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NARCOTICS AND PSYCHOTROPIC SUBSTANCES ACT, 1985


SEC.
S.15

TITLE OF THE CASE


Ajaib Singh v. State of Punjab

CITATION

LEGAL PROPOSITION

SLP (Cr.) 73/2000 Whether poppy husks would fall within the exp
D.O.D.11.04.2000 ression "poppy straw"? Yes
Supreme Court

Akabuogu
Goadwin
Crl.A.999/2010
Ojimba v. Customs
D.O.D.26.03.2014
Delhi High Court

The discrepancy in the weight of the sample as


found in the test laboratory is no ground to
doubt the case of the prosecution.

S.20

Alakh Ram v. State of AIR 2004 SC 2907


U.P.

There must be supporting evidence to prove that


the accused cultivated Ganja plants. It is not
enough that few plants were found in the
property of the accused. If plants are sprouted by
natural growth, it cannot be said that it amounts
to cultivation.

S.27

Alpesh Kumar v. State of AIR 2004 SC 952


Rajasthan

Heroin seized was only 500 m. gms. in the form


of two cigarettes, it was possessed by the accused
for his personal consumption. Conviction altered
to Section 27 from Section 21 of the NDPS Act,
1985.

Page 2 of 76

S.21

S.50

Amar Singh Ramjihai AIR 2005 SC 4248


Barot v. State of Gujarat

920 gms. black coloured liquid opium recovered


from accused. FSL report opined that the
substance was opium containing 2.8% anhydride
morphine.
Held: Opinion of FSL not binding on Court.
Offence fell clearly within Section 21 for illicit
possession of manufactured drug.

Ashif Khan @ Kallu v. Crl. A. 1122/2012


State
D.O.D.29.04.2014
Delhi High Court

Delay of 25 days in sending sample to FSL is not


fatal.

Non-association of public person to recovery


In view of public apathy, the police have to act
on their own. It, thus, cannot be said because
public persons were not made a witness, the
entire proceedings are vitiated.
Ashok Kumar Sharma v. Cr. A. 817/2008
Statement of PW1 indicated that he had only
State of Rajasthan
D.O.O.09.01.2013 informed the accused that he could be searched
Supreme Court
before any Magistrate or a Gazetted Officer if he
so wished. The fact that the accused person has
a right under Section 50 of the NDPS Act to be
searched before a Gazetted Officer or a
Magistrate was not made known to him.

Page 3 of 76

There is an obligation on the part of the


empowered officer to inform the accused or the
suspect of the existence of such a right to be
searched before a Gazetted Officer or a
Magistrate, if so required by him. Only if the
suspect does not choose to exercise the right in
spite of apprising him of his right, the
empowered officer could conduct the search on
the body of the person.
Ashok @ Dangra Jaiswal Cr. A. 1438/2008
v. State of M.P.
D.O.D.05.04.2011
Supreme Court

On 12.03.2005, samples sent for forensic


examination were not deposited at the FSL but
brought back to the police station as there was
some mistake in draft Again sent on
14.03.2005 after correction in draft.
From the time of the seizure in the late evening
of March 8, 2005, till their deposit in the FSL on
March 14, 2005, it is not clear where the samples
were laid or were handled by how many people
and in what ways.

Page 4 of 76

FSL report came on March 21, 2005, and on that


basis the police submitted charge-sheet against
the accused on March 31, 2005, but the alleged
narcotic substance that was seized from the
accused, including the appellant was deposited
in the Malkhana about two months later on May
28, 2005. There is no explanation where the
seized substance was kept in the meanwhile.
The alleged narcotic powder seized from the
possession of the accused was never produced
before the trial court as a material exhibit and
there is no explanation for its non-production.
There is, thus, no evidence to connect the
forensic report with the substance that was
seized from the possession of the accused.
The best evidence would have been the seized
materials which ought to have been produced
during the trial and marked as material objects.
There is no explanation for this failure to
produce them.

Page 5 of 76

Ashraf Khan v. State

Cr. A. 264/2013
D.O.D.11.03.2014
Delhi High Court

Whether failure to join public witnesses before


effecting recovery of the contraband would be
fatal to the prosecution? NO
Notice u/S 50 of NDPS Act would show that vide
the said notice, the appellant was specifically
informed that he had a legal right to be searched
in the presence of a Gazetted Officer or a
Magistrate. It is not the case of the accused that
the response given by him to the said notice was
different from what has been recorded on the
notice.
FSL Report shows that one sealed parcel
containing the samples tallied with specimen
seal as per forwarding letter (FSL Form). Hence,
absence of reference to FSL form in the
acknowledgement is immaterial.
6 days delay in sending the sample to FSL is
insignificant.

Page 6 of 76

S.15

Avtar Singh v. State of Cr. A. 2082/1986


Possession is the core ingredient to be
Punjab
D.O.D.18.09.2002 established
before
convicting
accused.
Supreme Court
Possession and ownership need not always go

together but the minimum requisite element


which has to be satisfied is custody or control
over the goods. It is unfortunate that no question
was asked about the possession of goods u/s 313
Cr.P.C.

S.42

Babubhai Odhavji Patel AIR 2006 SC 102


v. State of Gujarat

The third appellant who was driving the vehicle


would have been charged alternatively for
transporting the offensive goods without permit
or authorization as required by law.
General information is not bound to be recorded
as a source of information. Specific information
alone need be recorded. Patrol team was doing
the usual patrol duty and they incidentally came
across the tanker lorry in question and on search
recovered the contraband substance from the
vehicle. There was no violation of S.42 of the Act.
In case of a chance recovery, the
procedure contemplated under Section 42
cannot be complied with.

Page 7 of 76

No article was found on the person of the


appellant but was recovered from the tanker
lorry. Personal search if conducted would not
vitiate recovery.

S.50

S.50

Balbir Kaur v. State of AIR 2009 SC 3036


Punjab

Whether an accused sitting on two bags on an


open road, can be presumed in conscious
possession of the contraband goods? Yes.
Recovery of poppy husk was made from bags
carried by the appellant, therefore, section 50
was not applicable. It only applies in case of
personal search of a person. It does not extend to
search of a vehicle or a container or a bag, or
premises.
Delay in sending the samples is insignificant in
view of cogent evidence of recovery.

Balwinder Singh v. Asst. AIR 2005 SC 2917


Commr. Customs and
Excise

175 kg. of heroin and 39 kg. of opium of foreign


origin recovered from truck - Appellant was
original owner of said truck - He sold same to
another person, however, registration was not

Page 8 of 76

changed in his name - No evidence to prove that


he knowingly allowed any person to use vehicle
for any illegal purpose - No evidence to show
that appellant had any control over vehicle nor
was he in possession of said drugs - Conviction
of appellant on sole ground that he was
registered owner of vehicle concerned not
proper.
Appellant was driver of vehicle from where
heroin and opium were recovered - He knew
about presence of said drugs in vehicle - His
conviction Proper.
S.41

Basheer
Basheer
Kerala

alias
N.P. AIR 2004 SC 2757
v. State of

In all cases, in which the trials had concluded


and appeals were pending on 2.10.2001, when
Amending Act 9 of 2001 came into force, the
amendments introduced by the Amending Act 9
of 2001 would not be applicable and they would
have to be disposed off in accordance with the
NDPS Act, 1985, as it stood before 2nd October,
2001.

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Bilal Ahmed v. State

2011 (1)
(Delhi)

JCC

27 Any objection as to the mode of proof of

document has to be taken at the time of trial and


cannot be subsequently taken in appeal.
It is not mandatory for the Court to examine the
expert whose report is used as evidence in any
inquiry, trial or other proceedings, nor is it
obligatory for the Court to ask the accused if he
wants to summon the expert.
CFSL report states that seals were intact, and
tallied with specimen seals impressions. The
seals on the samples cannot be tallied except
with the specimen seals on the FSL form. Thus,
even without specifically stating that form FSL
has been received with the samples, this
endorsement clarifies that the form FSL was
received.
Delay in sending parcel to the CFSL is not fatal
especially when as per the CFSL report, the seals
are intact and tallied with the specimen seals.

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S.42
S.50

Once the original Malkhana register is produced


in the Court, which is seen and returned and
copy thereof exhibited, there is no mandatory
requirement to produce the Road Certificate,
especially when seals were found to be intact.
In case of chance recovery Sections 42 and 50 of
the Act are not applicable.
Subsequent adding of FIR number on the
document for procedural convenience would not
amount to tempering of the document.
Brijesh Kumar Gupta v. Crl. A. 1242/2010
Non-joining of public witness before seizing drug
Narcotics Control Bureau D.O.D.03.04.2014 from the appellant by itself cannot be a good
Delhi High Court ground to reject the testimony of NCB officials.

