32 a ndps act
WHATSAPP 91-8075113965
(Querist) 29 March 2012
This query is : Resolved
Dear sirs,
As per the latest Amendment Act, section 20(b)(ii)(A) of NDPS Act, possession of cannabis of small quantity, is only a bailable offence, and triable by Judicial First Class Magistrate, with maximum punishment of RI for a term of 6 months or with fine which may extend to Rs. 10,000/-!
Some magistrates use their discretion and allows the accused to plead guilty of the offence and permit him to pay a fine of Rs.5000/- and disposes of the case without waiting for a long lasting trial and examination of witnesses!
Here, in such a case, one magistrate did not allow the accused to plead guilty , and also warned that if he pleads guilty, he has to undergo imprisonment also !
so, naturally, he denied the charge and stood for trial.
At the end of the trial, he was found guilty and sentenced to undergo 3 months imprisonment !
Then, I have moved a petition u/s 389 CrPC, to suspend the sentence for One month, to enable him to file an appeal before the District Court.
But, to my great astonishment,learned magistrate returned my petition , stating that Sec 389 Crpc is not at all applicable for an offence under NDPS Act and a sentence under NDPS cannot be suspended , however minor the offence be !
The magistrate explained that sec 32 A NDPS Act is very clear on this topic !
Eventhough , sec 32A says something in this tune, I cannot believe that a bailable offence, triable by magistrate, sentence cannot be suspended due to the insertion of a new sec 32 A !
i can believe , and it is justifiable also, that this new section is applicable to an offence u/s 20(a)B or 20(a)C, as both these offences are serious in nature and non-bailable and triable by sessions court or special court !
Can anybody explain, the exact scope of Sec 32-A NDPS Act ?
ajay sethi
(Expert) 29 March 2012
In Dadu @ Tulsidas v. State of Maharshtra, (2000) 8 SCC
437, the Supreme Court declared Section 32A of the NDPS
Act void to the extent that it took away the powers of the
Appellate Court to suspend a sentence. The Apex Court
affirmed that “The exercise of judicial discretion on well
recognised principles is the safest possible safeguards for
the accused which is at the very core of criminal law
administered in India. The Legislature cannot, therefore,
make law to deprive the courts of their legitimate
jurisdiction conferred under the procedure established by
law.”
ajay sethi
(Expert) 29 March 2012
Division Bench of this court in the case of Hori Lal v. State: 1997 Crl L.J. 821wherein the Division Bench observed as under:-
“...Section 32-A of the Act does not in any manner affect or curtail the power of this
Court to grant interim bail or suspend sentence of a convict.”
ajay sethi
(Expert) 29 March 2012
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : BAIL
BAIL APPLN No.2094/2006
Judgment delivered on:14.07.2006
FIR No.154/2004
U/s 21/29 NDPS Act
P.S. Special Cell
ATIK ANSARI (in JC) Petitioner
versus
THE STATE, NCT Delhi Respondent
Advocates who appeared in this case:-
For the Petitioner : Mr Jitender Sethi
For the Respondent/State : Mr Pawan Sharma
BADAR DURREZ AHMED, J (ORAL)
1. This is an application for interim bail. It is alleged that 2.5 kgs of heroin was
recovered from the petitioner. The percentage content of diacetylmorphine has been
found to be 44.31% which comes to about 800 gms by actual content.
2. Mr Pawan Sharma, who appears for the State, submitted that the
principles applicable to the grant of regular bail under Section 37 of the NDPS Act
would also be applicable even in the case of interim bail. He placed reliance on the
decision of the Supreme Court in the case of Union of India v. Ram Samujh: 1999 (9)
SCC 429 and in particular he relied on paragraph 7 of the said judgment in which
there is a remark that “persons who are involved in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a number of innocent young victims, who
are vulnerable and it causes deleterious effects and a deadly impact on the society”. It
is further observed that such persons are a hazard to the society “even if they are
released temporarily”. Mr Sharma points out that the Supreme Court, while making
that observation, made it clear that whether the question is of regular bail or temporary
bail, the considerations are the same because of the seriousness of the offence.
