This article has been written by Kashish Dhawan and Akshit Narula pursuing Diploma in Intellectual Property, Media and Entertainment Laws and has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 is a crucial legislation in India aimed at controlling and regulating the production, manufacture, transportation, and consumption of narcotic drugs and psychotropic substances. This article delves into the investigation procedure and bail conditions under the NDPS Act. The investigation procedure under the NDPS Act is unique and different from other criminal laws. It involves a thorough examination of the accused person’s conduct, belongings, and properties. The investigating officer needs to follow specific guidelines to carry out the investigation, such as obtaining a warrant before searching a place. When it comes to bail conditions under the NDPS Act, there are some significant differences from other criminal laws. Bail is not an by default right under the NDPS Act, and the burden of proof lies with the accused to prove that they are not guilty of the offence. Additionally, bail is granted only under specific conditions such as the nature of the offence, the severity of the punishment, the character and antecedents of the accused, and the likelihood of the accused committing any further offence while on bail. Overall, this article aims to provide a comprehensive understanding of the investigation procedure and bail conditions under the NDPS Act, which is essential for anyone dealing with drug-related offences.
Background of the Narcotic Drugs and Psychotropic Substances Act, 1985
India was a party to three United Nations Drug Conventions, namely the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. By virtue of the parliamentarian authority to make law for the country by implementing “any treaty, agreement or convention or decision made at the international conference”, abiding by the principles of the Indian Constitution, the Indian Parliament enacted the Narcotic Drugs and Psychotropic Substances Act, 1985.
There was no statutory law present before the establishment of the NDPS Act. Smoking of cannabis was accepted as a form of recreation similar to drinking alcohol in the Atharva Veda. Various other drugs which were derivatives of cannabis such as hashish, marijuana, bhang etc. were legal before 1985. The Act came as a replacement to the Opium Act and the Dangerous Drugs Act.
The NDPS Act aims to provide penalties for drug trafficking, strengthen the enforcement power, and implement international conventions to which India is a party. The introduction of NDPS made it illegal to produce, manufacture, cultivate, possess, sell, transport, buy, and use any narcotic drugs or psychotropic substances.
The Act classifies drugs into a schedule according to their therapeutic value and scope for potential abuse. The Act has undergone numerous revisions over the years to strengthen its clauses and keep up with the introduction of new drugs. A more thorough approach to drug policy that emphasizes prevention, treatment, and harm reduction has been called for, along with concerns about the Act’s effects on drug users.
Classification of drug possession under NDPS Act, 1985
The possession of drugs under NDPS has been defined in 3 categories and all of them carry different sentences, namely:
- Small quantity: It is the quantity lesser than the quantity specified by the Government in the official gazette. If anyone is found with the illegal exclusive possession of any drug such as opium, cannabis, poppy seeds etc. will be punished for 1 year of imprisonment or a fine of Rs. 10,000 or both.
- Intermediate quantity: It is the quantity which is more than the small quantity but less than the commercial quantity and if anyone is found with the illegal exclusive possession of any drug such as opium, cannabis, poppy seeds etc, the same will be punished for a term which may extend to 10 years of imprisonment with a fine up to 1 lakh. In the case of State v. Mushtaq Ahmad and ors (2015), it was held that intermediate quantity is the one which is above small quantity and below commercial quantity.
- Commercial quantity: It is the quantity greater than the quantity specified by the government in the official gazette and if anyone is found with the illegal exclusive possession of any drug such as opium, cannabis, poppy seeds etc, will be punished for a term which shall not be less than 10 years but which may extend to 20 years with a fine which shall not be less than 1 lakh but which may extend to 2 lakhs.
Investigation procedure in NDPS cases
The entire process of investigation under NDPS Act, 1985, is broadly divided into the following aspects which are to be borne into mind by the investigating agencies i.e. the police personnel.
