Category: Transfer Petition

The NDPS Act, 1985 : The Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 is one of the harshest laws in the country. It prohibits the cultivation, production, possession, sale, purchase, trade, use, and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes under license.

The Act has been amended twice; in 1989 and 2001. The first amendments in 1989 leaned towards greater stringency by introducing mandatory minimum sentences of 10 years, restrictions on bail, and mandatory capital punishment for repeat offenders. Following the amendments, persons caught with small amounts of drugs faced long prison sentences, without the possibility of release on bail. Courts criticized the harsh and disproportionate sentencing structure, which led to a fresh set of reforms in 2001 to rationalize punishment on the basis of whether the quantity of drugs involved is small, commercial, or intermediate and provides some leniency towards drug offenders who also use drugs.

Stringent Provisions of the NDPS Act:

• Mandatory minimum sentence of 10 years‟ imprisonment for certain offences.
• Presumption of guilt and reversal of burden of proof.
• Severe restrictions on grant of bail.
• Pre-trial detention of up to 1 year
• No suspension, remission and commutation of sentences
• No release on probation for offenders‟
• Enhanced punishment (up to 30 years imprisonment) for repeat offenders
• Compulsory death sentence for subsequent conviction for specific offences
• A person arrested under the Act for minor offences like consumption and those involving small quantity of narcotic drugs and psychotropic substances is entitled to bail.

Treatment Provisions under the NDPS Act

• “Addict” is defined as a person who has dependence on any narcotic drug or psychotropic substance (Section 2(1)).
• If addicts are convicted for consumption or offences involving small quantity then they can be diverted to treatment by the Court, instead of prison, for undergoing treatment for detoxification
• (Section 39).
• Immunity from prosecution to addicts volunteering for treatment (Section 64A)

Other legal information

Tedhi Singh vs Narayan Dass Mahant

The Supreme Court observed that it cannot be expected of a complainant to initially lead evidence to show that he had financial capacity unless such a case was set up in the reply notice by the accused.

However, the accused has the right to demonstrate that the complainant in a particular case did not have the financial capacity by producing independent materials, namely, by examining his witnesses and producing documents, by pointing to the materials produced by the complainant himself, or through the cross examination of the witnesses of the complainant, the bench comprising Justices KM Joseph and Hrishikesh Roy observed.

The Court was considering an appeal against concurrent conviction in a cheque bounce case. The main contention raised by the accused-appellant before the Apex Court was that the complainant did not have the financial capacity to to give the hand loan.

The Apex Court bench noted that the Trial Court and the First Appellate Court had observed that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. In this context, the bench observed:

“At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.”

Perusing the reply notice, the bench noted that the accused admitted that the parties were having a cordial relationship and had not set up any case that the complainant did not have the financial capacity to advance the loan. There is no reference to the loss of the cheque book or signed cheque leaf, the court noted.

“We would think that in the totality of facts of this case the appellant has not established a case for interference with the finding of the Courts below that the offence under Section 138 N. I. Act stands committed by the appellant”, the bench said while dismissing his appeal.

The court however directed that sentence of imprisonment of one year shall stand vacated and the appellant-accused shall stand sentenced to fine of Rs.5,000/- which he will deposit within a period of one month in the Trial Court.

Headnotes

Negotiable Instruments Act, 1881 ; Sections 138,139 – At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity – However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents, by pointing to the materials produced by the complainant himself, or through the cross examination of the witnesses of the complainant. (Para 9)

Negotiable Instruments Act, 1881 ; Sections 138,139 – Theory of ‘probable defence’ – he accused is not expected to discharge an unduly high standard of proof – All which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist – It becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. [Referred to Basalingapa Vs. Mudibasappa (2019) 5 SCC 418] (Para 7, 9)

Constitution of India, 1950 ; Article 136 -Supreme Court exercising power under Article 136 of the Constitution may not refuse to interfere in a case where three Courts have gone completely wrong. The jurisdiction generated in an appeal under Article 136 is undoubtedly rare and extraordinary. Article 136 of the Constitution only confers a right to obtain special leave in rare and extraordinary cases. (Para 11)

Appeal against concurrent conviction in a cheque bounce case – Partly allowed – Upheld the conviction – Directed that sentence of imprisonment of one year vacated – Accused appellant sentenced to fine of Rs.5,000/- which he will deposit within a period of one month in the Trial Court.

Case details

Case name | Citation : Tedhi Singh vs Narayan Dass Mahant

Case no.| date : CrA 362 OF 2022 | 7 March 2022

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv Sangeeta Bharti for appellant, Adv Ajay Marwah for respondent

Other Legal Information

NDPS Act, 1985