NDPS Act 1985: Germane to Contemporary Jurisprudence

The menace of drugs and narcotics is overwhelmingly high and exceedingly ubiquitous. The rising prevalence of illegal substances and its market has compelled the central agencies to wage war against drug syndicates. People of India are increasingly becoming dependent on drugs and contraband. Many factors including issues of anxiety and work-related stress has accentuated this problem. Substance abuse has also become a lifestyle problem, as young people belonging to financially stable households, start consuming illegal substances that are exorbitantly priced. Before they can fathom and review their decision to consume the substance in the first place, they get addicted to the drug. The illicit drugs have multiple consequences to health, society and economy.

To deal with, and proscribe, consumption and trafficking of narcotics and other such substances, Parliament of India enacted the Narcotics Drugs and Psychotropic Substances Act, 1985. The Act was enacted to obviate the difficulties that arose due to the deficiencies of extant statutes, in dealing with illicit drugs, namely the Opium Act, 1852, the Opium Act, 1878 and the Dangerous Drugs Act, 1930. NDPS Act is an essential legislation which seeks to consolidate and amend the law relating to narcotic drugs and particularly to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances in the territory of India.

“Narcotic Drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. The offences under the Act 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 monitory fines. Punishment for possessing small quantities of drugs (quantity specified in the Act) will be maximum of 6 months rigorous imprisonment or a fine of up to Rs. 10,000 or both. But in the case of commercial quantity it would be rigorous imprisonment from 10 years (min.) to 20 years (max.) & a fine from Rs 1 lakh to 2 lakhs. “Commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official gazette.

Search And Seizure

Search and seizure of drugs in the possession of a person is central to the execution of the provisions of NDPS Act. Section 50 of the Act, has been, enacted with an intended purpose of delineating the power to search the person of a detainee and to do so whilst ensuring that the rule of law is maintained. It has been stipulated under the provision that the search should be made in the presence of a gazetted officer or a magistrate. The gazetted officer or magistrate, before whom any person to be searched is produced, may dispense with the search and discharge the person if he sees no reasonable ground for search. If, however, the officer duly authorized, has a reason to believe that on occasion of producing the person to be searched before a gazetted officer or magistrate, he may part with the possession of drugs, he may search that person right away.

A landmark judgment on this point by the Supreme Court is Arif Khan v. State of Uttarakhand. In this recent case, the Supreme Court reiterated the settled position of law that Section 50 of NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985) is a mandatory provision.
In the case the appellant-accused was convicted for the offence punishable under Section 20 of the NDPS Act. In appeal, the accused while assailing the legality and correctness of conviction contended that the prosecution had failed to ensure mandatory compliance of Section 50 of NDPS Act inasmuch as the alleged recovery/search of the contraband (Charas) made by the raiding police party from the appellants body was not done in accordance with the procedure prescribed under Section 50 of NDPS Act, which is a mandatory provision. In the case, the two-judge bench of the Supreme Court allowed the appeal and made the following observations: “That the true scope and object of Section 50 of NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 of NDPS Act and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of the Supreme Court in the case of State of Punjab vs. Baldev Singh.”

It is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a magistrate. It was held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a magistrate.

Confessions

The Code of Criminal Procedure makes it clear that only statements made before a magistrate are admissible as evidence. Statements to the police are not, except for those parts of the statements that lead to the discovery of new facts. Under the NDPS Act, a confession made to an officer designated under the Act was deemed admissible in court. The question of admissibility of claimed confessions under the NDPS Act has been a legal quandary ever since the law was brought into force in 1985. The Narcotics Control Bureau is the Central agency in charge of acting against drugs possession and trafficking. Through the NDPS Act, any official designated by the Centre, or by the state government if the case is investigated at the state level, gets the same powers as a police officer in-charge of a police station, popularly known as Station House Officer.

However, in October 2020, the Supreme Court, in Tofan Singh vs. Tamil Nadu has clarified the position of law on this. Till now, a statement obtained by the authorized officer from an accused assumed the status of a confessional statement completely admissible in court. This was because the legal assumption was that such an officer under the NDPS Act was not a police officer and not bound by the restrictions placed on police officers under Section 25 of the Indian Evidence Act. The majority of judges on the three-judge bench held that the provisions that led to confession statements under the NDPS Act being admissible as evidence violated three key fundamental rights under the Constitution, namely, Article 14, which provides equality before the law, Article 20 (3), which gives a citizen the right against self-incrimination and Article 21, which provides right to life, dignity and privacy. The legal quandary has been laid to rest finally and rights of the accused person have been reinforced.

Bail

Section 37 of the Act places twin conditions upon the court before the grant of bail, which are, first, that the public prosecutor must be given an opportunity to oppose the application for such release, and, that the 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. Criminal Procedure Code is not applicable where any different procedure has been prescribed by any law. Since the Act prescribes a separate provision for Bail, the general provisions of Bail under the CrPC will not be applicable. The Act has been enacted with a view to make stringent provisions for the control and regulation of the operations relating to NDPS.

Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. (2012) has held that the matter involving small quantity are bailable irrespective of the fact that it is mentioned in the NDPS ACT, 1985 that all offences are cognisable and non-bailable. Commercial quantity offences are punishable for not less than 10 years and there is an embargo of Section 37 of the NDPS, 1985 in so far as the bail in commercial quantity is concerned.

As per section 37 of the NDPS ACT, 1985 bail should not be granted to an accused unless and until there are reasons to believe that the accused has not committed the offence for which he is charged with other conditions that an advance notice is given to the prosecutor and the accused should not commit offences if he be granted bail.

The Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr. (2005) while considering the provisions of Section 21 of the Maharashtra Control of organised Crime Act, 1999 which are pari-materia to Section 37 of the NDPS ACT, has laid down the approach to be adopted while deciding the bail application. The Court has stated that the element of organized crime will have to be carefully examined. Also, the manner in which the offence was committed and the criminal antecedents of the accused must also be taken into account. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.