judgments of supreme court of india on narcotic drugs and psychotropic substances (ndps) act, 1985

Judgments of Hon'ble Supreme Court on Narcotic Drugs and Psychotropic Substance Act, 1985. 1

Judgments of Hon'ble

Supreme Court on

Narcotic Drugs and

Psychotropic Substance

Act, 1985.


Section 42

1. S.42 , S.50 , S.57 Search Presearch requirement of recording information

received and sending it to superior officer Demands exact and definite

compliance as opposed to substantial compliance So is requirement of S. 50

Compliance with provisions of S. 57 does not dispense compliance with

requirements of Ss. 42 and 50.

1.1. S.42 , S.40 , S.57 Protections provided under Are distinct

Provisions are neither interlinked nor interdependent Compliance with one

does not dispense compliance with other.

1.2. Kishan Chand v. State of Haryana, reported in AIR 2013 SC 357.

2. S.42 Search and seizure On receipt of secret information Requirement to

reduce information in writing and send it forthwith to superior officer Is

mandatory Needs strict compliance Some delay in compliance is permissible

only for special reasons but compliance should be prior to recovery.

2.1. S.42 , S.15 Search conducted hours after receipt of information No

effort was made by I.O. to reduce information in writing and inform his

higher authorities instantaneously or even after or reasonable delay No

evidence produced to show as to what prevented I. O. from recording

information and sending it to superior Total noncompliance with provisions

of S. 42 Such defect is incurable Accused liable to be acquitted.

2.2. Sukhdev Singh v. State of Haryana, reported in AIR 2013 SC 953.

3. S.42 Search and seizure Requirement to forward information in writing to

senior officer before search Secret information that accused was dealing in

contraband Received by Police Officer while he was on patrol duty Officer

immediately proceeding to conduct search and making seizure Information as


to seizure forward only after search Requirement under S. 42 stands

substantially complied with Search not vitiated.

3.1. S.42 , S.15 Search and seizure Officer seized 4 bags of Poppy Husk

from possession of accused Officer not taking samples at time of seizure

Bags sealed and carried to police station Samples taken by SHO only after

bags were taken to police station Not taking of sample at initial stage vitiates

seizure Conviction of accused liable to be set aside.

3.2. Kuldeep Singh v. State of Punjab, reported in AIR 2011 SC (Supp) 787.

4. S.42 Possession of contraband Information as to, coming to notice of

Investigating Officer in course of patrolling or investigation of some other

offence Not necessary to follow conditions in all cases incorporated in S.42.

4.1. Hamidbhai Azambhai Malik v. State of Gujarat, reported in AIR 2009

SC 1378.

5. S.42 , S.20 Narcotic drugs search and seizure plea evidence Search and

seizure Seizure of contraband from house of accused Plea of noncompliance

of S.42 Police Officer conducting search not in police station when he received

information Evidence showing that he has informed his superior officer on

wireless before conducting search Requirement of S.42 stands substantially

complied with Conviction of accused u/S.20 Not liable to be interfered with.

5.1. Dalel Singh v. State of Haryana, reported in AIR 2009 SC (Supp) 2880.

6. S.42 Narcotic drugs arrest search and seizure Power to enter any building,

conveyance or place Applicability Arrest and seizure made at bus stand Is not

in any building, conveyance or enclosed space S. 42 does not apply.

6.1. S.50 Search of 'person' of accused Plastic bag carried by accused

Not his 'person' S. 50 does not apply Plea that accused was not informed of


his legal right to get his person searched in presence of a Gazetted Officer or a

Magistrate but only two options were given to him Not therefore tenable.

6.2. S.42 , S.50 Search and seizure Illegality Not always fatal to

prosecution Illegality of search however has a bearing on appreciation of

evidence of official witnesses.

6.3. S.50 , S.42 Search and seizure Independent witnesses to search

Nonexamination Not fatal Evidence of official witnesses may however be

approached with suspicion and corroboration may be insisted upon.

6.4. Ravindran @ John v. Superintendent of Customs, reported in AIR 2007

SC 2040.

7. S.42 Seizure of opium Mandatory requirement as to sending of information to

higher officer Police officer received secret information while on patrol duty

about possession of contraband by accused Police Officer had stopped vehicle in

transit in public place and conducted search and seizure Mandatory

requirement u/S.42 of informing higher ups not applicable Moreover no effort

was made by accused to call for records of information, if any, sent Acquittal of

accused for noncompliance of S.42 – Improper.

7.1. State, NCT of Delhi v. Malvinder Singh, reported in AIR 2007 SC

(Supp) 237.

8. S.42 Search and seizure Recording of information Information given by DIG

to PSI that vehicles carrying intoxicant materials which were being transported

illegally had been passing through particular district Is general information

Not bound to be recorded as a source of information as contemplated under S.

42 of Act of 1985.

8.1. S.42 Search and seizure Obtaining warrant Contraband was

recovered from tanker when usual search of suspected vehicles was being


conducted by police officials Obtaining warrant for conducting search of

vehicle in such cases Not necessary.

8.2. S.50 Search and seizure Giving information to accused of option of

search before Gazetted Officer or Judicial Magistrate Is not necessary when

narcotic article was not recovered from person of accused.

8.3. Babubhai Odhavji Patel v. State of Gujarat, reported in AIR 2006 SC

102.

9. S.42 Search and seizure Noncompliance of S. 42 by not sending copy of

information to immediate superior officer When search was conducted by

Gazetted Officer requirement of sending copy to Superior Officer is not

mandatory.

9.1. G. Srinivas Goud v. State of A.P., reported in AIR 2005 SC 3647.S.42

Search without warrant or authorisation Empowered Officer received

information that persons were carrying contraband article (Ganja)

Information recorded before proceeding to place of search Copy of

information sent to immediate official superior Plea that S. 42(2) is violated,

not tenable.

9.2. Rajendra v. State of M.P., reported in AIR 2004 SC 1103.

10. S.41(2) , S.42(2) Search and seizure By Gazetted Officer empowered

under S. 41(2) Mandatory requirement under S. 42(2) of forwarding

information to his immediate official superior Need not be complied with Act

reposes more trust on a Gazetted Officer.

10.1. M. Prabhulal v. Assistant Director, reported in AIR 2003 SC 4311.

11. S.42 , S.43 Search and seizure Public conveyance searched in public

place Provisions of S. 43 would apply and not S. 42 Officer making search


would not be required to record its satisfaction as contemplated by Proviso to S.

42 of Act.

11.1. State of Haryana v. Jarnail Singh, reported in AIR 2004 SC 2491.

12. S.42 Search without authorisation Requirement to furnish information

to superior police authorities as per S. 42(2) Applies only when commission of

the act or concealment of document etc. has been in building, conveyance or

enclosed place.

12.1. Smt. Krishna Kanwar alias Thakuraeen v. State of Rajasthan, reported

in AIR 2004 SC 2735.

13. S.42 , S.43 Applicability Search and seizure Check organised by BSF

Commandant not on any specific information about offence in question General

information about smuggling into India which led Commandant to organise

check Cannot be equated to receipt of information within contemplation of S.

42(1) It is not case of entering into or searching any building, conveyance or

enclosed place Section 43 would be attracted in circumstances and not S. 42.

13.1. S.50 Search and seizure BSF Commandant organised search on

general information about smuggling in India but not on specific information

Provisions under S. 50, not attracted, even assuming that search of jhola

(hand baggage) involved search of person.

13.2. Durgo Bai and another, Appellants v. State of Punjab, reported in AIR

2004 SC 4170.

14. S.42(1) , S.42(2) , S.21 Search and seizure Raid conducted at house of

accused on obtaining secret information Noncompliance with mandatory

provisions of S. 42 relating to recording of information and the ground of belief

Independent mahazar witnesses also not examined Acquittal of accused, proper.


14.1. State of W.B. v. Babu Chakraborty, reported in AIR 2004 SC 4324.

15. S.42 , S.43 Search and seizure Taking place at Airport which is a public

place Provisions of S. 43 and not of S. 42 would be applicable Question of

noncompliance of provisions of S. 42 would be wholly irrelevant.

15.1. S.43 Search and seizure Witness who made the seizure was

examined Nonexamination of witness by whom Mahazar was drawn would

be of no consequence.

15.2. Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue

Intelligence, reported in AIR 2002 SC 3658 (FB).

16. S.42 Information constituting offence Sending it forthwith to immediate

superior by officer who has received such an information in compliance with S.

42 Not mandatory, when in fact situation following mandate strictly results in

delay in trapping accused which may lead the accused to escape.

16.1. S.57 Arrest and Seizure Records regarding full particulars of arrest

and seizure along with copies of FIR sent by officer to his superior officer

immediately after registering case Necessary information to be submitted in

form of report sent There is sufficient compliance with S. 57 which is not

mandatory Mere absence of any such report does not cause prejudice to

accused Prosecution not vitiated.

