NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

Facts: The Appellant was stated to have been carrying a plastic flour packet in his right hand leading to recovery of opium. No independent witness from the locality was included in the investigation and all the witnesses were police officials only. The Trial Court convicted Appellant under Sections 8 and 15 of the Act. On appeal, the High Court also upheld conviction of Appellant. The Appellant alleging false implication contends that he was apprehended as he stepped out of his house. There was no explanation for the non-availability of any independent witness in a residential locality. There was non-compliance with Section 50 of the NDPS Act. The prosecution failed to prove that the sample produced in court was the same as seized from the Appellant.

Held: The seizure was at the door step of the Appellant. It is difficult to believe that in a rural residential locality, the police were unable to find a single independent witness. No name of any person had been mentioned who may have declined to be a witness. Though the Laboratory Report was obtained, but the identity of the sample stated to have been seized from the Appellant was not conclusively established by the prosecution. The fact of an earlier conviction may be relevant for the purpose of sentence but could not be a ground for conviction per se. The failure of the prosecution in the present case to relate the seized sample with that seized from the Appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested had to be co-related. Appellant acquitted. Appeal allowed.

Facts: As per the prosecution case, Police Constable Kadakiyabhai Damor received a secret information through informer that appellant-Kalabhai Bhavjibhai Damor, who is a resident of village Jagola possessing and selling illegally 'Ganja' from his house. Pursuant to the said information, after observing all the formalities under the Act, services of two independent panch witnesses were requisitioned and a raid was arranged and lead by Mr. V.M. Jani, Circle Police Inspector along with in-charge P.S.I. Mr. Vasava and other police personnels. It is further the case of the prosecution that when they reached village Jagola, near one premises, one person was standing and on asking, he revealed his name to be Kalabhai Bhavjibhai Damor. Thereafter, he was informed about the secret information received and he was requested to have the search of his premises keeping him along with them. For the purpose, when he was asked about the ownership of the premises, he revealed that he owns the said premises. While search of the said premises was carried on, on a western side there was a declivous (storage for crops by the farmers) covered with sand wall and doors in between and after opening the door they found four plastic bags tied with a string and on suspecting containing 'Ganja', it was opened since the officers who carried out the raid suspected it to be 'Ganja', the services of F.S.L. officer was requisitioned and on arrival of an officer, she, after examining contraband articles found in each bags, opined primarily that, it is 'Ganja'. However, she has requested the officer concerned to send the sample to Forensic Laboratory for the purpose of examination and to have another sample as a reserved sample. The witness has denied the suggestion that panchnama Exh.8 was not prepared at the spot itself, but it was prepared while sitting in the police station and signatures of the panch witnesses were obtained in a prepared panchnama.

Held: Not only the handling of muddamal and the sample, even the search and seizure inspires no confidence. Search and seizure itself is doubtful in view of the evidence brought on record by the prosecution as discussed herein above. Thus, prosecution has failed to prove the case against the appellant by leading cogent, reliable and believable evidence beyond reasonable doubt. Hence, this appeal is allowed. The appellant is ordered to be acquitted of all the charges levelled against him.

Facts: As per the prosecution case, Police Constable Kadakiyabhai Damor received a secret information through informer that appellant-Kalabhai Bhavjibhai Damor, who is a resident of village Jagola possessing and selling illegally 'Ganja' from his house. Pursuant to the said information, after observing all the formalities under the Act, services of two independent panch witnesses were requisitioned and a raid was arranged and lead by Mr. V.M. Jani, Circle Police Inspector along with in-charge P.S.I. Mr. Vasava and other police personnels. It is further the case of the prosecution that when they reached village Jagola, near one premises, one person was standing and on asking, he revealed his name to be Kalabhai Bhavjibhai Damor. Thereafter, he was informed about the secret information received and he was requested to have the search of his premises keeping him along with them. For the purpose, when he was asked about the ownership of the premises, he revealed that he owns the said premises. While search of the said premises was carried on, on a western side there was a declivous (storage for crops by the farmers) covered with sand wall and doors in between and after opening the door they found four plastic bags tied with a string and on suspecting containing 'Ganja', it was opened since the officers who carried out the raid suspected it to be 'Ganja', the services of F.S.L. officer was requisitioned and on arrival of an officer, she, after examining contraband articles found in each bags, opined primarily that, it is 'Ganja'. However, she has requested the officer concerned to send the sample to Forensic Laboratory for the purpose of examination and to have another sample as a reserved sample. The witness has denied the suggestion that panchnama Exh.8 was not prepared at the spot itself, but it was prepared while sitting in the police station and signatures of the panch witnesses were obtained in a prepared panchnama.

Held: Not only the handling of muddamal and the sample, even the search and seizure inspires no confidence. Search and seizure itself is doubtful in view of the evidence brought on record by the prosecution as discussed herein above. Thus, prosecution has failed to prove the case against the appellant by leading cogent, reliable and believable evidence beyond reasonable doubt. Hence, this appeal is allowed. The appellant is ordered to be acquitted of all the charges levelled against him.

Facts: It is alleged that the Police seized motorcycle in connection with the offence punishable under Section 8, 20 of the NDPS Act and after investigation, police filed the charge-sheet on which a case was registered, which is pending before Special Judge (NDPS), Khandwa. During pendency of the case, the applicant, who is the registered owner of the said motorcycle filed an application under Section 457/451 of Cr.P.C. before Special Judge Khandwa for getting interim custody of the said vehicle. The learned Special Judge rejected the application. Being aggrieved by that order, applicant filed this petition.

