Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 31.10.2026
Supreme Court: DRI Cannot Secure NDPS Conviction Based Only on Statements of Co-Accused
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India set aside Surinder Kumar Khannaβs drug-trafficking conviction because the prosecution had no substantive evidence against him beyond statements made by his co-accused.
Background of the case
The case arose from a Directorate of Revenue Intelligence operation in Hoshiarpur, Punjab. Officers intercepted a white Indica car after receiving information that narcotics were being transported from Jammu towards Chandigarh. Two occupants, Raj Kumar alias Raju and Surinder Pal Singh, were found in the vehicle.
A search of the car reportedly led to the recovery of four packets concealed in the boot-door area. The packets allegedly contained approximately 3.990 kg of heroin. The two occupants stated that the consignment had been collected from an individual in Jammu and was intended for delivery near PGI Chandigarh.
Although Surinder Kumar Khanna was not present at the interception and no contraband was recovered from him, investigators later alleged that he was involved in the trafficking operation. A supplementary complaint was filed against him under Section 21(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Conviction by the trial court and High Court
The trial court convicted Khanna and sentenced him to 12 yearsβ rigorous imprisonment, along with a fine of Rs. 1 lakh. On appeal, the Punjab and Haryana High Court upheld the conviction but reduced the prison term to 10 years.
The High Court relied principally on statements made by Raj Kumar and Surinder Pal Singh under Section 67 of the NDPS Act. It held that these statements were admissible and established Khannaβs involvement in drug trafficking.
The central issue before the Supreme Court
The Supreme Court considered whether a co-accusedβs alleged confession could, by itself, justify another accused personβs conviction.
The prosecution accepted that, apart from the co-accusedβs statements, there was no evidence directly connecting Khanna with the seized heroin or the other accused. Call-data records placed before the Court showed contact with a person in Dubai, but did not show that Khanna was in touch with either co-accused when they were apprehended.
What the Court held
The Court reaffirmed a fundamental evidentiary rule: a confession by one accused is not substantive evidence against a co-accused. It may only be considered to support or βlend assuranceβ to other independent evidence that already points to the co-accusedβs guilt.
The judgment relied on established precedents, including Kashmira Singh v. State of Madhya Pradesh and Hari Charan Kurmi v. State of Bihar. Those decisions explain that a court must first assess the evidence against an accused without considering a co-accusedβs confession. Only if independent evidence is sufficient to support conviction may the confession be used as an additional source of assurance.
The Court also noted that the NDPS Act contains no provision comparable to special statutes that expressly permit a co-accusedβs confession to be used against another accused in specified circumstances.
Importance of Section 67 statements
The judgment acknowledged that the legal status of statements recorded under Section 67 of the NDPS Act had been referred to a larger Bench in an earlier case. However, the Court held that even if those statements were treated as confessions, they could not alone establish Khannaβs guilt.
That distinction was decisive. The question was not merely whether the co-accusedβs statements could be considered; it was whether they could independently prove a separate accused personβs involvement. The Court answered no.
Final outcome
Finding no substantive evidence against Khanna, the Supreme Court allowed his appeal, quashed his conviction and sentence, and acquitted him of the charges. It directed that he be released immediately unless required in custody in another case.
Key legal takeaway
Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence reinforces that criminal conviction must rest on reliable, independent evidence. A co-accusedβs statement may corroborate an existing case, but it cannot fill the absence of evidence against another person accused of the offence.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 30.10.2026
Supreme Court: Section 37 NDPS Bail Conditions Cannot Be Ignored Merely Because No Drugs Were Recovered from Accused
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India set aside the Delhi High Courtβs bail order in Narcotics Control Bureau v. Mohit Aggarwal, reaffirming that bail in NDPS cases involving commercial quantities is subject to the strict βtwin conditionsβ in Section 37 of the NDPS Act.
Background of the case
The case arose from a Narcotics Control Bureau (NCB) operation in January 2020. Acting on information that a courier parcel booked from Agra for delivery in Ludhiana contained narcotic substances, NCB officers searched the courier companyβs godown in Delhi.
The parcel was labelled as containing βsurgical items,β but officers allegedly recovered 50,000 Tramadol tablets weighing 20 kg. The prosecution alleged that the consignment had been sent without a valid bill and had been mis-declared.
During the investigation, the NCB traced the alleged supply chain to several persons, including Mohit Aggarwal. Searches later led to the recovery of a much larger stock of psychotropic substances from the godown of another accused, Promod Jaipuria. The reported seizure included Tramadol, Zolpidem and Alprazolam tablets and capsules, injections, and syrup bottles, amounting to hundreds of kilograms of controlled substances.
Mohit Aggarwal was arrested on 11 January 2020. His two bail applications before the Special Judge under the NDPS Act were rejected. However, the Delhi High Court subsequently granted him post-arrest bail under Section 439 of the Code of Criminal Procedure.
The central legal issue
The key question before the Supreme Court was whether the High Court had correctly applied Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 while granting bail.
Section 37 imposes additional restrictions on bail where the alleged offence involves commercial quantities of narcotic drugs or psychotropic substances. Before bail can be granted, the court must satisfy two cumulative conditions when the prosecution opposes release:
there must be reasonable grounds to believe that the accused is not guilty of the alleged offence; and
the accused must not be likely to commit an offence while on bail.
The prosecution must also receive an opportunity to oppose the bail application.
Arguments before the Court
NCBβs case
The NCB argued that the High Court had taken an overly narrow view by focusing on the absence of any recovery from Mohit Aggarwalβs residence or shop. It contended that the investigation yielded independent circumstantial material connecting him with the alleged drug network.
According to the NCB, disclosures attributed to Mohit Aggarwal led officers to the godown from which a substantial quantity of psychotropic substances was recovered. It also relied on call-detail records said to show contact between the co-accused. The agency argued that these circumstances, together with the commercial quantity involved, made the grant of bail contrary to Section 37.
Respondentβs case
Mohit Aggarwal argued that the consignment had not been booked by him, no narcotics were recovered from him, and searches of his residence and shop produced nothing incriminating. He also challenged reliance on statements recorded under Section 67 of the NDPS Act.
The respondent relied on the Supreme Courtβs ruling in Tofan Singh v. State of Tamil Nadu, which held that confessional statements recorded under Section 67 are inadmissible at trial under the NDPS Act. He further pointed to the period already spent in custody, the filing of the charge-sheet, and the commencement of trial.
Supreme Courtβs ruling
The Supreme Court allowed the NCBβs appeals, quashed the High Courtβs bail order, cancelled Mohit Aggarwalβs bail bonds, and directed that he be taken into custody.
The Court agreed that the alleged confessional statements recorded under Section 67 could not be relied upon as substantive confessions in light of Tofan Singh. However, it held that this did not end the inquiry. The prosecution had also relied on other material, including the alleged recovery following the respondentβs disclosures and phone records indicating contact among the co-accused.
The Court held that the High Court should not have treated the absence of a recovery from the respondentβs personal possession as sufficient to conclude that he was not guilty. That conclusion was premature at the bail stage, particularly when other circumstantial evidence was on record.
Meaning of βreasonable groundsβ under Section 37
A major contribution of the judgment is its explanation of the phrase βreasonable grounds.β The Court reiterated that this standard requires more than a prima facie view. It calls for substantial and credible probable grounds for believing that the accused is not guilty.
At the same time, the Court clarified that a bail court is not expected to conduct a mini-trial or finally determine guilt. The inquiry is limited: whether the material available gives the court reasonable grounds to believe that the accused is not guilty and unlikely to reoffend while on bail.
This approach reflects the special statutory framework of the NDPS Act. In ordinary criminal cases, the general bail principles under the Code of Criminal Procedure apply. In commercial-quantity NDPS cases, those principles are supplemented by the stricter statutory threshold in Section 37.
