Important Judgments On NDPS Act

Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, CriminalAppeal No. 1043 of 2021

A Bench of Justices D.Y. Chandrachud and B.V. Nagarathna held that the test which the Supreme Court and the High Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. The Bench observed that stringent parameters for the grant of bail under the NDPS Act have been prescribed in order to curb the menace of drug-trafficking in the country. The Bench further observed that under Section 37(1)(b)(ii) of the NDPS Act, the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are; the Prosecutor must be given an opportunity to oppose the application for bail; and there must exist reasonable grounds to believe that the person is not guilty of such an offence and he is not likely to commit any offence while on bail.

Gurdev Singh v. State of Punjab, Criminal Appeal No. 375 of 2021.

A Bench of Justices D.Y. Chandrachud and M. R. Shah held that while awarding the sentence/punishment in case of the NDPS Act, the interest of the society as a whole is required to be taken into consideration and while striking a balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always tilt in favour of the suitable higher punishment. The Bench observed that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable, it causes deleterious effects and deadly impact on the society, they are a hazard to the society. The Bench further observed that organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.

Tofan Singh v. State of Tamil Nadu, Criminal Appeal No. 152 of 2013.

A Bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee (dissenting), in a 2:1 majority, held that the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act and cannot be taken into account in order to convict an accused under the NDPS Act. It was also held that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. The judgments in Raj Kumar Karwal v. Union of India and Kanhaiyalal v. Union of India were overruled. It was observed that to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act without any non-obstante clause doing away with section 25 of the Evidence Act and without any safeguards would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

Rizwan Khan v. State of Chhattisgarh, Criminal Appeal No. 580 of 2020.

A Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah held that to prove the case under the NDPS Act, the ownership of the vehicle is not required to be established and proved. It is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated.

Mukesh v. State (Narcotic Branch of Delhi), Special Leave Petition (Criminal) DiaryNo. 39528/2018.

A Constitution Bench of the Supreme Court comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, held that in a case where the informant himself is the investigator, that cannot vitiate the investigation on the ground of bias or the like factor and the question of bias or prejudice would depend upon the facts and circumstances of each case. It was held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal and the matter has to be decided on a case to case basis. The Bench also held that a contrary decision of the Supreme Court in the case of Mohan Lal v. State of Punjab, (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good laws and they are specifically overruled. The Bench observed that considering the NDPS Act being a special Act with special procedure to be followed, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated, and the accused is entitled to acquittal.

Hira Singh and Anr. v. Union of India and Anr., Criminal Appeal No. 722 of 2017.

A Bench of Justices Arun Mishra, Indira Banerjee and M.R. Shah held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the small or commercial quantity of the Narcotic Drugs or Psychotropic Substances. The Bench also held that the decision in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law.

Chipurupalli Dali Naidu v. State of Andhra Pradesh, Criminal Petition No. 3860 of 2020.

A Single-Judge Bench of Justice M. Satyanarayana Murthy of the High Court of Andhra Pradesh restated the position of the Supreme Court with regard to Section 37 of the NDPS Act. The Bench reiterated that the scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. The expression reasonable ground means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.

Madan Lal v. State of H.P., Criminal Appeal No. 786 of 2002.

A Bench of Justices Doraiswamy Raju and Arijit Pasayat held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the NDPS Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 of the NDPS Act where also presumption is available to be drawn from possession of illicit articles. The Bench observed that whether there was conscious possession has to be determined with reference to the factual backdrop and the expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds.

Union of India v. Rattan Mallik, Criminal Appeal No. 137 of 2009.

A Bench of Justices D.K. Jain and R.M. Lodha held that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of not guilty. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said conditions is for a limited purpose and is confined to the question of releasing the accused on bail. The Bench observed that the expression reasonable grounds has not been defined in the NDPS Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with.

Boota Singh & Others v. State of Haryana, Criminal Appeal No. 421 of 2021.

A Bench of Justices Uday Umesh Lalit and K.M. Joseph held that the explanation to Section 43 of the NDPS Act shows that a private vehicle would not come within the expression public place as explained in Section 43 of the NDPS Act. The Bench held that on the strength of the decision in State of Rajasthan v. Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act, but this case would come under Section 42 of the NDPS Act. The Bench also held that the decision of Karnail Singh v. State of Haryana as followed in State of Rajasthan v. Jagraj Singh alias Hansa is clear. Total non-compliance of Section 42 of the NDPS Act is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn in Karnail Singh v. State of Haryana but in no case, total non-compliance of Section 42 can be accepted.

(Muneeb Rashid Malik is an Advocate and can be reached at muneebrashidmalik@gmail.com. He tweets @muneebmalikrash).