quantity under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Justice Sandeep Moudgil observed, "this Court can easily infer that the petitioner is not a habitual offender, and therefore, probability of his false implication cannot be ruled out particularly in the light of the fact that police party was in a private vehicle, details of which have not been mentioned and this very fact has not been controverted by the learned State counsel, even before this Court at the time of consideration of instant petition."

Punjab Drug Menace: High Court Says If Trial Delayed Due To Absence Of Official Witness, State Can't Oppose Bail

Title: Manpreet Singh @ Koch v. State of Punjab

Citation: 2024 LiveLaw (PH) 188

Observing that continued absence of prosecution witnesses is alarming in NDPS cases, especially given the severe drug menace in Punjab region, the Punjab & Haryana High Court has said that "since the trial has been delayed due to the repeated and continuous non-appearance of the prosecution witnesses, the State cannot justifiably oppose the prayer of the petitioner for bail."

Previously, after facing High Court's wrath the Punjab Government in 2023 informed the Court that it has issued directions to the police officers to not seek more than one adjournment from the trial court for appearing as a witness in NDPS cases.

[NDPS Act] Suspension Of Earlier Sentence Does Not Wipe Out Conviction, Can't Say Accused's Credentials Are 'Clean': Punjab & Haryana HC

Title: Justine v. State of Punjab

Citation: 2024 LiveLaw (PH) 206

The Punjab & Haryana High Court has made it clear that suspension of the previous sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) does not wipe out the conviction and it cannot be said that the credentials of the accused seeking bail is clean.

The Court rejected the bail plea of the man allegedly involved in trading contraband inside jail in commercial quantities stating that the twin conditions under Section 37 of the NDPS Act were not met.

"Narco-Terrorism, Destroys Life Of Youth": P&H High Court Flags Issue Of Weapons, Drugs Being Sent Across Border Via Drones

Title: Bittu v. State Of Punjab

Citation: 2024 LiveLaw (PH) 208

Observing that it is a clear case of "narco-terrorism", the Punjab & Haryana High Court has refused to grant bail to a man booked under the NDPS Act and Arms Act for allegedly being involved in transporting drugs from drone across the border.

Justice Jasjit Singh Bedi said, "Weapons and drugs are coming in across the border via drones. The weapons are used by terrorists and organized crime syndicates whereas the drugs are being pushed towards the youngsters because of which the lives of a whole generation of youth is being destroyed. Therefore, offences of this kind are to be dealt with an iron hand."

NDPS | Does Entire Case Property Need To Be Sent To FSL Or Can A Sample From Each Strip Of Tablets Be Sent For Testing? P&H High Court Explains

Title: DEEPAK KUMAR v. STATE OF PUNJAB [along with connected matter]

Citation: 2024 LiveLaw (PH) 263

The Punjab & Haryana High Court while answering a reference question has said that there is no need to send the entire seized bulk of the contraband tablets under the NDPS Act and only samples of the tablet in homogeneous quantity are sufficient for sending for chemical examination.

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "There is no requirement for the sending of the entire bulk seizure to the laboratory concerned, but only the residue therefrom in terms...rather is to be sent to the laboratory, thus for the relevant laboratory testings being made."

NDPS Act | Whether Magistrate Before Whom Accused Is Brought Needs To Ask For Consent Before Conducting Search? P&H High Court Answers

Title: Ravinder @ Ravi @ Ravinder Pal v. State of Haryana

Citation: 2024 LiveLaw (PH) 268

The Punjab & Haryana High Court has said that Gazetted Officer or Magistrate is not required to take fresh consent or inform that the accused has right be searched in presence of Gazetted Officer or Magistrate when the concerned officer has already informed the accused under Section 50 of the NDPS Act. Section 50 of the NDPS Act provides both a right as well as an obligation.

The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect.

'Misfortune' That Mother Of Young Daughters Was Denied Bail For Allegedly Possessing Heroine, Drug Money Without Prima Facie Evidence: P&H HC

Title: Parveen @ Raman v. State of Punjab

Citation: 2024 LiveLaw (PH) 305

The Punjab & Haryana High Court has granted bail to a mother of three young daughters arrested in August for allegedly possessing merely 12 grams of heroine, and drug money of Rs.10,000 without any prima facie evidence.

