Tag: NDPS Act

-Report by Ojas Bhatnagar

The Bombay High Court has directed the Secretary of the Home Department, Maharashtra Government to compensate a Nigerian National for detaining him due to an error in the report. This has been held in the case of Novafor Samuel Inoamaobi vs The State of Maharashtra A Nigerian national was wrongly arrested under the NDPS (Narcotic Drugs and Psychotropic Substances) Act in 2020.

FACTS

The Anti-Terrorism Squad (ATS) received a tip that a Nigerian National would be coming to a particular spot at a specific time to sell cocaine. To prevent this, a raid was conducted by the same. The ATS arrested a person who looked suspicious and found cocaine in a blue plastic bag, some pink ecstasy tablets and heart-shaped pills. The seized material was sent to the Directorate of Forensic Science Laboratory and they prepared an examination report where they identified the goods as caffeine and on the basis of which the Nigerian National was charged under sections 8C, 20, 22 of the NDPS Act.

However, after almost 2 years the assistant director of Forensic Science Laboratory, Home Department, admitted his mistake stating that these substances are not under the jurisdiction of the NDPS Act. The sufferer has thus asked for bail.

Court’s Decision

The Bombay High Court has very clearly stated that the applicant deserves bail without a question. The substance found was not contraband and the raid which the ATI conducted does not fall under the purview of the NDPS Act. The typing error is a blatant mistake. An individual’s liberty is a fundamental right, enshrined in Article 21 and applies to foreigners too. The Court has observed:

“Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a
fundamental right, enshrined in Article 21, it is available to every person, citizens and foreigners alike. The incarceration of the applicant, with the above clarification, has therefore, become unlawful, as, but for this report, no offence could have been made out against him.”

The court has asked the State Government to come up with a proposal as to how to compensate the applicant for his incarceration.

-Report by Riddhi Ray

The appeal of Buddhiyarin Bai V. State of Chhattisgarh came to the Supreme Court of India for reduction of the sentence of the lady against the judgment and order dated 26th February 2018, where she got punished with rigorous imprisonment of 15 years and a fine of 1 lakh rupees and extended imprisonment of 3 years on nonpayment of fine under section 20 (b) (ii) c of the NDPS Act, 1985.

Facts

A senior citizen lady named Budhiyarin Bai along with her two sons, Pila Ram and Rajkumar alias Raju and two other persons- Rajendra Tiwari and Idris Khan got accused of possession of commercial quantities of cannabis and delivery of them. A charge sheet had been filed against the lady and her two sons on 15th January 2011 for the joint possession of 0.5 quintals and 21.5kg cannabis under section 20 (b) (ii) c of the NDPS Act, 1985. An allegation against two co-accused i.e., Rajendra Tiwari and Idris Khan was that they had delivered the cannabis to the lady’s house in the Village Chikhali under the Police Station Dondi. It was in accordance with section 27 A of The NDPS Act, 1985.

The learned trial court under judgment dated 8th November 2012 set the four co-accused free from all charges and the lady became the main accused for the possession of such substances. Both the trial court and high court of Chhattisgarh did not consider the factor of the lady being poor, illiterate and a senior citizen, the punishment should be reduced.

Appellant’s contention

The counsel for the appellant contended that the trial was distinct but the court has given such strict punishment to the lady without examining the totality of the matter and the other salient facts into consideration.

Obiter Dicta

The court observed that-

“We are of the considered view that the offenses under the NDPS Act are very serious in nature and against the society at large and no discretion is to be exercised in favor of such accused who are indulged in such offences under the Act. It is a menace to the society; no leniency should be shown to the accused persons who are found guilty under the NDPS Act. But while upholding the same, this Court cannot be oblivious of the other facts and circumstances as projected in the present case that the old illiterate lady from rural background, who was senior citizen at the time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that the prosecution failed to examine and taking note of the procedural compliance as contemplated under Sections 42, 50 and 55 of the NDPS Act, held the appellant guilty for the reason that she was residing in that house but at the same time, this fact was completely ignored that the other co accused were also residing in the same house and what was their trade, and who were those persons who were involved into the illegal trade providing supplies of psychotropic substances, prosecution has never cared to examine.”

Ratio Decidendi

While considering her appeal, the Apex court bench Justice Ajay Rastogi and CT Ravikumar noted that the minimum sentence for an offense committed under section 20 (b) (ii) c of the NDPS Act, 1985 is imprisonment of 10 years which may extend to 20 years and a fine of 1 lakh which may extend to 2 lakhs. Here the punishment that has been given is much higher than the minimum one and for that matter section, 32 B of the said act must be considered. But the same
has not been performed by the trial courts prior. And while judging her case the punishment for such an old illiterate lady who has no prior history of committing a crime can be reduced to 12 years with a fine of 1 lakh and in default, to further undergo rigorous imprisonment of six months which shall meet the ends of justice.