This article is written by Shyamdhar Upadhyay.
Table of Contents
Procedure to lodge a complaint with NCB
The report should be made to the concerned officers of central excise, narcotics, customs particular departments who have been empowered by the government to enforce the Narcotic Drugs and Psychotropic Substance Act (NDPS), 1985. A report is prepared by the officer to initiate the investigation process. According to 36-A(4), the concerned officer has to complete its investigation within 180 days. The legislature has given the power to the Special Court to exceed the time period from ‘180 days’ to ‘One year’ seeing the facts and circumstances of the case.
One can also Lodge a complaint with NCB by contacting them via email or calling them with the details (email id and phone number) mentioned on the website of NCB.
|
Drug |
Quantity |
Punishment |
|
Poppy Straw(Section 15)
|
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Coca plant and coca leaves(Section 16)
|
——— |
Rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. |
|
Prepared opium(Section 17) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Opium poppy and opium(Section 18) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both b) RI up to 10 years fine up to 1lakhs c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Embezzlement of opium by cultivator (Section 19) |
——— |
RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Cannabis plant and cannabis{Marijuana}(Section 20) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Manufactured drugs and preparations (Section 21) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Psychotropic substances (Section 22) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. |
|
Illegal import/export or transhipment from India of narcotic drugs and psychotropic substances. (Section 23) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
a)RI one year/ Rs.10k fine or both. b)RI 10 years/Rs.1 lakh, fine or both. c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: |
|
External dealings in narcotic drugs and psychotropic substances(Outside India) (Section 24) |
——— |
c) RI which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: |
|
Punishment for consumption of any narcotic drug or psychotropic substance. (Section 27) |
a)Small quantity b)Quantity lesser than commercial quantity but greater than small quantity c)commercial quantity |
With RI up to one year, or with fine which may extend to twenty thousand rupees; or with both; and (b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. |
Quantity and punishment
A list of the narcotic drugs and psychotropic substances can be found here indicating small quantities and commercial quantities of all the drugs. The Supreme Court in its judgment stated how the quantity of the prohibited substance will be calculated. During the procedure of search, a prohibited substance was seized which was mixed with a neutral substance, the quantity of the prohibited substance will be taken into consideration for the determination of the punishment and not the mixture of substances as a whole. (Micheal Raj v. Narcotic Control Bureau)
Type of offenders under this Act
- First-time offenders,
- Second-time offender,
- Third-time offender.
Scope of the appeal and revision against the judgement
The judgement debtor can go in appeal to the Hon’ble High Court. The appeal can go to the High Court of the state where the Special Court is based. As discussed earlier the Special Court under NDPS Act is vested with power that of the Sessions Court, so the local jurisdiction to appeal to the High Court will lie from sessions court as according to Code of Criminal Procedure.
Provisions related to Special Courts
- The government will set up Special Courts for speedy trial of offences under the NDPS Act.
- It will be set up In particular areas or areas by the government through a notification in the official gazette.
- The Special Court shall be deemed to be a Court of Session.
- A Special Court shall consist of a single judge who shall be appointed by the government with the concurrence of the Chief Justice of the High Court. The judge so appointed must be a sessions judge or additional sessions judge before being appointed as a judge of the Special Court.
- All the offences stated in the NDPS Act which are punishable with punishment above three years is triable by Special Court.
- A Special Court will take cognizance of offence, by the perusal of a police report or by a complaint received from an officer of state government or central government.
- The Special Court is also vested with the power of trial of an accused who is accused of other offences under CrPC along with the offences under the NDPS Act.
- the provisions of the Code of Criminal Procedure, 1973, (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court.
- No suspension, remission or commutation in any sentence awarded under the NDPS.
- The person conducting a prosecution before a Special Court shall be deemed to be a public prosecutor.
All the procedural aspects one should be aware of in the proceedings
The procedural aspect in the NDPS Act can be divided into two parts:
- Pre-trial procedure
- Procedure during trial
1. Pre-trial procedure
- Recording of the information received by the officer (under Section 42-1 of the NDPS Act) from someone or of his personal knowledge in writing.
- A copy of such a written document should be sent to the officer superior within 24 hours.
- A search authorization needs to be taken from the Magistrate or a Gazetted Officer if the search is being conducted in their directions.
- They should reach the site of the search and before conducting the search DLEO should convince two respectable independent residents of that area to witness the proceeding. If the residents refuse to act as witnesses, in dire necessity the DLEO will issue written notice to them. This notice mandates the residents to act as a witness, refusal after that would be a punishable offence.
- Video must be recorded of the whole search.
- During the search, ladies should be searched only by lady officers. If the site of search is a residential area, a lady officer should be there with the search team.
- Before starting the search of the suspect, the DLEO and his team should give a notice to the suspect informing him of his legal right as to whether he wants the DLEO to search them or the search should take place before a Magistrate or Gazetted Officer. If the person opts to be searched before a Magistrate or a Gazetted Officer, then he must be produced before such authority who will then decide whether s/he should be searched or otherwise. This is a mandatory provision that needs to be complied with during body search only and not during premises or bag search.
- If the DLEO has reasons to believe that it will not be possible to take the person to a Magistrate or a Gazetted Officer without the possibility of the suspect parting with the possession of ND, PS or CS or related articles or document, he can conduct the search himself and after such search, he must record the reasons for such belief and send it to his immediate senior within 72 hours.
- During the search, if ND, PS and CS are found they will be confiscated along with money found at the search site suspected to have recovered from the sale of such prohibited substances. Samples of the substance must be collected.