Steps to be taken on receipt of information
The two major aspects of the NDPS Act, without which further investigation is not possible are “recovery” and “possession”. The reason behind these two elements is that once an accused is found to be in possession of any of the prohibited substances as mentioned in the schedule of the Act, it raises a presumption as to the commission of the offence and also about the mental state (mens rea) of the accused. The major sections dealing with the procedural aspects of the Act are Sections 41, 42, 43 and 50.
Section 41 of the NDPS Act, 1985
Section 41 of the 1985 Act deals with the power of the magistrate and any other officer to issue a warrant for search and seizure or arrest of any person suspected to have committed any offence under the Act.
Part 1 of Section 41 of the Act primarily provides that the metropolitan magistrate or the magistrate of first class or any other magistrate of second class having being specially empowered in this behalf has the power to:
- Issue a warrant for the arrest of any person, who he has either suo-moto or on the basis of information received, reason to believe that he/she has committed any offence punishable under the provisions of the Act or;
- Issue warrant for the search of any building by the day or night and to make a seizure of any substance liable to be seized under Chapter V-A of the Act.
Further, Part 2 of Section 41 deals with the power of any officer of the central excise, narcotics, customs revenue intelligence, or any other officer of the department of the Central Government to issue a general or specific order to any officer subordinate to him, however superior to the rank of a peon, sepoy or a constable to arrest any person or conduct a search and seizure in any building, place or conveyance etc, when the former has reason to believe that the person has committed any offence under the Act or some prohibited substance has been stored in such a place as the case may be.
It is pertinent to mention here that the Supreme Court in the case of T.Thomas V. State of Kerala (2013) has held that the authorisation as mentioned in Part 2 of Section 41 is not required wherein the gazetted officer himself conducts the search and such authorisation is only required when such search is to be conducted by an officer subordinate to such officer.
Section 42 of the NDPS Act, 1985
Section 42 of the Act deals with power of the gazetted officer or any other officer subordinate to such officer to conduct search and seizure without any warrant or authorization.
Part 1 of Section 42 provides that any officer above the rank of a peon, sepoy or constable of the Central Government or any other officer as mentioned in the provision of the state government has reason to believe either from personal knowledge or information received and reduced into writing has reason to believe that with respect to any narcotic drug or psychotropic substance or controlled substance, any offence has been committed or that such substances or any document for the disclosure of such substances are stored in any building, place or conveyance, such officer may between sunset and sunrise:
- Enter into and search any such building,
- Conveyance or place or break open any door or
- Remove any obstacle for exercising the above mentioned power or
- Make a seizure of any such article in respect of which any offence is punishable under the Act.
It is pertinent to mention that Part 1 further provides that when such an officer has reason to believe that such authorisation or warrant cannot be obtained without affording an opportunity for the concealment of evidence or the possibility of escape of the suspect, he may, without warrant, enter and search such place after recording reasons in writing.
Part 2 of Section 42 provides that any such information as recorded under sub-section (1) shall within 72 hours be forwarded to the immediate official superior. The following procedural requirements have been mentioned under Section 42 of the Act-
- Any officer above the rank of a peon, sepoy or constable of the Central or the state government may conduct and search and seizure process
- Where the above-mentioned officers feels that authorisation or warrant cannot be obtained without affording an opportunity of concealment or destruction of evidence, he may conduct a search without such authorisation or warrant and after recording reasons in writing
- The recorded reasons have to be forwarded to the immediate official superior within 72 hours.
Judicial precedents surrounding Section 42 of the NDPS Act, 1985
In a plethora of judgments, the Supreme Court has emphasised on the stringent application of the provisions Section 42 of the Act wherein the Court has acquitted the accused individuals on many occasions due to the non-compliance of the provisions of this section. Certain relevant judgements dealing with this aspect are as follows:
- Sukhdev Singh vs. State of Haryana (2012): In the case, the Apex Court held that Section 42 is a mandatory provision which ought to be construed and complied with strictly. The requirement of furnishing information to the superior officer should be forthwith or within a very short period of time, however it was very explicitly mentioned in this case that such compliance must at any cost be prior to the recovery.
