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Criminal Defenses & Grounds for Bail under the Narcotics Drugs and Psychotropic Substances (NDPS) Act of 1985

 > Anticipatory Bail & Regular Bail  > Criminal Defenses & Grounds for Bail under the Narcotics Drugs and Psychotropic Substances (NDPS) Act of 1985

Criminal Defenses & Grounds for Bail under the Narcotics Drugs and Psychotropic Substances (NDPS) Act of 1985

Illicit traffic or abuse of narcotics drug or psychotropic substance or controlled substance is a major problem not only in India but in the whole world. It is affecting both the health of the citizens as well as the health of the Indian economy. Here in this article, we will understand laws enacted by the parliament to fight against illicit traffic and abuse of narcotics drugs or psychotropic substances or controlled substance. We would be learning how could any person lodge a complaint? What is the procedure for a prosecution? What are the defences available to the accused? Where the aggrieved person can appeal? What are the criminal defenses available to the alleged accused person? At last, we will see types of bail as well as grounds for the bail available to the accused.

Central laws to eradicate Illicit Traffic in Narcotic Drugs and Psychotropic Substances are:

  1. Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985
  2. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988

Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985: Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 describes narcotics drugs and psychotropic substance in the following way:

  1. Narcotics Drugs: Section 2(xiv) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 states that Narcotics Drugs means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs.
  2. Psychotropic Substance: According to section 2(xiv) of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 Psychotropic Substance means any substance, either synthetic or natural, or any salt or any natural material or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.

Psychotropic Substance affects brains whereas Narcotics Drugs affect the rest of the body like strengthening of muscles. All offences enlisted under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 are cognizable and non-bailable as per section 37 of the said act. Under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 there are two types of quantity described in the act:

  1. Small Quantity: Section 2(xxiii) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 states that the Central Government by the notification in the Official Gazette specifies the quantity of narcotics drugs and psychotropic substance and quantity lesser than a specified quantity is called small quantity.
  2. Commercial Quantity: Section 2(vii-a) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 states that the Central Government by the notification in the Official Gazette specifies a quantity of narcotics drug and psychotropic substance and quantity more than specified quantity is called commercial quantity.

Central Government under section 4(1) of the Narcotics and Psychotropic Substances Act (NDPS), 1985 is empowered to take recourse for preventing and combating abuse or illicit traffic in narcotic drugs, etc. Ministry of Home Affairs of India has constituted Narcotics Control Bureau in terms of section 4(3) Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 to control illicit traffic and abuse of narcotics drug and psychotropic substance. Another authority i.e., the Central Bureau of Narcotics is established to keep an eye on the illicit cultivation of narcotics drugs in Madhya Pradesh, Rajasthan and Uttar Pradesh. Central Bureau of Narcotics was constituted by the Britishers and later it was continued under the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985.

Under section 8 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, no person shall cultivate any coca plant, opium poppy or any cannabis plant or even gather any portion of a coca plant. Section 8 of the said Act also prohibit to possess, sell, transport, use, warehouse, consume, produce, manufacture, export into India, import into India, import inter-state, export inter-state or tranship any narcotic drug or psychotropic substance. Section 11 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 prohibits to distrain or attach narcotics drug and psychotropic substance to recover debt under any order or decree of any court or authority or otherwise. Section 12 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 restricts any person from engaging in or controlling any trade of narcotics drugs and psychotropic substance outside of India.

However, use of narcotics drugs and psychotropic substance under section 8 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 for the purpose of medical, scientific or any other purposes provided in the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 or the rules or orders made thereunder. Export of poppy straw for decorative purpose is exempted under section 8 of Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. Section 13 and section 14 of Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 are special provisions that confer power to the Central Government to exempt, with or without condition, cannabis plant or coca plant or coca leaves, for using it as a flavouring agent but without alkaloid, from the prohibition provided under section 8 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985.

Arrest, Search and Seizure: Section 41, Section 42 and Section 43 of the Narcotics and Psychotropic Substances Act (NDPS), 1985 confers power to the concerned officer to search and seize any building, conveyance or place and also confers power to arrest any person who contravenes provisions of this act or any rule or order thereunder.
The concerned officer herein stands for any officer of the departments of narcotics, revenue intelligence, central excise, customs or any other department of the Central Government including armed forces or para-military forces as is empowered in this behalf by the Central Government or any such officer of the drugs control, police, excise, revenue or any other department of the State government as is empowered in this behalf.
The concerned officer is empowered under section 41, section 42 and section 43 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 to enter, search, seize and arrest if he has reason to believe that any person has:
a) committed an offence punishable under this Act or
b) any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or
c) any document or other article which may furnish evidence of the commission of such offence or
d) 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 the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is concealed or kept in any house, place or conveyance.