S.50

Recovery of heroin was effected from a bag


which the appellant was carrying on his person
and not from the search of his body, the
provisions of Section 50 of the Act would be
inapplicable and consequently, any defect in the
notice would not vitiate the recovery.

Page 11 of 76

Seizure was made from a public carrier at a


public place, between sun rise and sun set,
Section 42 of the Act was not applicable.

S.42

S.32A Budh Singh v. State of W.P.(Cr.) 15/2012

Haryana

D.O.D.11.03.2013
Supreme Court

S.37

Customs v. Ahmadalieva Appeal Cri. 312/2004


D.O.D.11.03.2014
Nodira
Supreme Court

S.80

D.
Ramkrishnan
v. AIR 2009 SC 2404
Intelligence
Officer,
Narcotic Control Bureau

Section 32A of the NDPS Act is not ultravires.


Bail - Limitations on granting of bail come in
only when the question of granting bail arises on
merits. Apart from the grant of opportunity to
the public prosecutor, the other twin conditions
which really have relevance so far the present
accused-respondent is concerned, are (1) the
satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence and
that he is not likely to commit any offence while
on bail. The conditions are cumulative and not
alternative.
S. 80 provides that the provisions of the Act or
the rules made thereunder are in addition to,
and not in derogation of the Drugs and
Cosmetics Act, 1940 or the rules made

Page 12 of 76

S.32A Dadu alias Tulsidas v. W.P.(Cr.) 169/1999

State of Maharashtra

D.O.D.12.10.2000
Supreme Court

Deepender Kumar alias Crl. A. 496/2012


Chhotu v. State of NCT of D.O.D.07.07.2014
Delhi High Court
Delhi

thereunder.
Held: Section 32A is constitutional.
sentence can be suspended by the appellate
court subject to the conditions in S. 37.
Public witnesses exhibit reluctance to join police
investigation to avoid repeated visits to the
police station and the Court.
In the absence of prior enmity or animosity,
members of raiding team unaware about the
appellants antecedents were not expected to
falsely rope him in the case in Delhi. No ulterior
motive was assigned to the police officials for
falsely implicating him.
Appellant has not placed any worthwhile
document to show that 72 hours period in
sending the sample to the FSL was mandatory
and its non-compliance was fatal.
Delay for fifteen days per se thus is not
consequential to throw away the prosecution

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Dehal Singh v. State of AIR 2010 SC 3594


Himanchal Pradesh
S.50

case as a whole.
This discrepancy of 15 gms. in weight of sample small difference in weight loses its significance.
In this case, the vehicle was searched and the
Charas was recovered from the vehicle and
persons of the appellants were not searched. As
the recovery has been from the vehicle the
provision of Section 50 of the Act was not
required to be complied with. Appellants were
not searched at the place where the vehicle was
intercepted and searched but after they were
arrested, and brought to the Police Station, their
search was made to find out articles possessed by
them before lodging them in lock-up.
Both the appellants were travelling in the car
from which Charas was recovered and, therefore,
they were in possession thereof. They were
knowing each other. They were not travelling in
a public transport vehicle. Distinction has to be
made between accused travelling by public
transport vehicle and private vehicle.

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S.50

Dilip v. State of M.P.

S.42

Director of Revenue v. Apl (Cri.) 311/2002


Mohammed Nisar Holia D.O.D.05.12.2007
Supreme Court
Directorate of Revenue CRL.REV.P. 494/2007
Intelligence
v.
Raj D.O.D.13.07.2011
Delhi High Court
Kumar Arora
Durgo Bai v. State of
Punjab

S.42

S.43

AIR 2007 SC 369

In this case, the provisions of Section 50


might not have been required to be complied
with so far as the search of scooter is concerned,
but, keeping in view the fact that the persons of
the appellants were also searched, it was
obligatory on the part of P.W.10 to comply with
the said provisions. It was not done.
A room in a hotel is not a public place.
NIL
The general information about the
smuggling into India which led the Commandant
to organise a nakabandi cannot be equated to the
receipt of information within the contemplation
of Section 42(1) of the Act.
It is Section 43 that is attracted in the
instant case but not Section 42. It is not a case of
entering into or searching any building,

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S.50

S.42

S.50

conveyance or enclosed place.


If there is a chance recovery of narcotic
drug or psychotropic substance during a search
in exercise of the power under the provisions of
Cr.P.C., the compliance with Section 50 does not
arise.
By reason of citation of wrong section in the
charge, the appellants were not handicapped
from meeting the case against them or otherwise
suffered any prejudice. The trial and conviction
cannot therefore be set aside on this score
E.
Micheal
Raj
v. AIR 2008 SC 1720
It is only the actual content by weight of the
Intelligence
Officer,
narcotic drug which is relevant for the purposes
Narcotic Control Bureau
of determining whether it would constitute small
quantity or commercial quantity.
Fatima Bibi v. Inspector CRA No.11 of 2010
In the present case, the suspicion arose to
of Customs
D.O.D.26.03.2013 the empowered officers in a public place when
P & H High Court the appellants were waiting for customs
clearance. Therefore, Section 42 of the Act is not
is applicable, but Section 43 of the Act.
The contents of the notice were read over to
the appellants and made to understand in the

Page 16 of 76

language known to them. Both the accused


appellants have put their impressions in token of
having understood the same and admitting it to
be correct. In fact, no question was asked from
any of the prosecution witness that the contents
of the notices were not made known to them.
The joining of an independent witness is a
rule of prudence. Once the prosecution is able to
prove the process of recovery of contraband from
the appellants from the testimonies of the official
witnesses, it cannot be said that nonexamination of the independent witnesses is
fatal to the prosecution case.
The manner of search, recovery and the
procedure. There is no motive for any of them to
implicate the appellants. The statement of such
witnesses is proved to be of reliable and trust
worthy. There is no reason not to seek
corroboration from the independent witnesses.
The evidence of the prosecution witnesses is
creditworthy and inspires confidence in the

Page 17 of 76

mind of the Court.


Handing over of seal to the third person is a
matter of prudence and not of law.
Samples of 5 grams each were taken, but
when the same were weighed in the Laboratory,
the same were found to be 4.5 grams and 3.6
grams. Minor difference in the weight of samples
is not sufficient to doubt the prosecution case.
G. Srinivas Gaud v. State AIR 2005 SC 3647
of A. P.

It is a case of recovery of 20 kg. of


Diazepam which is a banned drug as per the
Schedule to the Act. When the quantity
recovered is so large, it does not appear to be a
case of planting.
The time of search was 5.30 a.m. in the
morning. At that hour it is difficult to get people
from general public to act as independent
witnesses.
There is no bar in law for a policeman to act
as a mediator/panch witness.

S.42

Requirement under Section 42(2) need not


to be extended to cases of arrest, search and

Page 18 of 76

Ghasita Sahu v. State of


Madhya Pradesh

S.42

S.50

seizure by officers of gazetted rank.


Both panch witnesses have not supported
prosecution. They even refused to identify the
accused. There is nothing in their evidence to
suggest that they were not local panchas. They
have not even been distantly suggested that they
were the visual panchas and stock witnesses of
local police and were not residents of the area
wherefrom the Ganja was recovered.
Defence that accused met with an accident
with the police jeep driven by Arun Kumar
(PW6) and, therefore, he was falsely implicated
at the instance of the police was not suggested to
the witness at all. In the absence of any
suggestion or material in cross-examination such
lame plea cannot be accepted.
In case of search of a house, all that the
Investigating Officer had to follow was the
conditions under Section 42 of the Act read with
Section 100, Cr.P.C.
S.50 applies only where the search is of a
"person" of accused [See State of H.P. v. Pawan
Kumar [(2005) 4 SCC 350]. In this case the

Page 19 of 76

S.50

S.52

S.57

S.50

search was not of the person but of his house.


Gurbax Singh v. State of Appeal (cr.) 35 of
S. 50 of the N.D.P.S. Act would be
Haryana
2000
applicable only in those cases where the search
D.O.D.06.02.2001 of the person is carried out and not to gunny bag.
Supreme Court
It is true that provisions of Sections 52 and
57 are directory. Violation of these provisions
would not ipso facto violate the trial or
conviction. However, I.O. cannot totally ignore
these provisions and such failure will have a
bearing on appreciation of evidence regarding
arrest of the accused or seizure of the article.
Gurjant Singh alias Janta Cri. Appeal No. 1868
The most crucial aspect of the case was that
vs State of Punjab
of 2013
P.W.6 noticed three gunny bags lying in the
D.O.D.28.10.2013 tractor of the appellant and felt that some
Supreme Court
incriminating substance was kept in those gunny
bags. when S. 50 was invoked by offering the
presence of a Gazetted officer or a Magistrate to
the appellant and at the request of P.W.6, P.W.3,
who was stated to be the D.S.P. at that point of
time, was summoned and in whose presence the
search and seizure was made, trial Court failed
to appreciate whether such a search or seizure
was really held in accordance with Sections 42

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S.42

Hamidbhai
Azambhai
Malik v. State of Gujarat

Hardip Singh v. State of AIR 2009 SC 432


Punjab

and 50 of the NDPS Act.