"A mother of three daughters, aged 4, 2, &1, incarcerated in the FIR..., since 4th August 2024 for possessing 12 grams of heroin, just 4.8% of the maximum intermediate quantity, and Rs. 10,000/- termed as drug money by the Police, without any primafacie evidence to such an extent, and to her extreme misfortune, despite all this, denied bail by worthy Special Judge, has come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail," observed the High Court.

'Surprising' That Pre-Arrest Bail Denied In 3gm Heroin Case, Punjab & Haryana HC Says Courts Must Not Deny Bail In Minor Offences Despite Criminal History

Title: Jogindro Bai v. State of Haryana

Citation: 2024 LiveLaw (PH) 380

Expressing surprise that pre-arrest bail was rejected by the Sessions Court to an accused in case involving merely 3 grams of heroin, the Punjab & Haryana High Court said that bail should not be rejected in minor offences on the ground that accused has criminal history.

The High Court said, "Although the legal system upholds the principle that crime, not the individual, should be condemned, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles, and a recidivist often operates on precarious ground, where the weight of a significant criminal record creates an increasingly challenging terrain. Nonetheless, where the offense for which bail is sought is minor, such that arrest is generally unwarranted, or bail would ordinarily be inevitable, courts must not deny bail solely as a punitive measure intended to serve as a pre-trial deterrent."

Sample Sent To FSL Different From One Which Was Recovered: Punjab & Haryana HC Acquits Man Convicted In NDPS Case After 20 Yrs

Title: Jaswant Singh alias Babla v. State of Punjab

Citation: 2024 LiveLaw (PH) 409

Overturning a 20-year-old order convicting a man under NDPS Act for illicit trading of poppy husk and sentenced to 12 years of imprisonment, the Punjab and Haryana High Court observed that the sample recovered was not the one which was sent to Forensic Science Laboratory (FSL).

The appellant was convicted under Section 15 of NDPS Act for possessing over 29 kgs and 750 grams of poppy husk. The court while overuling the trial court order observed that there was scope to infer that the case property was tampered with.

District Judiciary's Reluctance In Granting Bail Burdens High Courts, Hierarchical Court Must Introspect: Punjab & Haryana High Court

Title: Yogendra v. State of Haryana

Citation: 2024 LiveLaw (PH) 420

While granting bail to a man booked for offences under the NDPS Act, the Punjab & Haryana High Court observed that district court's reluctance in granting bail burdens the High Court, delays hearing of matters like appeals, revision and it is for the "hierarchical court" like the high court to "introspect".

The Court said that, "Bails deal with pre-trial curtailment of liberty on unilateral allegations demanding paramount priority in judicial adjudication. However, trial courts, even in matters where bail should ordinarily be the norm often exhibit hesitation or reluctance in granting bail, and in all probabilities, they cannot be entirely blamed for this harsh approach. It would always be better to err on the side of liberty".

RAJASTHAN HIGH COURT

Seeds & Leaves Without Flowering Tops Not 'Ganja' As Per NDPS Act, Rajasthan HC Grants Bail To Accused Claiming To Be Bhang Contractor

Title: Rajesh Sharma v. The State of Rajasthan Through PP

Citation: 2024 LiveLaw (Raj) 40

While granting bail to an accused claiming to be a 'Bhang' contractor, Rajasthan High Court iterated that the definition clause of NDPS Act contemplates only the 'flowering or fruiting tops of cannabis plants' within the definition of 'Ganja'.

The single-judge bench of Justice Praveer Bhatnagar allowed the bail application under Section 439 CrPC. Leaves of the cannabis plant weighing 28.600 gms were shown to be recovered from the accused by the Police.

“…Section 2 (iii)(b) of the NDPS Act contains the definition of Ganja…The seeds and leaves without tops are not termed as Ganja…Therefore, without commenting anything on the merits/demerits of the case, I deem it just and proper to enlarge the accused-petitioner on bail”, the bench sitting at Jaipur noted and directed the accused to furnish a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the trial court.