16.2. Sajan Abraham v. State of Kerala, reported in AIR 2001 SC 3190 (FB).

17. S.42 , S.43 Applicability Search and seizure Check organised by BSF

Commandant not on any specific information about offence in question General

information about smuggling into India which led Commandant to organise

check Cannot be equated to receipt of information within contemplation of S.

42(1) It is not case of entering into or searching any building, conveyance or


enclosed place Section 43 would be attracted in circumstances and not S. 42.

17.1. S.50 Search and seizure BSF Commandant organised search on

general information about smuggling in India but not on specific information

Provisions under S. 50, not attracted, even assuming that search of jhola

(hand baggage) involved search of person.

17.2. Durgo Bai v. State of Punjab, reported in AIR 2004 SC 4170.

18. S.42 , S.50 Illegal possession of opium Search and seizure Evidence

showing that accused was found sitting on a public road Neither procedure

under S. 42 required to be followed Nor site plan required to be prepared

Further breach of provision of S. 50 not pointed out Conviction, proper.

18.1. Sayar Puri v. State of Rajasthan, reported in AIR 1998 SC 3224.S.42 ,

S.50 Search and seizure Provision of Ss. 42 and 50 dealing with steps to be

taken by officer making arrest, search or seizure Are mandatory

Noncompleance of said provisions Accused entitled to be acquitted.

18.2. Mohinder Kumar v. The State, Panaji, Goa, reported AIR 1995 SC 1157

(FB).


Section 50

19. S.50 Search of person Requirement of informing accused of his right to

be searched before gazetted officer or Magistrate Needs to be strictly complied

with Mere asking accused whether they wanted any gazetted officer for their

search Does not amount to clear communication to accused of his right to be

searched before gazetted officer or Magistrate Search and seizure stands

vitiated Conviction of appellant for possession of contraband based on search

Liable to be set aside Benefit of judgment extended also to non appealing co

accused.

19.1. Myla Venkateswarlu v. State of A. P, reported in AIR 2012 SC 1619.

Ashok alias Dangra Jaiswal v. State of Madhya Pradesh, reported in AIR 2011

SC 1335 followed.

20. S.50 Search and seizure In presence of Gazetted officer or Magistrate

Imperative for empowered officer to inform suspect about existence of his right

that if he so requires, he shall be searched before gazetted officer or Magistrate

Failure to "inform" suspect about existence of his right would cause prejudice to

him In case he so opts, failure to conduct his search before gazetted officer or

Magistrate, may not vitiate trial But, would render recovery of illicit article

suspect and vitiate conviction and sentence of an accused Information need not

be in writing or in prescribed form.

20.1. S.50 Search and seizure Obligation of empowered officer to inform

suspect of his right to be searched before gazetted officer or Magistrate A

mere enquiry by said officer as to whether suspect would like to be searched

in presence of a Magistrate or a Gazetted Officer Cannot be said to be

substantial compliance with mandate of Section.

20.2. Joseph Fernandez v. State of Goa, reported in AIR 2000 SC 3502,


Prabha Shankar Dubey v. State of M.P., reported in AIR 2004 SC 486, not

good law in view of State of Punjab v. Baldev Singh, reported in AIR 1999 SC

2378 (Constitution Bench).

20.3. Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in AIR 2011

SC 77 (Five Judges).

21. S.50 Search and seizure Information of right of accused Option

whether he wanted to be searched in presence of a Gazetted Officer or a

Magistrate Was duly given to appellant Appellant had, in fact, signed on

consent statement expressing his confidence to be searched in presence of

Inspector It cannot be held that there was noncompliance with S. 50 of Act.

21.1. Confession to police officer Admissibility Offence under NDPS Act

Consent statement signed by appellant expressing his confidence to be

searched in presence of Inspector Said statement has not been used as

confession Consent statement is admissible in evidence Inasmuch as no

confession has been made in through consent given by appellant with regard

to any of ingredients of offence with which he was subsequently charged.

21.2. Jarnail Singh v. State of Punjab, reported in AIR 2011 SC 964.

22. S.50 Search and seizure Compliance with S. 50 S. 50 can be invoked

only in cases where drug/ narcotic /NDPS substance is recovered as a

consequence of body search of accused Recovery of narcotic is made from a

container being carried by individual Provisions of S. 50 would not be attracted.

22.1. Jarnail Singh v. State of Punjab, reported in AIR 2011 SC 964.S.50

Mandatory condition for search Accused provided with option either to be

searched in presence of Gazetted Officer or Magistrate Agreed to be

searched in the presence of Gazetted Officer Merely providing option to

accused for being searched is not complete compliance of S. 50 Physical


production of accused before Gazetted Officer or Magistrate is a mandatory

requirement Noncompliance of mandatory requirements results into

acquittal of accused.

22.2. Narcotics Central Bureau v. Sukh Dev Raj Sodhi, reported in AIR 2011

SC 1939.

23. S.50 Search of person of accused Intimation of his right to be searched

before gazetted officer or magistrate Theory of substantial compliance Not

applicable Intimation given that gazetted officer or magistrate could be

arranged if accused so wishes Not intimation of right Search and recovery

stands vitiated.

23.1. S.50 , S.21 Recovery made in contravention of S. 50 Cannot be made

admissible on basis of oral evidence Accused cannot be convicted for illegal

possession of contraband. State of Delhi v. Ram Avtar, reported in AIR 2011

SC 2699.

24. S.50 Applicability Does not apply to search of bag of accused.

24.1. State of Rajasthan v. Shanti, reported in AIR 2010 SC 43.

25. S.50 , S.56 Search of person Applicability Vehicle was searched and

Charas was recovered from vehicle Person of accused were not searched Thus

provision of S.50 was not required to be complied with Moreover option in

writing given to accused whether they want to give personal search or search of

vehicle before Magistrate or Gazetted Officer It is nothing but apprising them of

their right Therefore requirement of giving option to be searched u/S.50 can be

said to be satisfied.

25.1. Dehal Singh v. State of H. P. , reported in AIR 2010 SC 3594.


26. S.50 Search of person Does not include search and recovery from bag,

briefcase, container etc. The question of compliance or noncompliance of S. 50

of Act is relevant only where search of a person is involved and the said Section

is not applicable nor attracted where no search of a person is involved. Search

and recovery from a bag, brief case, container, etc., does not come within the

ambit of Section 50 of the N. D. P. S. Act, because firstly, S. 50 expressly speaks of

search of person only. Secondly, the Section speaks of taking of the person to be

searched by the Gazetted Officer or Magistrate for the purpose of search. Madan

Lal v. State of Himachal Pradesh, reported in AIR 2003 SC 3642 followed.

26.1. Ajmer Singh v. State of Haryana, reported in AIR 2010 SC (Supp) 582.

27. S.50 Search and seizure Accused not shown to have been

communicated of his right either to be searched in presence of Magistrate or

gazetted officer on the one hand and empowered officer on the other Amounts

to noncompliance of S.50 Conviction of accused liable to be set aside.

27.1. Man Bahadur v. State of H. P., reported in AIR 2009 SC 369.

28. S.50 Search and seizure S.50 applies when search is of person of

accused Seizure from place inside house S.50 has no application.

28.1. State of Rajasthan v. Balbir Kaur, reported in AIR 2009 SC 2642.

29. S.50 Recovery of poppy husk Personal search of person Is condition

precedent to invoke S.50 Recovery was made from bags carried by appellant

Plea that there was violation of provisions of S.50 Not legally tenable.

29.1. Balbir Kaur v. State of Punjab, reported in AIR 2009 SC 3036.S.50 ,

S.42 Search and seizure Right of accused to be searched before gazetted

officer Duty of police to inform accused of his right Compliance Accused

alleged to have consented to get searched by police Evidence however


showing that so called consent letters were obtained only after arrest As to

preparation of consent letters evidence doubtful Prosecution case that S.H.O.

obtained letter of approval after locating accused and conducted search

thereafter Unbelievable Said S.H.O. had no authority to make search

Provisions of S.42 not complied with Accused entitled to be acquitted.

29.2. Sarju alias Ramu v. State of U. P. , reported in AIR 2009 SC 3214.

30. S.50 , S.42 Search and seizure Right of accused to be searched before

gazetted officer Duty of police to inform accused of his right Compliance

Accused alleged to have consented to get searched by police Evidence however

showing that so called consent letters were obtained only after arrest As to

preparation of consent letters evidence doubtful Prosecution case that S.H.O.

obtained letter of approval after locating accused and conducted search

thereafter Unbelievable Said S.H.O. had no authority to make search

Provisions of S.42 not complied with Accused entitled to be acquitted.

30.1. Sarju alias Ramu v. State of U. P. , reported in AIR 2009 SC 3214.

31. S.50 , S.42 Narcotic drugs search and seizure appeal Search and

seizure Carried out in violation of provisions of Law Would have bearing on

credibility of evidence of official witness Station House Officer (SHO) stopped

two persons driving scooter at fast speed Search of their person and scooter

Contraband found not on person but in scooter Provisions of S. 50 not complied

with when search of person of accused was done Prosecution story as to how the

SHO found appellants on road near police station not free from doubt Witness to

seizure not supporting prosecution case Conviction of accused appellants liable

to be set aside Moreso, when appeal was against acquittal and appellate Court

brushed aside findings of trial Court without meeting reasons assigned.