Why the High Courtβs approach was rejected
The Supreme Court identified three core problems with the grant of bail:
Insufficient application of Section 37: The High Court did not adequately assess whether both statutory conditions for bail had been met.
Overemphasis on lack of personal recovery: The absence of contraband at the respondentβs residence or shop did not by itself establish that he was unconnected with the alleged offence.
Failure to account for circumstantial evidence: The alleged recovery from a co-accusedβs godown and the call-detail records were relevant material that required consideration, even if Section 67 confessions were excluded.
The Court also made clear that the duration of custody, filing of the charge-sheet, and commencement of trial are not, by themselves, persuasive grounds for granting bail where Section 37 applies.
Significance of the decision
Narcotics Control Bureau v. Mohit Aggarwal is an important bail decision under the NDPS Act because it reinforces the limited scope for release in commercial-quantity cases. It confirms that courts must separately and carefully apply the two conditions in Section 37 rather than relying only on ordinary bail considerations.
The ruling also draws a practical distinction between inadmissible Section 67 confessions and other evidence. While an accusedβs alleged confession to an NDPS officer cannot be used as substantive evidence at trial, independent circumstances such as recoveries, communications records, and other investigative material can still be relevant at the bail stage.
Key takeaway
The judgment confirms that in commercial-quantity NDPS cases, bail cannot rest merely on the absence of direct recovery or on time spent in custody; the court must find credible and substantial grounds to believe the accused is not guilty and unlikely to commit another offence while on bail.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 28.10.2026
Supreme Court: Mere Allegations of Drug Trafficking Financing Cannot Establish Guilt Under Section 27A NDPS Act
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India set aside Mohammed Fasrinβs conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), holding that the prosecution failed to produce reliable, corroborated evidence linking him to the alleged heroin-trafficking operation.
Background of the case
On 4 January 2003, narcotics officers received information that 7.4 kg of heroin was being transported in a Toyota Qualis parked near Tamil Nadu Hotel on the MaduraiβAlagar Koil Road. Officers intercepted the vehicle and recovered seven packets of heroin concealed in a false compartment beneath the front seat.
Several people found in the vehicle were prosecuted and convicted. Mohammed Fasrin, however, was not found in the vehicle and the prosecutionβs case against him rested primarily on two alleged confessional statements:
A statement by a co-accused, Hasan Mohamed (A-2)
Fasrinβs own statement, recorded after his arrest
The trial court convicted Fasrin for offences including financing illicit trafficking and involvement in drug-related export or import activity. The Madras High Court upheld that decision. He was sentenced to 15 yearsβ rigorous imprisonment and a fine of Rs. 1,50,000.
What the prosecution alleged
The prosecution alleged that Fasrin was connected to an international heroin-smuggling arrangement. According to the co-accusedβs statement, an individual named βMohammedβ from Bombay had arranged the movement of the heroin. The co-accused was allegedly told that the drugs would be transferred through another person, Nalliappan, and eventually handed to Fasrin.
This account did not establish a direct connection between Fasrin and the recovered heroin. The alleged chain depended on statements attributed to people who were not examined during the trial.
Why the Supreme Court overturned the conviction
No direct or corroborative evidence
The Court found that there was virtually no independent evidence showing that Fasrin financed, possessed, transported, imported, exported, or otherwise participated in the narcotics operation.
Neither the alleged Bombay-based Mohammed nor Nalliappan was examined as a witness or made an accused in the case. Their absence left a critical gap in the prosecutionβs account of how the heroin was supposedly meant to reach Fasrin.
A co-accusedβs confession was insufficient
The Court described a co-accusedβs confession as a weak form of evidence that must be supported by independent material. Such a statement may provide investigators with a lead, but it cannot by itself prove another personβs guilt.
Here, the co-accusedβs statement was also substantially hearsay: it merely alleged that another person had said the heroin would eventually be handed to Fasrin. The prosecution did not produce evidence to verify that assertion.
Fasrinβs alleged confession required scrutiny and support
Fasrinβs own alleged confession was recorded after he had been arrested. The Court proceeded on the assumption that the statement could be admissible, without deciding the wider legal question concerning confessions recorded under Section 67 of the NDPS Act.
Even on that assumption, the Court held that the prosecution had not shown that the statement was voluntary, free from pressure, and recorded after Fasrin had been informed of his rights. A custodial confession is weak evidence unless supported by reliable corroboration. No such corroboration was available.
The legal significance of the ruling
The decision reinforces that serious NDPS allegations do not lower the prosecutionβs burden of proof. Convictions for financing illicit drug trafficking under Section 27A require evidence that the accused directly or indirectly financed prohibited activities, or harboured people involved in them.
The Courtβs reasoning highlights three safeguards:
Confessional statements need careful evaluation, particularly where they are made in custody.
A co-accusedβs statement cannot substitute for independent proof against another accused person.
Missing links in the prosecutionβs narrative matter, especially when key intermediaries are neither examined nor prosecuted.
Outcome
The Supreme Court allowed Fasrinβs appeal, set aside the decisions of the trial court and the Madras High Court, and discharged his bail bonds. The ruling makes clear that suspicion and uncorroborated confessions cannot sustain a conviction where the prosecution fails to establish a credible evidentiary link between the accused and the alleged narcotics offence.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 27.10.2026
Supreme Court: Being a B.Tech Graduate Does Not Entitle an NDPS Accused to Bail
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India cancelled the bail granted to Prateek Shukla, holding that the Allahabad High Court had not properly applied the stringent bail standards required under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
Background of the case
The case arose from an investigation by the Narcotics Control Bureau (NCB) into suspected diversion of acetic anhydride, a controlled substance that can be used in the illicit manufacture of narcotic drugs. In October 2018, the NCB received information that Altruist Chemicals Private Limited had purchased a substantial quantity of acetic anhydride but had not filed the required quarterly returns for two reporting periods.
During searches connected with the company, the NCB alleged that it recovered 896 grams of acetic anhydride and 1.885 kg of amphetamine from the companyβs registered premises. Investigators also found documents relating to Griffin International, of which Prateek Shukla and Afghan national Bismillah Khan Ahmadzai were stated to be directors.
The investigation subsequently extended to a godown in Karheda village, Ghaziabad, where the NCB alleged that it recovered 9,650 kg of acetic anhydride along with empty drums. A search of Shuklaβs residence allegedly yielded company stamps, banking documents, business papers and other material said to connect multiple entities and co-accused persons.
Allegations and prosecution case
The NCBβs complaint alleged that the accused were part of an international drug syndicate involved in the diversion, storage, sale, purchase and export of the controlled substance. Shukla was arrested on 22 October 2018 and was charged under Sections 8, 9A, 25A, 23 and 29 of the NDPS Act.
The prosecution argued that the material recovered during the investigation established a prima facie connection between Shukla and the alleged conspiracy. It also contended that, given the gravity of NDPS offences, the High Court had granted bail without adequate reasons or proper consideration of the statutory restrictions in Section 37 of the NDPS Act.
Defence raised by the respondent
Shukla maintained that he had resigned as a director of Altruist Chemicals on 4 May 2018, after joining the company earlier that year. He argued that the relevant purchases and deliveries of acetic anhydride took place after his resignation and that he had informed the NCB of his departure from the company on 22 May 2018.
He further contended that he could not be held responsible for the companyβs later failure to submit quarterly returns. The High Court accepted his bail plea, observing prima facie that he may not be guilty, while also referring to his clean background and educational qualification.
Why the Supreme Court intervened
The Supreme Court found that the High Courtβs reasoning did not demonstrate judicial consideration of the seriousness of the allegations or the legal test governing bail under Section 37 of the NDPS Act. It emphasized that merely noting the partiesβ submissions is not enough; a bail order must show a reasoned application of the statutory standards.
The Court specifically criticized the High Courtβs reliance on Shukla being educated and holding a Bachelor of Technology degree as a reason to conclude that he was unlikely to commit an offence in the future. It held that this was an extraneous consideration in an NDPS bail decision.
