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Supreme Court quashes Madras HC order in NDPS Act case, says male potency pills don’t attract its provisions

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The Supreme Court on Monday granted bail to an accused in a narcotics case and observed that a large number of tablets seized by the Directorate of Revenue Intelligence (DRI) admittedly contain herbs or medicines meant to enhance male potency and they don’t attract the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985.

A bench, headed by Chief Justice N.V. Ramana and comprising Justices Surya Kant and Hima Kohli, quashed the Madras High Court order which had canceled the bail granted to an accused Bharat Chaudhary (accused),  in an alleged narcotics case.

The case set up by the prosecution is that on specific information received by the DRI, Chennai Zonal had seized about 1,37,665 tablets of different types collectively weighing 90 kg (approx.) described as psychotropic substances. Vide order dated November 2, 2020, the Special Judge, EC & NDPS Cases, Chennai granted bail to Bharat Chaudhary. On the DRI challenging the order before the High Court of Madras, the bail order granted in favour of Bharat Chaudhary has been canceled by the Single Judge.

The High Court opined that the test reports did not totally negate the fact that the seized contraband goods were not narcotic substances. Much emphasis was laid on the total quantity of the contraband seized and it was held that once the test reports showed that some of the tablets contained narcotic substances, it was sufficient to refuse bail. Critical of the approach of the trial Court that held that since the test reports were not filed by the prosecuting agency along with the complaint, the benefit ought to ensure in favour of Bharat Chaudhary, the High Court observed that, by the time the Special Judge, EC & NDPS Cases had pronounced the order on November 2, 2020, test reports were available and ought to have been taken into consideration. The accused then approached the Top Court.

Senior Advocate Gopal Shankaranarayanan, appearing for the accused in the Supreme Court, assailed the High Court order contending that there was no good reason for the High Court to have canceled the bail granted to the accused by the Special Judge, EC & NDPS cases. He submitted that a grave error has been committed by the High Court by completely overlooking the fact that not a single tablet was recovered from the possession of the accused. The tablets were seized from the premises and some of the extracted samples sent for testing showed that a large number of the seized pills were sex enhancement drugs and not contraband; the seized contraband had not been produced or sampled before the Magistrate .

Also Read: Allahabad High Court directs action against officers for falsely booking a man under NDPS Act

Additional Solicitor General Aishwarya Bhati, appearing for DRI, supported the HC judgment and argued that Bharat Chaudhary is the mastermind behind the entire criminal conspiracy. She alluded to the 71 samples sent for testing and the test report of CRCL, Chennai dated December 18, 2019 confirming the presence of narcotic substances along with male potency increment drugs and strenuously argued that the nexus is not only established through the statements recorded under Section 67 of the NDPS Act but also from the documents in the form of printouts of the data downloaded from the mobile phone and laptop of Bharat Chaudhary, in particular, the WhatsApp chats and bank transactions. Submitting that since the twin tests laid down under Section 37 of the NDPS Act in respect of commercial quantity for grant of bail have not been satisfied, the impugned order does not deserve interference.

After carefully examining the arguments advanced by counsel for the parties and having cursorily glanced at the records, the Supreme Court opined that order canceling the bail granted in favour of Bharat Chaudhary 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 December 6, 2019, two test reports dated December 17, 2019 and one test report dated December 21, 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 quantities of psychotropic substances as contemplated under the NDPS Act, the Bench held.

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Further,the Court added that 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 Bharat Chaudhary at Jaipur, on March 16, 2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of Bharat Chaudhary cannot be treated at this stage as sufficient material to establish a live link between him and other accused , when even as per the prosecution, scientific reports in respect of the said devices are still awaited.

In the absence of any psychotropic substance found in the conscious possession of the accused, the Bench opined that mere reliance on the statement made by other accused under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated July 15, 2021. “This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra),” the Court said while quashing the Madras High Court order and granted bail to the accused.

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