When such an information or intimation or
knowledge comes to the notice of the
Investigating Officer in course of the regular
patrolling or an investigation of some other
offence, it is not necessary to follow in all cases
the conditions incorporated in Section 42.
A document can always be created falsely
by obtaining signatures of few persons but the
said document when produced in evidence must
be able to stand the test of genuineness. In our
considered opinion the said document is a
doubtful document and the genuineness of the
same could not be proved by the appellant since
he had failed to bring it to the notice of PW 5,
during his cross-examination, the fact that the
same was executed in his presence and with his
consent.
Delay of about 40 days in sending the
samples did not and could not have caused any
prejudice to the appellant. It has also come on
evidence that till the date the parcels of sample
were received by the Chemical Examiner, the

Page 21 of 76

S.55

S.2
(xv)

S.68

seal put on the said parcels was intact.


If the arrested person and the seized
articles are forwarded under Section 52(3)(b) to
the officer empowered under Section 53, the
compliance with Section 55 cannot be insisted
upon.
Sri Jarnail Singh made the recoveries of the
opium and seized the same and therefore, he was
rightly made the Investigating Officer in the
case.
Harjit Singh vs State of Criminal Appeal No.
The requirement under the law is first to
Punjab
816/2011
identify and classify the recovered substance and
D.O.D.30.03.2011 then to find out under what entry it is required
Supreme Court
to be dealt with. If it is Opium as defined in
clause (a) of Section 2(xv) then the percentage of
Morphine contents would be totally irrelevant.
Heena
Kaushar
v. Cri A No. 1058/2003
The proviso amended in the year 2001 cant
Competent Authority
D.O.D.24.04.2008 be invoked to the present category of cases.
Inder Dev Yadav v. State

Supreme Court
Cr. A. No. 545/2011
The secret information was reduced into
D.O.D.01.05.2014 writing by recording Daily Diary but it does not
Delhi High Court contain material facts, as spelled in judgment

but it does not contain material facts, as spelled

Page 22 of 76

in judgment.
Non-joining of independent witness to the
recovery creates serious doubt about the
genuineness of the prosecution case.
The prosecution witnesses, did not divulge
the registration number of the Qualis; when and
from where it was arranged; when it arrived at
the office of Crime Branch and with which travel
agency the Qualis was attached.
Keeping in view the discrepancy in the
weight of the samples taken by the Incharge,
Crime Team and the weight of the samples
examined by the Scientific Officer, the possibility
of tempering cannot be discarded.
No investigation was carried out as to who
was the registered owner of the vehicle and how;
when and under what circumstances, the vehicle
came into appellants possession and if so, in
what capacity. It was also not investigated as to
from where the appellants had collected the
contraband and who was its supplier. The
movements of the vehicle prior to its seizure

Page 23 of 76

were not ascertained to reach out to the real


culprits king pins.
A-1 was found driving the vehicle in
question; A-2 and A-3 were found present in the
truck at the time of recovery. However, no
evidence was collected to ascertain as to what
was the role of all the appellants in the
transaction. Whenever a person is held up for
possession of any offending articles, it must be in
his exclusive possession.
Investigating Officer did not collect call
details of the mobile phones to find out as to
with whom they remained in touch during the
relevant period.
The samples were identified to be dried
Indian Hemp i.e. Ganja. In the crossexamination, PW-10 Ms. Shashi Bala admitted
that she did not mention in the report that the
samples contained fruiting or flowering tops.
Iqbal Moosa Patel vs Criminal Appeal No.
Proof beyond reasonable doubt does not
State of Gujrat
1574/2009
mean proof beyond a shadow of a doubt. The law
D.O.D.12.01.2011 would fail to protect the community if it
Supreme Court
permitted fanciful possibilities to deflect the

Page 24 of 76

course of justice.
S.42

Jagiro v. State (NCT of Cr. A. No. 1021/2013


Ganja was recovered from a bag which the
Delhi)
D.O.D.04.04.2014 appellant was carrying at a public place, the
Delhi High Court provisions of section 42 of the Act would not

apply and consequently it was not obligatory for


SI Alok Kumar to reduce the information into
writing before proceeding to the place where the
appellant was later apprehended.
Jai Yodhad v. State
Cr. A. No. 392/2010
Mere non-production of the log book by
D.O.D.30.01.2014 itself cannot be a good ground to throw away the
Delhi High Court case of the prosecution even if it is proved on the
basis of the evidence led by the prosecution.
We cant be oblivious to the reluctance of
common men to join such raiding parties
organized by the police, lest they are compelled
to attend Police Station and Courts umpteen
times at the cost of considerable inconvenience
to them, without any commensurate benefit. No
adverse inference should be drawn.
Jarnail Singh v. State of AIR 2011 SC 964
Merely because the prosecution has not
Punjab
examined any independent witness, would not
necessarily lead to the conclusion that the

Page 25 of 76

S.50

appellant has been falsely implicated. It was


clearly a case where the police personnel had
noticed the odd behaviour of the appellant when
he was walking towards them on a path which
led to village Mirzapur. It was not a case where
the prosecution has claimed that the appellant
was apprehended on the basis of any earlier
information having been given by any secret
informer. It was also not a case of trap.
Narcotic/opium, i.e., 1 kg. and 750 grams
was recovered from the bag (thaili) which was
being carried by the appellant. In such
circumstances, S.50 would not be applicable.
Mere delay in sending the sample of the
narcotic to the office of the Chemical Examiner
would not be sufficient to conclude that the
sample has been tampered with.
Jawahar Singh v. State of AIR 2009 SC 2391
Amending Act No. 9 of 2001 cannot be said
GNCT of Delhi
to have any retrospective effect.
K.R. Vengadeswar V. Cr. A. No. 830/2010
If a witness gives a wrong address to the
NCB
D.O.D.10.01.2014 NCB officer, and consequently, it is not possible
Delhi High Court to produce him in the witness box, no adverse
inference against the prosecution can be drawn

Page 26 of 76

on account of his not being examined as a


witness.
No one is expected to remember the colour
of the bag when he is examined after about six
(6) years of the incident.
An officer is as competent a witness as any
other person and no taint is attached to his
testimony only on account of his being such an
officer. If his testimony appears to be reliable
and inspires confidence, the Court would be fully
justified in acting upon such a testimony,
particularly when it finds corroboration from
other facts and circumstances of the case.
In a case under NDPS Act, in the absence of
any animosity between the accused and the
official witnesses, there is nothing wrong in
relying upon their testimonies.
The case of the appellant is that he was
arrested from Chandigarh and implicated in this
case, no material has been produced by him to
substantiate the plea taken by him.

Page 27 of 76

S.67

Kanhaiyalal v. Union of AIR 2008 SC 1044


India

An officer vested with the powers of an


officer-in-charge of a Police Station under S. 53
of N. D. P. S. Act is not a "Police Officer" within
the meaning of S. 25 of the Evidence Act. Thus, it
is clear that a statement made under S. 67 of N.
D. P. S. Act is not the same as a statement made
under Section 161 of Cr. P. C., unless made under
threat or coercion.
It is this vital difference, which allows a
statement made under Section 67 of the N.D.P.S.
Act to be used as a confession against the person
making it and excludes it from the operation of
Sections 24 to 27 of the Evidence Act.

S.42

Karnail Singh v. State of (2009) 8 SCC 539


Haryana

A conviction can be maintained solely on


the basis of a confession made under Section 67
of the NDPS Act.
Total non-compliance of requirements of
sub-sections (1) and (2) of section 42 is
impermissible,
delayed
compliance
with

Page 28 of 76

S.42

satisfactory explanation about the delay will be


acceptable compliance of section 42.
Khet Singh v. Union of Cri. A. No. 31/2000
As the possession of any narcotic drugs or
India
D.O.D.20.03.2002 psychotropic substance by itself is made
Supreme Court
punishable under the act, the seizure of the
article from the appellant is of vital importance.
Where the seizure mahazar is prepared at a
later stage, the officer should indicate his
reasons as to why he had not prepared the
mahazar at the spot of recovery. If there is any
inordinate delay in preparing the seizure
mahazar, that may give an opportunity to tamper
with the contraband article allegedly seized from
the accused.
To avoid suspicious circumstances or
allegations of plantations and to have a fair
procedure in respect of search and seizure, it is
always desirable to prepare the seizure mahazar
at the spot itself from where the contraband
articles were taken into custody.
Kishan Chand vs State of Cri. A. No 1375/2008
When there is total and definite nonHaryana.doc
D.O.D.13.12.2012 compliance of such statutory provisions, the
Supreme Court
question of prejudice loses its significance. It will

Page 29 of 76

per se amount to prejudice.


