Questions and answers on law (Part 84)

Q :-  Are All Offences Under NDPS Act Non-Bailable Irrespective Of Punishment Prescribed. explain its current legal status.

Ans:- Not all offences under the NDPS Act are non-bailable irrespective of the punishment. Section 37 creates a special, stringent bar to bail only for (i) offences under Sections 19, 24 and 27A, and (ii) offences involving commercial quantity. In these cases, bail can be granted only after giving the Public Prosecutor an opportunity to oppose, and the Court must record satisfaction on the “twin conditions”: there are reasonable grounds to believe the accused is not guilty, and that he is not likely to commit an offence while on bail. For other NDPS offences not covered by Section 37, bailability is generally assessed under the normal BNSS framework, largely by reference to the maximum punishment prescribed, so some such offences can be bailable depending on the provision and facts. 

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What are small, intermediate and commercial quantity of Ganja as per NDPS Act and what are punishments for these offences?

 As per the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the "small quantity" of ganja is defined as any quantity up to 1 kilogram (1000 grams). This threshold is specified by a notification from the Central Government and is used to determine the severity of punishment for offences involving ganja.

• : Up to 1 kg (1000 grams) of ganja

• : 20 kg or more of ganja

Possession of ganja in a quantity less than or equal to 1 kg is treated as a "small quantity" offence under the NDPS Act, which attracts a comparatively lighter penalty—rigorous imprisonment up to six months or a fine up to ₹10,000, or both. Quantities above 1 kg but below 20 kg fall into an intermediate category, and quantities of 20 kg or more are considered "commercial quantity," attracting much harsher penalties.

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Whether Special court NDPS, can release vehicle seized in an offence under NDPS Act 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. {Para 13}

 In the High Court of Uttarakhand at Nainital

(Before Ravindra Maithani, J.)

Abhijeet Kumar Vs State of Uttarakhand.

Criminal Misc. Application No. 368 of 2019

Decided on April 10, 2019,

Citation: 2019 SCC OnLine Utt 265.

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Whether offences under NDPS Act punishable with imprisonment for less than three years are bailable?

 Para II of Schedule I to Cr.P.C. deals with the offences under other laws. Item No.3 in the list (in Part II of the First Schedule) provides that if the offence concerned(under the other law) is punishable with imprisonment for less than three years, it is bailable and non-cognizable. Now the offence of possession of a small quantity (upto 1 kg) of Ganja, under Section 21 of the NDPS Act, if proved, can lead to a sentence upto six months, and fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable, however, as per Item No.3 in the list(In Part II of the First Schedule) offence is clearly bailable.

9. This court in Hussain vs State of Rajasthan, S.B. Criminal Misc. Bail No.11268/2017 decided on 01.09.2017 held that anticipatory bail is not maintainable where recovered contraband is less than small quantity as the offence is a bailable offence. Division Bench of Delhi High Court has also held in Minnue Khadim Ali Kuhn vs State Nct of Delhi(Supra) that where recovered contraband is small quantity offence is bailable.

Rajasthan High Court

Rajkumar S/O Heera Lal B/C Mewada vs State Of Rajasthan on 3 October, 2019

Bench: Pankaj Bhandari

S.B. Criminal Misc. Bail Application No. 13423/2019

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Delhi HC: Basic principles for determining when confession of accused in NDPS case is admissible and reliable

1) Mr. Prabhakar and Mr. Kanhaiya Singhal, learned counsel appearing for Okafor, submitted that the confession statement of Laya or Okafor recorded under Section 67 of the NDPS Act could not be relied upon by the prosecution as the same had been retracted at the first available moment. Mr. Prabhakar stated that although, the statement made by Laya had not been retracted when she had been produced before the court, however, he pointed out that at that stage, Laya did not have any counsel. She had retracted her statement on the first available occasion when she had been provided legal counsel.

2) The Trial Court had proceeded on the basis that the statements were not retracted at the first available moment. This Court is unable to appreciate the aforesaid view. Both, Laya and Okafor, had retracted their statements immediately after being provided legal assistance. The importance of providing legal counsel cannot be understated and has been underscored in various decisions.Prior to providing the aid of counsel, both the accused were in custody and therefore, the fact that they had not retracted their statements immediately on being produced before a Magistrate - when they did not have any legal assistance - cannot be held against them. It is not disputed that they had retracted their statement on the first occasion after they were provided legal assistance.