Held: This Court has gone through the record and arguments put forth by both the parties. It appears from the record that learned Special Judge rejected the applicant's prayer only on the ground that as per the notification issued by the Central Government under Section 52A of the Act, all narcotic drugs and psychotropic substances, controlled substances or conveyances seized under the NDPS Act shall be disposed of by the Drugs Disposal Committee and according to Sub-rule (5) of the Rule 9 of the said notification, seized vehicles can be disposed off by the Committee through auction. If the vehicle is given in the interim custody to the applicant, then the proceedings of the Drug Disposal Committee will be hampered. But the reasons assigned by the learned Special Judge for rejecting the applicant's application does not appear to be correct. There is also no evidence on record to show that applicant has a criminal past and he was involved in similar crimes in the past too. If the seized vehicle is kept lying at the Police Station, the value of the said vehicle would be diminished and its parts would be damaged. So in the considered opinion of this Court learned Special Judge committed mistake in rejecting the applicant's application to get the interim custody of the vehicle. Hence, petition is allowed.

Facts: On16/17.09.1990 mid night, SI alongwith ASI and team of police personnel with Government Jeep and a private jeep were holding Nakabandi on both sides of Kacha path leading to village Kingre from G.T. Road for detection of the contraband. At that time, a tractor with trolley was heading towards the road from the village and the same was stopped and the Appellant was apprehended and he was inquired about the gunny bags of poppy husk lying in the trolley. Thirty three yellow coloured gunny bags containing poppy husk were recovered from the trolley attached to tractor and on weighing the bags, total about thirteen quintals and twenty kilograms of poppy husk was recovered. From each bag, sample of hundred grams was taken out and parcels were made and remaining poppy husk lying in the gunny bags were sealed and were seized and taken into police possession alongwith the said tractor with its trolley. He was acquitted by the trial court but convicted by the high court. Hence, the present appeal.

Held: Burden of proof cast on the accused Under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him Under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence. From the evidence led by the prosecution, it has been proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of the thirty three bags of poppy husk in the trolley attached to the tractor. The conviction of the Appellant Under Section 15 of the NDPS Act is confirmed and the sentence of imprisonment imposed on the Appellant is reduced to ten years and the appeal is partly allowed.

Facts: An FIR was lodged pertaining to explosive substances. It emerged over the course of investigation that the attack was part of a larger conspiracy involving meticulous pre-planning, numerous failed attempts and use of dangerous weapons. It was alleged that the Respondent was one of the main conspirators and was charged as such. Being untraceable, the Respondent was declared an absconder and his trial was split up from the rest of his co-conspirators. The Respondent was arrested and a chargesheet was re-filed by the National Investigation Agency against him, pursuant to which the Respondent is now facing trial. The Respondent approached the Special Court and the High Court for bail six times. Bail was declined to the Respondent, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack. The Courts were, therefore, of the view that the bar against grant of bail under Section 43-D(5) of the UAPA was attracted. The Respondent again approached the High Court questioning the Special Court's order denying bail. The High Court through the impugned order, released the Respondent on bail noting that the trial was yet to begin though the Respondent had been in custody for four years.

Held: The High Court in the instant case had not determined the likelihood of the Respondent being guilty or not, or whether rigours of Section 43-D(5) of UAPA are alien to him. It instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court were apparently traceable back to Article 21 of Constitution, of course without addressing the statutory embargo created by Section 43-D(5) of UAPA. The presence of statutory restrictions like Section 43-D(5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Appeal Dismissed.

Facts: The Circle Inspector of Excise arrested accused persons and seized the hashish oil, money and the vehicles which were used by them for transporting oil. The allegation against the Accused Respondent was that he entrusted hashish oil to A-1 through A-2 for sale in the International market and Crime was registered against him and after investigation, charge-sheet was filed. On an application filed for post-arrest bail by Accused Respondent, Additional Sessions Judge while noticing the mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act observed that there was a prima facie material to presume that the Accused committed the offence punishable under Section 20(b)(ii)(c) and Section 29 of the NDPS Act and rejected the application for post-arrest bail which came to be challenged at the instance of the Accused Respondent filing bail application before the High Court. The High Court without even noticing Section 37 of the NDPS Act and taking note of the fact that other Accused persons in Crime since have been released on bail, granted him post-arrest bail. Hence, the present appeal is preferred by the State.

Held: The scheme of Section 37 of Act reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure, 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 expression reasonable grounds means something more than prima facie grounds. It contemplates substantial probable causes for believing that the Accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the Accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Code of Criminal Procedure, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act was indeed uncalled for. Appeal allowed.

Facts: On 5.9.1996, Bhan Singh, ASI of Police Station, Rania alongwith other police officials was present in the village Chakka Bhuna in an official jeep. The police party saw a jeep coming at high speed from the opposite direction and asked the said jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This created suspicion in the minds of the police officials. Thus, they chased the jeep. The occupants of the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police. The said three occupants were later identified as the Appellants. The vehicle had 10 bags containing 41 kg poppy husk each. The police party took samples of 200 grams of poppy husk from each bag and the same was sealed by the Dy. S.P. The prosecution led the evidence in support of its case and also produced the case property in the court alongwith the damaged jeep in which the Appellants were carrying 410 kg. Poppy husk. In the FSL report all positive results were shown. Appellants did not lead any evidence in defence and pleaded that they had falsely been implicated in the crime. After conclusion of the trial, the Appellants were convicted. Hence, the present appeal.

Held: The provisions of Section 35 and 54 of the Act, became clear that if Accused was found to be in possession of contraband article, he was presumed to have committed offence under relevant provisions of Act until contrary was proved. It is a well settled legal proposition that once possession of contraband articles is established, burden shifts on Accused to establish that he had no knowledge of same. Once possession of contraband material with Accused was established, Accused had to establish how he came to be in possession of same as it was within his special knowledge. Appellants could not point out what prejudice had been caused to them if fact of conscious possession had not been put to them. Appeal dismissed.