- Krishan Kanwar v. State of Rajasthan (2004): In this particular case, the Supreme Court has held that Section 42 comprises two of components. One relates to the basis of information i.e.
- From personal knowledge and
- Information given by a person and taken down in writing.
The second is that the information must relate to the commission of offence punishable under Chapter IV of the Act and /or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application.
- Directorate of Revenue v. Mohd. Nisar Holia (2007): This particular case dealt with the recording of the FIR, wherein it was held that the statutory provisions had not been complied with because the person who had received the information did not reduce the same into writing. It was further held that an officer who received the information was bound to reduce the same into writing and not the person who hears thereabout.
Section 43 of the NDPS Act, 1985
Section 43 of the Act deals with the provision of conducting search and seizure processes in a public place. Section 43 provides that any officer authorised under Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe that any offence as punishable under the Act has been committed. It is further pertinent to mention that such a search and seizure process as mentioned in Section 43 of the Act does not require the officer conducting the search to record his reasons in writing as is a condition precedent under Section 42 of the Act.
The Apex Court in the case of Directorate of Revenue vs. Mohd. Nisar Holia (2007) has made it clear that a hotel is a public place but a room occupied by a guest may not be one. The Court further observed that though the Act contemplates various measures to be taken for search and seizure between sunrise and sunset and between sunset and sunrise, an authority cannot be given an untrammelled power to infringe the right to privacy of any person.
Section 50 of the NDPS Act, 1985
The investigation in NDPS Act, 1985 usually pertains to receiving secret information, making a search team, gathering public witnesses, apprehending the accused and conducting a search procedure of him and his vehicle or his bag. With respect to the search of the accused, the NDPS Act by virtue of Section 50 of the Act sets out certain conditions which are to be complied with.
Section 50 provides a reasonable safeguard to the accused before the search of his person is made, this provision is intended to avoid any sort of criticism of arbitrary and high-handed action against the authorised officers. Section 50 of the Act provides that the officer apprehending the accused must inform him of his right to be searched in the presence of a gazetted officer of any department as mentioned under Section 42 or before the nearest magistrate. Here, the accused has an option either to get himself searched in the presence of the gazetted officer or magistrate or to be searched by the apprehending officer itself. The response of the accused has to be obtained in writing. What constitutes the most essential part under this section is that the accused must not be given an option of being searched before a gazetted officer or a magistrate, but he should be informed that he has a “right” to be searched in their presence.
The Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) has held that the requirements of Section 50 are mandatory in nature and that the same must be strictly construed. Further the Court held that it is mandatory on the part of the officer to inform the accused about his right to be searched before a gazetted officer or a magistrate and the failure to do so will not vitiate the trial but would render the recovery of the illicit article questionable. Where the conviction is based solely on the basis of recovery of an illicit article, the same will be overturned into an acquittal.
The Supreme Court in the landmark judgment of State of Punjab vs. Baldev Singh (1999) has provided that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate. The failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50.
Bail under NDPS Act, 1985
The Apex Court in the case of Union of India vs. Ram Samujh and Others (1999), stated that when a person commits murder, 1 or 2 persons are affected by it whereas the individuals who deal in drugs, affect several young minds who are vulnerable and have a deadly impact on the society and if they are given bail, there is a good probability they will start dealing in drugs again.
Section 37 establishes stringent criteria for the granting of bail. Possession of illegal drugs in illegal quantities is a heinous offence and is cognizable and non-bailable. Under Section 37 of the Act, twin conditions which need to be fulfilled in order to get bail under the Act are: –
- The Public Prosecutor must be given an opportunity to oppose the application for such release, and
- Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Reasonable ground
In the recent case of Aryan Shah Rukh Khan vs. Union of India (2021), bail was rejected repeatedly under the NDPS Act’s requirement of “having reasonable grounds for believing that he is not guilty”.
What the term ‘reasonable ground’ means, has nowhere been defined in the NDPS Act, however, the Apex Court in the case of State of Kerala vs. Rajesh (2020) stated that “reasonable grounds” encompasses a strong likelihood that the accused will not be found guilty of any of the Act’s listed offences. To eliminate any doubt about the accused committing the crime, the facts and circumstances of the case should be clear.