31.1. Dilip v. State of M.P., reported in AIR 2007 SC 369.


32. S.50 Search of person Compliance of S. 50 Bag, briefcase or any article

or container carried by accused Cannot be treated as body of human being

Does not come within definition of 'person' Compliance of S. 50 not necessary

when search is conducted of bag carried by accused Acquittal of accused for

noncompliance of S. 50 Not proper Matter, however, remanded to High Court

for deciding other issues.

32.1. State of Rajasthan v. Babu Ram, reported in AIR 2007 SC 369.

33. S.50 Word "person" under Would mean only person himself And not

any bag, briefcase, article or container etc., being carried by him Thus, while

conducting search of such bag, article etc. Strict compliance of provisions of

S.50 Not necessary.

33.1. State of Haryana v. Suresh, reported in AIR 2007 SC 2245.

34. S.50 Precedent Search and seizure Provisions of S. 50 applicable only

in case of personal search of accused Contraband articles found from bag being

carried by respondent accused Provisions of S.50, not attracted.

34.1. State of Haryana v. Ranbir alias Rana, reported in AIR 2006 SC 1796.

35. S.50 Search and seizure Right to be searched in presence of Gazetted

Officer Search was conducted in presence of Deputy Superintendent of Police

who reached the spot after accused was detained Accused himself opted to be

searched in his presence Deputy Superintendent of Police being a Gazetted

Officer requirements of S. 50 would be complied with Acquittal of accused on

ground that Deputy Superintendent of Police was in essence a member of raiding

party hence provisions of S. 50 were not complied with, not proper Position

would not be different even if a superior officer happens to be with officer

authorised under S. 42 to search accused Nor presumption that there may be


bias on part of Deputy Superintendent of Police can be drawn.

35.1. State of Rajasthan v. Ram Chandra, reported in AIR 2005 SC 2221.

36. S.50 Search and seizure Search of person Word 'person' Means

human being with appropriate covering and clothings and footwear Bag, brief

case or container carried by person cannot fall within ambit of 'person' Section

50 does not apply to search of baggage, article or container carried by person

searched.

36.1. Namdi Francis Nwazor v. Union of India, (1998) 8 SCC 534,

Observations held obiter dicta.

36.2. State of H.P. v. Pawan Kumar, reported in AIR 2005 SC 2265 (FB).

37. S.50 Search of person Conditions under S. 50 Does not apply to search

of vehicle, container, bag or premises S. 50 only applies to personal search of a

person.

37.1. Smt. Krishna Kanwar alias Thakuraeen v. State of Rajasthan, reported

in AIR 2004 SC 2735.

38. S.50 Search In presence of Magistrate or Gazetted Officer Offfer

relating to, required to be made to accused in compliance with S. 50 Section 50

does not apply when search undertaken is not of person of accused but of

something carried in his hand Nonjoining of independent witness to evidence

this offer Irrelevant Can be no ground to acquit accused by extending benefit

of doubt.

38.1. State of Punjab v. Makhan Chand, reported in AIR 2004 SC 3061.

39. S.50 , S.52A Search and seizure Procedure for drawing samples

prescribed by Govt. under S. 52A Noncompliance Does not vitiate trial


Section 52A does not empower Govt. to lay down procedure for search of

accused But, deals only with disposal of seized narcotic drugs and psychotropic

substances Procedure issued by Central Govt. under S. 52A for drawing of

samples Is also not an inexorable rule.

39.1. State of Punjab v. Makhan Chand, reported in AIR 2004 SC 3061.

40. S.50 Search of accused In presence of Magistrate or Gazetted Officer

Option is for officer who conducts search to choose any one of them depending

upon availability And accused has no right of option Accused asked whether

he would like presence of Magistrate when his body is being searched Accused

declined privilege No procedural illegality No violation of S. 50 Prosecution

proved that offence was committed Conviction sustained.

40.1. Beckodan v. State, AIR 2002 SC 1810, distinguished.

40.2. T. T. Haneefa v. State of Kerala, reported in AIR 2004 SC 3316.

41. S.50 Search and seizure Recovery of Charas from possession of accused

Search and seizure made only on suspicion by reason of the fact that accused

started running on seeing the patrolling party No prior information to police

officer regarding commission of offence under Act Provisions of S. 50, not

applicable.

41.1. Bharatbhai Bhagwanjibhai v. State of Gujarat, reported in AIR 2003 SC

7.

42. S.50 Search and seizure Concurrent findings of fact to show that

accused was asked whether he required search to be conducted in presence of

Gazetted Officer or Magistrate and answer was in negative There is compliance

of S.50 of Act Conviction not liable to be interfered with.

42.1. P. P. Beeran , Appellant v. State of Kerala, reported in AIR 2001 SC 2420


(FB).

43. S.50 Search Right to be examined in presence of Gazetted Officer or

Magistrate Requirement of informing accused about his right Need not be

complied with when baggage of accused is to be searched Search of baggage of

person is not same thing as search of the person himself.

43.1. State of Punjab v. Jasbir Singh, (1999) 9 JT (SC) 308, Overruled in

State of Punjab v. Baldev Singh, 1999 AIR SCW 2494, AIR 1999 SC 2378,

1999 Cri LJ 3672. Kalema Tumba v. State of Maharashtra, reported in AIR

2000 SC 402.

44. S.50 Search and seizure Right of accused to be searched in presence of

Gazetted Officer or Magistrate Accused informed by Intelligence Officer that if

he wished he could be searched in presence of the Gazetted Officer or Magistrate

Substantial compliance with requirement under S. 50.

44.1. Joseph Fernandez v. State of Goa, reported in AIR 2000 SC 3502 (FB).

45. S.50 Search and seizure Mandatory requirement of S. 50 Does not

apply in cases of search of premises Accused found sitting on plastic bag which

belonged to him and which contained poppy straw Mandatory requirement of

S. 50 need not be complied with S. 50 applies in case of search of person.

45.1. Birakishore Kar v. State of Orissa, report AIR 2000 SC 3626.

46. S.50 , S.54 Search and seizure Search conducted in violation of

provisions of S. 50 Contraband seized during search Cannot by itself be used

as evidence of proof of unlawful possession of the contraband Presumption

under S. 50 from possession of illicit article cannot be raised.

46.1. State of Punjab , Appellant v. Baldev Singh, reported in AIR 1999 SC


2378 (Five Judges).S.50 Search and Seizure Option given to accused is

only to choose whether he would like to be searched by search officer or in

presence of nearest available Gazetted Officer or nearest Magistrate

However choice of nearest available Gazetted Office or nearest Magistrate lies

with search officer and not with accused.

46.2. Manohar Lal v. State of Rajasthan, reported in AIR 1996 SC 2880.

47. S.50 Search and seizure Person to be searched has option only of being

searched in presence of senior officer He has no further option of being

searched in presence of either a Gazetted Officer or Magistrate Option of

nearest Gazetted Officer or Magistrate to be exercised by Police Officer

conducting search.

47.1. Raghbir Singh v. State of Haryana, reported in AIR 1996 SC 2926 (FB).

48. S.50 Search of person of accused Intimation of his right to be searched

before gazetted officer or magistrate Theory of substantial compliance Not

applicable Intimation given that gazetted officer or magistrate could be

arranged if accused so wishes Not intimation of right Search and recovery

stands vitiated.

48.1. S.50 , S.21 Recovery made in contravention of S. 50 Cannot be

made admissible on basis of oral evidence Accused cannot be convicted for

illegal possession of contraband. State of Delhi v. Ram Avtar, reported in AIR

2011 SC 2699.

49. Criminal P.C. (2 of 1974) , S.4 , S.100 , S.165 Search and seizure

Carried out by Police Officer in normal course of investigation into offence or

suspected offence as provided under Cr. P. C. If there is chance of recovery of

narcotic drug or psychotropic substance, the empowered officer from such stage


onwards carry out investigation as per provisions of NDPS Act. S. 50 of NDPS Act

not applicable to such search.

49.1. State of Punjab v. Balbir Singh, reported in AIR 1994 SC 1872.


Sections 51 to 55

50. S.52 Constitution of India , Art.134 Drug menace Prevention

Guarding against seized drugs going again in market Necessary Direction

issued to collect information from police heads of all States regarding procedure

followed during seizure, storage and destruction of drugs and manner of judicial

supervision thereon Chief Secretaries of States to serve questionnaire upon

Director General of Police of States for report Chiefs of Narcotics Control

Bureau, Central Bureau of Narcotics, Directorate General of Revenue Intelligence

and Commissionerates of Customs and Central Excise including the Indian Coast

Guard also directed to serve on similar questionnaire to concerned officers.

