Section 42 of NDPS Act-Compliance
| GAUHATI HIGH COURT |
| Mrs. Marli Vankung, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 21 (b) Against conviction – Recovery of 28 gms heroin – Evidence showing that appellant was apprehended and the contraband seized by members of an NGO who did not have requisite authority under Section 41 to make the seizure – No evidence existing to show that the Excise Officer did not have requisite time to reduce the information to writing before making the seizure and arresting the appellant as required under Section 42 – Requirements of Sections 41, 42 held mandatory – Non compliance thereof entitling the appellant to benefit of doubt – Conviction and sentence set aside.
| GAUHATI HIGH COURT |
| Mrs. Susmita Phukan Khaund, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 42 and 50 Illegal possession of contraband – Conviction and sentence – Appeal – Seized articles were not exhibited in the Court – Evidence does not transpire seizure of heroin as per proper procedure – Appellant granted benefit of doubt – Conviction and sentence set aside.
| DELHI HIGH COURT |
| Mr. Amit Sharma, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1988, Sections 21 and 29 – Criminal Procedure Code, 1973 Section 439 Allegedly involved in illegal procurement and supply of drugs, including heroin, from Bareilly, Uttar Pradesh to various parts of Delhi – FIR was lodged against applicant for supply of drugs – Perusal of medical records of applicant, showed that he suffers from post pulmonary tuberculosis sequalae with bronchiectasis causing cough, shortness of breath and hemoptysis (on and off) – Applicant in custody since 21.07.2015, i.e., for more than 6 years – Prima facie non-compliance of second proviso to Section 42 (1) of Narcotic Drugs and Psychotropic Substances Act is made out and therefore, conditions of Sec tion 37 of Narcotic Drugs and Psychotropic Substances Act are satisfied.
| PUNJAB AND HARYANA HIGH COURT |
| Sanjay Vashisth, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Section 42 (2) – Registering of FIR by Police just on receipt of information at Police Station for compliance of Section 42 (2) of NDPS Act , before conducting the raid at the informed place and affecting of recovery – No Police official present in the Police Station that time is examined – No police official taking the special report to Magistrate is examined – Endorsement of receipt of special report by Magistrate is on next day after more than 20 hours, make the case of prosecution is highly doubtful – There could be only one Daily Diary entry on receipt of information under Section 42 (2) of NDPS Act and after affecting recovery – There could be a second ruqa to the police station followed by registration of another Daily Diary Report (DDR) qua the raid and recovery – In the absence of adopting of correct procedure, registration of FIR appears to be highly doubtful – Appeal allowed – Judgement of conviction set aside – Accused acquitted.
| PUNJAB AND HARYANA HIGH COURT |
| N.S. Shekhawat, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1985, 42 – Poppy Husk – Recovery of 11.6 Kg Poppy husk – Secret information received at the spot by the police team, however, the secret information was not reduced into writing – Consequently, there was no question of sending the secret information to the police station or higher police officers – Breach of mandatory provision of Section 42 – Sending of ruqa for recording of the FIR in the police station can never be termed as sufficient compliance of Section 42 of the Act – Trial Court wrongly convicted the appellant.
| PUNJAB AND HARYANA HIGH COURT |
| N.S. Shekhawat, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Sections 15 and 42 – Recovery of 250 grams poppy husk – Conviction and sentence – Non-compliance of Power of entry, search, seizure and arrest without warrant under Section 42 of Act – Held, compliance of requirements of Section 42 (1) and 42 (2) of the NDPS Act in regard to writing down information received and sending copy thereof to superior officer, should normally precede entry, search and seizure by officer – In special circumstances involving emergent situation, recording of information in writing and sending copy thereof to officer superior may get postponed by reasonable period, i.e., after search, entry and seizure – Thus, total non-compliance of requirements of sub- sections (1) and (2) of Section 42 of NDPS Act impermissible in law and provisions of Section 42 of NDPS Act are mandatory and not directory – Star witness of prosecution who supported case of prosecution in all material particulars – However, in his cross-examination, he clearly admitted that he acted on receipt of secret information, which was received by him at village – However, he did not separately reduce secret report into writing and did not send any intimation regarding secret information to his higher officers in writing – Even from perusal of his entire testimony, it is not discernible that he complied with mandatory provisions of Section 42 (2) of NDPS Act at the time of search and seizure or within period prescribed by statute.