The Supreme Court also noted that the prosecutionβs materials showed Shukla as a director of Altruist Chemicals, while his own bail application referred to transferring 99% of his shareholding to Bismillah Khan Ahmadzai. The Court observed that the respondentβs materials appeared to suppress more than they disclosed, though it did not decide the criminal charges at this stage.
Supreme Courtβs decision
Allowing the Union of Indiaβs appeal, the Supreme Court set aside the Allahabad High Courtβs order dated 7 May 2019. Shuklaβs bail was cancelled, and he was directed to surrender immediately.
Legal significance
The ruling underscores that bail in serious NDPS cases cannot rest on general observations about an accused personβs education, background or future conduct. Courts must apply the specific statutory safeguards under Section 37 and give reasons that engage with the allegations, the evidence and the gravity of the offence.
The decision reinforces the Supreme Courtβs expectation that bail orders in narcotics cases reflect a careful and legally grounded assessment rather than a cursory evaluation.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 26.10.2026
Supreme Court: Narcotics Need Not Be Recovered from Accused’s Body to Establish Conscious Possession
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India upheld Jeet Ramβs conviction for possessing 13 kg of charas under the NDPS Act, while reducing his sentence from 15 yearsβ rigorous imprisonment to 10 years because of the caseβs age and his advanced age.
Background of the case
The case arose from an operation by officers of the Narcotics Control Bureau (NCB), Chandigarh, on 18 June 2001 near the Nangala Devi Temple in Himachal Pradesh. According to the prosecution, NCB officers stopped at a roadside dhaba while travelling from Shimla to Theog. They said they detected the smell of charas and questioned Jeet Ram, who was present at the establishment.
The officers alleged that Jeet Ram became nervous and attempted to flee. A gunny bag found beneath the dhaba counter was searched, and it was found to contain 13 kg of charas. The contraband was divided into two parcels of 6.5 kg each, with samples drawn, sealed and sent for chemical analysis. The chemical analyst confirmed that the samples were charas.
Jeet Ram was prosecuted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Trial court acquittal and High Court reversal
The Sessions Court in Shimla acquitted Jeet Ram in 2003. It identified several weaknesses in the prosecutionβs case, including:
the absence of independent witnesses;
doubts over whether the charas was recovered from Jeet Ramβs dhaba or from his conscious possession;
alleged non-compliance with Section 50 of the NDPS Act;
concerns about the handling of seals and possible tampering of samples; and
the perceived improbability of leaving a large quantity of charas in an accessible gunny bag.
The NCB appealed. The Himachal Pradesh High Court reappraised the evidence, overturned the acquittal and convicted Jeet Ram. It imposed 15 yearsβ rigorous imprisonment, a fine of Rs. 2,00,000, and one additional year of imprisonment in default of payment.
Supreme Courtβs findings
The Supreme Court held that the High Court was entitled to review the evidence and reverse the acquittal because the trial courtβs conclusions were contrary to the record. It reiterated that an appellate court has broad authority to review, reappreciate and reconsider evidence in an appeal against acquittal.
However, the Court also restated an important safeguard: when two reasonable conclusions are genuinely possible on the evidence, an appellate court should ordinarily not disturb an acquittal. In this case, it found that the trial courtβs view was not a reasonably possible one on the evidence presented.
Why the Court accepted the prosecution case
Section 50 did not apply to the bag search. The Court held that Section 50 safeguards apply to a personal search, not to the search of a bag or other object. Therefore, the trial court was wrong to treat the alleged non-compliance with Section 50 as a reason for acquittal.
No adverse inference from lack of independent witnesses. The recovery allegedly occurred around 10:30 p.m. at a dhaba away from the village. The persons present were either linked to Jeet Ram or employed at the dhaba. The Court held that the lack of an independent witness, by itself, did not undermine credible official testimony.
Conscious possession was established. Jeet Ram was present at the counter, where the gunny bag was found. The dhaba stood on land owned by his wife, and there was evidence that he described himself as its owner. The Court concluded that he had physical control over the contraband and knowledge of its presence and character.
Tampering concerns were unsupported. A Judicial Magistrate had signed the samples and bulk parcels on 19 June 2001. The Court also noted that no suggestion of tampering had been put to the relevant NCB witnesses during the proceedings.
The statutory presumption applied. The Court stated that, once possession was established and Jeet Ram did not adequately explain it, the presumption under Section 54 of the NDPS Act operated against him. It also noted that his version in his Section 313 CrPC statement was not supported by the witnesses he referred to or by defence evidence.
Sentence reduced from 15 to 10 years
Although the conviction was maintained, the Court found the original sentence excessive in the particular circumstances. The incident was nearly two decades old by the time of judgment, and Jeet Ram was about 65 years old. He had also claimed to be a priest at the nearby temple.
The Court therefore reduced the custodial sentence to 10 yearsβ rigorous imprisonment. The fine of Rs. 2,00,000 was retained.
Legal significance
The ruling reinforces two significant principles in criminal appeals and NDPS prosecutions:
Appellate courts may reverse an acquittal after a full review of the evidence when the trial courtβs findings are unsupported or unreasonable. But they should not interfere merely because a second reasonable view is available.
Conscious possession may be inferred from the facts and surrounding circumstances, including control over the premises and proximity to the contraband. A search of a bag is not treated as a personal search requiring Section 50 compliance.
The judgment ultimately confirms that procedural concerns must be assessed against the complete evidentiary record, while sentencing may still be tailored to the individual circumstances of the accused.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 23.10.2026
Supreme Court: NDPS Conviction Can Rest on Reliable Police Testimony Even Without Independent Witnesses
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India upheld Sumit Tomarβs conviction and 10-year sentence for transporting a commercial quantity of poppy straw, holding that reliable police testimony can support an NDPS conviction even when an independent witness is not examined.
Case at a glance
In Sumit Tomar v. State of Punjab, decided on 19 October 2012, the Supreme Court dismissed criminal appeals challenging a conviction under Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court affirmed the decisions of the Special Court at Patiala and the Punjab and Haryana High Court.
Tomar was sentenced to 10 yearsβ rigorous imprisonment and fined Rs. 1 lakh, with an additional year of imprisonment in default of payment.
The alleged recovery
The prosecution case arose from a police checkpoint set up near Basantpur Bus Stand, Patiala, on 27 June 2004. Police signalled a silver Indica car to stop. According to the prosecution, the driver, Sumit Tomar, attempted to drive away but was stopped after the police blocked the route.
On searching the carβs boot, officers recovered two plastic bags containing opium powder, described in the proceedings as poppy straw. The contents were mixed, two samples of 250 grams each were drawn, and the remaining material was sealed. The recovered quantity was measured at 69.50 kg after sampling.
A forensic report later confirmed that the seized material was poppy straw, a prohibited substance under the NDPS Act.
Main arguments raised in appeal
Tomar challenged the conviction on two central grounds:
No independent witness testified: An individual named Kaur Singh was said to have been present during the recovery and to have signed relevant documents, but the prosecution did not examine him in court.
Improper sampling: The defence argued that mixing the contents of the two bags before drawing samples was an irregularity that undermined the prosecutionβs case.
The defence contended that, without independent corroboration and with allegedly flawed sampling, the conviction could not safely stand.
Supreme Courtβs reasoning
Police witnesses can be relied upon
The Court accepted that it is preferable for the prosecution to examine an independent witness in a case involving seizure of contraband. However, it ruled that the failure to examine such a witness does not automatically invalidate the prosecution case.
Kaur Singhβs presence was considered natural because he was stated to have encountered the police while passing the checkpoint. His signatures appeared on the consent memo, recovery memo and arrest memo. The prosecution also stated that he had been summoned but failed to appear.