Section 41(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 empowers Magistrate of first class or Metropolitan Magistrate or Magistrate of second class, specially empowered by the State Government in this behalf, to issue a warrant for arrest against any person whom he has reason to believe that such person has committed an offence under the said act or for a search of any building, conveyance or place and such search may be conducted at any time whether by day or by night. Under section 41 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 Arrest or search can be only done after a warrant or authorisation issued by any of the above-mentioned Magistrate.

Section 42(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 empowers the concerned officer upon reasonable suspicion, without warrant or authorization, to arrest any person or search any building, conveyance or place. But such search under section 42(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 shall be conducted between sunrise and sunset. In case the owner of the premises resists to open door or otherwise, the concerned officer empowered by section 42(1)(b) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 to break open any door and remove any obstacle to such entry.

Section 43 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 empowers the concerned officer can exercise the power to enter, search, seize and arrest in a public place.

Section 48 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confers power to the concerned officer to stop or compel to stop any animal or conveyance such as aircraft, vehicle or vessel and cause to examine, rummage and search the conveyance and goods in it. Section 48(c) of the Narcotics and Psychotropic Substance Act (NDPS), 1985 also empowers the concerned officer to fire upon an animal or the conveyance if all the lawful means to stop such animal or the conveyance fails.

Section 51 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 provides that the Code of Criminal Procedure, 1973 shall apply to all warrants issued and also to search, seizures and arrest made under said Act.
Offences enlisted under Chapter 4 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 shall be tried by the Special Court constituted under section 36(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. Such Special Court is presided by the Single Judge who is immediately before such appointment was a Sessions Judge or an Additional Sessions Judge. Section 36-C of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 states Special Court constituted under said act shall be deemed to be Court of Session and provision of the Code of Criminal Procedure, 1973 shall apply to all proceedings under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 unless it contradicts with the provision of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985.

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988: Order of detention under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 is passed to prevent any person from committing illicit traffic and abuse of narcotic drugs and psychotropic substances. According to section 3(3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988, the detained person shall be provided with grounds for his detention as per section 3(1) of the said Act. Section 6(a) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 states that the grounds of detention are severable. It means if there are five grounds of detention and among these five grounds two grounds are:
i. vague,
ii. non-existent,
iii. not relevant,
iv. not proximately connected or connected not with such person, or
v. invalid for any other reason whatsoever
then due to these two grounds order of detention under section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 not get invalid. Such an order of detention will be made on the other remaining grounds.
Order of detention under section 4 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 may be executed anywhere in India in a manner provided for the execution of the warrant under the Code of Criminal Procedure, 1973. The place and conditions for the detention shall be as specified by the appropriate government through special or general order under section 5 of the said Act.

Procedure for Prosecution
Procedure to lodge the Complaint:
Anywhere in India, any person can take any of the following steps to complaint against Gold Smuggling:

 Any person can complaint about illicit traffic and abuse of narcotics drugs and psychotropic substance to the Drug Control Bureau by calling on number +91-11-26761000 or can complaint through email – ddge-ncb@nic.in and adenf-ncb@nic.in.

 Central Economic Intelligence Bureau (CEIB) has issued WhatsApp No. 9868505002 so that if any person has information about illicit cultivation of opium and poppy, then he could inform the authority by sending an image through provided WhatsApp No.

 Dial 100 or visit near Police Station under whose jurisdiction such offence is taking place and give information regarding Gold Smuggling to the Officer in charge of that Police Station under Section 154(1) of the Code of Criminal Procedure, 1973. Code of Criminal Procedure, 1973 under Section 154(1) empowers every person to give information to an Officer in charge of a Police Station which in other word is called the First Information Report. The complaint can be made in both forms i.e., written as well as oral form.

 If the Officer in charge of a Police Station refuses to act on the complaint, then under Section 154(3) Code of Criminal Procedure, 1973 complaint in writing can be sent by post to the Superintendent of Police under whose jurisdiction offence of Gold Smuggling is taking place.

Confiscation: Whenever offence is committed and recovery of the controlled substance, psychotropic substance, narcotics drug, utensils, apparatus and other materials, which are used or by means of which such offence is committed, shall be liable to be confiscated under section 60(1) of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985. Any goods used for concealing narcotics drug or psychotropic substance or controlled substance shall be to be confiscated under Section 61 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. Sale proceeds of the narcotics drugs or psychotropic substance or controlled substance shall be liable to be confiscated under Section 62 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985

Section 60(3) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 provides for confiscation of any animal or conveyance such as aircraft, vessel, vehicle etc. used for transporting narcotics drug controlled substance, psychotropic substance.

A trial court under section 63(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is empowered to pass an order of confiscation whether the accused is convicted or acquitted or discharged. Section 63(2) of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 states the trial thereof cannot pass an order of confiscation until the expiry of 1 month from the date of seizure and without giving the affected person reasonable opportunity of being heard in respect of such claim.