3. The learned counsel for the petitioner, however, argued that the Supreme
Court in Dadu @ Tulsidas etc. v. State of Maharashtra etc.: (2000) 8 SCC 437, while
considering the provisions of Section 32A of the NDPS Act which relates to parole
post sentencing, concluded that the said provision was unconstitutional because it
limited the right of the court to grant parole. He submits that the question of grant of
bail stands on a much lower footing than the question of parole because bail pertains
to a period prior to conviction and parole pertains to a period after conviction. He
pointed out that the Supreme Court was of the view that even if a person has been
convicted under the NDPS Act, the court has the power to release the person on parole
for good reasons. Therefore, there is no reason as to why a similar power is not read
into Section 37 of the NDPS Act. He then referred to a decision of a Division Bench
of this court in Hori Lal v. State: 1997 Crl L.J. 821.
4. The learned counsel for the petitioner has also placed before me an order
passed by a learned single Judge of this court in Crl M 4302/2004 in Crl A. 193/2001
in the case of Gurminder Singh @ Lali decided on 14.07.2004. The order indicates
that the State had placed reliance on the decisions of the Supreme Court in the case of
Makhtool Singh v. State of Punjab: 1999 (1) CC Cases (SC) 109 and Union of India
v. Ram Samujh (supra) as also a decision of a Single Bench of this court in the case of
Islamuddin @ Chotey v. State of Delhi: 1999 (3) CC Cases (HC) 152 in support of
their argument that interim bail ought not to be granted under the NDPS Act in view
of the provisions of Section 37 thereof. The learned single Judge observed that
Makhtool Singh v. State of Punjab (supra) has been overruled by the Supreme Court
in the case of Dadu (supra). The court observed that Section 32A which deprived
courts of the power of suspending sentence was held to be void. The learned single
Judge also noted the decision of the Division Bench of this court in the case of Hori
Lal (supra) wherein the Division Bench observed as under:-
“...Section 32-A of the Act does not in any manner affect or curtail the power of this
Court to grant interim bail or suspend sentence of a convict.”
5. Furthermore, the learned counsel for the petitioner also placed before me
a decision in the case of Poonam v. State in Crl M. 1744/2004 & 484/2005 in Bail
Application No.494/2004 decided on 24.01.2005. That was a matter which came up
before me for the grant of interim bail which concerned a case under Sections 21 and
29 of the NDPS Act where the recovery was said to be of a commercial quantity. By
that order, the petitioner was granted interim bail for a period of two weeks on the
ground of the petitioner's wife's operation as also on the ground that, as there was
nobody else to look after the petitioner's wife, if bail was to be rejected, it would
amount to a deprivation of the petitioner's wife's right for being looked after and taken
care of. It was also granted on the ground that the petitioner had no antecedent
criminal history. The learned counsel for the petitioner submits that similar
circumstances arise in the present case also inasmuch as there is nobody to look after
the petitioner's wife. There is only an aged father of the petitioner's wife who is over
75 years of age who cannot be expected to give proper care to his daughter as he
himself requires assistance. He further submitted that there is no other case pending
against the petitioner.
6. The learned counsel for the State had the factum of the petitioner's wife's
impending surgery verified and has also verified that apart from the aged father of the
petitioner's wife, there is nobody else to look after her. He has stated so on
instructions from SI Viresh Kumar who has also confirmed that the petitioner has no
other involvements.
7. In these circumstances, considering the decisions in the case of Dadu
(supra), Hori Lal (supra), Gurminder Singh (supra) as well as Poonam (supra), I am of
the view that the petitioner is entitled to the grant of interim bail under the special
circumstances indicated above. The petitioner is accordingly directed to be released
on interim bail on furnishing a personal bond in the sum of Rs.20,000/- with one
surety of the like amount to the satisfaction of the concerned trial court. He shall be
on interim bail for a period of two weeks from the date of his release and shall
surrender immediately upon expiry of the said period.
Dasti.
Sd./-
BADAR DURREZ AHMED,J
July 14, 2006
Adv.R.P.Chugh
(Expert) 29 March 2012
Thank you Sethi Sir for this valuable information
SAINATH DEVALLA
(Expert) 29 March 2012
Basic Features of the Narcotic Drugs and Psychotropic
Substances Act, 1985
The NDPS Act 1985 sets out the statutory framework for drug law enforcement in India.The main elements of the control regime mandated by the Act are as follows:
a)
The cultivation, production, manufacture, possession, sale, purchase, transportation, warehousing, consumption, inter-State movement, transshipment and import and export of narcotic drugs and psychotropic substances is prohibited, except for medical or scientific purposes and in accordance with the terms and conditions of any license, permit or authorization given by the Government. (Section 8)
b)
The Central Government is empowered to regulate the cultivation production, manufacture, import, export, sale, consumption, use etc of narcotic drugs and psychotropic substances. (Section 9).