50.1. Union of India v. Mohanlal, reported in AIR 2012 SC 2653.

51. S.53 , S.52A Seizure of large quantity of heroin contained in cardboard

container Nonproduction of container Evidence of recovery of contraband

therefrom becomes doubtful Physical evidence as to recovery of bulk quantity of

heroin not produced in Court No direction shown to have been obtained from

Court u/S.52A for destruction/disposal of drug Further, physical evidence

relating to three samples taken from bulk amount of heroin were also not

produced Negative inference can be drawn against prosecution Contradictions

in statements of official witnesses No independent witnesses examined That

creates serious doubts as to possession of contraband by accused Conviction of

accused liable to be set aside.

51.1. Raju Premji v. State of Punjab, reported in AIR 2009 SC (Supp) 852.

52. S.53 , S.67 , S.42 Narcotic drugs confession investigation statement

by accused under S. 67 Is not same as statement made under S. 161 Cr. P. C.

Can be used as confession against him Is excluded from operation of Ss. 24 to


27 of Evidence Act Conviction of accused can be based on it Moreso, when it

is corroborated by other evidence.

52.1. Kanhaiyalal v. Union of India, reported in AIR 2008 SC 1044.

53. S.51 Criminal P.C. (2 of 1974) , S.100 Narcotic drugs search and

seizure Search Validity Plea that local Panchas not added to search party

Panchas though not supporting prosecution not stating that they were not

localites No question/suggestion put to them or to I. O. that they were stock

witnesses Plea held was not tenable.

53.1. Ghasita Sahu v. State of M.P., reported in AIR 2008 SC 1425.

54. S.55 Custody of article seized Clearly stated in forwarding report that

seized articles and sample thereof were produced in Court along with accused

Evidence of Excise SubInspector was categorical to effect that articles were kept

in Excise Malkhana for 4 days from where they were brought and sent for

chemical examination Safe custody of articles for period of 4 days, stand

sufficiently explained Acquittal of accused merely on ground that there was

order of trial Court that articles were to be kept in Excise Malkhana Not proper

Conviction restored.

54.1. State of Orissa v. Kanduri Sahoo, reported in AIR 2004 SC 833.

55. S.51 Criminal P.C. (2 of 1974) , S.165 Search and seizure Place and

time for drawal of sample Preparation of seizure memo at spot Instructions

relating to, issued by Narcotic Control Bureau are to be followed Seizure memo

though not prepared at spot but same was done at office of Customs Dept.

Accused persons present throughout procedure and there was no allegation that

contraband seized was meddled with by the officers No prejudice caused to

accused Conviction not vitiated.

55.1. Khet Singh v. Union of India, reported in AIR 2002 SC 1450.


Section 8 & 18 – Conscious Possession

56. S.8(C) , S.21 , S.22 Seizure of narcotic drugs Recovery of narcotic

substance from truck driven by one of accused in which other accused was also

travelling, clearly established Recovery of narcotic substance from house of

accused No. 1 to whom consignment was to be sold proved beyond reasonable

doubt Seizure of narcotic substance from bed room of accused No. 1 had no

access except to accused No. 1 Held accused No.1 alone was in possession and

control of seizure All the three accused persons not entitled to benefit of doubt

Conviction proper.

56.1. Iqbal Moosa Patel v. State of Gujarat, reported in AIR 2011 SC (Supp)

470.

57. S.18 Seizure of opium Mere delay in sending sample of narcotic for

chemical examination Would not be sufficient to conclude that sample has been

tampered with Particularly, when there is sufficient evidence to indicate that

delay, if any, was wholly unintentional That apart, report of chemical

examination which indicates that seals were intact when sample was received

and tallied with sample impression of the seal, would be admissible under S. 293

of Cr. P. C.

57.1. Jarnail Singh v. State of Punjab, reported in AIR 2011 SC 964.

58. S.8 , S.21 Offence under Witness to seizure turned hostile Time from

seizure till deposit in FSL was long Not clear where samples were laid or

handled by how many people Alleged narcotic substance seized from accused

never produced before trial Court No evidence to connect forensic report with

seized narcotic substance Accused entitled to benefit of doubt and acquitted.

58.1. Ashok alias Dangra Jaiswal v. State of M. P., reported in AIR 2011 SC


1335.

59. S.8 , S.27 Illegal possession of heroin Proof Accused found in

possession of two cigarettes containing 500 m. gms. which on analysis found to

contain heroin It can be inferred that same was possessed by accused for his

personal consumption Conviction of accused under S. 8 altered to one under S.

27.

59.1. Alpesh Kumar v. State of Rajasthan, reported in AIR 2004 SC 952.

60. S.18 , S.9 , S.76 Narcotic Drugs and Psychotropic Substances Rules

(1985) , R.2(c) , R.17 , R.22 Illegal possession of narcotic drugs Substance

recovered from accused is opium Proof Report of chemical examiner within

meaning of R. 2(c) Not necessary Report can be obtained from any authorised

chemical examiner Rule 2(c) applies to confiscation of adulterated opium

Public analyst appointed by State of H.P. under Notification of 1441982 is

competent to analyse samples under NDPS Act.

60.1. State of H.P. v. Pawan Kumar, reported in AIR 2004 SC 4743.

61. Conscious possession of contraband Appellant driving motor cycle Bag

containing opium was carried by pillion rider On intercepted by police party

appellant tried to turn around and flee away Both were travelling on private

motor cycle Can be presumed that appellant was conscious of fact that pillion

rider is carrying opium Conscious possession of opium can be attributed to

appellant.

61.1. Jagdish Rai v. State of Punjab, reported in AIR 2011 SC 1568. Avtar

Singh and Ors. v. State of Punjab, reported in AIR 2002 SC 3343,

Distinguished.


62. S.8 , S.18 Selling opium Conviction for Appellant only confessed that

he was working in hotel for last two months and used to bring opium from house

of hotel owner to hotel where it was being sold in tablets to truck drivers

Appellant has not stated or for that matter none of witnesses have deposed that

he was involved in selling opium tablets Appellant cannot be held guilty for

selling opium.

62.1. S.8 , S.18 possession of opium To hold a person guilty, possession has

to be conscious Control over goods is one of tests to ascertain conscious

possession so also title Servant of hotel cannot be said to be in possession of

contraband belonging to his master unless it is proved that it was left in his

custody over which he had absolute control.

62.2. Ram Singh v. Central Bureau of Narcotics, reported in AIR 2011 SC

2490.

63. S.18 Possession of opium Large quantity of opium recovered from

accused Defence raised of false implication by I.O. Accused alleging that I.O.

nourished grudge against him because of vehicular accident which was

compromised by written apology Apology tendered however not bearing

signature of I.O. I.O. also not examined as regards apology during cross

examination Allegation that father of accused had made complaints to higher

ups of I.O. Not established Plea of false implication liable to be rejected.

63.1. Charge of possession of opium Recovery of opium from accused

proved Delay of 40 days in sending sample for analysis Seal of sample

however not found to be tampered with Delay in sending sample for analysis

cannot be said to have caused prejudice Conviction of accused – Proper.

63.2. S.55 , S.18 Custody of seized articles Duty of S.H.O. to put his seat

Opium seized from accused and packets of sample thereof with seals intact

Handed over by I.O. to S.H.O. Clear evidence of S.H.O. that so long said


articles remained in his custody and possession, they were not tampered with

Fact that S.H.O. has not put his seal on sample Cannot be said to have

prejudiced accused Cannot be ground for acquittal of accused.

63.3. Ouseph v. State of Kerala, reported in 2004 AIR SC 2684 followed and

State v. V. Jayapaul, reported in (2004) 5 SCC 223 relied upon.

63.4. Hardip Singh v. State of Punjab, reported in AIR 2009 SC 432.

64. Possession of contraband Trial of accused Though, there was evidence

regarding conscious possession of contraband by accused But no question

relating to possession, much less conscious possession was put to accused in

examination u/S.313 Criminal P.C. Acquittal of accused by High Court Not

liable to be interfered with.

64.1. State of Punjab v. Hari Singh, reported in AIR 2009 SC 1966.

65. S.8 Possession of narcotic drug Opium seized from possession of

accused Samples of seized material properly sealed and kept in proper custody

Samples have also reached FSL with seals intact Merely because employee in

office of S.P. who was in possession of samples for only few hours was not

examined Cannot be ground to acquit accused.

65.1. State of Rajasthan v. Daul alias Daulat Giri, reported in AIR 2009 SC

(Supp) 1592.

66. S.8 , S.18 , S.67 Recovery of narcotics Confessional statements by

accused Admissibility Purported raid conducted early in morning Large

number of police officers including high ranking officers were present Accused

were found to be in possession of 10 Kgs. of narcotics Documents categorically

show that accused were interrogated Therefore, confessional statements cannot

be said, in the backdrop of aforementioned events, to be made by them although


they had not been put under arrest Court while weighing evidentiary value of

such statements cannot lose sight of ground realities Circumstances attendant

to making of such statements should be taken into consideration.

66.1. U. O. I. v. Bal Mukund, reported in AIR 2009 SC (Supp) 1811 (FB).

67. S.8 , S.21 , S.42 Narcotic drugs possession Accused found in

possession of huge quantity of Brown Sugar However authorities failed to

comply with requirements of S.42(2) Documents required to prove receipt of

oral information were not brought on record Acquittal of accused.

