Section 8

The Supreme Court acquitted a hotel servant convicted of possessing 2.1 kg of opium found in a room next to the hotel kitchen, holding that possession under Section 18 of the NDPS Act "has to be conscious" and that a servant does not possess his master's contraband unless it was left in his custody under his absolute control (paras 2, 15-16). His confessions to Central Bureau of Narcotics officers were held admissible and voluntary, but showed only that he was the owners' servant (paras 10, 13, 15).

The Supreme Court acquitted a cinema-hall owner convicted of possessing 175 grams of smack, because the seized powder was never produced at trial and nobody explained where the samples and the bulk were kept before they reached the laboratory and the Malkhana (paras 10-12, 15). Following Jitendra, it held there was "no evidence to connect the forensic report with the substance that was seized" (para 12), and extended the acquittal to two co-accused who had not appealed (para 16).

In a State appeal against acquittal in an 8 kg opium case, the Supreme Court held that Section 50 of the NDPS Act did not apply because the opium was carried in a bag on the head (State of H.P. v. Pawan Kumar). It nonetheless upheld the acquittal: the prosecution could not show where the samples were between their removal from the Malkhana on 26 February and their receipt at the laboratory on 9 March, so their sanctity was compromised (para 2).

The Rajasthan High Court granted bail to a woman accused under Section 8/21 of the NDPS Act from whom 200 grams of brown sugar was recovered, after the trial court had added 500 grams recovered from a co-accused and applied the 180-day charge-sheet period (paras 2, 5-6). Since each accused is sentenced for the quantity recovered from his or her own possession, the total could not be read against her, and the 60-day limit under Section 167(2) CrPC applied (paras 5-7).

The Rajasthan High Court acquitted two men convicted of keeping ganja, doda powder and opium, holding that when secret information is received at the police station, Section 42 of the NDPS Act requires it to be written down and sent to superior officers in writing; a wireless message suffices only for a patrolling party. With no proof of written transmission or of the Section 42(2) report, the trial was vitiated (paras 20-25).

The Supreme Court dismissed the Union of India's appeals against the acquittal of two men from whom 100 grams of heroin each had been recovered (paras 1, 11). Section 50 of the NDPS Act does not govern the search of a bag alone, as Pawan Kumar holds, but here the men were subjected to a body search during which the heroin was found in their shoulder bags, so Section 50 applied and was violated (paras 8-10). Not examining the two independent witnesses was a further grave omission (para 10).

The Supreme Court set aside the Rajasthan High Court's refusal to grant the State leave to appeal against an NDPS acquittal. The trial court had acquitted the accused of possessing a large quantity of opium only for non-compliance with Section 50, but the opium was recovered from a polythene bag, and under Pawan Kumar a bag is not part of the person; the High Court must now hear the appeal on merits (paras 1-3, 5-6).

The Supreme Court set aside the Rajasthan High Court's acquittal of Manoj Sharma: Section 50 did not apply because the drugs were seized from inside a house, not from his person, and the High Court ignored the State's evidence that no independent witness could be found. As only 8 grams were seized, he was convicted under Section 27 and his sentence reduced to the two years already served; the co-accused's acquittal stood (paras 5-7).

The Supreme Court set aside an Allahabad High Court order that suspended the sentence of a man convicted under Sections 27A and 29 of the NDPS Act and granted him bail without considering Section 37 (paras 3, 10, 16). Section 37's twin conditions are cumulative, and 'reasonable grounds' means more than prima facie grounds (para 13). Custody, delay in hearing the appeal and nothing being found on him did not satisfy Section 37 (para 15). The bail plea was remitted to the High Court (para 16).

The Supreme Court upheld a charas conviction from Bharuch, rejecting the plea that Section 42 of the NDPS Act was breached. The information reached the police officer while he was investigating another NDPS case, so Section 42 need not be followed in all cases; even so, he had written it down and sent it to his superiors. The plea that he was not an empowered officer was raised too late (paras 11-14).

The Supreme Court set aside the Allahabad High Court's acquittal of a man found with 309 kg of poppy straw and restored his conviction (para 17). Opium and poppy straw are distinct under the NDPS Act, so linking the seizure to his father's opium licence had no foundation, and his Section 67 statement had never been retracted (paras 6-7, 10, 16). Through M. Prabhulal, the Court noted that a Gazetted Officer acting under Section 41 need not comply with Section 42 (para 13).

In this 2008 ruling the Supreme Court held that when a narcotic drug is mixed with neutral substances, only the actual content of the drug decides whether it is a small or commercial quantity for punishment (paras 13, 16). A heroin carrier caught with 4.07 kg of powder of 1.4-1.6% purity held about 60 gms of heroin, an intermediate quantity under Section 21(b), and his ten-year sentence was cut to six years (paras 3-4, 17-19). The three-Judge Bench in Hira Singh (2020) later held this view not good law.