c)
State Governments are empowered to permit and regulate possession and inter-State movement of opium, poppy straw, the manufacture of medicinal opium and the cultivation of cannabis excluding hashish. (Section 10).
d)
All persons in India are prohibited from engaging in or controlling any trade whereby narcotic drugs or psychotropic substances are obtained outside India and supplied to any person outside India except with the previous authorisation of the Central Government and subject to such conditions as may be imposed by the Central Government. (Section 12).
e)
The Central Government is empowered to declare any substance, based on an assessment of its likely use in the manufacture of narcotics drugs and psychotropic substances as a controlled substance. (Section 9-A).
f)
Assets derived from drugs trafficking are liable to forfeiture (Chapter V-A).
g)
Both the Central Government and State Governments are empowered to appoint officers for the purposes of the Act.(Sections 4, 5 and 7).
The NDPS Act is in effect a comprehensive code not only for the control and regulation of Narcotics Drugs and Psychotropic Substances; but also for the control of selected chemicals - commonly known as precursors - which can be used in the illicit manufacture of narcotic drugs and psychotropic substances, as well as for the investigation and forfeiture of drug related assets.
ENFORCEMENT
Given India's size and the federal nature of our polity, a number of agencies both at the Centre and in the States have been empowered to enforce the provisions of the Act. These agencies include the Department of Customs and Central Excise, the Directorate of Revenue Intelligence, the Central Bureau of Narcotics and the Central Bureau of Investigation at the Central level and State Police and Excise Departments at the State level. The Union Ministries of Social Justice and Empowerment and Health are responsible for the demand reduction aspects of drug law enforcement which broadly covers health-care and the deaddiction, rehabilitation and social reintegration of addicts.
Section 4(3) of the Act envisages the creation of a Central Authority to coordinate the activities of the various Central and State agencies involved in drug law enforcement, to implement India's obligations under various international conventions, and to coordinate with international organizations and authorities in foreign countries in the prevention and suppression of the illicit traffic in narcotic drugs and psychotropic substances. In terms of this provision, the Narcotics Control Bureau was set up by the Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally.
The empowerment of a large number of agencies under the NDPS Act ensures that India's drug laws are enforced effectively on the ground. The NCB basically functions as the national coordinator international liaison and as the nodal point for the collection and for dissemination of intelligence. This system assures coordinated implementation within the parameters of a broad national strategy.
INVESTIGATIVE PROCEDURES
Chapter V of the NDPS Act (Sections 41 to 68) sets out the powers as well as the procedures for the investigation of offences under the Act. This Chapter empowers officers duly authorized by the Central Government or a State Government to issue warrants, to enter and search premises, to stop and search conveyances, to seize narcotic drugs and psychotropic substances, to take statements and to arrest persons suspected of having committed an offence, punishable under the Act.
The power to issue search and arrest warrants, is in terms of Section 41, been vested both in Magistrates as well as in specially designated (Gazetted) officers of the Central and State Governments. This is designed to ensure both timely and effective action in response to any information. In addition, both the Central and the State Governments are authorized to entrust any Officer duly empowered under the Act with the powers of an Officer-in-Charge of a Police Station for the investigation of offences under the Act. It needs to be noted, however, that while the powers to search, seize, arrest etc., are inherent in the Act, all these are subject to both the substantive and procedural safeguards mandated by the Code of Criminal Procedure, in relation, inter-alia, to the presence of independent witnesses at a search, the drawing up of search lists or panchanamas, and the constitutional obligation to produce an arrested person before a Judge within 24 hours etc.
LICIT OPIUM CULTIVATION
Section 8 of the NDPS Act, inter-alia, prohibits the cultivation of the opium Poppy, except for medical and scientific purposes and in accordance with the terms and conditions of a license, permit or authorization given by the Government. Section 9, inter-alia, empowers the Central Government to permit and regulate the cultivation of the opium poppy. Section 5 requires the Central Government to appoint a Narcotics Commissioner who shall exercise all powers and perform all functions relating to the superintendence of the cultivation of the opium poppy and the production of opium.