67.1. State of Rajasthan v. Babu Lal, reported in AIR 2009 SC (Supp) 2138.

68. S.8(c) Narcotic drugs search and seizure possession Seizure of large

quantity of drugs from house of accused Ownership and possession of premises

by accused not proved Large number of persons were living in house searched

No evidence to show that accused was in exclusive possession of contraband

material seized Accused entitled to be acquitted.

68.1. Om Prakash @ Baba v. State of Rajasthan, reported in AIR 2009 SC

(Supp) 2426.

69. S.8(b) , S.20 Cultivation of opium poppy etc. Proof It must be proved

that accused cultivated prohibited plant and it is not enough that few plants were

found in the property of accused.

69.1. Alakh Ram , Appellant v. State of U.P., reported in AIR 2004 SC 2907.

70. S.8 , S.15 Illegal possession of contraband Search and seizure

Malkhana register was not produced in evidence to prove that seized articles

were kept in Malkhana No sample of seal was sent along with sample to excise

laboratory for purpose of comparing with seal appearing on sample bottles No


evidence to prove satisfactorily that seals found were in fact same seals as were

put on sample bottles immediately after seizure of contraband Acquittal of

accused – Proper.

70.1. State of Rajasthan , Appellant v. Gurmail Singh, reported in AIR 2005

SC 1578.

71. S.18 , S.21 , S.22 , S.23 , S.25 , S.29 , S.30 Illegal possession of

contraband 175 kg. of heroin and 39 kg. of opium of foreign origin recovered

from truck Appellant was original owner of said truck He sold same to another

person, however, registration was not changed in his name No evidence to

prove that he knowingly allowed any person to use vehicle for any illegal

purpose No evidence to show that appellant had any control over vehicle nor

was he in possession of said drugs Conviction of appellant on sole ground that

he was registered owner of vehicle concerned Not proper.

71.1. Balwinder Singh v. Asstt. Commr., Custom and Central Excise, reported

in AIR 2005 SC 2917.

72. S.8 , S.50 Recovery of contraband Personal search What constitutes

Accused was suspected to be carrying contraband opium Bag carried by him on

his head was searched and it was found to contain contraband opium Bag or

any such article carried by accused cannot be treated as body or part of body of

human being and it is not included within ambit of word 'person' occurring in S.

50 S. 50 of Act would not be therefore attracted Moreover, mere questioning

of accused by police on suspicion would not mean that accused was under arrest

And compelling him to be searched in presence of witnesses Would not

amount to confession Acquittal of accused on said grounds is not proper.

72.1. State of Rajasthan , Appellant v. Daulat Ram, reported in AIR 2005 SC

3816.


73. S.8 , S.27 Illegal possession of heroin Proof Accused found in

possession of two cigarettes containing 500 m. gms. which on analysis found to

contain heroin It can be inferred that same was possessed by accused for his

personal consumption Conviction of accused under S. 8 altered to one under S.

27.

73.1. Alpesh Kumar v. State of Rajasthan, reported in AIR 2004 SC 952.

74. S.8(b) , S.20 Cultivation of opium poppy etc. Proof It must be proved

that accused cultivated prohibited plant and it is not enough that few plants were

found in the property of accused.

74.1. Alakh Ram , Appellant v. State of U.P., reported in AIR 2004 SC 2907.

75. S.18 , S.9 , S.76 Narcotic Drugs and Psychotropic Substances Rules

(1985) , R.2(c) , R.17 , R.22 Illegal possession of narcotic drugs Substance

recovered from accused is opium Proof Report of chemical examiner within

meaning of R. 2(c) Not necessary Report can be obtained from any authorised

chemical examiner Rule 2(c) applies to confiscation of adulterated opium

Public analyst appointed by State of H.P. under Notification of 1441982 is

competent to analyse samples under NDPS Act.

75.1. State of H.P. v. Pawan Kumar, reported in AIR 2004 SC 4743.

76. S.8 , S.18 Conviction for offence under Prosecution case that

contraband was recovered from a heap of Kadvi, which was lying on boundary of

agricultural fields belonging to appellant and father of coaccused No evidence

to show as to who placed Kadvi on boundary of two fields Coaccused acquitted

giving benefit of doubt State not filing any appeal against his acquittal Not

open for trial Court to have surmised that contraband was in conscious

possession of appellant Patwari who proved revenue record admitted that


actual possession of either of fields has not been mentioned in records to be with

either appellant or the father of coaccused Appellant cannot be said to be in

conscious possession of contraband Appellant entitled to benefit of doubt.

76.1. Gopal v. State of M.P., reported in AIR 2002 SC 2337 (FB).

77. S.8 , S.18 Possession of opium Proof Appellant travelling in bus alleged

to be carrying opium in his attachee Such 'discovery' made by Narcotics sub

inspector who had simply gone to check buses without any prior information

Out of many passengers of the bus subinspector had checked only the appellant

and made the discovery Story given by subinspector is unnatural Panchas to

search, driver and conductor of bus not supporting prosecution case Conviction

cannot be based on sole testimony of subinspector.

77.1. Jagdish v. State of M.P., reported in AIR 2002 SC 2540 (FB).

78. S.8 Confession Conviction under Validity Confessional statement

made by accused to Superintendent of Excise under provisions of Bihar and

Orissa Excise Act Inadmissible in evidence Since excise officer is police officer

under S.25 of Evidence Act Conviction based only on fact that accused was found

together with coaccused from whom offending article was recovered and on

basis of confession of coaccused Liable to be set aside.

78.1. Abdul Rashid v. State of Bihar, reported in AIR 2001 SC 2422.

79. S.8(c) , S.22 Search and seizure ownership and possession of premises

by accused from which contraband articles were seized not established Accused

entitled to be acquitted.

79.1. S.66 Documentary evidence Admissibility Admission of accused

during the course of his interrogation Cannot be made admissible in

evidence Said document having not been sezied from custody of accused


was not admissible by invoking S. 66.

79.2. Mohd. Alam Khan , Appellant v. Narcotics Control Bureau, reported AIR

1996 SC 3033 (FB).

80. S.8 , S.15 , S.36B Illegal transportation of opium Proof Seizure of huge

lot of bags of contraband from truck Proceedings carried out in presence of four

independent witnesses They had put their signatures on documents prepared

on spot Minor contradictions cannot be ground for discarding them

Investigating Officer had produced samples of article Considering huge quantity

for nonproduction of all bags adverse inference cannot be drawn High Court

failed to consider all relevant materials and circumstances Order of acquittal is

liable to be set aside.

80.1. State of Rajasthan v. Udai Lal, reported in AIR 2008 SC (Supp) 1810.

Khet Singh vs. Union of India, reported in 2002 AIR SCW 1308 relied on.

81. S.18 illegal possession Possession of opium Proof Sample sealed by

SubInspector and then verified and sealed by SHO Merely because SHO stated

that he verified sample before he put his seal, it cannot be concluded that he

must have opened packet and there was tampering with seal Moreso, when

SHO was not crossexamined regarding tampering of seal Acquittal of accused

on sole ground of tampering Liable to be set aside.

81.1. State of Haryana v. Vidhya Dhar, reported in AIR 2002 SC 1208.

82. S.8 , S.21 Offence under Witness to seizure turned hostile Time from

seizure till deposit in FSL was long Not clear where samples were laid or

handled by how many people Alleged narcotic substance seized from accused

never produced before trial Court No evidence to connect forensic report with

seized narcotic substance Accused entitled to benefit of doubt and acquitted.


82.1. Ashok alias Dangra Jaiswal v. State of M. P., reported in AIR 2011 SC

1335.


Section 15

83. S.15 Recovery of poppy husk Proof Appellant lady was allegedly

carrying poppy husk She was found sitting on bags on road and seeing police

party she behaved in a suspicious manner Conscious possession of said

contraband goods was established Delay in sending sample to chemical

examiner was of no consequence No violation of provisions of S.50, S.52, S.57

Allegation of bias, not established Search and recovery were not vitiated in any

manner Conviction of appellant is proper.

83.1. Balbir Kaur v. State of Punjab, reported in AIR 2009 SC 3036.

84. S.15 Narcotic drugs possession Possession of contraband Acquittal of

accused Ground that conscious possession by accused was not established

Order alleged to be passed by High Court without considering position in law

relating to conscious possession as dealt in 2003 AIR SCW 3969 Accused not

represented in appeal before Supreme Court Order of acquittal set aside

Matter remitted to High Court to consider it afresh in light of decision delivered

in the case of Madan Lal v. State of H.P., reported in 2003 AIR SC 3642.

84.1. State of Punjab v. Ram Pal, reported in AIR 2009 SC (Supp) 1397

(FB).S.15 , S.50 Search and seizure of contraband Compliance of

provisions of S. 50 Necessity On search of cart, 18 bags containing poppy

husk were recovered from accused No personal search was involved

Section 50 was not attracted Acquittal of accused for purported non

compliance of provisions of S. 50 Not proper.

