Section 22

The Rajasthan High Court set aside a Special Judge's refusal to have a fresh sample of seized MDMA tested. The accused said the sample sent to the laboratory did not come from the contraband in the maalkhana; holding that a fair trial includes verifying such evidence, the Court directed a Magistrate to draw 10 grams from the remaining 380 grams for the FSL, which must report within 30 days (paras 13, 21, 27-28).

The Supreme Court has set aside a Delhi High Court order that granted an NDPS accused bail solely because compliance with Section 52A was delayed. Delay or non-compliance with Section 52A, it held, is a procedural irregularity, not an illegality, and does not by itself justify bail or vitiate the trial. The bail application goes back for fresh consideration.

The Rajasthan High Court set aside the convictions and 14-year sentences of two men in a tramadol tablet case, holding that samples drawn at the spot without a Magistrate, in admitted breach of Section 52A of the NDPS Act, were enough to discard the prosecution case. The absence of independent search witnesses and a delay in sending samples to the FSL added to the doubt (paras 12, 16-21).

The Rajasthan High Court cancelled bail granted by a Special Judge to the alleged central figure in a tramadol and alprazolam racket. The Special Judge had treated the seized psychotropic substances as medicines, ignored commercial quantity and recorded no Section 37 satisfaction; after bail, two investigating officers were transferred or prosecuted, so tampering with the investigation could not be ruled out (paras 18-19, 24-27).

The Supreme Court set aside the Delhi High Court's grant of post-arrest bail to an accused in an NDPS case in which large quantities of psychotropic tablets were seized (paras 2, 5, 19). Section 67 confessions had to be kept aside after Tofan Singh, but the respondent's disclosures leading to a large recovery and call records linking the accused should have dissuaded the High Court (paras 16-17). Custody length or a filed charge-sheet is not by itself a ground for bail under Section 37 (para 18).

The Supreme Court refused to cancel the bail of five NDPS accused whose arrests rested essentially on statements of themselves and co-accused under Section 67, which Tofan Singh makes inadmissible at trial; call records were left for trial (paras 9-10). But it cancelled the bail of one accused from whose rented flat commercial quantities were recovered, holding that he could not claim parity in the face of Section 37 (para 11).

The Supreme Court set aside a Punjab and Haryana High Court order that suspended the sentences of convicts in 25 cases involving codeine syrups, diphenoxylate tablets and similar manufactured drugs, on the view that such cases belonged under the Drugs and Cosmetics Act. Under Section 80, it held, the NDPS Act applies in addition to that Act, and unlicensed bulk possession is prima facie a violation of Section 8 (paras 14-18).

The Supreme Court upheld the refusal of anticipatory bail to Satpal Singh in a commercial-quantity NDPS case and set aside the anticipatory bail granted to two co-accused, because the High Court had not applied Section 37. Parity with co-accused is no ground where Section 37 was ignored, and anticipatory bail does not carry over into regular bail once the charge-sheet is filed (paras 2, 14-16).

The Supreme Court acquitted a man convicted of carrying two kilograms of heroin because a consent memo that only asked him to choose between a Gazetted Officer and a Magistrate did not inform him of his right under Section 50 of the NDPS Act (paras 9-10, 12). On confessions to Customs officers, the Bench chose to follow Noor Aga rather than Kanhaiyalal (para 11).

The Supreme Court upheld Sections 35 and 54 of the NDPS Act, which reverse the burden of proof, but held that the presumption arises only after the prosecution proves the foundational facts, including possession, beyond reasonable doubt (paras 84, 88-89). It set aside an Afghan airline crew member's conviction for 1.4 kg of heroin: the carton, bulk and samples were never produced, the bulk was destroyed without a Section 52A order, and the customs confession could not alone sustain a conviction (paras 170-171).

The Supreme Court upheld the Bombay High Court's acquittal of a man convicted under the NDPS Act, because the officer who received the secret information never reduced it to writing as Section 42 requires (paras 5, 19, 25). Although a hotel is a public place under Section 43, the Court said a room occupied by a guest may not be, and that the guest "is entitled to his right of privacy" (para 14).