Arrest under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985
Every individual citizen of India has a fundamental right to get freedom guaranteed under Article 21 of the Indian Constitution, which states “No individual shall be deprived of his life except according to the procedure established by law”.
Furthermore, as per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge”
If a person contravenes the provisions mentioned in the Narcotic Drugs and Psychotropic Substances NDPS Act, then he/she can be arrested under the following grounds:
● Cultivation of opium, cannabis or coca plants without a license
● Embezzlement of opium by a licensed farmer
● Production, manufacture, possession, sale, purchase, transport, import inter-state, export inter-state or use of narcotic drugs and psychotropic substances
● Import, export or transhipment of narcotic drugs and psychotropic substances
● External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside India
● Knowingly allowing one’s premises to be used for committing an offence
● Violations pertaining to controlled substances (precursors)
● Financing traffic and harbouring offenders
● Attempts, abetment and criminal conspiracy
● Preparation to commit an offence
● Repeat offence
● Consumption of drugs
The person who is arrested should be informed, as soon as may be, the grounds of his arrest [Section 52 (1)]. In a recent judgement, Yusuji Hinagata v. State Criminal Appeal No. 36 of 2016 the Hon’ble Bombay High Court, quashed the order of conviction of a Japanese national under NDPS Act since the contents of charge were not explained in a language understood by him and held the order of conviction invalid.
If the arrest or seizure is based on a warrant issued by a Magistrate, the person or the seized article should be forwarded to that magistrate [Section 52(2)].
The officer who arrests a person has to make a full report to his official superior within 48 hours [section 57].
Furthermore, in Arif Khan v. State of Uttarakhand Criminal Appeal No. 273 of 2007, the Hon’ble Supreme Court has ruled that if recovery of contraband substances from the person accused was not made in the presence of a Magistrate or a Gazetted Officer, it leads to non-compliance of Section 50 and thus ordered the acquittal of the person.
Thus, it can be easily understood that the laws of equity and natural justice are to be followed during the process of arrest and the criminal trial.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu