Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Key Takeaways

  • The Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985 classifies substances into 3 categories
  • Strict liability offences which are cognisable and non-bailable are also defined under the Act.
  • The Recovery Procedure is of vital importance under the Act.

Introduction

India hadratified the UN Single Convention on Narcotic Drugs in 1961, the Convention on Psychotropic Substances in 1971, and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988, all of which specify different types of control measures to be taken in order to achieve the dual goals of restricting the use of narcotic drugs and psychotropic substances for medical and scientific purposes and preventing their abuse.

In line with the aforementioned spirit of the UN Conventions, India has established an administrative and legislative framework for drug policy. The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, is the primary piece of legislation used by the Indian government in this area.

According to the 1985 Narcotic Drugs and Psychotropic Substances Act's classification system, there are three different types of substances:

  1. Narcotic substances
  2. Psychoactive substance
  3. Controlled substances

In a large number of rulings, the Supreme Court and several High Courts have noted that NDPS offences are of an incredibly heinous nature because such chemicals can have an impact on a whole generation of youngsters.

As a result, the Act is one of the harshest pieces of legislation in the area of criminal law as far as the granting of bail to the accused is concerned.

Importance of Recovery

Recovery and Possession are important aspects of investigation under the Act.If a person is found to be in possession of any such prohibited substances, then the Act as per Section 54 gives the presumption of commission of the offence by the accused as well as creates a presumption of a culpable mental state by virtue of Section 35.Such presumptions though necessary also give rise to circumstances of grave prejudice against the accused.

Strict liability offences, ones which are cognisable and non-bailable have been defined under Section 35 of the Narcotics Drugs and Psychotropic Substances Act of 1985. Any individual who is accused of committing any offence under the Act's provisions will be imprisoned until the conclusion of their case, and their prospects of being granted bail are slim. This suggests that the right to due process is seriously curtailed if someone is wrongfully implicated in a case.

Suppose in a situation a person was not in possession of any substances, and it was planted by the authorities, then in such a case, the accused will not be able to prove his innocence during the recovery as the presumption is already drawn by the Act against the accused.

Thus, there is a need for safeguards and guidelines to prevent misuse of the law and protect the rights of the accused.We will now look into some of these safeguards under the NDPS Act.

Safeguards under the NDPS Act

Section 41

The section describes in detail the power to issue a warrant for search and seizure.The provisions can be summarised as follows:

a) Describes the power of the Magistrate to issue a warrant for conducting searches.

b) Power to conduct searches is vested on the gazetted officers of departments.

c) The Magistrate or Gazetted officer must ensure that there is sufficient reason to believe that an offence has been committed before taking any action.

Section 42

a) Officers, as designated under Section 41,must conduct searches in the manner prescribed in the provision, i.e., only after recording in writing the information received and obtaining proper authorisation.

b) If authorisation cannot be obtained,search can be conducted only after duly recording the reasons behind it.

The Supreme Court in the judgements of M Prabhulal v. Directorate of Revenue Intelligence [(2003) 8 SCC 449] AND Chunna v. State of M.P [(2002) 9 SCC 363] has held that compliance with Section 42 is mandatory and non-compliance will lead to serious repercussions

Section 50

According to Section 50 of the Act, there are certain conditions under which a person can be subject to searches, such as the right of the suspect to be searched in front of a magistrate or a gazetted officer. It protects people's rights from the arbitrary actions of the law enforcement community, which means that by virtue of Section 50 of the Act, an innocent person is shielded from the false charges of the law enforcement authorities.

A) If a person is about to be searched by an authorised officer as per Sections 41 and 42, then if such person requires, he should be taken to the nearest gazetted officer or magistrate without any delay.

B) In cases where requisition is made, then the person, maybe detained till he can be brought in front of any such officer mentioned above.

C) The Magistrate or Gazetted officer must see if there are any reasonable grounds and if not, discharge the person.

D) All females are to be searched by females only.

E) After the search is conducted without the person being brought in front of the Magistrate even after such a request is made by the person, then the officer must record the reasons behind the conduct of the search and send a copy of it to his immediate superior within 72 hours.

Judicial Decisions

State of Punjab v. Baldev Singh [(1999) 6 SCC 172] is a landmark decision where the Supreme Court explained the significance of Section 50 of the NDPS Act and stated that Section 50 gives a person the right to be searched under the supervision of a magistrate or gazetted officer given that the accused faces serious repercussions under the Act's provisions.

The Apex Court concluded in Pawan Kumar v. State of Himachal Pradesh [CDJ (2017) SC 510] that since a carry bag or other similar object involves additional effort and energy, any recovery made from such an article that requires the additional effort and energy will not be included within the scope of personal search under Section 50 of the NDPS Act. Pawan Kumar dealt with a similar issue of personal search under Section 50 of the Act.

The Supreme Court's constitutional bench held in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat[AIR 2011 SC 77]that Section 50 of the NDPS Act must be followed to the letter and that failure to do so would render the recovery suspicious. As a result, the conviction was overturned solely on the basis of this violation.

The Calcutta High Court recently in the case of Kalu Sk alias Kuran and others v. State of West Bengal [CRR 543 of 2018] while relying upon the recommendations of the committee constituted by the Ministry of Home Affairs, Field Officers Handbook Guidelines, ordered for the mandatory videography of recovery procedures of narcotic substances and directed that reasons for failing to do so must be stated in the investigation reports.

Conclusion

The state is bound to protect society from the drug menace, which is why the NDPS Act is stringent in nature.The charges framed under the Act are very serious in nature.As discussed, the recovery procedure under the Act is crucial in the determination of the outcome of the case.If the Recovery process is not conducted properly, then it can seriously impinge the prosecution’s case, and set free an otherwise guilty person.At the same time, there is also the possibility of the recovery process being utilised to make up false charges and cases. Thus, it becomes essential that the recovery process, which holds so much importance, is conducted fairly, effectively and without the violation of the rights of the accused.


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