| PUNJAB AND HARYANA HIGH COURT |
| N.S. Shekhawat, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Sections 22 and 42 – Recovery of smack weighed as 500 grams – Conviction and sentence – Non compliance of provision of search and seizure under Section 42 – Held, case of recovery of contraband from public place therefore, Section 43 of NDPS Act would be applicable in matter of procedure and not Section 42 of NDPS Act – Hence, plea regarding non-compliance of Section 42 of Act cannot be accepted.
| ORISSA HIGH COURT |
| S.K. Sahoo, J. |
| Decided: 2023 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (b)(ii)(C) Evidence Act , 1872 Section 154 Recovery of 100 Kgs of Ganja – Appeal against conviction – Sample of 50 grams of ganja in duplicate was collected from ten packets out of fifty packets and samples were not drawn from each packet but they were drawn randomly from some packets – Absence of specification of the air bag in favour of a particular appellant/co-accused – Absence of any material that each of five packets found in a particular air bag was tested to be ganja – As defined under Section 2 (iii)(b) of the Narcotic Drugs and Psychotropic Substances Act – Difficult to believe that all the five packets found in each air bag seized from the appellants/co-accused was containing contraband ganja – Joint seizure list was not proper – Absence of any clinching evidence relating to compliance of mandatory provision under Section 42 of the Narcotic Drugs and Psychotropic Substances Act – Appeal allowed.
| ORISSA HIGH COURT |
| Sashikanta Mishra, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Section 55 – Police to take charge of articles seized and delivered – Testimony of authorized officer shows that he has stated absolutely nothing as regards sealing of seized packets – Statement of IIC that he re-seized seized articles and does not say anything about resealing of seized packets – Thus, statutory intent of Section 55 is to ensure that seized article is sealed and kept in safe custody till its production before Special Court – Thus, serious violation of mandatory provisions of statute as envisaged under Section 42 and 55 of NDPS Act – Therefore, conviction and sentence set aside.
| ORISSA HIGH COURT |
| Sashikanta Mishra, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Sections 20 (b)(ii)c, 29 and 42 – Recovery of 105 KGs 635 grams of ganja – Conviction and sentence – Plea of non compliance of provision of power of entry, search, seizure and arrest without warrant – Held, provision mandates that any information received regarding the commission of offence has to be reduced into writing and same has to be proved before trial court which is mandatory provision which must be shown to have been complied with – Held, discrepancy in evidence of authorized officer and IIC regarding receipt of information of transportation of contraband ganja – Station diary entry made by IIC did not spoke of by any of other witnesses much less by P.Ws – Thus, reasonable doubt as regards sanctity of procedure adopted by raiding party.
| RAJASTHAN HIGH COURT |
| Dinesh Mehta, J. |
| Decided: 2022 |
Narcotics Drugs and Psychotropic Substances Act , 1985, Sections 42 , 8 and 18 – Recovery of ‘opium’ – Conviction and sentence – Appeal – Provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act have been enacted in order to avoid arbitrary and unwarranted searches; eliminate fictitious recoveries and to ward off unnecessary harassment to the citizens – In the instant case, neither the grounds for proceeding without a search warrant have been recorded nor has any intimation of such reason to the higher officers been given – Hence, search was fundamentally void – Conviction and sentence set aside – Appeal allowed.
| PUNJAB AND HARYANA HIGH COURT |
| Arvind Singh Sangwan, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 42 Search and Seizure – District Ayurvedic Officer – District Ayurvedic Officer is not defined as an officer under Section 42 of Narcotic Drugs and Psychotropic Substances Act and there is no notification appointing him as an authorized officer under Section 42 of Narcotic Drugs and Psychotropic Substances Act – Thus, District Ayurvedic Officer is not competent officer to conduct search and seizure formalities under Narcotic Drugs and Psychotropic Substances Act .
| PUNJAB AND HARYANA HIGH COURT |
| Arvind Singh Sangwan, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 Quashing of FIR – Search and Seizure – License for Manufacturing of Medicines – Petitioner was granted various licenses for manufacturing of Ayurvedic/Unani/Siddha medicines by using Bhang leaves (Hemp) as raw material – Petitioner purchased Bhang from the authorized dealer – While petitioner was in process of making its first batch of medicines, premises were inspected by District Ayurvedic Officer who found that petitioner has prepared ‘Bhang Ka Ghan’ by Hemp process and failed to produce any license for same – He took possession of contraband took to police station and got FIR lodged on same very day – Held,
(i) FIR is registered without verifying the various licenses issued to the petitioner.
