Narcotic Drugs and Psychotropic Substances Act, 1985: ss. 8(c), 22(c), 25, 28, 29, 67 – Seizure of psychotropic substances – Prosecution case that large number of tablets seized by Directorate of Revenue Intelligence from different locations believing to be psychotropic substances – A-1 to A-3 arrested under various provisions of NDPS Act for alleged export of psychotropic substances – Arrest of A-4 on the basis of statements of A-1 and A3 for contravening provisions of NDPS Act – Grant of bail to A-4 by NDPS Court – However, the High Court cancelled the bail in favour of A-4 – High Court also rejected the bail application of A1 – On appeal, held: Held: In absence of clarity on quantitative analysis of samples, prosecution cannot state at the preliminary stage that the accused were found to be in possession of psychotropic substances – Large number of tablets seized by DRI admittedly contain herbs/medicines meant to enhance male potency, and does not attract provision of NDPS Act – No tablets seized during search of office and residence of A-4 – WhatsApp messages from devices seized not sufficient to establish link between A 4 and A1 to A3 – Furthermore, scientific reports is still awaited – No conscious possession of psychotropic substances proved against A-4 – Order setting aside the bail of A-4 on mere reliance on statements of A-1 to A-3 u/s. 67 cannot be sustained – Thus, the order of the High Court qua A-4 is quashed and set aside – Also it is appropriate to release A-1 on bail.
Disposing of the Special Leave Petitions, the Court
HELD: 1.1. The impugned order cancelling the bail granted in favour of A-4, is not sustainable in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated
17 th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities”. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substance as contemplated under the NDPS Act. [Para 10][558-B-D]
1.2. A large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited. [Para 10][558-D-F]
2. In the absence of any psychotropic substance found in the conscious possession of A-4, mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order. The impugned order qua A-4 is quashed and set aside and the order passed by the Special Judge, EC and NDPS Cases, is restored. As for A-1, since the charge sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court. [Para 11][558-F-H; 559-A] Sanjeev Chandra Agarwal vs. Union of India Criminal Appeal No. 1273 of 2021 decided on 25th October, 2021; Tofan Singh v. State of Madras (2021) 4 SCC 1 – referred to.
Case Law Refernce
(2021) 4 SCC 1
referred to.
Para 5
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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