Most importantly, the Court found no evidence that the official witnesses bore any animosity toward Tomar. It held that where police testimony is reliable and there is no demonstrated motive for false implication, a conviction may rest on that evidence.
The Court also relied on testimony from the car owner, who stated that Tomar had requested the vehicle for personal use. It was undisputed that Tomar was driving the car in which the contraband was found.
Mixing the contents did not cause prejudice
The Court rejected the challenge to the mixing of material from the two bags before sampling. It found that the procedure did not prejudice the accused because the total recovered quantity remained well above the statutory threshold for a commercial quantity.
Under Section 15 of the NDPS Act, punishment varies according to the quantity involved:
Small quantity: Up to 1,000 grams.
Commercial quantity: 50 kg or more.
Recovered quantity in this case: 69.50 kg after samples were drawn.
Because the recovered material exceeded 50 kg, the Court held that it clearly fell within the commercial-quantity category. The argument that separate samples should have been drawn from each bag therefore did not alter the applicable punishment range or cause legal prejudice to Tomar.
Outcome and legal significance
The Supreme Court dismissed the appeals and confirmed the conviction and sentence under Section 15(c) of the NDPS Act.
The ruling reinforces two important principles in narcotics prosecutions:
Independent witnesses are desirable but not indispensable. A court may rely on credible official witnesses when there is no evidence of bias, hostility or false implication.
A procedural objection must show actual prejudice. Where the contraband quantity remains unmistakably commercial even after the disputed sampling process, mixing material from multiple bags will not necessarily defeat the prosecution case.
The decision illustrates the Courtβs approach to evaluating evidence under the NDPS Act: procedural safeguards matter, but a conviction will not be overturned for an alleged irregularity that does not materially affect the accusedβs rights or the legal classification of the offence.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 22.10.2026
Supreme Court: Twelve Years in Jail Without Trial Raises Grave Constitutional Concerns Under the NDPS Act
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
In a landmark 2013 ruling, the Supreme Court granted bail to an NDPS undertrial imprisoned for more than 12 years before his trial even began and issued binding directions to curb systemic delays in narcotics cases.
A case that exposed a wider problem
Thana Singh v. Central Bureau of Narcotics began as a bail matter, but the Supreme Court treated it as evidence of a deeper failure in the administration of criminal justice under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
Thana Singh had remained in custody for over 12 years while awaiting the commencement of his trial. The offence alleged against him carried a maximum sentence of 20 years. In other words, he had spent more than half of the maximum possible sentence in prison without a trial beginning. Bail had repeatedly been denied, including by the High Court.
The Court held that this situation could not be reconciled with the constitutional guarantee of personal liberty and a speedy trial under Article 21 of the Constitution. It granted Thana Singh bail and used the case to examine the broader causes of delay in NDPS prosecutions across India.
Why NDPS cases require special urgency
Bail in NDPS matters is often difficult because Section 37 of the NDPS Act imposes stringent conditions. The Supreme Court noted that this makes timely trials especially important: when an accused is unlikely to receive bail easily, prolonged delay in starting or completing the trial can turn pre-trial detention into an effective punishment before guilt has been determined.
The Court stressed that incarceration pending trial is not a minor hardship. It affects liberty, reputation, family life, and livelihood. It also aggravates prison overcrowding. The judgment therefore recognizes that strict drug-control laws must be administered alongside the fundamental right to a fair and expeditious criminal process.
The Courtβs central finding: delay can violate fundamental rights
The Supreme Court described the prevailing state of NDPS trials as one that seriously undermined the right to speedy justice. It invoked Article 21 and exercised its constitutional authority to issue directions binding on all concerned authorities.
The directions were expressly limited to NDPS proceedings. Their objective was practical: remove avoidable bottlenecks that delay investigation, evidence, forensic reports, prosecution, and trial management.
Key directions issued by the Supreme Court
1. Adjournments must be exceptional
The Court found that frequent adjournments were a major source of delay. It directed NDPS courts not to grant an adjournment merely because a party requests one. An adjournment may be allowed only where circumstances are beyond that partyβs control.
The exception must remain narrow. Where a hearing date has already been fixed for the convenience of counsel, no adjournment should be granted. The purpose is to ensure that trial dates are meaningful rather than routinely postponed.
2. Witnesses should be examined in continuous blocks
The judgment directs courts to use βsession trialsβ for NDPS cases. This means assigning block dates, generally across three or four consecutive days, for examination and cross-examination of witnesses.
This approach reduces repeated travel and expense for witnesses, limits the risk that memory fades over long gaps, and avoids fragmented recording of evidence over months. It is designed to make testimony more reliable while shortening the overall duration of the trial.
3. Use affidavits for appropriate official evidence
NDPS investigations may involve several agencies, including the Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence, Customs, Excise, and State law-enforcement bodies. Officials may return to their parent departments after investigation and become difficult to secure as witnesses.
To save time, the Court directed trial courts to make effective use of Section 293 of the Code of Criminal Procedure. Under that provision, reports of specified government scientific experts may be used as evidence, subject to the courtβs power to summon and examine the expert where necessary.
4. Establish sufficient exclusive NDPS Special Courts
The Court identified excessive judicial workload as another important cause of delay. It directed every State, in consultation with the High Court, to establish Special Courts dealing exclusively with NDPS offences. The number of courts must be sufficient for the volume of pending cases.
Until exclusive NDPS courts are established, NDPS cases must receive priority over other matters. Once such courts exist, they should take other work only after clearing NDPS matters.
The Court specifically noted high pendency of cases older than five years in Uttar Pradesh, West Bengal, and Jammu & Kashmir.
5. Strengthen forensic laboratories and staffing
Forensic analysis is often central to proving or challenging an NDPS charge. Yet inadequate laboratory capacity, uneven geographic access, staff shortages, and delayed reports can stall cases for long periods.
The Court directed the Centre to expand access to Central Forensic Science Laboratories, particularly for southern and eastern India, beyond facilities then operating at Chandigarh, Hyderabad, Kolkata, and Delhi. It also directed States to create adequate State and regional forensic laboratories according to their case backlog.
Authorities were required to ensure adequate technical staff, equipment, resources, and prompt reporting. The Directorate of Forensic Science Services was also directed to standardize equipment across laboratories so that inconsistent testing methods do not create avoidable disputes over results.
6. Restrict re-testing and re-sampling applications
The Court observed that applications for re-testing or re-sampling were increasingly being filed at advanced stages of NDPS trials, creating further delay. The NDPS Act itself does not generally provide for re-testing or re-sampling as a routine right.
The Court held that such requests must not be entertained as a matter of course. They may be permitted only in extremely exceptional circumstances, for cogent reasons recorded by the presiding judge. Any application must be made within 15 days of receiving the test report; applications filed later should not be entertained.
This rule reflects a balance: exceptional cases can still be considered, but re-testing cannot become a routine tactic that interrupts or prolongs trial proceedings.
7. Create a monitoring structure for every NDPS case
The Court required all departments handling NDPS matters to appoint nodal officers of at least the rank of Superintendent of Police. These officers must monitor the progress of investigation and trial and prevent delays caused by missing documents, unavailable witnesses, or similar administrative failures.
It also directed the appointment of a Pairvi Officer, or similar officer, for each court. That officer must report the dayβs proceedings to the relevant nodal officer, helping close the information gap between the court and the prosecuting or investigating department.
8. Improve the appointment process for prosecutors
Recognizing that capable prosecutors are essential to efficient trials, the Court addressed the appointment of Special Public Prosecutors for the Central Bureau of Narcotics. It directed that the District and Sessions Judge make recommendations for these appointments in consultation with the Administrative Judge, Portfolio Judge, or Inspecting Judge responsible for the relevant Sessions Division.
9. Supply charge-sheets and documents electronically
Delays also arose from compliance with Section 207 of the Code of Criminal Procedure, which requires that the accused receive copies of the police report and relevant documents.