(ii) District Ayurvedic Officer was not competent under Section 42 of Narcotic Drugs and Psychotropic Substances Act , which vitiates the entire process of recovery.
(iii) ‘Bhang’ the cannabis leaves is not included in the definition of narcotics.
(iv) “Hemp Resin” in wet form recovered from the petitioner was, in fact, “Hemp” (“Ghan”) as defined under Rules 158(B)(ii) and (iv) of the Drugs and Cosmetics Rules, is not covered under the NDPS Act .
(v) As per the FSL report, the sample is found to be containing Tetrahydrocannabinol forming part of “Cannabis Resin” – However, no percentage of it was mentioned – Therefore, mere presence of Tetrahydrocannabinol, will not make it a narcotic substance even if extracted out of the Cannabis leaves i.e. “Bhang”.
(vi) In case the quantity of the “Resin” was found to be more than the authorized limit of the license, it can only be a violation under the Drugs and Cosmetics Rules and not under the NDPS Act .
(vii) Since, the petitioner is holding the valid licenses, therefore, no presumption of culpable mental state under Section 35 of the Narcotic Drugs and Psychotropic Substances Act can be drawn against the petitioner.
(viii) Thus, before registration of the FIR, no fair investigation from the point of view of the accused as guaranteed as a constitutional right under Article 21 of the Constitution of India, was conducted – FIR quashed.
| KARNATAKA HIGH COURT |
| Mr. M. Nagaprasanna, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Section 482 Proceedings initiated against accused for offences under Sections 8(c), 21(c), 22(c), 27(a), 20(ii)(B) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act , 1985 – Present petition filed seeking quashing of said proceedings – Petitioner contending that the officer who has investigated into the offence is not the officer in-charge of the Police Station as is required under Section 42 of the Act – State Government has issued a notification in exercise of powers conferred on it in terms of sub- section (2) of Section 53 of the Act investing Officers above the rank of Sub-Inspector of Excise Department and Drugs Inspector of Drugs Control Department with the powers of an officer in-charge of the Police Station for investigation of offences under the Act – Another notification comes to be issued on the same day and on the same lines authorizing those very officers who are invested with such powers as observed in the notification to be invested with such powers under Sections 41 and 42 of the Act as well – Therefore, the two notifications, as required under Sections 42 of 53 of the Act are already in place, which dearly depict the Sub-Inspector being empowered to conduct investigation into the offences under the Act – Thus, proceedings initiated against the petitioner not vitiated – Hence cannot be quashed – Present petitions dismissed.
| JHARKHAND HIGH COURT |
| Mr. Rongon Mukhopadhyay and Ambuj Nath, JJ. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 17 and 22 Indian Penal Code, 1860 Sections 341 , 323 , 504 and 34 Appeal against conviction – Recovery of 5 kgs liquid opium – Appellant was not apprehended on spot and has been implicated on the disclosure – Trial Court has committed an error in not considering the mandatory provisions under Section 42 – As per the self statement of the informant on a telephonic information which was entered in the station diary, a raid was conducted and one of the appellants was apprehended – However, station diary entry was not exhibited by the prosecution which would have indicated the grounds of his belief if any as envisaged under the proviso to Section 42 (1) – Even if there is a delayed compliance with satisfactory explanation considering the emergency or expediency of the situation which may lead to the escape of an offender the same is acceptable – Thus, mandatory provisions of Section 42 were not followed – Conviction and sentence set aside.
| ORISSA HIGH COURT |
| A.K. Mohapatra, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 42 Chance recovery – Non-compliance of Section 42 – Police patrolling party on suspicion intercepted vehicle and upon verification found contraband ganja was being transported in two vehicles in question – Therefore, they had no time or scope to record such informant and intimate to their superior as is required under Section 42 of Act , 1985 – In instant case, petitioner cannot take ground that there was non-compliance of Section 42 of Act , 1985.
| ORISSA HIGH COURT |
| A.K. Mohapatra, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Section 439 Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 42 and 50 Noncompliance of – Regular bail – Question as to whether fact of compliance/non-compliance of mandatory provisions like Sections 42 and 50 of Act , 1985 could be examined by Court while considering bail application? – Held, that if non-compliance of mandatory provision of Sections 42 and 50 of Act , 1985 is clear and self-explanatory from a bare reading of F.I.R./Prosecution Report and prosecution is not in a position to explain that same has been substantially complied with, in such eventuality such non-compliance of Sections 42 and 50 of Act , 1985 could be considered and should be taken as a ground to enlarge petitioner on bail.
