Small-Quantity NDPS Case Triable by Magistrate: Raj HC

Small-Quantity NDPS Cases Triable by Magistrate, Not Special Court; Separate Recoveries Not Added Up: Rajasthan High Court

Published: 24 October 2026 · NyayVidhan

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).

Key holdings

Only NDPS offences punishable with more than three years' imprisonment are triable by the Special Court under Section 36A(1)(a) (paras 7-8).

An NDPS offence punishable with three years or less falls under Part II of the First Schedule to the CrPC; a six-month offence goes to a Judicial Magistrate First Class (para 8).

Charas below 100 grams is a small quantity, punishable under Section 20 with up to six months' rigorous imprisonment, fine, or both (paras 6, 9).

Charas recovered separately from two accused on one motorcycle cannot be totalled, though Section 223 CrPC permits their joint trial (para 9).

Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.

Brief Facts

On 24 June 2009, 65 grams of charas was allegedly recovered from Akhlak @ Vilsan and 60 grams 2.40 mg from Monu during their search; the two were travelling on a motorcycle (paras 2, 4, 9). On 9 March 2010 the Special Judge, NDPS Act Cases and Additional Sessions Judge No. 1, Kota, dismissed their Section 36A application, taking into account the total quantity recovered from both (paras 1, 9, 10). In revision they contended that each recovery was a small quantity triable by a Judicial Magistrate and not by the Special Court; the Public Prosecutor defended the impugned order (paras 4-5).

Court's Findings

The Court noted that ‘commercial quantity’ and ‘small quantity’ are defined in Sections 2(viia) and 2(xxiiia) of the NDPS Act; under the Central Government's notification the small quantity of charas is 100 grams and the commercial quantity 1 kg and above (para 6). Under Section 36A(1)(a), only offences punishable with more than three years' imprisonment are triable by the Special Court (paras 7-8). Offences punishable with three years or less are governed by Part II of the First Schedule to the CrPC, so a six-month offence is triable by a Judicial Magistrate First Class (para 8). A small-quantity contravention under Section 20 carries rigorous imprisonment up to six months, a fine up to ten thousand rupees, or both; each recovery here was below 100 grams, so by no stretch could the Special Court try it (para 9). Nowhere was the combined 125 gms 2.40 mg said to be in joint possession; the prosecution alleged separate recoveries. Section 223 CrPC lets both be tried together for an offence in the same transaction, but quantities from separate possession cannot be totalled to determine the quantity. The trial court's order was per se erroneous, capricious and contrary to law (para 9).

Legal Principle

Under Section 36A(1)(a) of the NDPS Act, the Special Court tries only offences punishable with more than three years' imprisonment. Small-quantity possession, punishable under Section 20 with up to six months, is triable by a Judicial Magistrate First Class; quantities recovered from co-accused in separate possession cannot be added together (paras 8-9).

NyayVidhan's view · Practice note

Why It Matters

This order matters at the first step of a small-quantity NDPS case: deciding which court tries it. The Court read Section 36A(1)(a) as confining the Special Court to offences punishable with more than three years (para 8), so possession of charas below 100 grams, punishable with up to six months under Section 20, belongs before a Judicial Magistrate First Class (paras 8-9). It also refused to add up quantities found in the separate possession of two accused travelling together, although Section 223 CrPC allows a joint trial (para 9). Where co-accused face a charge built on a combined weight, the first question is whether joint or separate possession is alleged, because that decides the quantity and the forum (para 9).

Editorial comment by the NyayVidhan Editorial Desk. It is not part of the Court's judgment and is not legal advice.

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