84.2. State of Punjab v. Balbir Singh, reported in AIR 2005 SC 27.

85. S.15 , S.50 Illegal possession of contraband Search and seizure 15 bags

of poppy husk were found by side of road and petitioner was found sitting on


them On search of petitioner nothing incriminating was found and only a sum

of Rs. 200/ was recovered but on search of bags it was found to contain Poppy

husk Search of bags would not amount to search of person of petitioner Order

acquitting accused on ground that petitioner ought to have given option to be

searched before Magistrate as required under Section 50 Liable to be set aside.

85.1. S.15 Illegal possession of contraband Search and seizure Plea of

accused that he was falsely implicated Police had prior information of fact

that Poppy husk contained in several bags had been unloaded at the point

where they were ultimately found Intimation of this fact had been given to

Superintendent of Police who reached the place where bags were unloaded

Accused was found present there Quantity of contraband was so large that

question of implanting did not arise No other explanation offered by accused

Plea of accused that he was falsely implicated Not tenable.

85.2. State of Punjab v. Balwant Rai, reported in AIR 2005 SC 1576.

86. S.15 Possession of poppy husk Proof Presence of accused at place from

where bags of poppy husk were recovered Evidence of witnesses that accused

were sitting on bags of poppy husk Recovery made from a field in a village

Accused belonging to different village No investigation by police as to how bags

of poppy husk were transferred to that place No evidence as to ownership of

poppy husk Mere failure by accused to give any satisfactory explanation for

being present at that place by itself does not prove that they were in possession

of those articles Failure to prove that accused were in conscious possession of

the articles Acquittal proper.

86.1. State of Punjab v. Balkar Singh, reported in AIR 2004 SC 4606.

87. S.15 Offences relating to "poppy straw" under S. 15 Also, includes

possessing "Poppy husk" "Poppy husk" falls within term "poppy straw" as defined


It is not necessary that "poppy straw" should have been used or made into

"Opium".

87.1. Ajaib Singh v. State of Punjab, reported in AIR 2000 SC 3374 (FB).

88. S.15 Narcotic drugs possession Possession of contraband Acquittal of

accused Ground that conscious possession by accused was not established

Order alleged to be passed by High Court without considering position in law

relating to conscious possession as dealt in 2003 AIR SCW 3969 Accused not

represented in appeal before Supreme Court Order of acquittal set aside

Matter remitted to High Court to consider it afresh in light of decision delivered

in the case of Madan Lal v. State of H.P., reported in 2003 AIR SC 3642.

88.1. State of Punjab v. Ram Pal, reported in AIR 2009 SC (Supp) 1397 (FB).

89. S.8 , S.15 Illegal possession of contraband Search and seizure

Malkhana register was not produced in evidence to prove that seized articles

were kept in Malkhana No sample of seal was sent along with sample to excise

laboratory for purpose of comparing with seal appearing on sample bottles No

evidence to prove satisfactorily that seals found were in fact same seals as were

put on sample bottles immediately after seizure of contraband Acquittal of

accused – Proper.

89.1. State of Rajasthan v. Gurmail Singh, reported in AIR 2005 SC 1578.


Section 20

90. S.20(b)(ii)(b) – Possession Conviction for possession of Ganja

Weighment of seized Ganja Moisture contents not to be separately ascertained

and excluded.

90.1. S.20(b)(ii)(B) , S.2(iii)(b) Sentence for possession of commercial

quantity of Ganja Accused found to be in possession of 1.31 Kgs. of Ganja

Seized Ganja consisted of a greenish brown colour, leafy and flowery parts of

plant Plea that weight of seeds and leaves has to be excluded for

determining whether seized quantity is commercial quantity Not tenable

Imposition of sentence of 1 year R.I. by High Court considering fact that

quantity involved was little over 1 Kg. Not liable to be interfered with.

90.2. Shiv Kumar Mishra v. State of Goa, reported in AIR 2009 SC 2011.

91. S.20(b) , S.50 Seizure of contraband from accused Evidence of Public

witnesses showing that requirement of S.50 was not complied with Acquittal of

accused No interference.

91.1. State of U. P. v. Subhash Kumar Singh Tomar, reported in AIR 2009 SC

2441 (FB).

92. S.20 Narcotic drugs possession Storing contraband Accused not

shown to be in possession or control of room from where contraband articles

were recovered No reason indicated as to why owner of room was not

examined No question regarding possession of room was put to accused in his

examination Acquittal of accused, was proper.

92.1. State of Punjab v. Lakhan, reported in AIR 2009 SC (Supp) 2172.

93. S.20(b)(ii) Possession of contraband Accused alleged to have concealed


'charas' in his shoes There was discrepancy in weight given at time of seizure

and weight received in laboratory Seal and packets containing contraband were

in possession of same person and therefore there was possibility of seized

substance being tampered Panch witness had earlier worked on two cases of

same nature in respect of person at whose instance proceedings against accused

were initiated Conviction of accused liable to be set aside.

93.1. S.20(b)(ii) Search and seizure Discrepancy in description of seal

Relevancy According to Inspector who received sample from SubInspector

inscription on seal was 'Anti Narcotic Cell Panaji Goa' According to Panch

witness it was 'ANCPS' and according to Junior Scientific Officer who tested

substance it was 'Anti Narcotic Cell' Such discrepancies in description on

seal, however, are not sufficient to hold that case of prosecution must be

disbelieved.

93.2. Rajesh Jagdamba Avasthi v. State of Goa, reported in AIR 2005 SC

1389.

94. S.20 Possession of narcotic drug Proof Plea of tampering of sample

Based on reduction in weight of sample Reduction in weight was very minimal

Seals of sample found to be intact Plea of tampering liable to be rejected.

94.1. Madan Lal v. State of H.P., reported in AIR 2003 SC 3642.

95. S.20 , S.35 Possession of narcotic drugs Conscious possession Proof

Car carrying accused persons intercepted Charas seized from car Accused

persons travelling in car knowing each other How they travelled together from

the same destination in a vehicle which was not a public vehicle not explained by

accused Presumption under S. 35 applies Evidence clearly establishes that

they knew about transportation of charas, and each had a role in the

transportation and possession with conscious knowledge Driver of car cannot


be spared Logic applicable to other accused also applies to driver.

95.1. Madan Lal v. State of H.P., reported in AIR 2003 SC 3642.S.20 Seizure

of Charas Evidence Police Inspector and Constable stated before Court that

Panch witnesses were called before they had stopped the accused However,

Panch witnesses stated that they were called thereafter Some inconsistency

in evidence regarding time at which Panch witnesses were called by police

Panchnama showing Panchas were called after P.S.I. had stopped the accused

while they were proceeding on scooter Said contradiction held was of no

significance.

95.2. Sarjudas v. State of Gujarat, reported in AIR 2000 SC 403.

96. S.20(b)(ii) Charas recovered in pursuance of disclosure statement made

by accused Evidence, however, showing that police were already informed

about place where charas was kept Coconut tree from whose stem charas was

found was standing on an open space accessible to all It cannot, therefore, be

said that it was accused who had concealed the charas there and that it was

found out only on the basis of the disclosure statement made by accused

Conviction of accused liable to be set aside.

96.1. Krishan Mohar Singh Dugal v. State of Goa, reported in AIR 1999 SC

3842.


Section 21

97. S.21 Safe custody of seized article Delay of more than three months in

sending seized article to Court No evidence to show that article was sealed and

kept in proper custody in police station Sending of the very article seized to

chemical examiner, highly doubtful Conviction cannot be sustained.

97.1. Valsala v. State of Kerala, reported in AIR 1994 SC 117.

98. S.21 Possession of small quantity of Narcotic drug Plea that it was for

personal consumption Proof Evidence on record showing that narcotic

substance was kept in six small packets in shirt pocket of accused and accused

was on streets It showed that he was waiting for his customers Possession

cannot be said to be for personal consumption Accused not entitled to benefit of

S. 27 His conviction under S. 21, held proper.

98.1. Basheer alias N. P. Basheer, Appellant v. State of Kerala, reported in AIR

2004 SC 4617.

99. S.21 , S.27 Illegal possession of drugs Conviction Validity Accused

possessing small quantity of brown sugar No evidence that it was purchased by

accused for sale Also no evidence that he was an addict Rejection of plea that

it was for personal consumption merely because he did not exhibit withdrawal

symptoms while in custody Not proper Conviction under S. 21 altered to one

under S. 27.

99.1. Raju alias Salam v. State of Kerala, reported AIR 1999 SC 2139.

100. S.21 (as amended by Amendment Act 9 of 2001) Narcotic drugs

sentence imposition Imposition of sentence To be based on content of

offending drug in mixture and not on weight of the mixture as such.


100.1. E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, reported

in AIR 2008 SC 1720. Also relied in AIR 2009 SC 1977 and AIR 2011 SC

3113.