These are indefeasible, protective rights
vested in a suspect and are incapable of being
shadowed on the strength of substantial
compliance.
Once, there is total non-compliance and
these provisions being mandatory in nature, the
prosecution case must fail.
The sending of report as required under
Section 57 of the Act on 20th July, 2000 will be
no compliance, factually and/or in the eyes of
law to the provisions of Section 42 of the Act.
These are separate rights and protections
available to an accused and their compliance has
to be done in accordance with the provisions of
Sections 42, 50 and 57 of the Act. They are
neither inter-linked nor inter-dependent so as to
dispense compliance of one with the compliance
of another. In fact, they operate in different

Page 30 of 76

fields and at different stages.


S.42

S.50

Krishna Kanwar alias AIR 2004 SC 2735


Thakuraeen v. State of
Rajasthan

Sub-section (2) only comes into operation


where the officer concerned does the
enumerated acts, in case any offence under
Chapter IV has been committed or documents
etc. are concealed in any building, conveyance or
enclosed place. Therefore, the commission of the
act or concealment of document etc. must be in
any building, conveyance or enclosed place.
A bare reading of Section 50 shows that it
only applies in case of personal search of a
person. It does not extend to search of a vehicle
or a container or a bag, or premises.
There is no specific form prescribed or
intended for conveying the information required
to be given under Section 50. What is necessary
is that the accused (suspect) should be made
aware of the existence of his right to be searched
in presence of one of the officers named in the
Section itself. Since no specific mode or manner

Page 31 of 76

S.32A Krishnan & Ors vs State Cri. A. No. 973/2008

S.67

of Haryana

D.O.D.07.05.2013
Supreme Court

M. Prabhulal v. DRI

Cri. A. No. 486/2003


D.O.D.19.09.2003
Supreme Court

is prescribed or intended, the Court has to see


the substance and not the form of intimation.
Whether the requirements of Section 50
have been met is a question which is to be
decided on the facts of each case and there
cannot be any sweeping generalization and/or
strait-jacket formula.
Section 32-A insofar as it ousts the
jurisdiction of the court to suspend the sentence
awarded to a convict under the Act is
unconstitutional.
So far as issue regarding remission\
commutation is concerned, matter referred
to a larger bench
Appellants did not make any complaint
before the Magistrate. It is only when their
statements were recorded by the trial judge
under Section 313 of Code of Criminal Procedure
that a vague stand about the torture was taken.
Under these circumstances, the confessional
statements cannot be held to be involuntary. The
statements were voluntarily made and can, thus,
be made the basis of appellants conviction.

Page 32 of 76

S.42

S.42

S.50

Madan Lal v. State of AIR 2003 SC 3642:


Himanchal Pradesh
(2003) 7 SCC 465

Recovery cannot be doubted for want of


non-examination of independent witnesses.
Section 42(2) is not applicable when search
seizure etc. is conducted by a Gazetted Officer
under Section 41(2) and (3).
Constable taken a copy of the daily diary
reg. receipt of information about transportation
of charas and handed over to the reader of the
Superintendent of Police. PW-5 corroborated
statement of PW-8 about delivery of the copy of
information and he placed it before the
concerned Superintendent of Police.
It only applies in case of personal search of
a person. It does not extend to search of a vehicle
or a container or a bag, or premises.
Seals were intact and there was no
tampering. There was very minimal and almost
ignorable variation in weight.
Whether there was conscious possession
has to be determined with reference to the
factual backdrop. Accused were traveling in a
vehicle and they were known to each other. It
has not been explained or shown as to how they

Page 33 of 76

travelled together from the same destination in a


vehicle which was not a public vehicle.
The
expression
'possession'
is
a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. The word 'conscious' means
awareness about a particular fact. It is a state of
mind which is deliberate or intended.
Possession in a given case need not be
physical possession but can be constructive,
having power and control over the article in case
in question, while the person whom physical
possession is given holds it subject to that power
or control.
Once possession is established the person
who claims that it was not a conscious
possession has to establish it, because how he
came to be in possession is within his special
knowledge. They knew about transportation of
charas, and each had a role in the transportation
and possession with conscious knowledge of
what they are doing. Manjit Singh does not stand

Page 34 of 76

S.50

Man Bahadur v. State of AIR 2009 SC 369


H. P.

S.42

Md. Malek Mondal v. AIR 2005 SC 2406


Pranjal Bardalai

S.36A

S.66

Mohd. Alam Khan v.


NCB

JT 1996 (2) 636

on a different footing merely because he was a


driver of the vehicle.
He had merely given an option to the
appellant to be searched either by himself or in
presence of a Magistrate or a gazetted Officer.
The question whether Section 42 of the
NDPS Act has been complied or not being a
question of fact has to be gone into on
appreciation of evidence that may be adduced
before the Special Judge.
Section 41 does not take away powers
vested in special court by Section 36A of the
NDPS Act.
In order to invoke the aid of Section 66, the
prosecution should have established that the
appellant is the owner and was in actual
possession of the flat in question.
It is not in dispute that the appellant did
not admit his signature in the agreement in
question. The prosecution did not bother to
produce any independent evidence to establish
that the appellant was the owner of the flat in
question by producing documents from

Page 35 of 76

Mukhtiar Singh alias Cr. A. No. 49/2011


Babloo v. GNCT of Delhi D.O.D.03.07.2014
Delhi High Court

Munnu Khan v. State

Cr. A. No. 647/2003


D.O.D.07.05.2013
Delhi High Court
2013 IV AD (Delhi) 893

S.42

concerned Registrars office or by examining the


neighbors.
A-1 has a family consisting of wife and
widow mother to support and there is none else
to take care of them, he being the sole breadearner of the family.
Sentence modified to the extent that
substantive sentence under Section 15 NDPS Act
would be RI for 12 years instead of RI for 15
years and the fine amount under Sections 15/25
NDPS Act would be one lac each and the default
sentence for its non-payment will be SI for three
months each.
In Dilip vs. State, 2011 Cri. L.J 334 has
already held that in case of recovery of charas,
the percentage of Tetra Hydro Cannabinol is
immaterial.
On 28th May, 2001, 1.700 kgs. was
recovered from the appellant. On 3rd July, 2001,
sample parcel was sent along with Form CFSL to
FSL. As long as the parcels and the samples
remained in his custody they remained intact.
The contraband was recovered from open

Page 36 of 76

S.50

S.50

S.37

space, near the bus stand and thus even S. 42


NDPS Act had no application to facts of the case.
The contraband was not recovered from the
personal search but from the polythene in the
hand of the Appellant. Thus compliance of
Section 50 NDPS Act was not mandatory.
Testimony of police witness cannot thrown
out merely because public witness were not
forthcoming to join the investigation.
Myla Venkateswarlu vs Cri. A. No. 611/2012
According to depositions of the police party,
State of Andhra Pradesh D.O.D.04.04.2012 there is no clear communication to the
Supreme Court
accused that they had a right to be
searched in the presence of a gazetted
officer or a Magistrate.
N. R. Mon v. Md. Cri. A. No 1167/2001
Bail granted against parameters set-aside.
Nasimuddin

S.37

D.O.D.15.05.2008
Supreme Court
Narcotics Control Bureau AIR 2004 SC 2950
v. Dilip Pralhad Namade

Narcotics
Control
Bureau,
Jodhpur
v.

AIR 2004 SC 4524

Mere non-compliance of the order passed


for supply of copies, if any, cannot as in the
instant case entitle an accused to get bail
notwithstanding prohibitions contained in S. 37.
Respondents role in regard to the
contraband was to take his father on his scooter

Page 37 of 76

Murlidhar Soni

S.50

S.42

S.50

to the place where they were allegedly arrested.