3)  We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements -- one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused."{Para 8}


IN THE HIGH COURT OF DELHI

Crl. A. 1186/2015, Crl. M.A. 41216/2019, Crl. M. (Bail) 1943/2018, 2070/2019 and Crl. A. 1041/2016

Decided On: 13.05.2020

Okafor Chukwuka Ugochukwu Vs.  Narcotics Control Bureau

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

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Supreme Court: Quantity of neutral substance in mixture of Narcotic Drugs should be taken into consideration for determining small or commercial quantity of Narcotic Drugs

 In view of the above and for the reasons stated above, Reference is answered as under:

(I). The decision of this Court in the case of E. Micheal Raj (Supra) 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;

(II). 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;

(III). Section 21 of the NDPS Act is not stand-alone provision and must be

construed along with other provisions in the statute including provisions in the

NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and

Notification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding “Note 4” to the

Notification dated 19.10.2001, fails and it is observed and held that the same is

not ultra vires to the Scheme and the relevant provisions of the NDPS Act.

Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the  aforesaid notification stand dismissed.

11. The Reference is answered accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 722 OF 2017

HIRA SINGH  Vs  UNION OF INDIA 

M.R. SHAH, J.

Dated:APRIL 22, 2020.

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Whether accused can be convicted under NDPS Act even if seized contraband was not produced before court?

 Turning to the facts in the present matter, the evidence of PW15 Surender Singh shows that from and out of 7 bags of poppy husk, samples weighing about 500 grams were taken out of each bag. Out of these 3500 grams thus taken out, two samples of 500 grams were independently sealed while rest 2500 grams were also sealed in a separate pouch. These samples were marked A, B and C respectively. The bags were also independently sealed and taken in custody and Exbt-5 seizure memo which recorded all these facts was also signed by the Accused. We have gone through the cross-examination of the witness. At no stage even a suggestion was put to the witness that either the signatures of the Accused were taken by fraud, coercion or mis-representation or that the signatures were not of the Accused or that they did not understand the purport of the seizure memo. It would therefore be difficult to even suggest that the seizure of contraband weighing 223 kgs was not proved by the prosecution. In our view this fact stood conclusively proven.

17. If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1497 of 2019 

Decided On: 27.09.2019

State of Rajasthan  Vs.  Sahi Ram

Hon'ble Judges/Coram:

U.U. Lalit and Vineet Saran, JJ.

Citation: AIR 2019 SC 4723

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Supreme Court: Precaution Which the court should take before accepting confession of accused of an offence under NDPS Act

That brings us to the confessional statement of the
appellant recorded by PW-1. Admittedly, this confession
was recorded after the appellant was arrested. It is
true that the issue, whether a statement recorded under
Section 67 of the NDPS Act can be construed as a

confessional statement even if the officer who has

ecorded such statement was not to be treated as a police
officer, has been referred to a larger Bench in the case
of Tofan Singh v. State of Tamil Nadu1.
We, for the decision of this case, therefore,
proceed on the premise that the confession is admissible.
Even if it is admissible, the Court has to be satisfied
that it is a voluntary statement, free from any pressure
and also that the accused was apprised of his rights
before recording the confession. No such material has
been brought on the record of this case. It is also well
settled that a confession, especially a confession
recorded when the accused is in custody, is a weak piece
of evidence and there must be some corroborative
evidence. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.296 OF 2014

MOHAMMED FASRIN  V  STATE REP. BY THE INTELLIGENCE OFFICER 

Author: DEEPAK GUPTA, J.
Dated: September 04, 2019

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Guidelines of Supreme court for disposal of Narcotic Drugs seized in criminal case

 To sum up we direct as under:

(1) No sooner the seizure of any Narcotic Drugs and

Psychotropic and controlled Substances and

Conveyances is effected, the same shall be

forwarded to the officer in-charge of the nearest

police station or to the officer empowered under

Section 53 of the Act. The officer concerned shall

then approach the Magistrate with an application

under Section 52A(ii) of the Act, which shall be

allowed by the Magistrate as soon as may be

required under Sub-Section 3 of Section 52A, as

discussed by us in the body of this judgment under

the heading ‘seizure and sampling’. The sampling

shall be done under the supervision of the

magistrate as discussed in paras 13 and 14 of this

order.

