Supreme Court Annual Digest 2022- NDPS Act

Narcotic Drugs and Psychotropic Substances Act, 1985 - The physical nature of the material is not relevant for determining whether the contents of the sample analyzed were actually opium or not, and physical analysis is not prescribed under the provisions of the NDPS Act for testing the opium. Sukhdev Singh v. State of Punjab, 2022 LiveLaw (SC) 245

Independent Witness

Narcotic Drugs and Psychotropic Substances Act, 1985 - Independent Witness - Independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice - But if the Court has ­­ (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy - If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards - Corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. (Para 18) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724 : AIR 2022 SC 4051

Section 2(xvii) - “opium poppy”

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 2(xvii) - Once it is found that the seized material contain 'morphine' and 'meconic acid' it is sufficient to establish that the seized material comes within the definition of Section 2(xvii) of the NDPS Act (opium poppy). State of Himachal Pradesh v. Angejo Devi, 2022 LiveLaw (SC) 990

Section 15 - Punishment for contravention in relation to poppy straw

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 15 - Once a Chemical Examiner establishes that the seized 'poppy straw' indicates a positive test for the contents of 'morphine' and 'meconic acid', it is sufficient to establish that it is covered by subclause (a) of Clause (xvii) of Section 2 of the 1985 Act and no further test would be necessary for establishing that the seized material is a part of 'papaver somniferum L'. In other words, once it is established that the seized 'poppy straw' tests positive for the contents of 'morphine' and 'meconic acid', no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the 1985 Act. (Para 91) State of Himachal Pradesh v. Nirmal Kaur @ Nimmo, 2022 LiveLaw (SC) 866

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 15 - For bringing home the guilt of the accused, it will be necessary to establish that the seized material collected is any part of 'opium poppy' except the seeds. (Para 29) State of Himachal Pradesh v. Nirmal Kaur @ Nimmo, 2022 LiveLaw (SC) 866

Section 20 - Punishment for contravention in relation to cannabis plant and cannabis

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 20 - Supreme Court sets aside conviction - gives benefit of doubt after noting gaps in the prosecution case - arrest memo, body search memo not proved - site plan wrongly prepared - no independent witnesses. Amar Chand v. State of Himachal Pradesh, 2022 LiveLaw (SC) 1002

Section 21 - Punishment for contravention in relation to manufactured drugs and preparations

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - The quantity of the neutral substance is not to be excluded and to be taken into consideration along with the actual content of the weight of the offending drug while determining small and commercial quantities. State of Himachal Pradesh v. Karuna Shanker Puri, 2022 LiveLaw (SC) 173

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 21 - The quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances. Intelligence Officer, Thiruvananthapuram v. K.K. Naushad, 2022 LiveLaw (SC) 978

Section 27A - Punishment for financing illicit traffic and harbouring offenders

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 27A, 37 - When applicability of Section 27A NDPS Act is seriously questionable in this case and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply. (Para 16.4) State of West Bengal v. Rakesh Singh @ Rakesh Kumar Singh, 2022 LiveLaw (SC) 580

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 27A, 37 - Appeal against Calcutta High Court order granted bail to a person accused under Sections 21(b)/29/27A of NDPS Act - Dismissed - No reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions. State of West Bengal v. Rakesh Singh @ Rakesh Kumar Singh, 2022 LiveLaw (SC) 580

Section 32B - Factors to be taken into account for imposing higher than the minimum punishment

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 20(b)(ii)(C), 32B - While imposing higher than the minimum punishment, such of the factors which are to be taken into consideration have been provided under Section 32B of the NDPS Act - The old age of the accused, who is a poor illiterate lady completely unaware of the consequences - Sentence reduced. Budhiyarin Bai v. State of Chhattisgarh, 2022 LiveLaw (SC) 667

Section 37 - Offences to be cognizable and non-bailable

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Appeal against High Court order that granted anticipatory bail on the ground that no recovery was effected from the accused and that they had been implicated only on the basis of the disclosure statement of the main accused - Allowed -The respondents may be able to take advantage of the decision in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 , perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. To grant anticipatory bail in a case of this nature is not really warranted. State of Haryana v. Samarth Kumar, 2022 LiveLaw (SC) 622

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - The expression "reasonable grounds" used in Section 37(1)(b) under NDPS Act would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. (Para 14) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613 : AIR 2022 SC 3444

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail considerations - The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. (Para 17-18) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613 : AIR 2022 SC 3444

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail - The admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside - Confessional statement recorded under Section 67 of the NDPS Act inadmissible in the trial of an offence under the NDPS Act. (Para 16) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613 : AIR 2022 SC 3444

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613 : AIR 2022 SC 3444

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - NCB's appeal against Delhi HC order granting bail to accused - Allowed - Even dehors the confessional statements, the other circumstantial evidence brought on record by the NCB ought to have dissuaded the High Court from exercising its discretion in favour of the accused - The observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage - Set aside Bail order. Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613 : AIR 2022 SC 3444

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 37, 67 - Appeal against Bail granted to NDPS accused - Allowed - Validity and scope of statements under Section 67- Referred to Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 - The rigour of law lay down in Tofan Singh was held to be applicable even at the stage of grant of bail - Referred to State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr. 2022 LiveLaw (SC) 69 - However, going by the circumstances on record, at this stage, the matter stands on a different footing - In the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. Union of India (NCB) v. Khalil Uddin, 2022 LiveLaw (SC) 878

Section 50 - Conditions under which search of persons shall be conducted

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option to be searched before a Magistrate of a competent Gazetted Officer - Accused acquitted. (Para 9) Sanjeev v. State of Himachal Pradesh, 2022 LiveLaw (SC) 267 : (2022) 6 SCC 294

Narcotics Drugs and Psychotropic Substances Act, 1985; Section 50 - Whether the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated ? Cannot give such an extended view. Dayalu Kashyap v. State of Chhattisgarh, 2022 LiveLaw (SC) 100

Section 54 - Presumption from possession of illicit articles

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 54 - Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. (Para 33A) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724 : AIR 2022 SC 4051

Section 67 - Power to call for information, etc.

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 67 - Confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. (Para 10) State by (NCB) Bengaluru v. Pallulabid Ahmad, 2022 LiveLaw (SC) 69 : 2022 (2) SCALE 14

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 - Detention - If there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the "live and proximate link" between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case. (Para 20) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813 : AIR 2022 SC 4715

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Narcotic Drugs and Psychotropic Substances Act, 1986; Section 37 - If detenue was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. (Para 23) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813 : AIR 2022 SC 4715

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law. (Para 21) State of Manipur v. Buyamayum Abdul Hanan @ Anand, 2022 LiveLaw (SC) 862