Section 50

The Supreme Court has acquitted two men convicted under the NDPS Act, holding that the prosecution failed to prove the seized substance was charas. The forensic report was discarded because the chain of custody of the samples was broken, including an unexplained five-day gap, and no other admissible evidence identified the substance.

The Rajasthan High Court refused bail to a man found with 180 grams of mephedrone during a 10 pm search of a house without a warrant. The SHO had recorded the information and his grounds for not getting a warrant before the search and sent them to his superior, which was prima facie compliance with Section 42 of the NDPS Act (paras 12-15). As commercial quantity was involved, the Section 37 bar applied (para 17).

The Supreme Court upheld a ten-year sentence under Section 15(c) of the NDPS Act for about 200 kg of poppy husk found in a car. It held that an officer who received a tip-off at a naka, recorded its substance in the ruqa sent to the police station before the search, and summoned the DSP to supervise it, substantially complied with Section 42. Section 50 did not apply because nothing was recovered from the personal search (paras 33, 36, 52).

The Supreme Court upheld a 1997 NDPS conviction for 100 grams of smack found in a water bottle, but reduced the sentence from 14 years to the 10-year minimum under the unamended Section 21. Section 50 did not apply to a search of a bottle the accused was carrying, and drawing samples without a Magistrate was only a procedural irregularity under Section 52A. The 2001 amendment did not help, as the trial had ended before it (paras 13, 15-16, 18-20).

The Rajasthan High Court granted bail to a pickup driver held with 162.800 kg of poppy husk, finding prima facie total non-compliance with Section 42 of the NDPS Act: police had received secret information before the night interception but sent nothing to superior officers. With the accused in custody for about two and a half years and charges not yet framed, the Court held the Section 37 twin conditions prima facie satisfied (paras 7-10).

The Rajasthan High Court suspended the ten-year sentence of a Jaipur medical-store owner convicted under the NDPS Act, finding prima facie that the samples sent for testing were not drawn before a Magistrate under Section 52A (paras 9, 11-12). Because the same police constable was shown present at two searches during overlapping times, it asked the Director General of Police to inquire (paras 15, 17).

Dismissing a State appeal pending since 1996, the Rajasthan High Court upheld the acquittal of two men charged with possessing and supplying opium. The trial court's findings rested on material contradictions, procedural lapses and evidentiary deficiencies, and its view was plausible; given the stringent NDPS Act and its mandatory safeguards, the prosecution had not proved its case with the required certainty (paras 6-7).

The Supreme Court dismissed a woman's appeal against her NDPS conviction for 23.5 kg of ganja. Drawing samples at the spot rather than before a Magistrate under Section 52A is not fatal where the seal, identity and chain of custody of the samples are intact, as held in Bharat Aambale, and the statutory minimum sentence for a commercial quantity left no room to reduce it (paras 23-32).

The Supreme Court acquitted Firdoskhan, said to have fled when 2 kg 30 g of heroin was seized at Kheda bus stand in 2003. His name surfaced only in the co-accused's Section 67 statement, inadmissible after Tofan Singh and doubtful in the way it was recorded, and an NCB officer identified him for the first time in court over two years later (paras 24-30). The co-accused caught with the bag stayed convicted (para 33).

The Supreme Court acquitted three men convicted of carrying about 80 kg of ganja in Hyderabad. The weight included unseparated green chillies, three samples reached the laboratory although one of three had been given to the accused, the ganja was repacked into unsealed bags, and no Section 52A sampling was done, so the FSL report was worthless. Two appellants were convicted only on co-accused's interrogation notes (paras 19-25).

The Supreme Court upheld a conviction for 1.25 kg of charas found in a bag the accused carried on his shoulder. Although Section 50 of the NDPS Act was breached by offering him a third option of being searched by the police officer, the provision did not apply because only the bag was searched. The Court also directed that, prospectively, a suspect's waiver of the right to be searched before a Gazetted Officer or Magistrate must be taken in writing (paras 27, 30, 63, 125).

The Rajasthan High Court granted regular bail, on a third application, to an accused charged under Section 8/21 of the NDPS Act over 310 grams of smack (paras 1, 3, 11). The seizure procedure, as seen from the challan papers, prima facie did not show compliance with Section 50 in its true spirit (para 7). With investigation complete, the challan filed and the investigating officer examined, the Court took the Section 37 conditions to be satisfied (paras 7-8).