The Court directed that charge-sheets and accompanying documents be supplied electronically as well. Electronic provision is intended to simplify and accelerate the process, but it does not replace hard copies, which remain necessary for court proceedings.
Why the judgment matters
The decision does not weaken the NDPS Act or dilute the seriousness of narcotics offences. Instead, it insists that strong criminal laws must operate within constitutional limits. A strict bail regime creates a corresponding obligation on the State and courts to ensure that prosecutions move promptly.
The judgmentβs practical significance lies in its recognition that delay is not caused by a single factor. It can arise from adjournments, fragmented witness examinations, court overload, forensic backlogs, staffing gaps, late re-testing requests, weak case monitoring, and delays in providing documents. The Courtβs response was therefore systemic rather than limited to the individual bail application.
The broader constitutional principle
At its core, Thana Singh confirms that an accused person remains entitled to constitutional protections even in prosecutions under stringent special statutes.
The presumption of innocence and the right to a speedy trial retain real meaning only when courts and prosecuting agencies prevent pre-trial detention from becoming indefinite.
The ruling is a clear reminder that justice in NDPS cases depends not only on the outcome of a prosecution, but also on the fairness, discipline, and speed of the process that leads to it.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 21.10.2026
Supreme Court Sets Aside NDPS Conviction Over Search Safeguard and Confession Issues
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court acquitted Nirmal Singh Pehlwan after finding that the mandatory safeguard under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not properly followed and that reliance on his Customs confession was legally unsound.
Background of the case
On 4 January 1999, a joint team of Customs, Punjab Police and CIA staff set up a checkpoint near Saki Bridge, Ajnala. Officials stopped a Maruti car carrying three people. According to the prosecution, two occupants fled in dense fog while Nirmal Singh Pehlwan, also known as Nimma, was apprehended.
Customs officials alleged that two one-kilogram packets of brown powder were found in his lap. Field testing and later laboratory analysis identified the substance as heroin. During the investigation, the accused also made a statement under Section 108 of the Customs Act admitting guilt.
The Trial Court convicted him under Section 22 of the NDPS Act and imposed 10 yearsβ rigorous imprisonment, a fine of Rs. 1 lakh, and a further two yearsβ imprisonment in default of payment. The High Court upheld that result.
Core legal issue: Was the accused informed of his Section 50 right?
Section 50 of the NDPS Act protects a person facing a personal search. Before conducting that search, the authorised officer must inform the person that they have a right to be searched before a Magistrate or a Gazetted Officer.
In this case, the prosecution relied on a consent memo stating that Nirmal Singh chose to be searched in the presence of a Gazetted Officer. The Supreme Court held that merely presenting a choice between a Magistrate and a Gazetted Officer was not enough. The officer had to clearly communicate that this was the suspectβs legal right.
The Court noted that the Customs officer did not state in his evidence that he had informed the accused of this right. He only obtained an option recorded in the consent memo. Applying the Constitution Bench ruling in Vijaysinh Chandubha Jadeja, the Court found complete non-compliance with Section 50.
Why the defect mattered
The Court reaffirmed that Section 50 is mandatory where recovery is made from a personβs body or personal possession. Its purpose is to:
prevent misuse of search powers;
protect innocent persons from false implication; and
reduce allegations that contraband was planted.
A defective Section 50 procedure makes the alleged recovery suspect. Where the conviction depends on that recovery, the defect can invalidate the conviction.
Customs confession also could not sustain the conviction
The prosecution had also relied on the accusedβs confession made to a Customs officer under Section 108 of the Customs Act. The Supreme Court preferred the reasoning in Noor Aga v. State of Punjab, which examined the investigative and prosecutorial powers exercised by Customs officers in narcotics matters.
The Court concluded that such a confession could not be treated as admissible simply because it was made to a Customs officer rather than a conventional police officer. It found that the earlier decision relied on by the prosecution had not fully considered the protections embodied in Section 25 of the Indian Evidence Act.
Supreme Courtβs ruling
Because the mandatory Section 50 safeguard was not complied with and the confession could not reliably support the prosecution, the Supreme Court set aside the conviction and acquitted Nirmal Singh Pehlwan.
Key legal takeaway
An NDPS personal search cannot be validated by a signed consent memo alone. Officers must clearly inform the suspect of the statutory right to be searched before a Magistrate or Gazetted Officer; failure to do so can undermine the recovery and overturn a conviction.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 17.10.2026
Rules of Origin vs. Rules of Customs: Constitutional Authority, Treaty Enforcement and the New CBIC Clarification
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
From Article 253 of the Constitution to Section 28DA of the Customs Act: Understanding how international trade commitments become enforceable rights under Indian law.
Introduction: When International Trade Commitments Meet Domestic Customs Administration
India’s expanding network of Free Trade Agreements (FTAs) and Comprehensive Economic Partnership Agreements (CEPAs) has transformed the legal framework governing international trade. These agreements offer preferential market access, reduced Customs duties and enhanced commercial opportunities. However, their effective implementation depends upon a fundamental constitutional question: Can domestic Customs authorities impose conditions that dilute or defeat the benefits negotiated under a bilateral Trade Agreement?
This question has acquired renewed importance following CBIC Circular No. 43/2026-Customs, dated 24 September 2026. The Circular clarifies the relationship between Section 28DA of the Customs Act, 1962, the Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 (CAROTAR), and the Rules of Origin contained in India’s Trade Agreements.
Its significance extends beyond routine Customs administration. It raises questions concerning constitutional treaty-making powers, legislative competence, delegated legislation, administrative discretion and the enforceability of international obligations within India’s domestic legal system.
The Circular specifically addresses two recurring disputes: the insistence upon Form-I for preferential tariff claims under the IndiaβUK Comprehensive Economic and Trade Agreement (CETA), and the automatic denial of preferential treatment to subsequent consignments following an earlier adverse origin determination.
By reiterating that agreement-specific Rules of Origin prevail over conflicting CAROTAR provisions, CBIC has reinforced an essential legal distinction between the authority to verify preferential claims and the power to impose additional substantive conditions.
To appreciate the Circular’s wider significance, it is necessary to examine the constitutional foundation of India’s bilateral trade agreements, the mechanism through which international obligations acquire domestic legal effect, and the judicial principles governing Customs exemptions and administrative interpretation.
I. Constitutional Foundation of Bilateral Trade Agreements in India
The Constitution of India does not contain a single provision exclusively governing Free Trade Agreements. Instead, India’s treaty-making and treaty-implementation powers arise from several interconnected constitutional provisions.
Article 51(c): Respect for International Law and Treaty Obligations
Article 51(c), contained in Part IV of the Constitution, directs the State to foster respect for international law and treaty obligations in dealings between organised peoples. This provision reflects India’s constitutional commitment to international cooperation and the observance of treaty obligations.
However, Article 51(c) forms part of the Directive Principles of State Policy. By virtue of Article 37, these principles are not directly enforceable by courts, although they remain fundamental to governance. Consequently, Article 51(c) does not independently transform an international trade agreement into an enforceable domestic statute.
Its principal significance lies in guiding constitutional interpretation and encouraging consistency between domestic law and India’s international commitments.
Article 73: Executive Authority to Negotiate and Conclude Trade Agreements
Article 73 defines the extent of the Union’s executive power. Read with Articles 53 and 246 and the relevant Union List entries, it provides the constitutional foundation for the Union executive’s authority in international relations.
Accordingly, the Central Government may negotiate and conclude bilateral and multilateral trade agreements within its constitutional competence. Such agreements may cover tariff concessions, market access, Rules of Origin, investment protection, services, intellectual property, technical barriers to trade and dispute-settlement arrangements.
However, an important distinction must be maintained between concluding an international agreement and giving its provisions enforceable domestic legal effect. An international agreement may bind India at the international level without automatically creating enforceable rights or obligations against private parties under Indian municipal law.