Forfeiture by the Competent Authority: Section 68-A(2) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 provides about those persons whose property is liable to be forfeited under the said act are as follows:

• Any person is convicted for an offence under the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 and has been sentenced to imprisonment for 10 years or more;
• Any person convicted for a similar offence by the Competent Court of a foreign country;
• Any person against whom an order of detention is passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988;
• If a person is arrested or warrant or authorization of arrest is issued upon suspicion of commission of an offence punishable with sentenced imprisonment for 10 years or more under this act;
• Every associate of the person mentioned in the first four points;
• Every relative of the person mentioned in the first four points;
• Any holder of the illegally acquired property.

Section 68-E of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confers to every officer mentioned under section 53 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 and officer in charge of a police station to conduct inquiry, investigation or conduct survey in respect of any person, place, property, assets, books of account in a bank, documents or any other relevant matters. Upon finding illegal acquired property thereof and has reason to believe that such property is likely to be transferred, concealed or dealt with any other means rendering any proceeding under said act frustrated, such officer is empowered to seize or freeze such illegal acquired property under section 68-F of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985.

The Competent Authority constituted under section 68-D of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 shall issue under section 68-H of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 show-cause notice to the affected person to show cause why the property mentioned in the notice should not be forfeited to the Central Government and response to such notice shall be given with a period of 30 days. After considering such response, if any, and, recording all the findings, the Competent Authority is empowered to declare that such property shall stand forfeited to the Central Government free from all encumbrances.

Detention by the Advisory Board: When the order of detention is passed against any person under section 3(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. Upon reference to the Advisory Board under section 9(b) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, such Advisory Board shall consider the reference and the materials placed before it and also call for the information, if so required, by the appropriate government or any other person acquainted with relevant facts. The Advisory board shall give reasonable opportunity and time to the accused of being heard under section 9(c) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. The Advisory Board shall, after considering all facts and hearing both sides, send its report to the appropriate government. The appropriate government thereof may under section 9(f) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confirm or annul the order of detention under section 3(1) of the said Act.

The maximum period of detention that can be awarded under section 11 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is 1 year from the date of detention.

Special Court: Offences enlisted under Chapter 4 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 shall be tried by the Special Court constituted under section 36(1) of the offence punishable with more than 3 years imprisonment is the warrant triable case.

There are two kinds of trials i.e., Summon Trial and Warrant Trial. Sub-clause (w) and (x) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973 defines Summon case and warrant cases respectively. According to sub-clause (x) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973, offences that are punishable with death, imprisonment for life and imprisonment for a term exceeding 2 years are warrant cases. So, they will be tried as per Warrant Trial rules under Order 19. According to sub-clause (w) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973, cases that are not warranted triable are called Summon case. So, they will be tried as per Summon Trial rules under Order 20. Therefore, the offence punishable with more than 3 years imprisonment under Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is the warrant triable case. But the offence not punishable with more than 3 years imprisonment under Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 is the warrant triable case

Following are the steps of the Warrant Trial:

  1. Framing of Charge: After consideration, examination and hearing, Magistrate forms charges. Then, the accused will be tried for such charges.
  2. Plea of Guilty: Accused will be asked whether they plead guilty or has a defense to make. If the accused plead guilty, then he would be convicted guilty. But, if the accused does not plead guilty, then the court would proceed to hear prosecution.
  3. Evidence of Prosecution: The court will ask the Prosecution to put before it all evidence. It may also, on the application of Prosecution, issue summons to any witness directing him to attend or to produce any document or other thing.
  4. Evidence of Defense: The court will ask Defense to put before it all evidence. It may also, on the application of Defense, issue summons to any witness directing him to attend or to produce any document or other thing. The Court under section 313 of the Code of Criminal Procedure, 1973 also has the power to examine the accused and the statement given by him is admissible which can be used as evidence to prove the charges. The burden of proof under all the above-mentioned Act lies on the defense that he is completely innocent.
  5. Judgement of acquittal or conviction: After hearing both sides and considering all the evidence, Magistrate will acquit or convict the accused under section 248 (3) of the Code of Criminal Procedure, 1973.