The bundle in question which contained the


contraband was carried by Murlidhar Soni and
there is no material whatsoever to show that the
present respondent had the knowledge that the
bundle contained any contraband. In our
opinion since the prosecution has not placed any
material to show the conscious possession of the
contraband by the respondent herein.
Narcotics Control Bureau Cr. A. No. 111/1997
It is only in cases of personal search that
v. Allauddin
D.O.D.16.12.2010 Section 50 of the Act is required to be complied
Delhi High Court with.The recovery of heroin in the facts of the
case can only be stated to be from a public place
and thus the mandatory requirement of Section
43 and not Section 42 of the Act has to be
complied with.
Narcotics Control Bureau AIR 2011 SC 1939:
An endeavour should be made by the
vs Sukh Dev Raj Sodhi
(2011) 6 SCC 392
prosecuting agency to produce the suspect before
the nearest Magistrate.
Nirmal Singh Pehlwan vs Cri. A. No 1857/2010
It cannot by any stretch of imagination be
Inspector, Customs
D.O.D.21.07.2011 said to be informing the appellant of his right to
Supreme Court
be searched in the presence of a Gazetted Officer

Page 38 of 76

S.35

Noor Aga v. State of AIR 2009 SC (Supp) 852


Punjab

or a Magistrate as he was only given the option


to be searched before one of the other.
PW.4 Prem Singh did not utter a single
word as to whether he had informed the
appellant of his right and he merely took his
option as to whether he would like to be
searched before a Gazetted Officer or a
Magistrate as noted in Ex.P.A. In the light of the
judgment in Vijaisingh's case (supra) we find
that there has been complete non-compliance
with the provisions of Section 50 of the Act.
The provisions of Sections 35 and 54 are not
ultra vires the Constitution of India. However,
procedural requirements laid down therein are
required to be strictly complied with.
Discrepancies in the treatment and disposal
of
the
physical
evidence.
There
are
contradictions in the statements official
witnesses. Non-examination of independent
witnesses and the nature of confession and the
circumstances of the recording of such
confession do not lead to the conclusion of the

Page 39 of 76

appellant's guilt.
Cri. A. No. 302/2008
Failure of Investigating Officer to join
D.O.D.:25.04.2011 independent witnesses, however, by itself cannot
Delhi High Court be taken as a circumstance to reject testimony of

Radhey Shyam v. State

S.42

Rajendra v. State
Madhya Pradesh

of

AIR 2004 SC 1103

the police officials. But, this calls for a cautious


approach on the part of the Court while
analysing the evidence.
Samples were found containing Morphine
content to the extent of 3.4% and 3.2%
respectively whereas fresh samples drawn from
the case properties and sent to CFSL found
containing Morphine to the extent of 0.49% and
0.47%. this a huge variations in the content.
There is overwriting in the memos
regarding the date at the top and under the
signatures of the IO. It appears that date has
been converted to 2.6.2004 by overwriting from
3.6.2004.
Section 42 deals with "building, conveyance
or enclosed place" whereas Section 43 deals with
power of seizure and arrest in public place. The
commission of the act or concealment of

Page 40 of 76

document etc. must be in any building,


conveyance or enclosed place.
It only applies in case of personal search of
a person. It does not extend to search of a vehicle
or a container or a bag, or premises.

S.50

Rajesh
Jagdamba
Avasthi v. State of Goa

AIR 2005 SC 1389

Raju Premji v. Cutoms Cri. A No. 1647/2007


NER Shillong Unit
D.O.D.06.05.2009
Supreme Court

S.50

Rakesh alias Shanker v. Crl. A. No.663/2010


State
D.O.D.08.01.2004
Delhi High Court

Discrepancy in weight of sample when


drawn and examined in laboratory. Seal and
packets containing contraband in possession of
same person. There was possibility of seized
substance being tampered.
Discrepancy in description on seal is not
sufficient to disbelieve prosecution case.
In any event if they were in custody of the
police officers as also the customs officers,
although they were not accused in strict sense of
the term, any confession made by them would
not be admissible in terms of Section 26 of the
Evidence Act, 1872.
Before searching the trunk being carried by
the appellant, a notice under Section 50 of NDPS
Act was given to the appellant. Contention that
the notice purporting to be under S. 50 of the Act

Page 41 of 76

Ram Singh vs Central Cri. A. No.451/2005


Bureau of Narcotics
D.O.D.28.04.2011
Supreme Court

Ram Swaroop v. State Cri. A. No.1327/2010


(Govt. NCT) of Delhi
D.O.D.21.05.2013
Supreme Court

was given to the appellant, the said notice ought


to have complied with the requirements of S. 50.
State contended that no notice under
Section 50 of the Act was required to be given
before searching the trunk being carried by the
appellant, the defect in the notice given to him
would not render the recovery illegal.
Held: IO chose to give a notice under S. 50
before searching the bag being carried by him on
his shoulder, the notice should have conformed
to the requirement of S. 50 and if the notice did
not conform to said requirement, the recovery of
ganja from him would be per se illegal.
A servant of a hotel cannot be said to be in
possession of contraband belonging to his
master unless it is proved that it was left in his
custody over which he had absolute control.
Section 18 of the Act prescribes punishment
for possession and that possession has to be
conscious.
There is no absolute rule that police officers
cannot be cited as witnesses and their
depositions should be treated with suspect. Non-

Page 42 of 76

S.50

S.37
S.50

examination of the independent witnesses cant


affect prosecution case.
32 bags of poppy straw powder weighing 64
Kgs. had been seized from two bags. It has not
been seized from the person of the accusedappellant. Contention that there has been noncompliance of Section 50 of the NDPS Act is
wholly sans substance.
Ratan Kumar Vishwas v.
AIR 2009 SC 581
Parameters of Section 37 are not fulfilled to
State of U. P.
warrant grant of bail by suspension of sentence.
Rattan
alias
Rattan Crl. A. No.605/2012
In the absence of any explanation being
Singh v. State (Govt. of D.O.D.24.01.2013 sought from the IO, no importance can be
NCT of Delhi)
Delhi High Court attached to discrepancy in notice.
Public witnesses are reluctant to come
forward to join police investigation in order to
avoid their repeated visits to the Police Station
and Court. There is no reason to disbelieve the
official witnesses even in the absence of any
corroboration from independent witnesses.
No explanation was obtained by the defence
counsel as to the presence of the FIR number
thereon, particularly when the FIR had not come
into existence by the time seizure memos were

Page 43 of 76

written.
In any event the law as explained by the
Supreme Court is that the mere writing of the
FIR number on the arrest and search memos
cannot entirely falsify those documents.
Significant decisions is Radhey Shyam v
State of Haryana JT 2001 (3) SC 535.
Mere mentioning of the FIR on the seizure
memos Exs.PW3/E and PW3/F would not mean
that the memos were prepared after the FIR
came into existence.
Mere delay of one month in sending the
samples is not fatal to the prosecution.
If the prosecution version of the receipt of
secret information is accepted, there was no
necessity for the IO to have inquired the names
of the two persons.
For the purpose of applicability of Section
20 of the NDPS Act, the Court is simply to see
whether the substance recovered is Charas or not

Page 44 of 76

and not its purity.


S.42

Ravindran v. Supdt. of
Customs

Roy V. D. v. State of
Kerala

AIR 2001 SC 137

Arrest and seizure took place at the bus


stand and not in any building, conveyance or
enclosed place. The case was covered by S. 43 of
the Act which does not require the information
of any person to be taken down in writing.
Similarly, there is no requirement that the
concerned officer must send a copy thereof to his
immediate official superior within 72 hours. S.
42 of the Act was not attracted to the facts of the
case.
The appellant was carrying a plastic bag in
which the drug in question duly packed had been
kept. S. 50 is not attracted to the facts of this
case.
There is no general principle of law that the
illegality of the seizure would in all cases prove
fatal to the case of the prosecution.
The appellant was searched by the Excise
Inspector, Devikulam.
The life and liberty of an individual is so
sacrosanct that it cannot be allowed to be

Page 45 of 76

S.42

S.50

interfered with except under the authority of law.


It is a principle which has been recognised
and applied in all civilised Countries. In our
Constitution, Article 21 guarantees protection of
life and personal liberty not only to citizens of
India but also to aliens.
In the instant case, however, the search and
recovery were by an officer who was not
empowered so to do. If the proceedings in the
instant case are not quashed, the illegality will be
perpetuated resulting in grave hardship to the
appellant by making him to undergo the ordeal
of trial which is vitiated by the illegality and
which cannot result in conviction and sentence.
It is a fit case to exercise power under S. 482 of
Cr.P.C to quash the impugned proceedings.
Saikou Jabbi v. State of Cri. A. No.103/2003
The appellant was apprehended around
Maharashtra
D.O.D.03.12.2003 midnight at Sahara Airport Bombay for carrying
Supreme Court
heroin in his baggage in Flight.

Section 50 applies in case of personal


search of a person. It does not extend to search
of a vehicle or a container or a bag, or premises.

