Section 8

The Supreme Court held that dealing in a psychotropic substance listed in the Schedule to the NDPS Act is an offence under Section 8(c) even if it is not in Schedule I of the NDPS Rules, and that Sanjeev V. Deshpande, which settled this in 2014, applies retrospectively to pending cases. Once a charge is framed, Section 216 CrPC cannot be used to delete it or discharge the accused. Two buprenorphine prosecutions go back for trial (paras 156-163).

The J&K and Ladakh High Court granted bail to a driver allegedly found with 106.86 g of a heroin-like substance in his jeans pocket at a naka; 104.89 g was allegedly found on a rear-seat passenger (paras 2, 11). The State called the seizure commercial quantity (para 9). The Court held that any common intention among the accused had to be established at trial; the applicant's own intermediate quantity kept Section 37 out, and bail followed Section 437 CrPC principles (paras 12-14).

The Rajasthan High Court granted second bail to two accused in a ganja case under Sections 8/20 of the NDPS Act after the seizure officer had testified (paras 1-2, 7). The defence objected to clubbing separate recoveries into commercial quantity, and the State accepted that each individual quantity was below it (paras 3-4). The Court weighed the record, a co-ordinate Bench's observations in Akhlak @ Vilasan, the absence of similar antecedents and the custody period, without commenting on the merits (para 6).

The Rajasthan High Court granted bail to a man held for 24.75 grams of a substance the seizure officer took to be MDA, after the FSL found methamphetamine, whose commercial quantity is 50 grams. A seizure officer is not an expert under Section 45 of the Evidence Act, the Court said, and it directed the DGP to ensure FSL reports are obtained, preferably within 60 days (paras 6, 10-12).

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 granted bail to a man accused under Section 25 of the NDPS Act as the owner of a vehicle in which a co-accused was caught carrying opium (paras 2, 8). He was not arrested at the spot, was not the registered owner and was implicated through a purchase agreement, and nothing on record suggested that he had permitted the vehicle’s use for the offence (para 6). The Court held the rigour of Section 37 satisfied (para 7).

The Rajasthan High Court set aside an order framing charges under Sections 8/18 read with 8/29 of the NDPS Act. The only material against the petitioner was a co-accused’s statement made while in police custody, which the Court describes as recorded under Section 27 of the Evidence Act, naming a ‘Pappu Singh’; nothing connected the petitioner with that person. Suspicion at the charge stage must rest on legally admissible evidence (paras 2-4, 6-8).

The Rajasthan High Court allowed a second bail application in an NCB case in which the prosecution said 215.100 kg of poppy straw and 28.920 kg of opium, a commercial quantity, were recovered (paras 4, 15). The seizure officer had not had the Section 52A proceedings conducted before a Magistrate (para 6), the seizure was prima facie done at a police station (para 12), and the accused had spent almost five years in custody (para 8). The Court held the rigour of Section 37 satisfied (para 14).

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 Rajasthan High Court allowed two NDPS accused to have the call data records and tower locations of the police officers named in the seizure memo summoned and preserved before the defence stage. Saving such data from deletion is not taking defence evidence prematurely, it held. The trial court must have the records procured and kept on file with a Section 65-B certificate, and the accused may confront the officers with them (paras 12-13, 15, 21-22).