Medicines meant to enhance male potency don't attract NDPS Act: SC

New Delhi, Dec 13: The Supreme Court on Monday observed that herbs/medicines meant to enhance male potency do not attract the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

A bench, headed by Chief Justice N.V. Ramana and comprising Justices Surya Kant and Hima Kohli, granted bail to Bharat Chaudhry, an accused in a narcotics case. He was granted bail by the lower court, which recorded that test reports of the seized material were awaited and it was not established whether the tablets which, according to the accused, were sexual enhancement tablets, would qualify either as a narcotic or psychotropic substance.

However, the Madras High Court on November 2, 2020, cancelled the bail so granted, saying that test reports did not totally negate the fact that seized contraband goods were not narcotic substances.

Chaudhry then then moved the top court challenging this order.

The top court said: "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 Chief Justice-headed bench added that in the absence of clarity on the quantitative analysis of the samples, the prosecution cannot be heard to state, at this preliminary stage, that the petitioner has been found to be in possession of commercial quantities of psychotropic substances as contemplated under the NDPS Act.

"Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 (Chaudhry) at Jaipur, on 16th March, 2020," it noted.

It further added that reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of the accused cannot be treated at this stage as sufficient material to establish a live link between him and two other accused, when even as per the prosecution, scientific reports in respect of the 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 dated 15th July, 2021," the bench said.

Citing that "quantitative analysis of the samples could not be carried out for want of facilities", the top court said order cancelling bail to Chaudhary is not sustainable.

It also granted bail to another accused Raja Chandrasekharan, saying since the charge sheet has already been filed and he has remained in custody for over a period of two years. "It is deemed appropriate to release him on bail, subject to the satisfaction of the trial court," added the bench.

Directorate of Revenue Intelligence, Chennai Zonal Unit, had seized about 1,37,665 tablets of different types collectively weighing 90 kg (approx.) described as psychotropic substances from four locations, all situated in Chennai.

Two accused made a statement that they had colluded with suppliers in Nagpur and Rajasthan and procured tablets composed of psychotropic substances for exporting and sending through courier service to customers in the US under the guise of herbal tablets, on orders received from Chaudhary.

Officers of DRI, Jaipur Unit conducted a search at his residence at Jaipur on March 16, 2020 and seized some incriminating material. He was arrested on March 17.