(2) The Central Government and its agencies and so also

the State Governments shall within six months from

today take appropriate steps to set up storage

facilities for the exclusive storage of seized Narcotic

Drugs and Psychotropic and controlled Substances

and Conveyances duly equipped with vaults and

double locking system to prevent theft, pilferage or

replacement of the seized drugs. The Central

Government and the State Governments shall also

designate an officer each for their respective storage

facility and provide for other steps, measures as

stipulated in Standing Order No. 1/89 to ensure

proper security against theft, pilferage or

replacement of the seized drugs.

(3) The Central Government and the State Governments

shall be free to set up a storage facility for each

district in the States and depending upon the extent

of seizure and store required, one storage facility for

more than one districts.

(4) Disposal of the seized drugs currently lying in the

police maalkhans and other places used for storage

shall be carried out by the DDCs concerned in terms

of the directions issued by us in the body of this

judgment under the heading ’disposal of drugs’.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.652 OF 2012

Union of India Vs   Mohanlal 

Dated;January 28, 2016

T.S. THAKUR, J.

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Whether person convicted under NDPS Act can be exempted from making contribution to victim compensation fund?

It may be worthwhile to see that under Rule 414, the
wages that would form the fund are the wages earned by the
prisoners. Hence, those would be the wages earned by all the
prisoners, unless specifically exempted forming a separate class.
The contribution to the fund is, therefore, not from the wages of
only specified prisoners. There can be no discrimination between
the types of prisoners to bring them within the purview of the rule
or exempt them therefrom, unless the prisoners themselves

belong to a class which should not contribute their wages. There
is no such classification for the prisoners who are required to
contribute a part of their wages earned by them. There cannot
be. A distinction is sought to be made out not between two
prisoners of different classes, but between the victims. Hence,
even though all prisoners must contribute, only the victims of
some of them are stated to be deserving of the compensation. It
is, therefore, argued that since a NDPS convict “has no victim”,
none can be paid compensation and, therefore, no compensation
can be deducted. Once it is seen that the doctrine of victimology
would apply to the State at large, this narrow interpretation must
be rejected.

IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITIONS NO.10/2012, 21 AND 35/2013
CRIMINAL WRIT PETITION NO.10/2012

Bhakta Bahadur,   V/s  Inspector General of Prisons


Coram:  F.M. REIS, JJ.
Citation;2015 ALLMR(cri)1945
Date of pronouncing Judgment : 27/01/2014
J U D G M E N T :- (PER SMT. R.S. DALVI, J.)

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Whether Special court NDPS can grant anticipatory bail in NDPS case?

Criminal - Power of Special Court - For consideration - Anticipatory bail - Section 36 of Narcotic Drugs and Psychotropic Substances Act, (NDPS Act) 1985 and Section 438 of Code of Criminal Procedure, 1973 - Present petition filed to consider prayer for anticipatory bail by Special Court under Section 438 of Code - Whether Special Court under Section 36 of NDPS Act competent to entertain pre-arrest bail petition under Section 438 of Code - Held, NDPS Act provided for forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances - It conferred special jurisdiction and powers to Special Court constituted under NDPS Act with regard to trial of offences committed under such Act - Section 36C of NDPS Act, empowered Special Court constituted under NDPS Act to exercise powers under Section 438 of Code - Therefore, Special Court constituted under Section 36 of NDPS Act was competent to entertain pre-arrest bail petition under Section 438 of Code - Petition disposed of.

Kolkata High Court (Appellete Side)

Teru Majhi & Anr vs State Of West Bengal & Ors on 3 April, 2014

Before :

The Hon'ble Justice Ashim Kumar Banerjee
The Hon'ble Justice Ashim Kumar Roy
The Hon'ble Justice Debangsu Basak




Citation: 2015ALLMR(Cri)207,


 (2014)2CALLT450(HC), III(2014)CCR237(Cal.),


 2014(3) CHN (CAL) 433, 2015CriLJ1017,

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