Where implementation requires alteration of existing legislation, restriction of legal rights or imposition of domestic obligations, appropriate legislative authority becomes necessary.
Article 253: Parliament’s Power to Implement International Agreements
Article 253 is the central constitutional provision concerning domestic implementation of international treaties. It empowers Parliament to legislate for implementing treaties, agreements and conventions with foreign countries, notwithstanding the ordinary distribution of legislative powers between the Union and States.
Its importance is twofold. First, it enables Parliament to implement international obligations through domestic legislation. Second, it permits Parliament to legislate even upon matters ordinarily falling within State legislative competence when implementing an international agreement.
Therefore, Article 253 acts as a constitutional bridge between international commitments and domestic legislative authority. However, Article 253 is an enabling provision. It does not automatically make every provision of a bilateral trade agreement directly enforceable in Indian courts.
The Supreme Court’s decision in Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783, remains particularly important in understanding this distinction.
Article 246 and the Seventh Schedule: Legislative Competence Over Foreign Trade
Article 246 distributes legislative competence between Parliament and State Legislatures.
Several entries in List I of the Seventh Schedule are directly relevant to bilateral trade agreements.
Constitutional provision
Subject matter
Relevance to international trade
Union List, Entry 10
Foreign affairs and matters concerning the Union’s relations with foreign countries
International economic relations and trade negotiations
Union List, Entry 14
Entering into treaties and agreements with foreign countries and implementing them
Constitutional legislative foundation for treaty implementation
Union List, Entry 41
Trade and commerce with foreign countries; import and export across Customs frontiers
Import-export regulation and foreign trade administration
Union List, Entry 83
Duties of Customs, including export duties
Customs tariff legislation and duty concessions
Article 253
Legislation implementing international agreements
Parliamentary authority extending beyond ordinary federal legislative limitations
These provisions collectively explain why international trade negotiations, Customs tariff legislation and foreign trade regulation principally fall within Union competence.
Articles 265 and 14: Constitutional Controls Over Customs Administration
Article 265 provides that no tax shall be levied or collected except by authority of law.
This principle is central to Customs taxation. An international agreement does not, merely through its execution, independently amend the Customs tariff or authorise Customs authorities to collect duties contrary to domestic law.
Preferential tariff treatment must be implemented through a legally valid domestic mechanism. Conversely, once a preferential concession has been lawfully implemented, its administration must remain within the governing statute and notification.
Article 14 introduces another constitutional limitation. Administrative decisions must not be arbitrary, discriminatory or unsupported by legally relevant considerations. Accordingly, Customs officers exercising powers under Section 28DA and CAROTAR remain subject to constitutional standards of legality, reasonableness and non-arbitrariness.
II. How Are Bilateral Trade Agreements Enforced Domestically in India?
India broadly follows a dualist approach to international treaties. Under this approach, international obligations and domestic legal rights operate in related but distinct legal spheres.
The execution of an international agreement does not necessarily make all its provisions directly enforceable against individuals or authorities. Domestic implementation may occur through legislation, statutory notifications, delegated legislation or executive action supported by existing law.
The Domestic Implementation Mechanism
1. Negotiation and conclusion of a Trade Agreement
Union executive authority under the Constitution
2. Identification of domestic legal requirements
Articles 246 and 253; relevant Union List entries
3. Implementation through Indian law
Customs Act, Customs Tariff Act, notifications and Rules of Origin
4. Administration of preferential tariff claims
Section 28DA, CAROTAR and the applicable Trade Agreement
5. Judicial review and statutory remedies
Customs appeals and constitutional remedies, where maintainable:-
In the Customs context, Section 5 of the Customs Tariff Act, 1975 enables the Central Government to make rules for determining the origin of goods under Trade Agreements. Preferential tariff concessions are generally implemented through notifications issued under the relevant statutory powers, including Section 25 of the Customs Act.
Section 28DA and CAROTAR then regulate the administration and verification of preferential claims. Thus, an FTA’s tariff commitments do not ordinarily operate as an independent substitute for India’s Customs legislation. Their domestic enforceability must be examined through the applicable implementing law.
III. Landmark Constitutional Precedent: Maganbhai Ishwarbhai Patel v. Union of India
Case: Maganbhai Ishwarbhai Patel v. Union of India Citation: AIR 1969 SC 783; (1969) 3 SCC 400 Court: Supreme Court of India Date: 9 January 1969
The dispute arose from the implementation of an international boundary determination involving India and Pakistan. The Supreme Court considered the constitutional powers of the Union executive to enter into international agreements and the circumstances requiring parliamentary legislation. The Court recognised that the executive could conclude international agreements within its constitutional authority.
However, it distinguished international obligations from their domestic legal consequences. Where implementation affects enforceable private rights or modifies existing domestic law, legislative support is required. The Court also explained the significance of Article 253 and Parliament’s authority to implement international agreements.
Commentary
Although the judgment concerned an international boundary dispute rather than an FTA, its constitutional reasoning remains directly relevant to trade agreements. It establishes that the Union executive’s treaty-making authority and Parliament’s treaty-implementation authority are legally distinct.
Consequently, a bilateral trade agreement cannot automatically override an inconsistent Indian statute merely because India has accepted the agreement internationally. The legally enforceable rights of importers must be identified through the applicable domestic implementing provisions, interpreted in light of the Trade Agreement where the law permits or requires such interpretation.
IV. Section 28DA of the Customs Act: The Statutory Framework for Preferential Origin
Section 28DA, introduced through the Finance Act, 2020, establishes the responsibilities of importers claiming preferential Customs duty under Trade Agreements.
The provision was intended to strengthen verification of originating status and prevent the misuse of preferential tariff concessions. Under Section 28DA(1), importers must declare that imported goods qualify as originating goods, possess sufficient supporting information, furnish prescribed particulars and exercise reasonable care regarding the accuracy of origin claims.
Section 28DA(2) makes it clear that the mere submission of a Certificate of Origin does not discharge the importer’s responsibility to exercise reasonable care. However, this provision cannot be interpreted in isolation.
Section 28DA(3) contemplates requests for further information consistent with the relevant Trade Agreement. This qualification is important because different agreements prescribe different documentary and verification procedures.
Section 28DA also establishes mechanisms for origin verification, suspension of preferential treatment, provisional clearance and denial of preferential benefits in specified circumstances. Subsection (11) addresses subsequent imports of identical goods following an earlier adverse origin determination. Importantly, the statutory framework does not confer unrestricted authority upon Customs to disregard agreement-specific origin procedures.
V. CAROTAR, 2020: Procedural Compliance and the Limits of Delegated Legislation
CAROTAR, 2020 was notified through Notification No. 81/2020-Customs (N.T.), dated 21 August 2020, and came into effect on 21 September 2020.
The Rules provide a domestic administrative mechanism for implementing Section 28DA. Rule 3 governs preferential tariff claims at the Bill of Entry stage. Rule 4 addresses the information importers must possess, including origin-related information identified in Form-I.
Rule 5 governs requests for further information. Rule 6 provides for verification through the prescribed authorities, while Rule 7 addresses identical goods and earlier adverse origin determinations.
Rule 8 deals with additional administrative matters, including consequences of non-compliance.
Rule 8(3): The Most Important Provision
Rule 8(3) expressly provides that where CAROTAR conflicts with the Rules of Origin under the relevant Trade Agreement, the latter shall prevail. This creates a specific rule of precedence within the domestic regulatory framework.
Its legal effect should be carefully understood. Rule 8(3) does not establish that every international treaty automatically overrides Indian legislation. Rather, it is a domestic legal provision expressly recognising the precedence of agreement-specific Rules of Origin over conflicting CAROTAR requirements.
The distinction is constitutionally significant. The authority of the Trade Agreement’s Rules of Origin in this context flows through the statutory framework enacted and notified under Indian law. Accordingly, Customs officers cannot disregard Rule 8(3) while administering preferential tariff claims.