| ORISSA HIGH COURT |
| S.K. Sahoo, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (b)(ii)(C) Recovery of 220 Kgs Ganja – Evidence of the official witnesses clear, cogent, trustworthy and reliable – Appellants were found inside the offending car and there was seizure of commercial quantity of ganja in six jerry bags from the said car and there has been compliance of Section 42 of the Act – Appellants have failed to rebut presumption under Sections 35 and 54 of the Act and the defence plea is not acceptable – Appeal dismissed.
| KARNATAKA HIGH COURT |
| Suraj Govindaraj, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Section 482 Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 20 (B)(ii)(C), 50 , 42 and 43 – Prayer to quash the entire proceedings – On receipt of credible information that petitioner was in possession of ganja he arrived at the spot and found in possession of 1100 gms of ganja – Section 50 of the Act mandates that search has to be carried on the person – A personal search has been debarred in absence of a Gazetted Officer or the Magistrate – When search is not carried out, terms of sub- section (1) of Section 50, of the Narcotic Drugs and Psychotropic Substances Act the search is vitiated – Whether the search of a bag would amount to a search of a person – Bag was carried on the person of the petitioner and not lying in a private place of public place – If not for the petitioner carrying the bag, the existence of the bag and search of the bag would not arise – Bag which has been carried by the petitioner would be on the person of the petitioner and cannot be regarded to be dehors the petitioner – Mahazar did not indicate why the search was carried out by the police authorities in the police station without producing the petitioner before the nearest Gazetted officer or nearest Magistrate – Search has been carried out in the present case of a bag on the person of the petitioner amounting to search of a person, mandatory requirement of Subsection (1) of Section 50 of Narcotic Drugs and Psychotropic Substances had not been followed – Entire search was vitiated – All further proceedings requires to be quashed.
| GAUHATI HIGH COURT |
| Malasri Nandi, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 42 Compliance of Section 42 (2) Narcotic Drugs and Psychotropic Substances Act , mandatory – When search was conducted by gazetted officer himself, compliance not necessary.
| GAUHATI HIGH COURT |
| Malasri Nandi, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Section 374 (2) Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 17 (a), 36B and 42 Conviction and Sentence – Accused allegedly found in possession of 51 opium coated cloth rolls – Recovery of contraband – Accused admitted in statement under Section 313 Criminal Procedure Code that opium was seized from her possession and she had kept it for medicinal use – If she had no intention to keep opium secretly, she could have stored it in simple packet for personal use – Officer incharge conducted search and seizure as gazetted officer, compliance of Section 42 , not necessary – Conviction, proper.
| ORISSA HIGH COURT |
| S.K. Sahoo, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 20 (b)(ii)(C) Recovery of Ganja – Conviction and Sentence – Appeal – Since there is no consistency in the evidence of the official witnesses regarding drawal of samples, sealing of the bulk quantity of contraband articles in bags as well as sample packets and there is total non-compliance of the provision under Section 42 of the Narcotic Drugs and Psychotropic Substances Act – Learned Trial Court has committed error in holding that since it is a case of chance recovery of ganja by police patrol party under the leadership of P.W.9, the provisions under Section 42 of the Narcotic Drugs and Psychotropic Substances Act are not applicable – Conviction and sentence set aside – Appeal allowed.
| KERALA HIGH COURT |
| C.S. Sudha, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 20 (b)(ii)(B), 42 and 43 Search and seizure took place near comfort station situated in bus stand which is admittedly a public place – Held, since search and seizure effected in public place, question of non-compliance of provisions of Section 42 Narcotic Drugs and Psychotropic Substances Act does not arise – Provisions of Section 43 would apply.
| SUPREME COURT OF INDIA |
| Ajay Rastogi and C.T. Ravikumar, JJ. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985, Section 20 (b)(ii)(C) – Possession of commercial quantity of illegal ‘Ganja'(Cannabis) – Offences under NDPS Act are very serious in nature and against society at large and no discretion is to be exercised in favour of such accused who are indulged in such offences under Act – It is menace to society, no leniency should be shown to accused persons who are found guilty under NDPS Act – But while upholding same, Court cannot be oblivious of other facts and circumstances as projected in present case that old illiterate lady from rural background, who was senior citizen at time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that prosecution failed to examine and taking note of procedural compliance as contemplated under Sections 42 , 50 and 55 of NDPS Act , held appellant guilty for reason that she was residing in that house but at the same time, completely ignored – Therefore, conviction upheld and sentence reduced to 12 years’ rigorous imprisonment and fine of Rs. 1 lakh.