Page 46 of 76

S.37

Sami
Ullaha
v.
Superintendent, Narcotic
Central Bureau
Satpal Mann v. State

The rigours of the provisions of Section 37


of the Act relating to grant of bail do not apply to
intermediate quantity.
Cri. A. No.896/2013
There is no reason to disbelieve deposition
D.O.D.19.03.2014 of the police officials with respect to the
Delhi High Court appellant bringing parcels containing ganja from
the house of Mahavir Tyagi and delivering the
same to the other appellants. None of the
appellants claims any enmity or ill-will between
him and the aforesaid witnesses. Therefore,
there could have been no reason for the
witnesses to falsely implicate them in this case.
The quantity of ganja seized by the police being
quite large, there is no reasonable possibility of
its having been planted.
If the appellants wanted to impeach the
case of the prosecution on account of the receipt
of the aforesaid call and SMS on the mobile of
the appellant, they ought to have cross-examined
the Investigating Officer in this regard thereby
giving him an opportunity to explain how and in
what circumstances the aforesaid call and SMS
AIR 2009 SC 1357

Page 47 of 76

were received on said mobile phone.


Had there been any tampering with the
seals, the FSL would not have noted, in its report
that the seals were intact as per the forwarding
letter.
S.52

In Gurbax Singh Vs. State of


Haryana (2001) 3 SCC 28; It was held that
though the provisions of Section 52 & 57 of the
Act are directory and their violation would not
ipso facto vitiate the trial or conviction, the IO
cannot totally ignor them and the failure to
comply with them would have a bearing on
appreciation of the evidence regarding the arrest
of the accused or seizure of the article.
In any case, the provisions of Section 52 of
the Act being directory and no prejudice to the
appellants having been shown on account of the
delay if any in their being forwarded to the
Officer-in-Charge of the police station, no
ground for acquittal of the appellants is made
out.

Page 48 of 76

In a case under the NDPS Act, particularly


where such serious allegations are made against
the police officials, recovery of contraband in
presence of the independent witness assumes
significance. [See Ritesh Chakarvarti v.
State of M.P. (2006) 12 SCC 321]
The provisions of the NDPS Act being harsh
in nature, the procedural safeguards contained
therein must scrupulously be complied
therewith.
A presumption under Section 54 of the Act
can only be raised after the prosecution has
established that the accused was found to be in
possession of the contraband in a search
conducted in accordance with the mandate of
Section 50.
Senior
Intelligence Cri. A. No.1266/2011
Nandini Satpathy v. P. L. Dani, (1978)
Officer vs Jugal Kishore D.O.D.05.07.2011 2 SCC 424 was not followed in Poolpandi v.
Samra
Supreme Court
Superintendent, Central Excise, (1992) 3
SCC 259, a three judge bench held that a person
called for interrogation is not entitled to the
presence of his lawyer when he is questioned
Sarju v. State of U. P.

S.54

AIR 2009 SC 3214

Page 49 of 76

during the investigation.


Held: interrogation of the respondent may
be held within the sight of his advocate or any
other person duly authorized by him. The
advocate or the person authorized by the
respondent may watch the proceedings from a
distance or from beyond a glass partition but he
will not be within the hearing distance and it will
not be open to the respondent to have
consultations with him in course of the
interrogation.
Shahejadkhan
Cri. A. No.1593/2012
Term of imprisonment in default of
Mahebubkhan Pathan vs D.O.D.05.10.2012 payment of fine is not a sentence. It is a penalty
State of Gujrat
Supreme Court
which a person incurs on account of non-

payment of fine. Where a substantial term of


imprisonment is inflicted, an excessive fine
should not be imposed except in exceptional
cases.
S.2

Shiv Kumar Mishra v.


State of Goa

AIR 2009 SC 2011

"Ganja", include the seeds and leaves of the


cannabis plant since the seized Ganja was
accompanied by the flowery parts of the plant.

Page 50 of 76

Siddiqua v. Narcotics
Control Bureau

2007 CRI. L. J. 1471

There is nothing in the NDPS Act to suggest


that when the weight of a quantity of Ganja is to
be ascertained, the moisture content has to be
separately ascertained and excluded. The weight
of the contraband would, be the weight taken at
the time of seizure.
A witness can be asked to refresh his
memory by looking into documents bearing his
signatures or his writing to refresh his memory.
There is no provision under the NDPS Act
for handing over of the seal by the Investigating
Officer after use to some independent witness.
The only stand is that the seal was not given to
an independent witness and there was possibility
of misuse. Mere possibility of a thing does not
cast doubt on the prosecution case.
There is no rule of evidence or procedural
laws under Cr. P. C. or NDPS Act that every
document must be prepared on the spot of
recovery.
Mere non-production of Malkhana register
cannot create doubt about the case property

Page 51 of 76

remaining intact in the Malkhana.


If ten persons watch one incident and if
they are all asked to describe the same incident
after some time, each person shall give a
description of the incident which will not match
in minute details with the description of the
other.
Minor discrepancies are very natural to
occur in testimony of different witnesses and the
testimony of a witness cannot be rejected on the
ground that there were minor discrepancies or
contradictions.

State of Delhi v. Jitti

The description of the same case property


identified in the Court by one as a light colour,
other light brown or brown makes no difference
and cannot be a ground to give benefit of doubt.
AIR 2007 SC (Supp)
The respondent could not comply with the
1031
conditions of bail, he was not released on bail.
Thus he remained in jail since about ten years.
Appeals disposed of without expressing final
opinion on merits of the case.

Page 52 of 76

S.50

State of Delhi v. Ram Cri. A. No.1101/2004


The appellant was informed that a Gazetted
Avtar alias Rama
D.O.D.07.07.2011 Officer or a Magistrate could be arranged for
Supreme Court
taking his search, if he so required. This

intimation
could
not
be
treated
as
communicating to the appellant that he had a
right under law, to be searched before the said
authorities. As the recovery itself was illegal, the
conviction and sentence has to be set aside.
Once the recovery itself is made in an illegal
manner, its character cannot be changed, so as
to be admissible, on the strength of statement of
witnesses. What cannot be done directly cannot
be permitted to be done indirectly.
S.50

State of Haryana
Jarnail Singh

v.

AIR 2004 SC 2491

Section 50 of the NDPS Act did not apply to


the facts of this case, where on search of a
tanker, a vehicle, poppy husk was recovered.
This not being a case of personal search, Section
50 was not applicable. Moreover there was no
prior information regarding the contraband
being carried in a vehicle, and the recovery was
the result of checking of the vehicle in normal

Page 53 of 76

course.
Where a search is conducted by a gazetted
officer himself acting under Section 41 of the
NDPS Act, it was not necessary to comply with
the requirement of Section 42.
The tanker was moving on the public
highway when it was stopped and searched.
Section 43 therefore clearly applied to the facts
of this case.

S.42

S.43

S.50

State of
Ranbir

Haryana

v.

AIR 2006 SC 1796

S.50

State of
Suresh

Haryana

v.

AIR 2007 SC 2245

S. 50 of the Act would be applicable only in


a case of personal search of the accused and not
when it is made in respect of some baggage like a
bag, article or container etc. which the accused at
the relevant time was carrying.
What is the meaning of the words "search
any person" occurring in sub-section (1) of
Section 50 of the Act.
A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are given
a separate name and are identifiable as such.
They cannot even remotely be treated to be part

Page 54 of 76

S.50

State
of
Himachal
Pradesh v. Pawan Kumar

AIR 2005 SC 2265

State of M. P. v. Bhura
Kunjda

AIR 2006 SC 569

State of NCT of Delhi v.


Ashif Khan

AIR 2009 SC 1977

State
of
Orissa
Kanduri Sahoo

AIR 2004 SC 833

v.

of the body of a human being.


A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are given
a separate name and are identifiable as such.
They cannot even remotely be treated to be part
of the body of a human being.
High Court disposed the appeal by a very
short and cryptic judgment in a most
unsatisfactory manner exhibiting complete nonapplication of mind without consideration of the
evidence adduced by the parties. Matter
remanded.
Quantity of the narcotic drug or
psychotropic substance found in the mixture,
relevant for the purpose of imposition of
punishment.
The evidence of P.W. 1 was categorical to
the effect that the articles were kept in the Excise
Malkhana from where they were brought and
sent for chemical examination. In Valasla's
case, AIR 1994 SC 117; What was emphasised
related to proper and safe custody of the seized

Page 55 of 76

S.50

State of Punjab v. Balbir


Singh

S.50

State of Punjab
Balwant Rai

v.

AIR 2005 SC 1576

S.15

State of Punjab v. Hari


Singh

AIR 2009 SC 1966

AIR 2005 SC 27

articles.
18 bags containing poppy husk were
recovered from search of the cart. S.50 only
applies in case of personal search of a person. It
does not extend to search of a vehicle or a
container or a bag, or premises.
15 bags of poppy husk were found by side of
road and petitioner was found sitting on them On search of petitioner nothing incriminating
was found and only a sum of Rs. 200/- was
recovered but on search of bags it was found to
contain Poppy husk - Search of bags would not
amount to search of person of petitioner - Order
acquitting accused on ground that petitioner
ought to have given option to be searched before
Magistrate as required under Section 50 liable to
be set aside.
Unless possession was coupled with
requisite mental element, i.e. conscious
possession and not mere custody without
awareness of the nature of such possession.
Section 15 is not attracted. No question relating
to possession, much less conscious possession

Page 56 of 76

S.15

State of Punjab
Lakhwinder Singh

v.

