Wednesday 3 July 2024

Important Supreme court and Bombay HC Judgments on NDPS Act(Part 2)

1) Whether the bar of Section 37 of the NDPS Act will be applicable if there is total non compliance of mandatory provisions under Sections 42 and 50 of the NDPS Act?

In Vijaysinh Chandubha Jadeja's case (Supra), the Hon'ble Apex Court has held that the requirement of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is imperative on the part of police officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched only before a Gazetted Officer or a Magistrate. It is further held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is further held that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate.

Bombay High Court

Sholadoye Samuel Joy vs The State Of Maharashtra  on 20 January, 2022

Hon'ble Shri Justice Virendrasingh Gyansingh Bisht


Under which circumstances the person accused of an offence under NDPS Act can be released on bail?

The main Section which could be attracted in her case is violation of Section 8(c) of the NDPS Act, which is made punishable under Section 20 or Section 22. In that case, it is necessary for the investigating agency to show that her activities or contravention involved commercial quantity of a Narcotic drug or psychotropic substance. The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh Rajput. It is their own case that the drugs were already consumed and hence there was no recovery. In that case, there is nothing at this stage to show that the Applicant had committed any offence involving commercial quantity of contraband. The material at the highest shows that she has committed an offence involving contraband, but, the crucial element of incurring rigours of Section 37 in respect of commercial quantity is missing. Therefore, I am satisfied that there are reasonable grounds for believing that the Applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity. There are no other criminal antecedents against her. She is not part of the chain of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits. Since she has no criminal antecedents, there are reasonable grounds for believing that she is not likely to commit any offence while on bail.{Para 86}

87. The learned ASG had argued that the celebrities and role models should be treated harshly so that it sets an example for the young generation and they do not get encouraged to commit such offences. I do not agree. Everybody is equal before law. No celebrity or role model enjoys any special privilege before the Court of law. Similarly, such person also does not incur any special liability when he faces law in the Courts. Each case will have to be decided on its own merits irrespective of the status of the accused.

Bombay High Court

Rhea Chakraborty vs Union Of India And Anr 2020 SCC OnLine Bom 990 on 7 October, 2020, Hon'ble Shri Justice S. V. Kotwal

3) Whether vehicle seized under NDPS Act can be released on Supratnama?

Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding.
In the High Court of Uttarakhand at Nainital
(Before Ravindra Maithani, J.)

Abhijeet Kumar  v. State of Uttarakhand
Citation: 2019 SCC OnLine Utt 265.

4) When should court release accused on default bail in case under NDPS Act?

In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

BLAPL No. 10152 of 2019
Decided On: 20.08.2020
 Iswar Tiwari   Vs.  State of Odisha
Hon'ble Judges/Coram:
S.K. Panigrahi, J.

Citation: MANU/OR/0171/2020.

5) Bombay HC: [NDPS Act] Combined Weight Of LSD & Blotter Relevant To Determine Small Or Commercial Quantity Contraband

In the High Court of Bombay at Goa

(Before M.S. Sonak and Bharat P. Deshpande, JJ.)

H.S. Arun Kumar, Vs State of Goa, 

Criminal Application (Bail) No. 752/2021 (F)

Decided on November 9, 2022, 

Citation: 2022 SCC OnLine Bom 4696 : (2022) 4 Bom CR (Cri) 517.

6) Bombay HC: The court must release accused prosecuted for an offence under NDPS Act if there is non compliance of S 36A of NDPS Act




Shlok Rakesh Todankar  Vs  The State of Maharashtra 


DATED : 6th SEPTEMBER, 2022.

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