VI. CBIC Circular No. 43/2026: Five Major Legal Clarifications
1. Valid Origin Declaration Under IndiaβUK CETA
Paragraph 2.1.1 recognises an Origin Declaration completed by the UK exporter or producer in the prescribed manner as proof of origin.
Therefore, a claim supported by a valid Origin Declaration must be processed without requiring Form-I. This clarification protects importers from an additional routine documentary requirement. However, the declaration must satisfy the applicable agreement’s conditions, and the goods must qualify under the relevant Rules of Origin.
2. Form-I Cannot Be a Routine Precondition
Paragraph 2.1.2 clarifies that Form-I is not required to be submitted with the Bill of Entry. Customs cannot treat its submission as a mandatory precondition for preferential tariff treatment. Nevertheless, the Circular does not abolish Form-I or eliminate lawful requests for origin-related information.
3. Requests for Form-I Information Are Restricted
Paragraph 2.1.3 identifies two cumulative conditions for seeking relevant Form-I information under the clarification concerning IndiaβUK CETA.
The Bill of Entry must have been interdicted by the National Risk Management System for origin-related checks, and the proper officer must have reason to believe that the applicable origin criteria have not been satisfied. The words used in the Circular limit routine administrative discretion. However, other verification powers lawfully available under the governing framework remain subject to their respective statutory conditions.
4. Confidential Commercial Information Is Protected
Paragraph 2.1.4 clarifies that IndiaβUK CETA importers need not obtain confidential information from exporters or producers.
Failure to furnish such information cannot, by itself, justify denial of preferential treatment. The importer must nevertheless provide information made available by the exporter or producer. Where the information remains insufficient, verification may be undertaken through the exporting Party’s Verification Authority in accordance with the Trade Agreement.
Paragraphs 2.2.1 to 2.2.3 address Section 28DA(11).
The Circular rejects the assumption that goods are identical merely because they share an HSN classification, description, exporter, producer or technical characteristics.
Before applying an earlier adverse determination, Customs must provide the importer an opportunity to furnish additional information. Where material origin-related facts differ, the current claim must be independently examined. This safeguard is particularly relevant to industrial imports involving changing suppliers, production arrangements, originating inputs and manufacturing processes.
VII. Supreme Court Judgments from 2025: Their Relevance to Customs Exemptions and Administrative Powers
The following decisions were delivered within the preceding two years. Their holdings are relevant to the broader legal principles involved, although neither directly adjudicates Circular No. 43/2026.
A. M/s L.G. Electronics India Private Limited v. Commissioner of Customs
Court: Supreme Court of India Decision: 10 September 2025 Proceedings: Civil Appeal Nos. 10349β10350 of 2024
The Supreme Court allowed LG Electronics India Pvt. Ltd.βs customs appeals concerning the import classification of G Watch smartwatches.
While it did not decide the classification dispute, the Court held that LG was eligible for the Korea-origin duty exemption based on the Certificate of Origin, set aside the CESTAT and original orders, and directed refund of the duty paid with applicable interest within two months.
Legal commentary: The Supreme Court rightly distinguished tariff classification from entitlement to a preferential-origin exemption, holding that an incorrect claimed classification cannot defeat a substantive benefit otherwise established by a valid Certificate of Origin. While leaving the smartwatch classification issue open, the ruling reinforces that customs adjudication must prioritize proven statutory conditions over technical errors made in good faith.
B. Noble Resources and Trading India Private Limited v. Union of India & Others
Citation: 2025 INSC 684 Court: Supreme Court of India Decision: 14 May 2025 Proceedings: Civil Appeal No. 2572 of 2025
The dispute concerned an exemption claimed on imported crude degummed soyabean oil under the applicable Duty Free Credit Entitlement framework.
The Department relied upon a Customs circular to extend an exclusion concerning agricultural and dairy products to certain manufactured products derived from agricultural commodities. The Supreme Court rejected the enlarged interpretation and held that the departmental circular could not expand the exclusion beyond the governing notification.
The Court allowed the importer’s appeal.
Legal commentary: This decision reinforces the principle that executive circulars cannot alter the substantive scope of statutory exemptions. Although the case did not concern Section 28DA or FTA origin verification, its reasoning is relevant where departmental instructions purport to impose restrictions beyond the governing legal instrument. The decision also demonstrates the importance of distinguishing a statutory condition from an administrative interpretation.
C. The Constitutional Connection
The decisions in Maganbhai, L.G. Electronics and Noble Resources operate at different levels. Maganbhai addresses the constitutional relationship between international agreements and domestic legislation.
L.G. Electronics concerns the examination of preferential Customs exemption entitlement. Noble Resources addresses the limits of departmental circulars in interpreting statutory exemptions.
Taken together, these authorities support the proposition that Customs administration must operate within the authority conferred by Indian law. They do not establish an unrestricted supremacy of FTAs over Parliament’s legislation. Instead, they reinforce lawful implementation, proper statutory interpretation and limitations on executive action.
VIII. Constitutional and Administrative Limitations on Customs Discretion
The Circular raises several questions concerning the lawful exercise of Customs powers. Under Article 265, Customs duty must have legal authority. Consequently, tariff concessions and their withdrawal must be examined within the applicable statutory framework.
Article 14 requires administrative action to satisfy constitutional standards against arbitrariness. Article 19(1)(g), subject to Article 19(6), protects the right of citizens to practise professions and carry on occupations, trade or business. This does not eliminate lawful import restrictions, but it may be relevant where administrative action unjustifiably interferes with protected commercial activity.
Article 226 empowers High Courts to exercise judicial review over unlawful administrative action, subject to principles governing the availability of alternative statutory remedies.
Therefore, Customs action concerning preferential tariff claims may raise constitutional issues where it exceeds statutory authority, disregards mandatory procedures or violates principles of natural justice. However, not every disagreement concerning an origin determination constitutes a constitutional violation.
Ordinary disputes involving documentary sufficiency, factual origin criteria or assessment may appropriately fall within the Customs Act’s statutory appellate framework. The constitutional remedy becomes particularly relevant where the challenge concerns jurisdictional error, procedural illegality, violation of natural justice or the validity of subordinate legislation.
IX. Inclusions, Exclusions, Limitations and Discretions: A Consolidated Legal Position
Category
Legal position
Constitutional inclusion
Articles 73 and 253 provide distinct foundations for treaty-making and legislative implementation.
Legislative inclusion
Customs Act and Customs Tariff Act provisions provide mechanisms for domestic administration of trade commitments.
Preferential origin inclusion
Valid agreement-prescribed origin documents support preferential claims.
Procedural exclusion
Form-I cannot be imposed routinely as a prerequisite under the IndiaβUK CETA clarification.
Confidentiality exclusion
IndiaβUK CETA importers need not obtain confidential exporter or producer information.
Statutory limitation
Importers must exercise reasonable care and satisfy substantive origin requirements.
Treaty limitation
International agreements do not automatically override inconsistent Indian primary legislation.
Administrative limitation
CAROTAR cannot override conflicting Rules of Origin under the applicable Trade Agreement, as recognised by Rule 8(3).
Customs discretion
Origin-related information and verification may be sought within the prescribed conditions.
Identical-goods safeguard
Earlier adverse determinations cannot be applied mechanically without considering relevant origin facts and additional information.
Judicial safeguard
Unlawful administrative action may be challenged through statutory remedies or constitutional judicial review, as appropriate.
X. A Constitutional Question for Future Litigation
One of the most significant questions emerging from this framework is whether a delegated rule, administrative instruction or Customs assessment can impose requirements inconsistent with the Rules of Origin incorporated into India’s domestic legal framework.
The answer requires identifying the precise legal source of each obligation. Where an agreement-specific rule has been implemented under the Customs Tariff Act, the officer must consider that rule alongside Section 28DA and CAROTAR. Where CAROTAR itself expressly gives precedence to the Trade Agreement’s Rules of Origin, administrative authorities must respect that prescribed hierarchy.