Non-Compliance Of S.52A NDPS Act Prima Facie Vitiates Search & Seizure: Rajasthan HC Grants Bail To Man Allegedly Found With Half Kg Heroin

Case Title- Amjad Khan v State of Rajasthan

Case Citation- 2024 LiveLaw (Raj) 110

The Rajasthan High Court reiterated that Section 52A of the Narcotic Drugs and Psychotropic Substances Act is mandatory in nature and failure to comply with the provision undermines the prosecution case and vitiates the entire search and seizure proceedings.

While perusing the records of the case, the Court highlighted failure on part of the seizure officer to comply with the procedure under Section 52A. It referred to the Supreme Court case of Mangi Lal v the State of Madhya Pradesh where it was held that Section 52A is mandatory and in case of non-compliance, the inventory, samples and photographs would not constitute as primary evidence.A bench of Justice Rajendra Prakash Soni thus granted bail to a man allegedly found in possession of 510 gms heroin.

[NDPS Rules] Seizure Officers Must Collect Contraband Samples Separately From Each Bag: Rajasthan HC Grants Bail To Accused Booked For Possessing Over 1 Kg Heroin

Case Title- Rajan Singh v Directorate of Revenue Intelligence

Case Citation- 2024 LiveLaw (Raj) 129

The Rajasthan High Court granted bail to an applicant who was booked under the NDPS Act for allegedly carrying over 1 Kg of heroin. The bench of Justice Anil Kumar Upman found that the samples of the contraband were not collected in accordance with the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (“the Rules”)

The Court observed that it was the admitted fact of the prosecution too that samples were not drawn from each pouch and since no sample was drawn from each bag, it was not affirmed that every bag contained the alleged contraband and consequently the total quantity possessed by the applicant also remained unascertained.

Police Acted Partially To Shield Real Culprits: Rajasthan High Court Grants Bail To NDPS Accused, Directs Further Investigation By Senior Officer

Case Title- Mukesh Kumar Khedar v State of Rajasthan

Case Citation- 2024 LiveLaw (Raj) 131

The Rajasthan High Court granted bail to an accused under the NDPS Act upon noting that the investigation carried out by the investigating officer (IO) was biased in nature. The Court further directed for additional investigation to be carried out by another officer.

A bench of Justice Anil Kumar Upman observed that fair trial and investigation were part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, the basic requirement of rule of law was that the investigation must be fair, transparent and in accordance with law. The Court observed that since the IO failed to consider important material put forth, a fair and proper investigation was not conducted in the case. It noted that the Court being a constitutional court could not shut its eyes towards a defective investigation.

The Court held that in India, the police were bestowed with the responsibility to conduct the investigation and during that, an IO's primary responsibility was to ascertain the truth. Since it was apparent that the police in this case acted in a partial manner to shield the real culprits and worked for their own interest. The Court observed that in case of defective investigation during trial or inquiry, it needs to be cured by directing further investigation by another competent officer.

Rajasthan High Court Grants Bail To NDPS Accused Who Allegedly Open Fired On Police To Evade Arrest

Title: Koushala Ram v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 156

Rajasthan High Court granted bail to an accused booked under Narcotic Drugs and Psychotropic Substances Act (NDPS) Act who allegedly open fired at the policemen at the time of arrest.

The bench of Justice Rajendra Prakash Soni acknowledged the fact that no casualties were suffered by any policemen during the incident whereas the co-accused died during the scuttle and the applicant suffered injuries. Also, the fact of recovering poppy straw that too in substantial quantity of 332 grams was not mentioned in the FIR even though the vehicle was inspected at the time of the incident.

Accordingly, the Court held that the applicant had substantial grounds available to him for questioning the prosecution case and the bail application was granted.

NDPS Act | Preparing Seizure Memo At Place Other Than Scene Of Recovery Makes Seizure Defective, Creates Reasonable Doubt: Rajasthan High Court

Title: Kuka Ram v the State of Rajasthan

Citation: 2024 LiveLaw (Raj) 158

Rajasthan High Court ruled that a seizure memo needs to be prepared by the seizure officer at the spot of recovery of contraband material under the NDPS as prescribed under the Standing Instruction issued by the Narcotics Control Bureau failing which the seizure becomes defective, raising reasonable doubt in relation to the manner of seizure.