101. S.21 Possession of contraband Search was carried out by DRI Officers

referred in S. 41 of Act Thus they need not comply with provisions of S. 42

Evidence of those officers was trustworthy and sufficient to show that accused

was in possession of seized contraband Conviction of accused No interference.

101.1. Mohd. Hussain Farah v. Union of India, reported in AIR 1999 SC 3343.

102. S.21 Offence under Delay in getting sample analysed Accused found to

be in possession and selling brown sugar Next two days following day of search

were holidays Sample sent to analyser on third day Held, there was no delay

in sending sample to analyser.

102.1. Amarjeet Singh v. State of Maharashtra, reported in AIR 2002 SC 2634.

103. S.21(c) (as amended by Act 9 of 2001), S.29 , S.2(16) Contravention in

relation to 'manufactured drug' Graded punishment 'Commercial quantity'

Appellant and other accused found together, but individually carrying black

liquid prima facie smelling of opium FSL report that black substance recovered

had 2.8 per cent anhydride morphine Consequently, it would amount to 'opium

derivative' within meaning of S. 2(xvi)(e) All 'opium derivatives' fall within

expression 'manufactured drug' as defined in S. 2(xi) Appellant is thus guilty of

an offence under S. 21 920 grams of opium recovered from appellant was of

'commercial quantity' Imposition of minimum prescribed punishment under S.

21(c) of ten years' rigorous imprisonment together with fine of Rs. 1 lakh Is

unexceptionable No evidence to show that there was criminal conspiracy

between two accused View of High Court that total quantity of substance


recovered from both accused can be taken together for imposing sentence under

S. 21(c) Therefore not proper.

103.1. Amarsingh Ramjibhai Barot v. State of Gujarat, reported in AIR 2005 SC

4248.

104. S.21 Narcotic Drugs and Psychotropic Substances Rules (1985) , R.66

Psychoptropic substance Possession for personal medicinal use up to 100 dosage

units at a time Benefit of Availability Permit whether necessary Accused

found in possession of 25 impulse of manufactured drug namely Buprenorphine

Hydrocholride (Tidigesic) along with three syringes Evidence indicative of fact

that drug was for personal consumption of accused and not for trading purpose

Quantity of drug possessed is within prescribed limit Accused entitled to benefit

of R. 66 No offence under S. 21 made out Possession of psychotropic

substance being justified under the said Rule, no separate permit is required to

be issued to the accused.

104.1. Sajan Abraham v. State of Kerala, reported in AIR 2004 SC 2796.


Section 22 & 23

105. S.23 , S.9 , S.76 , S.80 Narcotic Drugs and Psychotropic Substances Rules

(1985) , R.58 , R.59 Narcotic drugs import and export plea drugs,

cosmetics and magic remedies Accused charged for illegal export of drugs

Accused neither had applied nor obtained authority to export drugs under 1985

Act Accused however had licence to export drugs under 1940 Act Plea that

they have not committed offence under Act Not tenable Provision of Act and

Rules are in addition to and not in derogation of 1940 Act Moreover 1940 Act

does not deal with exports.

105.1. D. Ramkrishnan v. Intelligence Officer, Narcotic Control Bureau,

reported in AIR 2009 SC 2404.

106. S.22 Conviction under Plea of absence of evidence as to exclusive

possession of accused of factory where from prohibited substance was recovered

Statement of member of raiding party as to factory being locked at time of raid

He further stating that accused was not found at his residence Son and

brother of accused expressing ignorance about whereabouts of accused Accused

absconding and found from other place after about two months In his

statement under S. 313, Cr. P. C. accused not stating that he had not closed his

factory or that key had remained with some one else No plausible explanation

offered as to how offending articles came to be found in factory of which he was

sole proprietor Trial Court and High Court justified in concluding that offending

articles were found from possession of accused.

106.1. Jagdish Budhroji Purohit v. State of Maharashtra, reported AIR 1998 SC

3328.


Section 25

107. S.25 Police Officer Officer invested under S. 53 of 1985 Act with powers

of officerincharge of police station Does not have power to submit report

under S. 173 of Criminal P. C. Not therefore police officer within S. 25 of

Evidence Act.

107.1. Section 25 of Evidence Act which engrafts a wholesome protection

must not be construed in a narrow or technical sense but must be understood

in broad and popular sense. But at the same time it cannot be construed in so

wide a sense as to include on whom only some of the powers exercised by the

police are conferred. The important attribute of police power is not only the

power to investigate into the commission of cognizable offence but also the

power to prosecute the offender by filing a report or a charge sheet under S.

173 of the Code. Unless an officer is invested under any special law with the

powers of investigation under the Code, including the power to submit a

report under S. 173, he cannot be described to be a 'police officer' under S.

25, Evidence Act. The officer, other than a police officer, invested under S. 53

of the 1985 Act with powers of an officerincharge of a police station is not

entitled to exercise 'all' the powers under Chapter XII of the Criminal P. C.

including the power to submit a report or chargesheet under S. 173 of the

Criminal P. C. that being so, such officer is not a 'police officer' within the

meaning of S. 25 of Evidence Act.

107.2. Raj Kumar Karwal , Appellant v. Union of India, reported in AIR 1991

SC 45.


Section 29

108. S.29 Evidence Act (1 of 1872) , S.26 Narcotic drugs possession

confession abetment Accused charged of abetting offence of possession of

Heroin by arranging for its sale Were nabbed by Police Officers on basis of

information On interrogation by Police they disclosed name and address of

person who possessed Heroin Statements thus were made when accused were

under orders of restraint and thus in custody of Police Officers Although they

were not accused in strict sense, confession made by them would be inadmissible

in evidence Moreover, statements were subsequently retracted Indicates that

were not voluntary Conviction of accused on basis of confessional statements

improper.

108.1. Raju Premji v. Customs NER Shillong Unit, reported in AIR 2009 SC

(Supp) 1046.


Section 36 & 37 – Bail

109. S.36A(4) , Proviso Investigation Time for Extension beyond 180 days

Application for not indicating progress of investigation, nor compelling reasons

which required an extension Was neither filed by Public Prosecutor nor

indicated any application of mind by Public Prosecutor Application allowed

without any notice to accused Order liable to be set aside.

109.1. S.36A(4) , Proviso Statutory/compulsory bail Accused charged under

Ss. 24, 29, 30, 38 Application for bail filed by accused after detention for

one year Rejection on ground that his earlier application had been rejected

That period of investigation had been extended on two occasions and

complaint had been filed before last extended date And that allegations

were of serious nature – Improper.

109.2. Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotic

Control Bureau, reported in AIR 2010 SC (Supp) 744.

110. S.37 Commercial quantity Only 2.6% of sample sent, found to be

containing heroin according to Central Revenue Control Laboratory It could be

said to be intermediate quantity Rigours of provisions of S.37 relating to grant

of bail not justified in such case.

110.1. Sami Ullaha v. Superintendent, Narcotic Central Bureau, reported in

AIR 2009 SC 1357.

111. S.37 Bail Conditions that there are reasonable grounds for believing

that accused is not guilty and is not likely to commit any offence while on bail

Recording of satisfaction on both these aspects is sine qua non for granting of

bail.

111.1. Bail Grant of Satisfaction contemplated regarding accused being not


guilty, has to be based on "reasonable grounds" Expression "reasonable

grounds" implies something more than prima facie ground.

111.2. S.37(1)(b) Bail Grant of Circumstances that, (i) nothing has been

found from possession of accused, (ii) he is in jail for last 3 years and (iii)

there is no chance of appeal being heard in near future.

111.3. Union of India v. Rattan Mallik @ Habul, reported in AIR 2009 SC

(Supp) 1567.

112. S.37 Bail Accused found in possession of six packets of Ganja Grant of

bail to accused without taking note of S.37 or considering its effect Order

granting bail is liable to be set aside.

112.1. 2003 (11) SCC 764, 2004 AIR SCW 1640, 2005 AIR SCW 3255, 2005

(12) SCC 480, relied on.

112.2. N.R. Mon v. Md. Nasimuddin, reported in AIR 2008 SC 2576.

113. S.37 Bail Grant of Huge quantity of poppy straw seized from accused

Grant of bail on ground that contraband was not in exclusive possession of

accused and he is not history sheeter No reasons how ever indicated from

finding as to nonex clusive possession Bail liable to be can celled.

113.1. Union of India v. Shiv Shankar Kesari, reported in AIR 2007 SC (Supp)

908.

114. S.37 Bail Grant of Satisfaction contemplated in provision of S. 37

regarding accused being not guilty has to be based on reasonable grounds

Respondent accused found carrying large quantity of Diazepam5 mg. tablets

Recovery of tablets admitted by respondent in his confessional statement under

S. 67 Report of Central Revenue Control Laboratory was brushed aside by High

Court without any justifiable reason Evidentiary value of confessional statement


as well as Laboratory report was totally overlooked by High Court Not a case

where it could be reasonably believed that respondent was not guilty of alleged

offence Bail cancelled.

114.1. Customs, New Delhi v. Ahmadalieva Nodira, reported in AIR 2004 SC

3022 (FB).