AIR 2010 SC 1557

S.50

State of Punjab
Makhan Chand

v.

AIR 2004 SC 3061

S.52A

was put to accused in examination.


Delay of about seven days in sending the
samples to the Forensic Examiner. The seal
having been found intact at the time of the
examination by the Chemical Examiner.
Respondents, during the trial, could not
give any satisfactory reply as to how and why
they came from Haryana and were found sitting
on bags of poppy husk. Their subsequent
conduct of hiding behind the bags establish that
they were in possession of the aforesaid bags.
S. 50 of the Act would not apply to a
situation where the search undertaken is not of
the person of the accused but of something
carried in his hand.
S. 52-A(1) does not empower the Central
Government to lay down the procedure for
search of an accused, but only deals with the
disposal of seized narcotic drugs and
psychotropic substances.
There could be circumstances in which it
may not be possible for the seizing officer to

Page 57 of 76

S.15

S.35

S.54

S.313

prepare the mahazar at the spot.


State of Punjab v. Ram AIR 2009 SC (Supp)
Legal position relating to conscious
Pal
1397
possession was dealt with in Madan Lal v.
State of H.P., 2003 (7) SCC 465.
The word "conscious" means awareness
about a particular fact. It is a state of mind
which is deliberate or intended. The word
"possession" means the legal right to
possession.
Once possession is established, the
person who claims that it was not a
conscious possession has to establish it,
because how he came to be in possession is
within his special knowledge.
State of Punjab v. AIR 2005 SC 31114
Except making a general suggestion,
Sawaran Singh
the accused had completely admitted the
evidence of PW 1 and PW 4 as regards the
receipt of the sample, sealing of the same
and sending it to the Chemical Analyst. In
the instant case, the accused was not in

Page 58 of 76

any way prejudiced by not giving him an


opportunity to answer specifically regarding
the evidence of PW 1 and PW 4.
S.15 State of Punjab v. Surjit
Singh

AIR 2009 SC 2439

State of Punjab v. Piara


Singh

Cr. A. No.112/2011
D.O.D.:10.08.2011
Supreme Court

S.50 State of Rajasthan v.

AIR 2007 SC 2018

Independent witnesses was won over


and, therefore, he was not examined - Thus
prosecution version would not become
vulnerable due to non-examination of said
person when evidence of official witnesses
does not suffer from any infirmity.
In cases, in which the trials had
concluded and appeals were pending on
2.10.2001, when amending Act 9 of 2001
came
into
force,
the
amendments
introduced by the amending Act 9 of 2001
would not be applicable and they would
have to be disposed off in accordance with
the NDPS Act, 1985, as it stood before
2.102001.
A bag, briefcase or any such article or

Page 59 of 76

container,
etc.
can,
under
no
circumstances, be treated as body of a
human being. It is not possible to include
these articles within the ambit of the word
"person" occurring in Section 50 of the Act.

Babu Ram

State of Rajasthan v. AIR


2009
Daul alias Daulat Giri
(Supp.) 1592

SC

S.50 State of Rajasthan v. AIR 2005 SC 3816


Daulat Ram

State of Rajasthan v. AIR 2005 SC 1578


Gurmail Singh

Merely because employee in office of


S.P. who was in possession of samples for
only few hours was not examined - Cannot
be ground to acquit accused.
Bag carried by him on his head was
searched and it was found to contain
contraband opium - Bag or any such article
carried by accused cannot be treated as
body or part of body of human being and it
is not included within ambit of word
'person' occurring in S. 50.
Malkhana register was not produced in
evidence to prove that seized articles were

Page 60 of 76

kept in Malkhana - No sample of seal was


sent along with sample to excise laboratory
for purpose of comparing with seal
appearing on sample bottles - No evidence
to prove satisfactorily that seals found were
in fact same seals as were put on sample
bottles immediately after seizure of
contraband Acquittal
S.50 State of Rajasthan v. AIR 2009 SC 2642
The provision has no application when
Manoj Sharma
the search is not of a person. In the instant
case, the seizure was not from person of
accused, but from inside the house. That
being so, Section 50 of the Act had no
application to the facts of the case.
S.50 State of Rajasthan v. Cri. A. No.78/2005 Whether Section 50 would be applicable to
Parmanand
D.O.D.28.02.2014
this case because opium was recovered only
Supreme Court
from the bag carried by Parmanand?
Ans: If merely a bag carried by a person is

Page 61 of 76

searched without there being any search of


his person, Section 50 of the NDPS Act will
have no application. But if the bag carried
by him is searched and his person is also
searched, Section 50 of the NDPS Act will
have application.

S.50 State of Rajasthan v. AIR 2005 SC 2221


Ram Chandra

A joint communication of the right


available under Section 50(1) of the NDPS
Act to the accused would frustrate the very
purport of Section 50.
The officer proposing to effect the search
cannot act in dual capacity; first as an
officer authorized under Section 42 to
search a person and second as the Gazetted
Officer in whose presence the accused may
opt to be searched. If a superior officer
happens to be with the officer authorized
(which the High Court has described as

Page 62 of 76

being a member of the raiding party) the


position would be different.
S.50 State of Rajasthan v.
Shanti

AIR 2010 SC 43

Section 50 has application only when there


was personal search. In the instant case the
samples were collected, after seizure, from
her bag.

State of Rajasthan v. AIR 2008 SC (Supp) Investigating Officer had produced samples
Udai Lal
1810

of article - Considering huge quantity for


non-production of all bags adverse inference
cannot be drawn - High Court failed to
consider
all
relevant
materials
and
circumstances - Order of acquittal is liable
to be set aside.
S.50 State of U. P. v. Subhash AIR 2009 SC 2441 The High Court found on going through the
Kumar Singh Tomar
evidence of PWs. 1 and 2 that there is
nothing to suggest that the requirement of
Section 50 was complied with Affirmed.
S.42 State of West Bengal v. AIR 2004 SC 4324 Raid conducted at house of accused on

Page 63 of 76

Babu Chakraborty

obtaining secret information - Noncompliance with mandatory provisions of S.


42 relating to recording of information and
the ground of belief.

Failure to comply with S. 42(1), proviso to S.


42(1) and S. 42(2) would render the entire
prosecution case suspect and cause
prejudice to the accused.
State v. Fatima
Cr. A. No.134/2006 It is the actual content translated into the
D.O.D.:07.03.2014
Delhi High Court weight of the offending drug which has to
be taken into account to determine the
quantity recovered from the accused.
State v. Mohd. Yasin
Cr. A. No.135/2006 It is the actual content translated into the
D.O.D.:07.03.2014
Delhi High Court weight of the offending drug which has to
be taken into account to determine the
quantity recovered from the accused.
S.42 State, NCT of Delhi v. AIR 2007 SC (Supp) In case the police officer on patrol duty
Malvinder Singh
237
stops the vehicle in transit in a public place
and conducts search and seizure, Section

Page 64 of 76

42 has no application.
S.42 Sukhdev Singh v. State of Cri. A No.2118/2008 Secret information was received that the
Haryana
D.O.D.13.12.2012
accused was in the habit of selling chura
Supreme Court
post (poppy husk) in his house. Secret
information was neither reduced in writing
nor communicated to senior officer. There is
patent illegality in the case of the
prosecution and such illegality is incurable.
This is a case of total non-compliance.
S.42 Sunil Kumar Yadav v. Cr. A. No.944/2010 Consequent
to the amendment the
NCB
D.O.D.:18.03.2014
Delhi High Court information which is reduced into writing
can be transmitted to the superior officer at
any time within 72 hours of its receipt.
Meaning thereby that the house could have
been searched before transmitting the said
information to the superior officer.
Discrepancy in the weight of the sample
cannot be sole ground for acquittal of the
accused in a case under NDPS Act.

Page 65 of 76

Sunil alias Bhure v. State

Cr. A. No.34/2010
D.O.D.:31.01.2014
Delhi High Court

Narcotic Control Bureau


v. Parash Singh

AIR 2009 SC 244

S.50 Suresh v. State


Madhya Pradesh

Tassavur v. DRI

of

Cri. A No.300/2009
D.O.D.22.11.2012
Supreme Court

Cr. A. No.599/2012
D.O.D.:18.03.2014
Delhi High Court

A penal provision providing for enhancing


sentence does not operate retrospectively.
Notification dated 18.11.2009 cannot be
applied retrospectively.
No new offence was created by the
Amendment Act. But at the same time no
punishment
higher
than
what
was
originally provided for can be imposed on
the accused.
The appellants were not apprised about
their right to be searched before a gazetted
officer or a Magistrate but consent was
sought for their personal search.
In peculiar facts of the case, the order on
substantive sentence under Section 21 (c) of
NDPS Act is maintained.
Directions given for trial of offences under
the NDPS Act.