| RAJASTHAN HIGH COURT |
| Dr. Pushpendra Singh Bhati, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (ii) 6 kg. charas recovered from bag in possession of accused – Conviction of accused – Appeal against conviction – Non-compliance of Section 57 of the Act of 1985 does not vitiate the entire case of prosecution – Provision of Sections 42 and 50 are not applicable – Conviction of accused held proper – Hence upheld.
| RAJASTHAN HIGH COURT |
| Dr. Pushpendra Singh Bhati, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 8 and 18 Appeal against conviction – Recovery of 10 kilograms opium – Charges were framed – Appellants alleged that statutory compliance, as mandated under Section 57 Narcotic Drugs and Psychotropic Substances Act , 1985 has not been made – Sections 42 and 50 are not attracted – Non-compliance of Section 57 of the Act of 1985 does not vitiate the entire case of prosecution – No case for interference in the judgment of conviction, along with the direction of seizure is warranted.
| ORISSA HIGH COURT |
| S.K. Sahoo, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (b)(ii)(c) Appeal against conviction – Recovery of 65 Kgs. 500 grams ganja without any authority or licence – Recovered articles were nothing but Cannabis – When the evidence relating to the mandatory compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act is doubtful and there is no cogent evidence relating to compliance of Section 57 of the Narcotic Drugs and Psychotropic Substances Act , the impugned judgment and order of conviction of the appellant of the Act and sentence passed there under cannot be sustained in the eyes of law – Appellant is acquitted of the charge.
| RAJASTHAN HIGH COURT |
| Dr. Pushpendra Singh Bhati, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (ii) 6 kg. charas recovered from bag in possession of accused – Conviction of accused – Appeal against conviction – Non-compliance of Section 57 of the Act of 1985 does not vitiate the entire case of prosecution – Provision of Sections 42 and 50 are not applicable – Conviction of accused held proper – Hence upheld.
| RAJASTHAN HIGH COURT |
| Dr. Pushpendra Singh Bhati, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 8 and 18 Appeal against conviction – Recovery of 10 kilograms opium – Charges were framed – Appellants alleged that statutory compliance, as mandated under Section 57 Narcotic Drugs and Psychotropic Substances Act , 1985 has not been made – Sections 42 and 50 are not attracted – Non-compliance of Section 57 of the Act of 1985 does not vitiate the entire case of prosecution – No case for interference in the judgment of conviction, along with the direction of seizure is warranted.
| ORISSA HIGH COURT |
| S.K. Sahoo, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (b)(ii)(c) Appeal against conviction – Recovery of 65 Kgs. 500 grams ganja without any authority or licence – Recovered articles were nothing but Cannabis – When the evidence relating to the mandatory compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act is doubtful and there is no cogent evidence relating to compliance of Section 57 of the Narcotic Drugs and Psychotropic Substances Act , the impugned judgment and order of conviction of the appellant of the Act and sentence passed there under cannot be sustained in the eyes of law – Appellant is acquitted of the charge.
| PUNJAB AND HARYANA HIGH COURT |
| Mr. Gurvinder Singh Gill, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 21 Criminal Procedure Code, 1973 Section 439 Regular Bail – Search and Seizure – Vehicle in Transit – Indulgement is sale of heroin – Commercial Quantity – Long Custody – Commercial quantity of heroin was recovered from each of three accused and they are in custody for substantial period of about last 2 years and 7 months – During a naka, if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the Act would not be applicable – Trial Court directed to expedite the trial by securing presence of PWs and fixing the date in advance for recording of evidence.
| ANDHRA PRADESH HIGH COURT |
| Subba Reddy Satti, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Sections 437 and 439 Narcotic Drugs and Psychotropic Substances Act , 1985 Section 20 (b)(ii)(C) read with 8 (c) Bail – Illegal transportation of ganja – 50 kgs recovered – Petitioner contends that Head Constable is not competent person to seize contraband – Alleged search was conducted by Head Constable, who is superior to Constable – Therefore, as per Section 42 of the NDPS Act he is authorized to conduct search – Petitioner in jail since 19.03.2022 – Contraband seized from conscious possession of the petitioner is commercial quantity – Bail not granted.