115. S.36 , S.4 , S.41 , S.42 , S.53 Complaint of commission of offence Can

be filed by Authorised Officer, Narcotics Control Bureau (NCB) NCB is not a

statutory authority but a Deptt. of Central Govt. Authorisation of its officers

under Ss. 36, 41, 42, 53, 57 is perfectly valid.

115.1. State Through Narcotics Control Bureau v. Kulwant Singh, reported in

AIR 2003 SC 1599.

116. S.37 , S.20(b)(i) Bail Restriction imposed under S. 37 is applicable in

case where offence is punishable for terms of imprisonment of 5 years or more

Maximum term of imprisonment of 5 years for offences punishable under S. 20

(b) (i) for possessing Ganja cannot be excluded Said offence is covered within

fold of S. 37.

116.1. Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar, reported in

AIR 2001 SC 830.

117. S.37 Bail Offence punishable for term of imprisonment of 5 years or

more Accused not to be released on bail unless there are reasonable grounds to

believe that he is not guilty of offence Merely because accused was found to be

continuing to hold bag containing opium during raid period, cannot be said that

conduct of accused or raiding party is unnatural No ground to believe that he is

not guilty of offence Bail cannot be granted Particularly, in view of rejection of

earlier bail application Since second application for bail without mentioning


change in circumstances being deemed review, is not permissible.

117.1. State of M.P. v. Kajad, reported in AIR 2001 SC 3317.

118. S.36B, S.32A Suspension of sentence passed on person convicted under

Act Power of Court as to Taken away by S. 32A S. 32A has overriding effect

on powers of suspension, commutation and remission provided under Criminal

P.C.

118.1. Maktool Singh v. State of Punjab, reported AIR 1999 SC 1131.

119. S.167(2) , Proviso Narcotic Drugs and Psychotropic Substances Act (61 of

1985) , S.37 Bail Grant of S. 37 of Act does not exclude application of

proviso to S. 167 (2) Failure of prosecution to file chargesheet within

prescribed time under S. 167 (2) Proviso Does not create indefeasible right on

accused to exercise it at any time Charge sheet filed and accused in custody on

basis of order of remand Accused cannot be released on bail on ground that

chargesheet was not submitted within statutory period.

119.1. Dr. Bipin Shantilal Panchal v. State of Gujarat, reported in AIR 1996 SC

2897 (FB).


Section 67 – Confession

120. S.67 , S.53 Evidence Act (1 of 1872) , S.25 , S.26 Criminal P.C. (2 of

1974) , S.173 Confession Recorded by officer of Central Bureau of Narcotics

Admissibility Merely because officers of Central Bureau of Narcotics are

invested with powers of an officerincharge of police station shall not make

them police officers within meaning of Ss. 25, 26 of Evidence Act They are not

conferred with power to submit report under S. 173, Cr. P. C. which is necessary

to make them police officers Confession recorded by these officers is admissible

in evidence.

120.1. S.67 Confession Whether voluntary Confession recorded by officers

of Narcotics Bureau Accused produced before Court on several dates not

complaining of any torture or harassment in recording confession Confession

is voluntary Retraction of confession for first time in statement u/S. 313,

Criminal P. C. Irrelevant Conviction for offence u/Ss. 8, 18 of NDPS Act can

be maintained solely on basis of such confession.

120.2. Ram Singh v. Central Bureau of Narcotics, reported in AIR 2011 SC

2490.

121. S.67 Confessional statement Delay in recording Impact on reliability

Huge stock of heroin apprehended from accused travelling in truck and car

Customs office 20 kms. away from place where vehicles were apprehended

Accused not knowing regional language Hindi knowing officer had to be

arranged Statement recorded next day Cannot in circumstances be said to be

delayed No complaint of torture made by accused to Magistrate before whom

they were produced Vague complaint of torture made only in statement under

S. 313, Criminal P.C. Confessional statements cannot be held to be involuntary

Can be made basis of conviction.



Section 68

122. S.68H , S.68J Notice of forfeiture of property Prerequirement Some

material indicating direct nexus between property sought to be acquired and

properties illegally acquired Must be available before competent authority.

122.1. Section 68H provides for two statutory requirements on the part of the

authority viz.; (i) he has to form an opinion in regard to his 'reason to believe'

and (ii) he must record reasons therefor. Both the statutory elements, namely,

'reason to believe' and 'recording of reasons' must be premised on the

materials produced before him. Such materials must have been gathered

during the investigation carried out in terms of Section 68E or otherwise.

Indisputably therefore, he must have some materials before him. If no such

material had been placed before him, he cannot initiate a proceeding. He

cannot issue a show cause notice on his own ipse dixit. A roving enquiry is not

contemplated under the Act as properties sought to be forfeited must have a

direct nexus with the properties illegally acquired. Whenever a statute

provides for 'reason to believe', either the reasons should appear on the face

of the notice or they must be available on the materials which had been

placed before him.

122.2. 2003 AIR SCW 3751 not Followed.

122.3. Aslam Mohd. Merchant v. Competent Authority, reported in AIR 2009

SC (Supp) 536.

123. S.68C , Proviso Limitation confiscation appellate tribunal res

judicata Forfeiture of property Limitation Confiscation of flats and Bank

accounts in name of wife of detenu Petition against Dismissed in regard to

confiscation of flats but matter in relation to Bank accounts remanded to

Appellate Tribunal During pendency whereof, proviso to S.68C providing period


of limitation for initiation of proceedings for confiscation was amended Same

by itself would not give rise to another cause of action to enable appellant to

raise contentions which he could and ought to have raised in earlier proceedings.

123.1. Smt. Heena Kausar v. Competent Authority, reproted in AIR 2008 SC

2427.


Section 56

124. S.56 Search and Seizure Sample taken with aid of weighing scale and

weight brought from grocery shop Weight of sample found to be more by 15

gms when weighed in laboratory and recorded with precision scale In facts and

circumstances difference of 15 gms in sample weight cannot be said to be of

much significance Does not by itself cast serious doubt as to credibility of

prosecution case.

124.1. S.50 , S.56 Search of person Applicability Vehicle was searched and

Charas was recovered from vehicle Person of accused were not searched

Thus provision of S.50 was not required to be complied with Moreover

option in writing given to accused whether they want to give personal search

or search of vehicle before Magistrate or Gazetted Officer It is nothing but

apprising them of their right Therefore requirement of giving option to be

searched u/S.50 can be said to be satisfied.

124.2. Dehal Singh v. State of H. P. , reported in AIR 2010 SC 3594.


Section 41

125. S.41 , S.36A Nonbailable warrant Power to issue Plea that power to

issue warrant of arrest only vests in Magistrate and not in Special Court Plea

not tenable S. 41 does not take away powers vested in Special Court by S. 36A.

125.1. Md. Malek Mondal v. Pranjal Bardalai, reported in AIR 2005 SC 2406.

126. S.41(2) , S.42(2) Search and seizure By Gazetted Officer empowered

under S. 41(2) Mandatory requirement under S. 42(2) of forwarding

information to his immediate official superior Need not be complied with Act

reposes more trust on a Gazetted Officer.



Section 51

127. S.51 Criminal P.C. (2 of 1974) , S.165 Search and seizure Place and

time for drawal of sample Preparation of seizure memo at spot Instructions

relating to, issued by Narcotic Control Bureau are to be followed Seizure memo

though not prepared at spot but same was done at office of Customs Dept.

Accused persons present throughout procedure and there was no allegation that

contraband seized was meddled with by the officers No prejudice caused to

accused Conviction not vitiated.

127.1. Khet Singh v. Union of India, reported in AIR 2002 SC 1450.


Section 60

128. S.60(3) Expression "owner" in case of vehicle purchased on hire purchase

agreements Means person in whose name vehicle stands registered under the

provisions of Motor Vehicles Act Truck in question taken by appellant on hire

purchase agreement Appellant shall be treated as owner Confiscation of truck

used for carrying narcotic drugs Not bad, merely on grounds that appellant had

no knowledge of the fact that it was used for carrying any narcotic substances.

128.1. Ganga Hire Purchase Pvt. Ltd. v. State of Punjab, reported in AIR 2000

SC 449.


Section 35

129. S.35 Presumption as to culpable mental state of accused Accused

admitted factum of recovery of narcotic drug from gunny bags stacked in his

vehicle Burden is on him to prove that he had no knowlege that those gunny

bags contained such substance Discharge of burden Modes stated.

129.1. S.20(b)(ii) , S.35 Conviction under Accused found carrying narcotic

drugs in gunny bags stacked in his vehicle Nonrecording of vital

information by police before proceeding for search Information recollected

from memory of police officer indicating utilisation of transportation service

of accused by real culprits No connivance between accused and real culprits

Nothing to suggest that real culprits and accused were known to each other

Police Officer had arrayed real culprits who absconded and could not be

arrested Accused can be said to have no knowledge that gunny bags

contained narcotic drugs Rebuts presumption under S. 35 Conviction set

aside.

129.2. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in AIR 2000

SC 821 (FB).