The bench of Justice Rajendra Prakash Soni held that the procedures prescribed in the Standing Orders were based on logic and needed to be observed mandatorily because if rendered optional, these would turn into a “worthless piece of paper”. The Court also referred to the Supreme Court case of Khet Singh v Union of India in which it was held that if the search and seizure were in defiance of the law and procedure and there was a possibility of the collected evidence being tampered with, the evidence might not be admissible.

Non-Compliance With CrPC, NDPS Act Cannot Be Argued At Stage Of Bail In International Drug Smuggling Cases: Rajasthan High Court

Title: Balveer v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 200

The Rajasthan High Court denied bail to an individual booked under the Narcotic Drugs & Psychotropic Substances Act (NDPS) for allegedly being involved in an attempt to smuggle drugs from Pakistan.

The Court held that non-compliance with provisions under the NDPS Act or CrPC cannot be argued at the stage of bail in a case of international smuggling of contraband.

"On perusal of record, it is prima facie revealed that issues sought to be argued by the petitioner regarding alleged non-compliance of various provisions of NDPS Act and Cr.P.C. cannot be countenanced at this stage in such a case of international smuggling of contraband drug."

"No Evidence Against Accused": Rajasthan High Court Sets Aside NDPS Case Against Individual Booked By Police Due To Mistaken Identity

Title: Bhopal Singh v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 206

The Rajasthan High Court granted relief to a person wrongly arrayed in an NDPS case by the police, without conducting any investigation regarding his identity, solely relying upon the statement of the co-accused.

The Court observed that all material disclosed that the petitioner was not the person appearing in the statements of the co-accused but some other person having a different name. The Court held that in the event of lack of any direct material proving that the petitioner was the same person as mentioned by the co-accused, he could not be arrayed as an accused merely on the basis of the statement of the co-accused.

Safeguard U/S 50 NDPS Act Pertaining To Manner Of Search Crucial In Protecting Individual From Coercive Police Action: Rajasthan High Court

Title: Ganpat Singh v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 264

While granting bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act for non compliance of Section 50 by the police while conducting search, the Rajasthan High Court said that the safeguard provided under the section is significant in protecting a person from coercive police action.

Referring to the provision a single judge bench of Justice Rajendra Prakash Soni in its order observed, "Section 50 ensures that the accused is made aware of his rights regarding the manner of the search. According to this section, before conducting a personal search, the accused must be informed of his right to opt for the search to be conducted either in the presence of a Magistrate or a Gazetted officer. This safeguard is crucial to protect the rights of individuals and prevent arbitrary or coercive actions by the police".

[NDPS Act] Not Enough For Second Officer To Verbally State That SHO Authorised Search; Must Present Documentary Proof: Rajasthan HC

Title: Satya Narayan v State of Rajasthan and other related petitions

Citation: 2024 LiveLaw (Raj) 286

A single bench of Justice Rajendra Prakash Soni at the Rajasthan High Court recently granted bail to three men in an NDPS Act case, after noting that the officer who had conducted the search and seizure did not have the documentary evidence to prove that he was legally authorised to conduct the search under the Act.

In doing so, the high court, while referring to Sections 41 and 42 of the NDPS Act, said that certain powers under the provisions rests only with the SHO of the concerned police station. It thereafter noted that the seizure officer in the present case was not authorized by the concerned SHO to carry out the action, thereby vitiating the same.

Mere Ownership Of Vehicle Unauthorisedly Carrying Contraband Doesn't Imply Involvement In Offence Under NDPS Act: Rajasthan High Court

Title: Jassa Ram v State of Rajasthan

Citation: 2024 Livelaw (Raj) 311

While granting bail to an accused charged under the NDPS Act in relation to 964 Kgs of poppy straw, the bench of Justice Rajendra Prakash Soni at the Rajasthan High Court ruled that mere ownership or connection with the vehicle, from which the contraband was recovered, did not imply accused's knowledge or actual involvement in the crime.

After perusing the records of the case, the Court highlighted that no contraband was directly recovered from the petitioner but from an abandoned vehicle which created uncertainty about the petitioner's involvement in the matter.