Where a conflict arises between an international commitment and primary parliamentary legislation, the analysis is different. The international agreement does not automatically invalidate or override the statute. The constitutional distinction is fundamental.
The enforceability of preferential trade benefits in India rests not merely upon diplomatic commitments but upon their lawful incorporation and administration under the Indian legal system.
Consequently, future litigation may increasingly examine whether origin-verification demands are supported by statutory authority, whether they comply with the applicable Trade Agreement, and whether administrative discretion has been exercised for a legitimate legal purpose.
XI. The Role of Aadrikaa Legal Services in Corporate Legal Support and Case Research
Aadrikaa Legal Services (ALS) assists large corporates, in-house legal departments, law firms and professional advisory organisations with specialised paralegal support and legal research relating to Customs, GST, Foreign Trade Policy, international trade compliance and regulatory disputes. Its support may include case-law research, statutory interpretation, preparation of legal research notes, compilation of judicial precedents, document examination, litigation chronologies, drafting assistance, regulatory compliance reviews and preparation of case briefs for counsel.
By combining legal research with domain-specific knowledge of Customs and trade regulations, ALS aims to support corporate legal teams and law firms in managing complex regulatory matters, developing litigation strategies and preparing well-researched submissions before statutory and judicial forums.
XII. Conclusion: The Constitution Sets the Boundary, Parliament Creates the Framework, and Customs Must Follow the Law
CBIC Circular No. 43/2026-Customs is more than a procedural clarification concerning Form-I and Rules of Origin. It highlights the constitutional relationship between India’s international trade commitments and their domestic implementation.
Articles 73 and 253 establish the foundations of treaty-making and legislative implementation. Articles 246 and 265 define the relevant legislative and taxation framework, while Article 14 imposes constitutional limitations upon administrative action.
Section 28DA and CAROTAR provide the domestic machinery for administering preferential tariff claims. However, Rule 8(3) expressly recognises that conflicting CAROTAR provisions must yield to the applicable Trade Agreement’s Rules of Origin.
The Supreme Court’s decisions in Maganbhai, L.G. Electronics and Noble Resources illuminate the constitutional and statutory principles that govern this relationship. The essential legal conclusion is that Customs authorities retain the power to verify originating status, prevent misuse of preferential concessions and protect public revenue.
What they cannot do is transform procedural authority into an independent power to impose substantive conditions unsupported by the governing law.
For importers, the Circular provides meaningful procedural protection. For Customs authorities, it reinforces the requirement of agreement-consistent administration. For legal practitioners, it offers a framework for examining origin disputes through statutory interpretation, delegated legislation and constitutional principles.
Ultimately, India’s international trade commitments can deliver their intended commercial benefits only when their domestic implementation remains legally coherent, transparent and consistent with the constitutional rule of law.
About the Author
Advocate Ravi Shekhar Jha is a New Delhi-based legal professional practising in matters involving Customs, indirect taxation, constitutional law, international trade and regulatory compliance, including matters before the Delhi High Court and statutory tribunals.
With approximately two decades of experience in international trade, regulatory advisory and supply-chain compliance, his professional work encompasses Customs classification and valuation, Free Trade Agreements, Rules of Origin, DGFT and Foreign Trade Policy matters, BIS and Quality Control Orders, trade remedies, and Customs litigation.
He holds an LL.M. in Constitutional Law and is associated with Aadrikaa Legal Services (ALS), which provides legal advisory, litigation, research and regulatory support to corporate clients and professional organisations.
Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.
Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.
Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 17.10.2026
Supreme Court: Conscious Possession Must Be Established for Conviction Under Section 15 of NDPS Act
This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .
The Supreme Court of India dismissed the State of Punjabβs appeal against the acquittal of Hari Singh and other accused, holding that a failure to question them on the central allegation of conscious possession under Section 313 of the Code of Criminal Procedure (CrPC) materially weakened the prosecutionβs case.
Case at a glance
In State of Punjab v. Hari Singh & Ors., the respondents had initially been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The trial court sentenced each accused to 10 yearsβ rigorous imprisonment and imposed a fine of Rs. 1,00,000.
The prosecution alleged that police officers found the accused sitting on 16 gunny bags of poppy husk, each weighing 30 kilograms, near sugarcane fields on 9 July 1999. The accused were arrested after the bags were searched in the presence of a Deputy Superintendent of Police, following their request for the presence of a Gazetted Officer.
The Punjab and Haryana High Court later acquitted the accused. The State challenged that acquittal before the Supreme Court.
The central legal issue: conscious possession
Section 15 of the NDPS Act penalizes unlawful possession of poppy straw. The Court emphasized that possession in this context is not limited to physical custody. For criminal liability, the prosecution must establish conscious possession: possession coupled with awareness and the required mental element.
The judgment explains that βpossessionβ can take different forms depending on the circumstances. It may be:
Physical possession, where a person directly holds or carries an article; or
Constructive possession, where a person has the power and control to deal with the article even if it is not physically on them.
The Court noted that the evidence in this case, including the allegation that the accused were sitting on the bags, was relevant to conscious possession. Under Sections 35 and 54 of the NDPS Act, statutory presumptions may arise once possession is established. A person claiming that possession was not conscious may need to explain circumstances particularly within their knowledge.
However, proving or relying on possession was not enough by itself. The accused had to be given a fair opportunity to respond to that allegation.
Why the Section 313 CrPC examination was decisive
The Supreme Court found that the accused were not asked any question during their examination under Section 313 CrPC about possession or conscious possession of the contraband.
Section 313 requires the court, after the prosecution evidence closes, to question the accused so they can personally explain circumstances appearing against them. This is a core safeguard in a criminal trial, not a procedural formality.
The Court reaffirmed several principles:
Every material incriminating circumstance should be put to the accused. This allows a meaningful explanation or defence.
A circumstance not put to the accused ordinarily cannot be used against them.
The purpose is fairness. The provision gives effect to the natural-justice principle that a person must have an opportunity to answer the case against them.
Prejudice matters. An omission does not automatically invalidate every trial, but a conviction cannot safely rest on a vital fact that the accused were never asked to explain.
Here, conscious possession was the essence of the accusation under the NDPS Act. Because that crucial issue was omitted from the Section 313 examination, the omission was held to have a vital effect on the prosecution case.
The Courtβs guidance on personal appearance under Section 313
The judgment also discussed when an accused must personally appear to answer Section 313 questions. The general rule is that the accused should be personally examined, particularly in cases more serious than summons cases.
Still, the Court endorsed a limited practical exception for genuine hardship. If an accused already exempted from personal appearance cannot attend because of substantial expense, physical incapacity, or another justified difficulty, the court may permit written answers through a questionnaire.
This alternative requires safeguards, including:
A written application supported by the accusedβs own affidavit explaining the difficulty.
An assurance that the accused will not suffer prejudice from the arrangement.
An undertaking not to challenge the exemption later.
Personally authenticated answers, signed by the accused on every page and returned within the deadline fixed by the court.
The Court stressed that this is an exceptional arrangement. It cannot become a way for counsel to substitute their own answers for the accusedβs statement.
Outcome of the appeal
The Supreme Court upheld the High Courtβs acquittal and dismissed the State of Punjabβs appeal. It concluded that, despite evidence bearing on conscious possession, the failure to put that essential allegation to the accused under Section 313 CrPC justified refusing to interfere with the acquittal.
The Court did remove one part of the High Courtβs order: directions to initiate action against certain officials were expunged because such directions should not have been issued while deciding the criminal appeal.
Key takeaway
This decision shows that even in serious NDPS prosecutions, procedural fairness remains indispensable: a conviction cannot rely on a decisive incriminating circumstance, such as conscious possession, unless the accused has been given a proper opportunity to explain it under Section 313 CrPC.
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