Thana Singh vs Central Cri. A No.1640/2010


Bureau of Narcotics
D.O.D.23.01.2013
Supreme Court
S.67 Tofan Singh vs State of Cri. A No.152/2013 Matter referred to a larger Bench for reTamil Nadu
D.O.D.08.10.2013

Page 66 of 76

Supreme Court

S.42 Union of India v. Bal


Mukund

AIR 2009 SC (Supp)


1811

consideration of the issue whether the


officer investigating the matter under NDPS
Act would qualify as police officer or not.
Respondent Nos. 1 and 2 were arrested on
the basis of some secret information
received by the informant. The said
purported secret information revealed the
exact place, time and quantity of the
narcotics the respondent Nos. 1 and 2
would be carrying. It was, however,
admittedly neither recorded in writing nor
was forwarded to the superior officers.
Subject to just exceptions, thus, taking
down the information in writing is,
therefore, very necessary to be complied
with.
PW-7 had taken samples of 25 grams each
from all the five bags and then mixed them
and sent to the laboratory. There is nothing

Page 67 of 76

Union of
India
Kuldeep Singh
India
S.37 Union of
Mahaboob Alam

to show that adequate quantity from each


bag had been taken. It was a requirement in
law.
v. (2004) 2 SCC 590 Sentencing guidelines laid down.
v. AIR 2004 SC 3020 High Court erred in granting bail to a repeat

offender merely on the ground that a coaccused has been granted bail. Appellant is
a victim of vengeance, is an argument to be
taken note of while hearing the appeal on
merit, and cannot be an argument for the
purpose of grant of bail.

S.37 Union of India v. Rattan AIR 2009 SC (Supp) Power to grant bail is subject to
Mallik
1567

twin

conditions viz;
(i)
the satisfaction of the Court that
there are reasonable grounds for
believing that the accused is not
guilty of the alleged offence; and
(ii)
that he is not likely to commit any

Page 68 of 76

offence while on bail, have to be


satisfied.
The conditions are cumulative and not
alternative. The satisfaction contemplated
regarding the accused being not guilty, has
to be based on "reasonable grounds". It
means something more than prima facie
grounds.
S.50 Union of India v. Shah AIR 2010 SC 1785 Question: Heroin was first recovered from
Alam
the bags carried by the respondents and
then they were also subjected to a search of
their persons but the personal search did
not lead to any further recovery.
Answer: The two respondents were
subjected to a body search in course of
which packets of heroin were found in the
shoulder bags carried by them and were
recovered from there. The alleged recovery
of heroin from the respondents was made in

Page 69 of 76

complete violation of the provisions of


Section 50 of the Act.
S.23 Union of India v. Sheo Cri. A No.1027/2008 The
explanation tranships occurring
Shambhu Giri
D.O.D.25.03.2014
under Section 23 must necessarily be
Supreme Court

understood in the context of the scheme of


the Section and the preceding expressions
of import into India and export out of
India to mean only transhipment for the
purpose of either import into India or export
out of India.
S.37 Union of India v. Shiv AIR 2007 SC (Supp) The raiding party seized nearly 400 Kg. of
Shanker Kesari
908
poppy straw from the possession of the
accused. The High Court granted bail on
the ground that the recovery was not from
the exclusive possession of the accused.
The respondent had no criminal history.
Held: The Court while considering the
application for bail with reference to Section
37 of the Act is not called upon to record a

Page 70 of 76

finding of not guilty. It is for the limited


purpose essentially confined to the question
of releasing the accused on bail that the
Court is called upon to see if there are
reasonable grounds for believing that the
accused is not guilty and records its
satisfaction about the existence of such
grounds. But the Court has not to consider
the matter as if it is pronouncing a
judgment of acquittal and recording a
finding of not guilty.
Decision: The impugned order is clearly
unsustainable and is set aside.
Union of India v. Mohan Cri. A. No.652/2012 The respondents were acquitted of the
Lal
D.O.D.03.07.2013
charges U/S. 8/18(b) r/w S. 29 of the NDPS
Supreme Court

Act for the reason that no evidence


regarding the destruction of the 3.36 Kgs. of
opium
allegedly
seized
from
the
respondents had been provided by the

Page 71 of 76

prosecution.
Held: In the absence of any evidence to
show that the seized contraband was
destroyed as per the prevalent procedure,
the
contraband
should
have
been,
according to the High Court, produced
before the Trial Court. The failure of the
prosecution to do so, therefore, implies a
failure to prove the seizure of the
contraband from the possession of the
respondents.

Chandubha
S.50 Vijaysinh
AIR 2011 SC 77
Jadeja v. State of Gujrat : (2011) 1 SCC 609

Held: Report sought on the process adopted


for destruction
of the Drugs
and
Psychotropic substances.
It would be imperative on the part of the
empowered officer to apprise the person
intended to be searched of his right to be

Page 72 of 76

searched before a gazetted officer or a


Magistrate. In so far as the obligation of the
authorised officer under sub-section (1) of
Section 50 of the NDPS Act, it is mandatory
and requires a strict compliance.
Failure to comply with the provision would
render the recovery of the illicit article
suspect and vitiate the conviction if the
same is recorded only on the basis of the
recovery of the illicit article from the person
of the accused during such search.
Thereafter, the suspect may or may not
choose to exercise the right provided to him
under the said provision.
The question whether or not the procedure
prescribed has been followed and the
requirement of Section 50 had been met, is
a matter of trial.
S.42 Yashihey Yobin vs Dept Cri. A. No.1199/2010 If the search is made by an officer

Page 73 of 76

of customs

D.O.D.20.02.2013 authorized under Section 41(2) of the Act


Supreme Court

then the said officer is said to be acting


u/Section 41(2) and therefore compliance
under Section 42 is not necessary at all. A
gazetted officer is an empowered officer and
so when a search is carried out in his
presence and under his supervision, the
provision of Section 42 has no application.

S.50

In the instant case, the bag is brought by


A2 and the contents of the bag are taken
out by him and given for search which is
thereafter seized by the officials after having
found contraband substance. In such a
case the inextricable connection between
the search of a person and the bag cannot
be established but rather it is only the
search of the bag and therefore the search
and seizure conducted by the gazetted
officer
need
not
comply
with
the

Page 74 of 76

requirements under Section 50 of the Act.


Man Singh v. State of Cri. A. No.1516/2008 The appeal was decided by the High Court of M.
M.P.
D.O.D.24.09.2008 P. without hearing counsel for the Appellant.
Supreme Court
Held. The High Court could have in such

circumstances required the Legal Aid Committee


to appoint another counsel. The matter was
remitted back for fresh hearing.
S.25 Abbas Ali V. State of
Punjab

Cri. A. No.1771/2011
D.O.D.15.01.2013
Supreme Court

The contraband was transported in a vehicle


registered in the name of Appellant.
High Court held that the appellant could not
rebut the statutory presumption of the existence
of culpable mental state under Section 35 of the
Act nor could he prove beyond reasonable doubt,
the statutory exception provided under Section
60(3) of the Act. He was convicted under section
25 of the Act. Before Supreme Court, It was
contented that the Appellant was 60% disabled.
Held: The factum of a person being physically
disabled does not imply that he would accord his

Page 75 of 76

permission to the use of his vehicle for an


offence punishable under the Act.
S.50 Ajmer Singh v. State of 2010 (2) SCR 785 Search and recovery from a bag, brief case,
Haryana
container, etc., does not come within the
ambit of Section 50 of the N.D.P.S. Act.
Whether evidence of the official witness
cannot be relied upon as their testimony,
has not been corroborated by any
independent witness?
Held: It is normally expected that there
should be independent evidence to support
the case of the prosecution. However, it is
not an inviolable rule. it may not be
possible to find independent witness at all
places, at all times. The obligation to take
public witnesses is not absolute. If after
making efforts which the court considered
in circumstances of the case reasonable,

Page 76 of 76

the police officer is not able to get public


witnesses to associate with the raid or
arrest of the culprit, the arrest and recovery
made would not be necessarily vitiated.
The court will have to appreciate the
relevant evidence and will have to determine
whether the evidence of the police officer
was believable after taking due care and
caution in evaluating their evidence.
Principle of parity in criminal case can be
invoked where the case of the accused is
similar in all respects as that of the coaccused then the benefit extended to one
accused should be extended to the coaccused.