“There are no independent witnesses linking the petitioner directly to the transportation of contraband. His mere ownership or connection to the vehicle does not conclusively imply his knowledge or actual involvement in the crime.”

No Exclusive & Conscious Possession Of Contraband: Rajasthan High Court Grants Bail To Woman Who Only Accompanied NDPS Accused In Same Car

Title: Muskan v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 336

Rajasthan High Court granted bail to a woman charged under the NDPS Act after she was found sitting with the primary accused in the car from which 77 Kg of contraband was recovered.

The bench the of Justice Farjand Ali took into account the plea of the petitioner that she was not having exclusive and conscious possession of the contraband, and was merely accompanying the primary accused in the car without having any knowledge regarding the presence of the contraband in the car.

The Court also highlighted that nowhere in the charge sheet it was revealed that either the petitioner was having any knowledge of the contraband in the car or she was in contact with any of the other co-accused other than the primacy accused in the case.

UTTARAKHAND HIGH COURT

[NDPS Act] Conditional Liberty Overrides Statutory Embargo, Prolonged Incarceration Affects Fundamental Rights: Uttarakhand High Court

Case Title: Amar Singh Bora Vs State of Uttarakhand

Citation: 2024 LiveLaw (Utt) 13

The Uttarakhand High Court has granted bail to an individual accused of offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) observing that conditional liberty must override the statutory embargo when prolonged detention is at odds with constitutional rights.

In allowing his plea of bail of the ground of prolonged Incarceration Justice Alok Kumar Verma underscored,

“The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act”.

NORTH EAST HIGH COURTS

Manipur High Court:

Case title: State of Manipur & Anr. vs. Mohammad Hussain @ Thoiba & Ors.

Citation: 2024 LiveLaw (Man) 5

[S. 43 NDPS Act] Vehicle Transporting Narcotics Detected By Locals And Subsequently Seized By Police Is A 'Chance Recovery From Public Place': Manipur High Court

The Manipur High Court has held that narcotic substances detected by locals in one jurisdiction, transferred to another jurisdiction for safety and subsequently seized by the police of latter justification is a chance recovery attracting Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Tripura High Court:

Trial Court Order Rejecting Application Of Accused To Summon Witness Not Interlocutory, Accused Entitled To Prefer Revision: Tripura High Court

Case title: Sri Arjun Debbarma vs. The State of Tripura, Crl. Rev. P. No.21 of 2024

Citation: 2024 LiveLaw (Trip) 5

The Tripura High Court has held that order of the Trial Court in refusing the application of the accused to summon witnesses is a 'final order' and not an 'interlocutory order', entitling the accused to file a revision petition under Section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C).

[NDPS Act] Merely Filing Chargesheet Has No Persuasive Value, Does Not Entitle Accused To Bail: Tripura High Court

Case title: The State of Tripura vs. Mijanur Rahaman, B.A. 30/2024

Citation: 2024 Live Law (Trip) 6

The Tripura High Court observed that the mere filing of a chargesheet does not entitle bail to an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and that bail is an exception under the Act.

Entitled To Lead Dignified Life In Congenial Environment: Tripura High Court Grants Bail To HIV Positive NDPS Accused

Case title: Archana Das Sarkar vs. The State of Tripura (BA 35 of 2024)

Citation: 2024 LiveLaw (Trip) 7

The Tripura High Court has granted bail to an accused arrested for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) on the ground that the accused was tested HIV positive.

The accused was arrested under Sections 20(b)(ii)(c), 21(C), 25 and 29 of NDPS Act. While in judicial custody, the accused tested HIV positive. He was then sent to the hospital for treatment.

Tripura HC Directs Refresher Programme On NDPS Cases For Judicial Officers, Public Prosecutors & Police Officials; Cites Lapses In Evidence

Case Details: Saha Alam versus The State Of Tripura, Crl. A(J) No.51 of 2023

Citation: 2024 LiveLaw (Trip) 10

Observing that procedures under the NDPS Act have to be meticulously followed by the Judges during the trial, the Tripura High Court on Wednesday (July 31) directed the Tripura Judicial Academy to organize a refresher program on investigation and trial under NDPS Act, 1985 for the judicial officers of the State dealing with cases under said Act so that they could act more sensibly to render justice to the parties.