Section 8

The Supreme Court set aside bail granted by the Allahabad High Court to an accused found travelling from Dimapur towards Rampur in a car with 3.3 kg of morphine hidden near its wiper. That nothing was recovered from his person, and that the translator's endorsement on his Section 67 statement named a co-accused, did not meet the Section 37 test of reasonable grounds to believe he was not guilty (paras 21, 25, 30-32).

The Supreme Court cancelled bail granted by the Allahabad High Court to a company director accused of diverting acetic anhydride, a controlled substance, as part of an alleged international drug syndicate. The High Court merely recorded the submissions, never applied Section 37 of the NDPS Act, and relied on the extraneous ground that the accused was educated and so "may not commit any offence" (paras 11-13).

The Rajasthan High Court faulted a trial court for refusing to summon the call details of the Seizure Officer and other police officials in an NDPS trial, where the accused claimed they were not at the place of seizure on the date and time alleged. Summoning them was imperative for a fair trial (para 4). All courts in Rajasthan were directed to decide such applications forthwith, as service providers delete records after one year (para 6).

The Rajasthan High Court set aside a 1999 conviction for carrying 250 grams of opium, holding that a notice which merely conveyed that the accused could be searched before a Gazetted Officer or Magistrate did not apprise him of his right under Section 50 of the NDPS Act. The prosecution also never exhibited the seized opium or the sample, leaving the seizure itself unproved (paras 7-11).

The Supreme Court acquitted Vijay Pandey, sentenced to 15 years for possessing 10 kg of opium, because the prosecution never proved that the sample tested in the laboratory was the one seized from him. Failing to link the sample to the seizure, it held, is no different from not producing the contraband at all, and a laboratory report on its own is not conclusive proof (paras 5, 8, 10).

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 Rajasthan High Court set aside an order framing charges under Sections 8/20(b)(ii)(C) and 8/25 of the NDPS Act against a car's registered owner (paras 2, 8). The order gave no reason why both the 12 kg of ganja held by the co-accused and the 14 kg in the boot were his conscious possession, so the commercial-quantity charge could not stand (para 6). As he was himself driving, a Section 25 charge was unjustified (para 7).

The Supreme Court dismissed the Union of India's appeal against the Bombay High Court's acquittal of a foreign national found with 12.03 kg of hashish in a suitcase at Mumbai airport. The two panch witnesses said the bag was already open when they arrived and that they signed papers without reading them, and a retracted Section 67 statement and the officer's word alone could not sustain a conviction (paras 10-14).

The Supreme Court dismissed the Union of India's appeal against a Madhya Pradesh High Court acquittal in a 7.2 kg opium case (para 13). After samples were drawn, the Executive Magistrate handed the bulk back to the investigating officer, and it was never produced at trial; any destruction needed a Magistrate's order under Section 52A, which was never sought (paras 8-11). With hostile independent witnesses and a Section 67 statement recorded in custody, the acquittal stood (paras 12-13).

The Supreme Court upheld the acquittal of two men from whom 9.6 kg of opium was recovered, holding that Section 50 of the NDPS Act was breached. A joint written notice, signed by one accused for both, is not a valid communication of the right; each person must be told individually. Offering a third option of search before a superintendent of the raiding party was also improper. Because both the bag and the persons were searched, Section 50 applied (paras 12, 14-15).

Doubting Kanhaiyalal and Raj Kumar Karwal, a two-judge Bench referred to a larger Bench whether an NDPS investigating officer is a police officer and whether a Section 67 statement can be treated as a confession (paras 28-29, 38-40). The NDPS Act "is purely penal in nature" (para 32). The appellant's further sentence was suspended and bail granted pending the reference (para 43).

The Supreme Court reduced the 15-year sentences of two first offenders convicted of carrying 500 g of brown sugar to the 10-year statutory minimum, and cut the imprisonment in default of the Rs 1.5 lakh fine from three years to six months. Default imprisonment is a penalty, not a sentence, and courts must weigh the offender's means before ordering it; having served nearly 12 years, the appellants were to be released (paras 9, 12, 14-15).