Case Note & Summary
The petitioner, Nasu Seikh, was arrested on 09.10.2025 in connection with Crime No. 159 of 2025 for offences under Sections 8(c) read with 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was remanded to judicial custody and faced trial in C.C. No. 1915 of 2025 before the I Additional Special Judge, NDPS and EC Act, Chennai. The prosecution alleged that based on specific information, the police intercepted two persons near Ambattur Railway Station at 6:00 a.m. and recovered a total of 23 kg of ganja. From the petitioner (A1), 12 kg was seized, and from the co-accused (A2), 11 kg was seized, both under separate mahazars. The petitioner moved the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail pending trial. The main contentions of the petitioner were that the recovery from him was only 12 kg, which falls within the intermediate quantity, and not commercial; that the grounds of arrest were bereft of necessary particulars; and that the mandatory requirement under Section 50 of the NDPS Act was not complied with because the notice issued in Tamil was not understood by him, a native of West Bengal. The respondent, represented by the Government Advocate, argued that both accused were found together, the total quantity aggregated to 23 kg, which is commercial, and that the statutory presumption under Section 35 of the NDPS Act applied. It was also contended that the arrest occurred prior to the Supreme Court's judgment in Mihir Rajesh Shah v. State of Maharashtra, which mandated written grounds of arrest prospectively, and hence the petitioner could not rely on that decision. Regarding Section 50, the Investigating Officer's statement indicated that the petitioner was informed of his right in Hindi through a translator named Aasik, thereby achieving substantial oral compliance. The court addressed three issues: (i) the applicability of Mihir Rajesh Shah's prospective ruling on grounds of arrest, (ii) compliance with Section 50 of the NDPS Act, and (iii) whether the quantities could be aggregated to constitute commercial quantity. On the first, the court held that since the arrest was prior to the Mihir Rajesh Shah judgment, the petitioner could not derive any benefit from the newly declared procedural requirement. On the second, relying on Vijaysinh Chandubha Jadeja v. State of Gujarat, the court noted that Section 50 compliance is mandatory but may be oral; the statement of the Investigating Officer about Hindi communication through a translator satisfied the requirement for bail purposes. On the third, the court found that the joint presence of both accused at the time of interception and recovery prima facie established a common intention, and therefore the quantities could be aggregated to 23 kg, which is commercial, attracting the restrictions under Section 37 of the NDPS Act. The court also referred to Gorakh Nath v. State of Bihar to clarify that the prosecution must first establish a prima facie case for Section 35 presumption, which it did through evidence of simultaneous seizure. The decision in Amar Singh Ramjibhai Barot was distinguished on facts. Consequently, the bail petition was dismissed.
Headnote
A) Criminal Procedure - Bail - Grounds of Arrest - Constitution of India, Art. 22; Bharatiya Nagarik Suraksha Sanhita, 2023, S. 483 - The court held that the decision in Mihir Rajesh Shah v. State of Maharashtra, (2026) 1 SCC 500, which mandated written communication of grounds of arrest, operates prospectively. Since the petitioner was arrested before that judgment, the challenge based on defective grounds of arrest could not be pressed into service. Held, the requirement applies only to future arrests (Para 6). B) Narcotics and Psychotropic Substances - Search and Seizure - Compliance with Section 50 NDPS Act - Narcotic Drugs and Psychotropic Substances Act, 1985, S. 50 - The petitioner contended that the Section 50 notice was in Tamil, a language he did not understand, rendering the search illegal. The court, following Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, held that Section 50 compliance is mandatory but not required in writing, and oral communication suffices. As the Investigating Officer stated that the right was explained in Hindi through a translator, this constituted substantial compliance for bail consideration. Held, no violation of Section 50 (Paras 7-11). C) Narcotics and Psychotropic Substances - Determination of Quantity - Aggregation of Possession - Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 35, 37 - Separate recoveries of 12 kg and 11 kg of ganja were made from the petitioner and co-accused respectively at the same time and place. The court applied the principle that when co-accused are found together at the time of recovery, the quantity may be aggregated to determine whether it is commercial. The joint interception and presence established a prima facie case of meeting of minds, leading to aggregation of the total 23 kg, which is commercial. Consequently, the bail restrictions under Section 37 applied (Paras 12-14). D) Evidence - Presumptions - Reverse Burden under NDPS Act - Narcotic Drugs and Psychotropic Substances Act, 1985, S. 35 - Citing Gorakh Nath v. State of Bihar, (2018) 2 SCC 305, the court reiterated that Section 35 does not dispense with the prosecution's duty to first establish a prima facie case. In this case, the joint interception and simultaneous recovery from both accused at the same spot provided such prima facie evidence, thereby attracting the statutory presumption of culpable mental state and shifting the burden to the accused. Held, the prosecution had made out a prima facie case for invoking the reverse burden (Paras 13-14).
Issue of Consideration
Whether the arrest was vitiated due to the alleged non-furnishing of grounds of arrest; whether there was compliance with Section 50 of the NDPS Act when the written notice was in Tamil, a language not known to the petitioner, but oral communication was made in Hindi; and whether the separate recoveries of ganja from the petitioner and co-accused could be aggregated to constitute commercial quantity, thereby attracting the bar under Section 37 of the NDPS Act
Final Decision
The Criminal Original Petition was dismissed.
Law Points
- Legal points not extracted
- Compliance with Section 50 of NDPS Act is mandatory but may be oral
- Aggregation of contraband quantities from co-accused for determining commercial quantity
- Presumption under Section 35 NDPS Act requires prima facie case by prosecution
- Prospective operation of Mihir Rajesh Shah on grounds of arrest