- A panchnama must be prepared by the DLEO in 5 sections including substance recovery, documents recovery, name of the witness and other details of the search.
- Immediately after the search is complete the DLEO must start an enquiry and ‘one-to-one’ examination of witnesses, owner of the property, owner of the substance and all other persons familiar with the facts and circumstances of the case will be enquired. The person so enquired must write his statement in his own handwriting in the language known to him and sign it. He should endorse it ‘before me’ and ‘recorded by me’ on the last page.
- After establishing prima facie, based on the documentary evidence, substances recovered and other evidence the DLEO arrests the person or persons against whom such evidence is available. An arrest memo will be prepared which include the Name of the person being arrested, time, date and grounds for arrest. The arrest shall take place in accordance with the guidelines of the Hon’ble Supreme Court in D.K. Basu vs State of West Bengal.
- The person so arrested will be produced before the magistrate within 24 hours of arrest.
- Every person arrested and every article seized will be forwarded without any delay to the officer-in-charge of the nearest police station or to any person authorised under Section 53 of the NDPS Act.
- After all the above steps are completed DLEO will prepare a complete report on the arrest and seizure made by him and submit it to his officer superior within 48 hrs of such arrest and seizure. He must also send a Seizure Report in Form F to the Director-General, NCB, New Delhi and the jurisdictional Zonal Director, NCB. This helps in the creation and maintenance of a National Database on drug crimes.
- Pre-trial disposal of the seized substances ND, PS and CS is made. These substances being vulnerable in nature have a high risk of being robbed. Hence spoiling the entire purpose of the NDPS Act. Therefore these seized substances are disposed of before trial.
2. Procedure during trial
- To initiate the prosecution and trial proceedings against the accused person, a police report or a complaint made in the special (or designated) NDPS Court (a court of sessions) who upon perusal of the police report or a complaint take cognizance of that offence. This police report or complaint must be made within 180 days( or any period extended by the court) for offences involving Section 19, 24, 27A or for offences involving commercial quantity and 60 days in other cases.
- The NDPS Act provides that the trial of the Special Court will take place in accordance with the trial of the sessions court. The Special Court will be vested with the power that of the sessions court.
- The public prosecutor will conduct the prosecution of the case.
- Once the accused is brought before the court, the prosecution will open the case by describing the charge and proposing evidence that proves the guilt of the accused.
- The judge after hearing the accused and prosecution and after looking into evidence considers that there is no sufficient ground for the case the judge can discharge the accused.
- On the contrary, if the judge considers that the case needs to be tried, the judge will frame the charge and read out the charge in detail to the accused and the accused shall be asked to plead guilty to the charge or plead not guilty and need to be tried.
- If the accused pleads guilty, the judge shall record the plea and may, in his discretion, convict him thereon.
- If the accused pleads not guilty the judge shall fix the next date for the examination of the victim and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
- On the date, a fixed cross-examination of the witness will take place. The next date will be fixed for providing prosecution evidence.
- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.
- Where the accused is not acquitted, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. If any written statement is provided by the accused the court will take that on record.
- The accused then by way of application to the court to compel any witness to appear for the examination, or production of any evidence. In the usual course of proceeding the court accepts the application unless the court feels that the accused is trying to delay/waste the time of the court by means of such application.
- When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply if any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the judge, make his submissions with regard to such point of law.
- After hearing arguments and points of law (if any), the judge shall give a judgment in the case.
- The aggrieved party can approach the Hon’ble High Court by means of appeal or revision.
Provisions related to bail for offences committed under the NDPS Act
Every offence punishable under this Act shall be cognizable and non-bailable. A person accused of offences under Section 19 or Section 24 or Section 27A of the NDPS Act and also for offences involving commercial quantity cannot be released on bail for his own bond unless the public prosecutor has been given the opportunity to oppose the bail application. The accused should be able to satisfy the court that he will not be doing any act prohibited under the NDPS Act while on bail.
When any addict is found guilty of an offence punishable under Section for offences relating to a small quantity of any narcotic drug or psychotropic substance and if the court by which he is found guilty is of the opinion, regard being had to the age, character, antecedents or physical or mental condition of the offender, that it is expedient so to do, then, the court may, instead of sentencing him at once to any imprisonment, with his consent, direct that he be released for undergoing medical treatment for detoxification or de-addiction
The Magistrate has discretionary power whether to grant bail or not. The offender can approach the Hon’ble High Court for anticipatory bail under CrPC.
Failure on the part of DLEO to complete investigations within the stipulated time will result in a delayed filing of a complaint which will create an automatic right in favour of the accused person to get bail. Quantity of contraband recovered is one of the factors for grant of bail.
Punishment for consumption of substances
Consumption of substances is punishable. Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and other narcotic drug or psychotropic substance consumed with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
Important judicial pronouncements
The main motive of Section 36 of the NDPS Act is to set up Special Courts for speedy trials. If a sessions court deals with this act the very purpose of this Act fails.
Empowered officers acting under Section 43 need not record any reason for their belief and Section 43 does not provide anything to mean that empowered officers acting on prior information need to record the same before carrying out any such or seizure.
If the officer in charge receives any information regarding consumption, use or sale of NDPS or stored, sealed in enclosed space he shall put it into writing and send it to immediate senior.
The person going for search must have a belief that the offence under the Act has been committed and the person so being searched must be given an option of being searched before a gazetted officer or a magistrate.
Section 50 is imperative and obligatory. The search of the concerned person should be in accordance with Section 50.
References
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