Case title:
In the matter of: Kalu Sk. @ Kuran Vs. State
Date of Order:
June 22nd 2022
Bench:
Hon’ble Justice Joymalya Bagchi and Hon’ble Justice Ananya Bandyopadhyay
SUBJECT
The Calcutta High Court passed an order directing all seizing officers in cases where narcotic substances were recovered to record the entire procedure on video, stating the draconian provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act were sometimes being misused.
It also directed that in the case of the authorities’ failure to record videos of the procedure, the reasons behind it must be specifically stated in the investigation record.
IMPORTANT PROVISIONS AND ACTS
- Section 164, The Code of Criminal Procedure, 1973- The section provides directions for the recording of confessions and statements by Magistrates,
- Narcotic Drugs and Psychotropic Substances Act, 1985- An Act created for the purpose of consolidating and amending the law relating to narcotic drugs and making stringent provisions for the control and regulation of the same.
OVERVIEW
- The order was issued as a result of the bench adjudicating upon a case wherein severe lapses on the part of the investigating agency had been recorded during the recovery of narcotic substances under the NDPS Act.
- Disturbing features such as the seizure list not containing signatures of all the accused persons arrested from the spot where the recovery was made, the presence of independent witnesses at the time of seizure being doubtful, and said witnesses in their statements before the Magistrate under Section 164 of the Code of Criminal Procedure not supporting the seizure were found in the instant case.
- Noticing these discrepancies in the present and former cases, this Court was compelled to issue directions upon the Superintendent of Police of Murshidabad Police District to take steps into rectifying this matter including the initiation of disciplinary proceedings/suspension of police officers connected with the investigation of the case.
- The Superintendent of Police who was present before the court submitted a report in which an administrative order had been issued directing all seizing officers to record signatures of accused persons who were apprehended at the time of recovery of narcotic substance in the seizure list. It also stated that the seizing officer, investigating officer of the instant case as well as Officer-in-charge of the Police Station concerned had been placed under suspension and departmental proceedings had been initiated against them.
ISSUES RAISED
- Whether current provisions regarding recording and recovery of narcotic substances as per the NDPS Act are sufficient to control drug trafficking and prevent misuse?
JUDGEMENT ANALYSIS
- The court opined that while a strict law is necessary to control organized crime like drug trafficking, and to protect the youth from drug abuse, its draconian provisions are sometimes misused by investigating agencies leading to false implications and prolonged unjustified detention of individuals.
- It was stated that the prosecution in these cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. However, in most cases as the instant one, independent witnesses are either not examined or turn hostile.
- The court believes that in order to remedy the situation and ensure unvarnished truth is placed before the court during adjudication, it is imperative that the investigating agencies resort to modern technology and videograph the recovery of narcotics.
- The court took judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery.
- The court placed reliance on the Field Officers’ Handbook issued by Narcotics Control Bureau which directs the search team to carry a video camera amongst other equipment for the purpose of search. It also cited a report of a committee constituted by the Ministry of Home Affairs in 2017 which deemed videography of crime scene as “desirable and acceptable best practice”. The Committee had also issued multiple directives for the purpose of preparation, capacity building and implementation of such procedures on an obligatory basis.
- The case of Shafhi Mohammad Vs. State of Himachal Pradesh [(2018) 5 SCC 311] was referred to, in which it was stated that “by the use of videography, crucial evidence can be captured and presented in a credible manner”. The apex court observed that it was about time that videography is implemented in investigations and even cited the 2017 committee’s directions.
- The bench noted that police officers are commonly equipped with smart phones that allow them to videotape recovery procedures, asserting that a lack of technology or awareness is a "non-issue" and that usage of technology would infuse impartiality, objectivity, and confidence in the investigative process.
- Recognizing the total discretion granted to investigating officials under the NDPS Act in terms of search, seizure, and arrest, the court also acknowledged that these powers are sometimes abused by the investigating agency.
CONCLUSION
The following directions were passed by the bench
- In all cases dealing with the recovery of narcotic substances, particularly when with those of more than a commercial quantity, the seizing officers must make a video recording of the recovery procedure.
- Reasons for failure to videograph the recovery proceeding should be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list.
- A superior Police Officer not lower than the rank of an Additional Superintendent of Police must monitor the recovery of a narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure.
- Non-compliance of the directives relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non-compliance would attract departmental proceedings.
- The Director-General of police must issue directions for compliance with the order and the respective superintendents and police commissioners of various districts and commissioners should undertake programs to spread awareness and build capacity vis-a-vis the aforementioned directions.
- All Union government agencies empowered under the NDPS Act must comply with the directions regarding videography of recovery proceedings and a response to the directive is sought from the Union government and the NCB two weeks from the order.
Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE
Click here to download the original copy of the judgement
