and psychotropic substances are closely linked with the Human civilization since its very inception and are used for therapeutic purposes, recreational purposes, out of addiction etc.
Drugs by definition are substances having physiological and psychological effects on human beings and other higher animals. However, these drugs are often misused for their non-therapeutic properties to cause a change in mood, get away from the real world, and many a times, even to end one's life.
This sweet but devastating melody has become a global problem enchanting in every corner of the world and India is no exception. Drug abuse is a problem destroying zillions of life annually due to its negative effects and addictive qualities, gouging youths from inside by providing them sugary but poisonous arms of lady death.
To encounter this ever increasing problem of Drug abuse and its illicit trafficking the Government of India enacted scores of legislations, one very effective legislation in this regard is ‘The Narcotic Drugs and Psychotropic Substances Act,1985’.
The Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a legislation dealing with the offences related to the misuse and abuse of Drugs and Psychotropic substances. The preamble of the act makes it clear that the act intends to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotics and drugs. Severe punishment is prescribed under the act for contraventions related to substances covered under the act.
The act also provides immense power to the authorised investigating authorities and local police while placing limitations upon the power of courts to grant bail in criminal matters. Thus, this act provides for severe punishment, leaving very little upon the discretion of the court.
The most unique feature of this act lies in Section 37 of the act. Section 37, casts a duty upon the court to follow ‘specified procedure’ contained in the body of section itself before granting bail to an accused of an offence committed contrary to the provisions of NDPS act.
This section provides a discoloration in regard to usual process of granting bail and marks an unusual shift in the concept of ‘burden of proof’ regarding the guilt of the accused. Unlike, most of the criminal cases where the doctrine of ‘presumption of innocence’ of the accused is applicable and it is on prosecution to prove the guilt of the accused, in NDPS proceedings, the courts came up with the maxim of “strict proof for severe punishment” which requires the accused to prove his innocence beyond any doubt to get acquitted.
This section makes it mandatory for the court, before granting bail, to give the public prosecutor an ear to oppose such release on bail and to satisfy itself that there are ‘reasonable grounds’ to suggest that the accused is not guilty of the offence he is charged with.
However, the Hon’ble Supreme Court in Union of India v. Shiv Shanker Kesari makes it clear that the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.
It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. Thus, the act provides enormous amount of power to investigating authorities and additional burden on defence to prove innocence.
There is a popular saying about the relationship between ascendancy and obligation: - “with Great power comes Great responsibilities”. The power vested by the act upon the police and investigating authorities have more often than not are seen getting misused to realise personal vendetta against individuals.
However it’ll be incorrect to suggest that NDPS act is solely against the accused, there are provisions specified as precautions to avoid misuse of power vested by the act on the investigating authorities, which summons strict compliance by the investigating authorities or else the complete proceeding against the accused will be nullified.
Section 50 of the act requires the authorised officer making search and seizure to inform the accused, in clear and unequivocal words, about his right of getting searched in front of a gazetted officer or nearest magistrate and if such person requires, the officer shall, take that person to a gazetted officer or nearest magistrate without any undue delay. It has been observed by the Apex Court as well as various High Courts that notice under Section 50 of the Act is mandatory for personal search.
However, Hon‟ble Supreme Court of India in State of Himachal Pradesh v. Pawan Kumar , held that provisions of Section 50 will come into play only in case of personal search of the accused and not of some baggage, article or container etc. which he may be carrying.
The investigating agencies are bound to follow the procedure prescribed by the act literally and strictly regarding search and seizure. The act also make attempts to not overlook the possibility of misuse of power in regard to a female accused and requires that no female shall be searched by anyone except a female, which is also an established rule of the criminal Procedure Code in India.
Another key provision in this regard is confession recorded under section 67 of the NDPS Act. Under this Section, a lawfully authorised officer can record a confessional statement of persons accused of offences under the Act. It has been held in various cases by different High courts and the Apex court that conviction of an accused can solely be based on this confessional statement of the accused if relevant nexus is found between the confession statement and facts and circumstances of the case. However, one of the essential elements of this provision is that the confession recorded under this section must be voluntary and must be free from any undue influence, force or threat.
An accused has a right to retract from his confession on the ground that it was not voluntary and was made under any false implication, undue influence, force, threat etc., which affects the credibility of the subjected confessional statement.
However, more often than not it is on the accused to prove that the confession statement recorded was not voluntary. Also, contrary to the provisions of Section 30, Indian Evidence Act, the courts have held that in NDPS Cases, confession of a co-accused can’t be solely used to convict another accused. The Bombay High-Court in Monish H. Bhalla v. Satya Prakash Bahl held that a confession by co-accused implicating other accused cannot hold the accused guilty.
Law is usually a double edged sword; to be used with due care and when it is not handled carefully it can lacerate its very own objective of ceasing crime in the society.
Similarly, NDPS act though being a very effective legislation for fighting against the offences relating to the unauthorised use or sale of drugs and psychotropic substances, when not used with responsibility can be a potential weapon to destroy one’s life and can even go on length of becoming a potential producer of a criminal.
A very interesting case was reported recently in this regard in Goa which indicates, to some extent, the possible misuse of power and casual approach by investigating officers.
On the eve of 27th December 2015 a shack operating as a restaurant and bar was raided by an officer of anti-narcotic cell at around 11 PM. The investigating officer allegedly found charas and LSD from one staff of the restaurant and bar, though no contraband or restricted substance was found from the body search of the owner or his restaurant but the police implicated him for financially assisting and harbouring the accused staff. The fishy thing in the case is that there is a huge dissimilarity between the police’s version of story and that of accused and public witnesses who was present on the spot and saw the whole search and seizure procedure.
