Narcotic Drugs and Psychotropic Substances Act, 1985

A five-Judge Constitution Bench held that Section 50(1) of the NDPS Act obliges the empowered officer to inform a suspect of his right to be searched before a Gazetted Officer or a Magistrate, and that this obligation is mandatory and requires strict compliance. Merely asking whether the suspect wishes to be so searched is not enough, and the "substantial compliance" view in Joseph Fernandez and Prabha Shankar Dubey was rejected (paras 18, 21-22).

The Supreme Court dismissed a special leave petition against a conviction for six bags of poppy husk of 32 kg each. It held that a wireless message to the DSP on reaching the spot, followed by a ruqa sent from the spot on which the FIR was registered, was substantial compliance with Section 42 of the NDPS Act, as no prejudice was shown. Section 57 is not mandatory, and conscious possession was proved (paras 12-15).

The Rajasthan High Court held that possession of charas below 100 grams, a small quantity punishable under Section 20 of the NDPS Act with up to six months' imprisonment, is not triable by the Special Court, because Section 36A(1)(a) gives that Court only offences punishable with more than three years (paras 8-9). Quantities recovered separately from two accused on one motorcycle could not be added up (para 9). The case was sent to a Judicial Magistrate First Class (para 11).

The Supreme Court upheld a ten-year sentence for 500 grams of charas found in a bag the appellant carried on his shoulder (paras 2, 5, 24). Section 50 applies only to a search of the person, not to a bag, briefcase or container (paras 13-15). Independent corroboration is normally expected but is not an inviolable rule (para 16), and parity in sentencing did not help because the other man was tried separately on a separate FIR (para 23).

A five-judge Constitution Bench of the Supreme Court, in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, resolved the conflict between Abdul Rashid and Sajan Abraham on Section 42 of the NDPS Act. Information must ordinarily be written down and sent to the superior officer before a search, but if it is received on the move and calls for immediate action, recording may follow. Total non-compliance is impermissible; delayed compliance with a satisfactory explanation is acceptable (paras 11, 17).

The Supreme Court upheld the Section 15 NDPS conviction of a woman found sitting on two bags holding about 60 kg of poppy husk, who had told the police what the bags contained. Her conduct and admission showed conscious possession; Section 50 did not apply to bags; a few days' delay in sending samples was not fatal; and the only independent witness had been won over by the defence (paras 10-13).

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 dismissed Uttar Pradesh's appeal against the acquittal of a man from whom 500 grams of charas was recovered in a personal search. Nothing in the police evidence showed that he was told of his right to be searched before a Gazetted Officer or a Magistrate, and failure to inform a suspect of that right renders the search illegal (paras 1-3).

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 refused to reduce the weight of 1.61 kg of seized ganja below the 1 kg small-quantity limit. Seeds and leaves count as ganja when they come with the flowering parts of the plant, and nothing in the NDPS Act requires moisture to be excluded: the weight is the weight taken at the time of seizure. The appeal against the one-year sentence was dismissed (paras 3, 11-12).

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).