Sexual enhancement drugs do not attract NDPS Act

Sexual enhancement drugs do not attract NDPS Act

Bharat Chaudhary Vs Union of India

Supreme Court

13/12/2021

Case no. SLP(Crl) No 5703 Of 2021

About/from the judgment:

Sexual enhancement tablets meant to enhance male potency do not attract the provisions of the NDPS Act, the Supreme Court observed while granting bail to NDPS Accused.

In this case, the accused was granted bail by the Special Court on the ground that he was not found to be in possession of any psychotropic substance and no contraband was recovered from his residence or office during the search. That the test reports in respect of the seized material were awaited and it was not established whether the tablets which, as per the accused were sexual enhancement tablets, would qualify either as a narcotic or psychotrophic substance so as to fall within the ambit of the NDPS Act. The High Court later cancelled the bail so granted by the Special Court. The High Court observed that the test reports did not totally negate the fact that the seized contraband goods were not narcotic substances.

While considering the appeal filed by the accused, the bench observed that the test report stated that the "quantitative analysis of the samples could not be carried out for want of facilities"

"In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act.", the court said.

The court also observed that the reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized cannot be treated at this stage as sufficient material to establish a live link between the accused and other co-accused, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.

"In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order", the court observed while disposing the appeal.

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