Introduction
India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.
The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:
(i) narcotic drugs;
(ii) psychotropic substances; and
(iii) controlled substances.
The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth.[1] Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.
Importance of recovery in investigation of offences under NDPS Act
It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act gives rise to a presumption of culpable mental state.
Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.[2]
Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.
For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.
Stringent conditions on bail under the NDPS Act
The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:
- Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
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(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor oppose 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.
It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious nature of the offences.[3]
Safeguards available to the accused under the NDPS Act
It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse of the penal provisions of any legislation.
The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.
Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:
- Section 41 of the NDPS Act, 1985
Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:
- Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.
A bare perusal of the abovementioned provision shall make it clear that:
(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.
(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.
(c) The Magistrate or the gazetted officer as the case may be prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.
Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala[4] has held that such authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate to conduct the search on his behalf.
2. Section 42 of the NDPS Act, 1985
Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:
- Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
The provision reproduced above may be understood in following manner:
(a) The above provision pertains only to the search of buildings conveyances and enclosed places.[5]
(b) Officer empowered under Section 41(2) having reasonable belief owing receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining authorisation in the manner prescribed under the Act.
(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.
(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.
The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:
(a) Compliances under Section 42 of the Act are mandatory in nature.[6]
(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. [7]
(c) The purpose of this provision is to provide due protection to a suspect against false implication.[8]
3. Section 43 of the NDPS Act, 1985
Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:
- Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may—
(a) 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 an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
With regards to the provision reproduced above it is pertinent to note the following:
(a) The above provision pertains only to the search of “public place” which are defined under the provision.[9]
(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place” to record the satisfaction or reasons to believe prior to conduct of search of a public place.[10]
4. Section 50 of the NDPS Act
Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:
- Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
It is submitted that scope of the provision reproduced above is limited and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.[11]
Non-compliance and its impact on bail
All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala[12] have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as envisaged in the Act results in vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.
Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.
However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied. It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.
Conclusion
In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.
† Partner, KMA Attorneys.The author can be contacted at kmadan@kmalawoffice.com or +91-9971305252.
†† Senior Associate, KMA Attorneys.
††† Senior Associate, KMA Attorneys.
[1] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
[2] Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120.
[3] Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, 40.
[5] Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.
[6] M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.
[7] Chhunna v. State of M.P., (2002) 9 SCC 363.
[8] Kishan Chand v. State of Haryana, (2013) 2 SCC 502.
[9] M. Prabhulal case, (2003) 8 SCC 449.
[10] State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.
[11] Jarnail Singh v. State of Punjab, (2011) 3 SCC 521.
