A three-judge Bench of CJI NV Ramana, Justice Surya Kant, and Justice Hima Kohli has held that in the absence of any clarity on the quantitative analysis of the samples, the prosecution cannot claim at the preliminary stage that the accused have been found to be in possession of commercial quantity of psychotropic subtances as contemplated under the NDPS Act.

The Court, while granting bail made reliance on the case of Tofan Singh v. State of Madras wherein as per the majority decision, a confessional statement recorded under Section 67 of NDPS Act was held to be inadmissible in the trial of an offence under the Act.

Additional Solicitor General Ms. Aishwarya Bhati appeared for DRI Senior Counsel Mr. Gopal Shankaranarayanan appeared for Accused No. 4 and Senior Counsel Mr. Anand Grover appeared for Accused No. 1 before the Court.

Two Petitions for Special Leave to Appeal were filed assailing the impugned judgment of the Madras High Court. The first SLP (Crl) No. 5703/2021 was filed by Accused No. 4 aggrieved by the reversal of the bail order granted by the Special Judge, EC & NDPS Cases, Chennai whereas, the second SLP (Crl) No. 8919 of 2021 was filed by Accused No. 1 challenging the dismissal of the bail application filed by him under Section 439 CrPC.

In this case, the Directorate of Revenue Intelligence (DRI) had seized 1,37,665 tablets of different types collectively weighing 90Kgs. (approx.) described as psychotropic substances in Chennai. An investigation was carried out by the DRI upon which Accused Nos. 1, 2 & 3 were summoned and booked for offences under Section 8(c) punishable under Sections 22(c), 25, 28, and 29 of the NDPS Act and were arrested.

Based on the statements of the accused, A4 was also arrested. However, he was granted bail by the Special Judge by relying upon Tofan Singh's case.

The High Court however had cancelled the bail granted to A4 and the bail application moved by A1 was also dismissed.

The Appellant (A4) contended before the Supreme Court that High Court overlooked the fact that not a single tablet was recovered from his possession. It was further argued that tablets were seized from premises of A1 to A3 and were male potency drugs and not contraband.

While the Appellant (A1) pleaded that no commercial quantity of the psychotropic substance was proved. The test reports produced by the prosecution showed that the Ayurvedic/herbal medicines seized did not fall under the ambit of the NDPS Act.

While the DRI supported the impugned judgment passed by the High Court rejecting the bail of the accused.

The Apex Court observed that the impugned order passed by the High Court cancelling the bail granted in favor of A4 was not sustainable in view of the fact that quantitative analysis of the samples could not be carried out. In this context, the Court held –

"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 substances as contemplated under the NDPS Act."

Further, the Bench opined, "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."

"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," the Court added.

Furthermore, the Court noted, "In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that 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 dated 15th July, 2021."

Accordingly, the Court set aside and quashed the impugned order of the High Court cancelling the bail granted in favor of A4, thereby restoring the order of the Special Judge, EC & NDPS Cases.

Regarding A1, the Court held that since the chargesheet had already been filed and the accused had already served imprisonment for over two years, he was directed to be released on bail subject to the satisfaction of the Trial Court and disposed of the Petitions.

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