Further, according to the decision of the Supreme Court in the case of Municipal Corporation of Greater Mumbai vs. Kamla Mills Ltd (2003), “reasonable ground” means “in keeping with reason.” The final determination of whether the accused’s action was reasonable or not will depend on the facts. After carefully considering the evidence, the courts must wisely render their decision.
The Apex Court in the case of Union of India vs. Shiv Shanker Kesari (2007) explained reasonable grounds as any substantial probable cause for having the belief that the accused is not guilty of the offence charged with criminal antecedents where bail has been granted under NDPS Act.
The court in the case of Jagdish Chand vs. State of HP (2020) stated that the accused was caught with exclusive possession of 837 grams of cannabis which according to the official gazette is an intermediate quantity which holds punishment for imprisonment up to 10 years and fine up to 1 lakh.
The accused applied for bail and because the investigation was completed, and no criminal antecedents were found and there is no history of the accused being involved in the drugs case, therefore the court being satisfied that the accused on bail won’t commit any offence granted bail to the accused.
Undue delay in trial as a ground for bail
Hussainara Khatoon v. Home Secretary, State of Bihar (1980)
The “right to a speedy trial” is a fundamental right that is implicit in the right to life and personal liberty guaranteed by Article 21 of the Indian Constitution, according to the Apex Court’s ruling in this case. In its ruling, the Court imposed stricter bail requirements, more humane living conditions, and a significantly shorter window between arrest and trial. The Court stated that no procedure can be deemed reasonable, fair, or just if it does not ensure a reasonable quick trial.
Mohd. Muslim @ Hussain v. State (NCT of Delhi) (2023)
The Hon’ble Supreme Court while granting bail to an undertrial prisoner, who had been detained seven years earlier on suspicion of participating in a gang that supplied marijuana, stated that the grant of bail on the grounds of undue delay in trial cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A of CrPC, which is applicable to offences under the NDPS Act too.
Loopholes in the NDPS Act, 1985
- Absence of a requirement for drug testing: Suspects in possession of drugs are not required to undergo drug testing under the NDPS Act. This may result in the false accusation and conviction of innocent people for drug offences.
- Gaps in the seizure procedure: A key component of the NDPS Act is the seizure and custody of drugs. However, drug dealers may be able to take advantage of flaws in the seizure procedure. For instance, there is no provision for an independent verification of drugs that the police have seized, and drugs that have been tampered with or replaced may still be present.
- Several agencies, including the police, customs, and excise department enforce the NDPS Act. However, these agencies do not coordinate well. However, there is frequently a lack of coordination between these organizations, which can allow drug traffickers to take advantage of this weakness and continue their operations.
- Acquittal in NDPS cases occur on the slightest of gaps in the investigation procedures such as:
- Failure of the police personnel to gather public witnesses.
- Failure of the prosecution to prove the case beyond reasonable doubt.
- Failure of the police to submit an FSL report.
- Failure of the investigation officer to submit their recordings to their immediate superior official under Section 42 within 72 hours.
- Failure of the prosecution to prove the identity of the accused.
- Practice of the police personnel to record DD entry prior to the recording of an FIR, results in the acquittal of the accused.
- Failure of the prosecution to prove that the investigation has been conducted in a fair manner.
Conclusion
It is crucial to remember that the NDPS Act, 1985 is frequently revised and amended to close these gaps and flaws. To ensure that the law is properly applied, it is essential to have a strong and effective enforcement mechanism in place. The NDPS Act is a crucial piece of legislation in India that plays a vital role in controlling and regulating drug-related offences. In conclusion, it is vital to understand the intricacies of the NDPS Act, particularly the investigation procedure and bail conditions, to avoid any legal complications and ensure that justice is served. It is crucial for anyone dealing with drug-related offences to be aware of these guidelines to ensure that they are well-informed and well-prepared in case of any legal proceedings.
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