Public witnesses have deposed on record that they have witnessed the whole account of things which happened at the shack and no such things were recovered from the possession of shack owner or the staff or from the restaurant itself, contrary to what is alleged by the police.
There are two versions of story; both staring at opposite walls but even a casual look at the case suggests that there were serious procedural irregularities on the part of investigating officials which might be fatal for the case during trial.
Whatever is the truth of this case, the owner of the restaurant and bar along with the staff is behind bars and their regular bail has been denied due to the bar created by section 37 of the Act.
In another case, an aspiring model allegedly took lift in a car driven by a foreign national , the car was subsequently stopped and busted with substantial quantity of charas. While, the aspiring model claimed that she has nothing to do with the substances recovered and she just took lift in the car driven by accused, the police made her a co-accused for harbouring the illicit trafficking of contrabands which, at later stage severely damaged the career growth of the promising model and it will take several years for her to prove her case.
The irony is that she might have to remain behind bars owing to the stringent provisions of the Act.
There are countless number of cases where an innocent person is implicated or wrongly held in NDPS cases just because he is somehow remotely connected to a person who is found in possession of a restricted substance under NDPS act.
The number of cases where people are in custody based on suspicion in NDPS is relatively very large as compared to other serious offences.
The law books are bombarded by the cases where an accused gets the golden sentence of “not-guilty” but, by that time, due to the slow speed of NDPS trials, the life and career of the accused person was potentially destroyed. Another side of the coin is the serious nature of NDPS offences.
Drugs related offences are regarded nigh on similar to terrorism and other serious offences and that is why the courts adopt very sceptic and restrictive approach while hearing an NDPS case. However, there are precedents where it has been opined that even in NDPS cases the courts are not inclined to punish a person solely on doubt.
The courts in India have pointed out time and again that the stringent provisions and severe punishments of NDPS Act warrants additional responsible behaviour from police/investigating officials as the act prescribes severe punishments while minimizing the chances of bail and the trial in NDPS cases usually takes a long time, denying the basic human right and fundamental right of personal liberty of the accused. Keeping in mind that most of the accused in such cases are young offenders, any irregularity on account of investigating officer might prove to be fatal for their lives and can potentially destroy their future.
KNOW YOUR RIGHTS
Strong laws are made to ensure that crime can be reduced in the society and the society can be saved from the atrocities of a criminal mind but on the other hand, law, to be respected by people, always requires itself to be friendly to innocent people. Though the NDPS act attracts stringent provisions and punishment, the law makers and the Courts in India have made a lot of efforts to ensure that no innocent gets suffered. A few rights granted by the act are listed below-
• Search and seizure can’t be carried out under section 42 of the act after sunset and before sunrise. However, if the gazetted officer himself is carrying out search and seizure process, he is exempted from the boundaries of section 42 according to the Supreme courts judgement in Union of India v. Satrohan.
• Section 50 gives you a right of being searched in front of a magistrate or another gazetted officer, the Hon’ble Supreme court in plethora of cases has held that all the criminal proceedings against an accused arrested under the Narcotics Drug and Psychotropic Substances (NDPS) Act would be vitiated if the police officer had failed to clearly inform the suspect about his right to be searched only in the presence of a gazetted officer or a magistrate and particularly in the language known and understood by the accused.
• A confessional statement under section 67 can’t be recorded through force, threat, misrepresentation etc., and such confessional statement shall be invalid in the eyes of law.
• A female accused can be searched by a female official only and any search of a female by a male official will make the whole search and seizure process invalid.
WHAT TO DO IF ONE IS FALSELY IMPLICATED IN A NDPS MATTER
False implication of a person or malafide prosecution has become a common phenomenon in Indian legal backdrop. It is unfortunate that, besides all efforts of parliament as well as judiciary a lot of innocent persons are forced to suffer from this disastrous evil generated by a homogeneous mixture of misuse of power and misuse of law. It has become a part of Indian social fabric and tonnes of innocents are suffering from this humanly generated evil.
However, it is evident from countless number of settled precautionary principles of criminal law that legislature and judiciary are leaving no stones unturned to identify and dissipate all kind of malafide prosecution or wrongful implication of a person.
The NDPS act is no different in this regard. Though, with very brawny provisions to ensure a hard time for a violator, the act provides various defences for an innocent person to ensure that he is not wrongfully stung by the baton of law. Provided below is a preliminary to-do list for a person who can be or is falsely implicated in a NDPS case.
• Exercise your right provided under Sec. 50 and ask to be examined in front of magistrate or another gazetted officer if there is any doubt on the integrity and motive of the investigating officer.
• Don’t act on any manipulation or threat while recording your statement under section 67 to the investigating officer.
• If there is anything unlawful attached to your search and seizure or the statement to the investigating officer is given under force, threat, undue influence, deceit etc. Inform about it to the magistrate at the earliest opportunity given to you.
• In case if the confession under section 67 is obtained by force, undue influence, threat etc., bring it in the notice of the magistrate when you are produced before a Magistrate or send a letter to the Magistrate though the Jail authorities.
There is a very popular quote by Louis D. Brandeis, the famous American lawyer, an associate judge of US Supreme Court and a militant crusader for social justice, “If we desire respect for the Law, we must first make the law respectable.”
Disclaimer: the contents of this article are confidential and intellectual property of the author(s) and are for educational purposes only, any unauthorised use is prohibited and attracts prosecution under relevant laws.
# 1. Akshay soni is a final year law student, currently working for team transit to justice.
2. Adv. Arpit Batra is a criminal defence attorney, having his practice in various courts of Delhi, he is also the founder and principle head of “Team Transit To Justice”.
3. For more information please visit www.transittojustice.com
4. (2007) 7 SCC 798
5. AIR 2005 Supreme Court 2265
6. 2005 CrLJ 1887