India is the largest licit producer of opium in the world, which is both exported as well as used by the domestic pharmaceutical industry. The licit cultivation of opium in India is regulated and controlled by the Narcotics Commissioner of India in terms of the provisions of Sections 8, 9 and 5 of the NDPS Act. The Central Government announces an opium policy each year which sets out the terms and conditions subject to which licenses for the cultivation of opium shall be given, the areas where cultivation shall be allowed, the prices at which the opium crop shall be purchased by the Government and the minimum qualifying yield for a license in the ensuing crop year. The crop cycle runs from October to May. Based on this policy, the Narcotics Commissioner of India issues licenses to individual cultivators for specified tracts of land. The key elements of the licit opium control regime in India are as follows:
i)
Opium can be cultivated only on fields specifically licensed for the purpose.
ii)
The entire crop must be tendered to the Central Government at prices fixed by the Government.
iii)
Failure to tender the minimum qualifying yield can disentitle the cultivator to a license in the following crop season.
These policy controls are backed by strict enforcement on the ground which include the measurement of fields, periodical crop surveys and physical checks to prevent diversion. Failure to tender the entire yield to the Government is treated as a serious offence and any cultivator who embezzles or otherwise illegally disposes of the opium produced by him, is in terms of section 19 of the Act, punishable with rigorous imprisonment for a term of between 10 to 20 years and a fine which shall not be less than Rs.100,000/- but which may extend to Rs.200,000/-.
SPECIAL PROVISIONS RELATING TO FORFEITURE OF PROPERTY.
A new Chapter, Chapter V-A, was introduced into the Act in May 1989 to provide for the investigation, freezing, seizure and forfeiture of property derived from or acquired through illicit trafficking in narcotic drugs and psychotropic substances. This Chapter prohibits any person from holding any property derived from drug trafficking and authorizes officers empowered under the Act to investigate, identify and seize such property. The Chapter also sets out a quasi- judicial procedure for the forfeiture of such property consequent to which it shall vest in the Central Government.
OFFENCES AND PENALTIES
Chapter IV, (Sections 15 to 40) sets out the penalties for offences under the Act. These offences are essentially related to violations of the various prohibitions imposed under the Act on the cultivation, production, manufacture, distribution, sale, import and export etc. of narcotic drugs and psychotropic substances. All these offences are triable by Special Courts and the punishments prescribed range from imprisonment from 10 to 20 years for first offences to 15 to 30 years for any subsequent offences together with monetory fines. In addition to persons directly involved in trafficking narcotic drugs and psychotropic substances, any person who finances trafficking or harbours a person involved in trafficking, or abets, or is a party to a criminal conspiracy, including a criminal conspiracy to commit an offence outside India, is also liable to the same scale of punishments. The Act was amended in May 1989 to mandate the death penalty for second offences relating to contraventions involving more than certain quantities of specified narcotic drugs and psychotropic substances.
The Act, however, makes a distinction between possession for personal consumption and trafficking, the punishment for the former being limited to between six months and one year only. The application of this provision is subject to the following two qualifications:
i)
The quantity of the drug involved in the offence should be a small quantity as specified by the Central Government.
ii)
The onus is on the accused to establish that the drug in question was meant for personal consumption and not for sale, distribution etc
PRECURSOR CONTROL
The 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to which India is a signatory, requires Parties to impose controls on the manufacture, internal distribution and import and export of chemicals which can be used in the illicit manufacture of narcotic drugs and psychotropic substances. In order to implement India's obligations under this Convention, the NDPS Act was amended in 1993 in order to empower the Central Government to declare any substance as a controlled substance and to regulate its manufacture, import and export etc. (Section 9-A). Violations relating to such substances were established as criminal offences punishable with imprisonment for upto 10 years (Section 25-A). In 1993, the Government of India promulgated the NDPS (Regulation of Controlled Substances) Order, to regulate the manufacture, distribution etc., of any substance declared to be a "Controlled Substance".
In exercise of its powers under the Act, the Central Government has so far notified Acetic Anhydride, which is used in the processing of opium into heroin, N-Acetylanthranilic acid which is used in the illicit manufacture of Methaqualone and Ephedrine and Pseudoephedrine, which are used in the illicit manufacture of amphetamine type stimulants, as controlled substances.
SAINATH DEVALLA
(Expert) 29 March 2012
GO THROUGH THE DELHI DISTRICT COURT JUDGEMENT
Shonee Kapoor
(Expert) 30 March 2012
I am thankful to all experts for shedding light on this important provision.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
WHATSAPP 91-8075113965
(Querist) 30 March 2012
My heart felt thanks to all of you sirs, for your marvelous efforts on this controversial section of NDPS Act !