| MADRAS HIGH COURT |
| Dr. G.Jayachandran, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 8 (c) read with 29 and Section 18(b) and Section 28 – Contraband – Recovery of 5.5 kgs of opium from the trolley bag of appellant – Search based on prior information duly recorded and done at a public place falls under Section 43 of Narcotic Drugs and Psychotropic Substances Act and not under Section 42 of the Act – Before conducting body search the accused was explained about the right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act – Proper procedure followed – Documentary and oral evidence, proving the case of prosecution – Conviction and sentence of 10 years upheld – Default sentence for fine is reduced to three months Rigorous Imprisonment, instead of one year Rigorous Imprisonment.
| UNJAB AND HARYANA HIGH COURT |
| Jasjit Singh Bedi, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973, Section 439 Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 22 , 25 , 27A , 29 and 42 – Grant of regular bail – Contravention in relation to psychotropic substance – Abetment and criminal conspiracy – Power of entry, search, seizure and arrest without warrant or authorization – Compliance of provisions of Section 42 of NDPS Act – Held, since there is no compliance of Section 42 (1) and (2), there is no possibility of conviction of the accused – While delayed compliance was acceptable, however, where there was a total non compliance of Section 42 , the accused ought to be granted the concession of regular bail – Bail granted to the accused – Petition is allowed.
| GAUHATI HIGH COURT |
| Marli Vankung, J. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 21 (b), 25 and 29 5 .3 grams of heroin recovered from appellants by NRDC party – Information given to Excise and Narcotics Department accordingly – Contraband seized and appellants were arrested – Appellants convicted by trial court under Section 21(b) read with Section 25 and Section 21(b) read with Section 29 – Present appeal filed against same – From the evidence adduced and documents exhibited, it is apparent that the S.A was seized by the members of the NRDC and was kept at MYA hall along with both the accused persons – However, under Section 41 of Narcotic Drugs and Psychotropic Substances Act the members of NRDC did not have the authority to seize the S.A from the appellant ‘K’, no matter how their good intentions were – It would have been more appropriate for them to immediately inform the Excise and Narcotics – The evidence of PW.3/seizing officer shows that on receiving the information from NRDC on 13.4.2018 he and party proceeded to the P.O – However, there is no evidence showing that this was reduced into writing before the seizure and arrest was made as mandated by Sec tion 42 of the Narcotic Drugs and Psychotropic Substances Act – Also there is no evidence suggesting that when PW.3 received the information he was not in the police station and did not have sufficient time to take such action as mandated under Section 42 of Narcotic Drugs and Psychotropic Substances Act – Admission under Section 313, Criminal Procedure Code not being substantive evidence cannot be made the sole basis of conviction if prosecution evidence not inspiring confidence – Conviction and sentence set aside – Appeal allowed.
| MANIPUR HIGH COURT |
| Ahanthem Bimol Singh, J. |
| Decided: 2022 |
Criminal Procedure Code, 1973 Section 389 Narcotic Drugs and Psychotropic Substances Act , 1985 Sections 21 (b), 22 (c) and 29 Suspension of sentence pending appeal – Release on bail – Conviction under NDPS Act – Contention that information obtained about commission of the offence was not taken down in writing and produced during trial in terms of Sections 41(2), 42 (1) and (2) – There is no provisions under the Act and Rules laying down specifically as to how the information or disclosures are to be taken down in writing – SP (NAB) have recorded in writing the disclosure about committing offence under the NDPS Act by three accused persons in his authorization letter – SP (NAB) had substantially complied with the provisions under Section 41 (2) of the Narcotic Drugs And Psychotropic Substances Act – Search and seizure had been carried out under the provisions of Section 41 (2) and (3) of the Narcotic Drugs And Psychotropic Substances Act – No question of attracting the provisions of Section 42 of the said Act arises – Contentions raised by applicant about non-compliance with the provisions of Section 42 (1) and (2) misconceived and did not arise at all – No any ground for interfering with the impugned judgment and order.
| CALCUTTA HIGH COURT |
| Joymalya Bagchi and Bivas Pattanayak, JJ. |
| Decided: 2022 |
Narcotic Drugs and Psychotropic Substances Act , 1985 Section 42 Where search and seizure is conducted by a Gazetted officer himself acting under Section 41 of Narcotic Drugs and Psychotropic Substances Act , compliance with Section 42 of Narcotic Drugs and Psychotropic Substances Act is not necessary in such case.