Criminal Defenses available to the Alleged Accused under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985

  1. Requisition before Search: A person who is to be searched under section 41, section 42 or section 43 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 may require under section 50(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 the concerned officer to search him in the presence of the gazetted officer or the Magistrate. On such request by the person, an officer shall forthwith take him to the nearest gazetted officer or magistrate. If such gazetted officer or the Magistrate sees no reasonable grounds for searching, then he may discharge such person.
  2. Release of Conveyance: Where conveyance confiscated under section 60(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 and such conveyance is used to transport goods or passengers for hire and it was so used illegally without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use., such conveyance would be released under section 60(3) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985
  3. Search of Women: Section 50(4) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 make it mandatory that a female shall only be searched by another female.
  4. Revocation of Detention Orders: Section 12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 confers power to the Central Government or the State Government to revoke or modify the order of detention under section 3(1) of the aforesaid act at any time.
  5. Temporary Release of the Detained Person: Section 13 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988, confers power to the Central Government and the State Government to temporary release, at any time, any detained person under this act. Such temporary release can be grant either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release. The Appropriate Government while granting release under Section 12(2) of the aforesaid Act to the detained person may require him to enter into a bond with sureties for the due compliance of the conditions put by the Advisory Board at the time of the order of detention.
  6. Fine in lieu of Forfeiture: Under section 68-K of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, if a source of such property has not been proved to the satisfaction of the competent authority, then such authority shall give the option to the person affected for fine in lieu of forfeiture. Such a fine should be fine equal to one and one-fifth times the value of such part.
  7. Immunity from Prosecution: Section 64(1) of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 confers power to the Central Government or the State Government, after recording reason in writing, to grant immunity against prosecution under section 69 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 to any person, who has committed an offence under the said act, on the condition if such person is ready to furnish evidence against other traffickers.
  8. Immunity from Addiction: Section 64-A(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confers power to grant immunity from prosecution when any person is charged under section 27 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 or charged for small quantity of narcotics drug or psychotropics substance or controlled substance but only on the condition that such person will join drugs addiction treatment.

Provision regarding the Bail under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985
Illicit drug trafficking or abuse is a cognizable and non-bailable offence as per the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985.

Anticipatory Bail: Section 438 of the Code of Criminal Procedure, 1973 confers special power to the Court of Session and the High Court to grant bail to the person before his arrest.

Regular Bail: According to section 437(1)(i) of the Code of Criminal Procedure (Cr. P. C.), 1973, when an accused is arrested or detained by the police without a warrant and he is brought before the Magistrate, then such Magistrate may grant bail to the accused if prima facie there is no strong evidence against the accused.

If such regular bail is refused by the Magistrate, then the accused can go before the Court of Session or the High Court invoking their special power under section 439(1) of the Code of Criminal Procedure (Cr. P. C.), 1973.

No bail or bail bond or otherwise can be granted by the court under section 13(7) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 states against an order of detention under the said act.

Default Bail: If Chargesheet is not filed under section 173(1) of the Code of Criminal Procedure (Cr. P. C.), 1973 within 180 days of judicial custody, then the court may under section 167(2)(i)(a) of the Code of Criminal Procedure (Cr. P. C.), 1973 grant bail to the accused only if whatever evidence is gathered does not show prima facie commission of gold smuggling.

Grounds for Bail under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985
a. The enormity of the charge,
b. The nature of the accusation,
c. The severity of the punishment which the conviction will entail,
d. The nature of the evidence in support of the accusation,
e. The nature and gravity of the circumstances in which the offence is committed,
f. The position and status with reference to the victim and the witnesses,
g. The danger of witnesses being tampered with,
h. The likelihood of accused fleeing from justice,
i. Probability of the accused committing more offences,
j. The protracted nature of the trial,
k. Opportunity to the applicant for preparation of his defense and access to his counsel,
l. The health, age and sex of the accused person.

Appeal under the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985

  1. Appeal for Forfeiture, Confiscation and Penalty: In case of forfeiture, when forfeiture order is passed by the Competent Authority under section 68-F, section 68-I, section 68-K(1) and section 68-L of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, then aggrieved person by such order may prefer an appeal in the Appellant Tribunal under section 68-O of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. Such Tribunal may then under section 68-O(2) of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 confirm or revoke the forfeiture order. Section 68-Q of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 puts a bar on the civil court to take cognizance of a case under chapter V-A of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 regarding forfeiture of illegal acquired property.
  2. Appeal before High Court: Section 374(2) of the Code of Criminal Procedure, 1973 states that any person who is found guilty on a trial held by the Session Judge or Additional Session Judge or any other Magistrate and on such trial the court has passed sentence of imprisonment for more than seven years. Then, such a convicted person may appeal in the High Court.
  3. Special Leave Petition before Supreme Court: A Special Leave Petition under Article 136 of the Constitution of India, 1950 can be made to the Supreme Court of India. Article 136 confers power to the Supreme Court to provide special leave for appeal from any decree, judgment, sentence, determination, or order in any matter or cause passed or made by any tribunal or Court in the territory of India.

Top Ten Landmark Judgements on Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985

  1. Union of India v. Leen Martin [Cri. Appeal No. 2150/ 2011]
    The Hon’ble Supreme Court has held that when alleged recovery of contraband substance is made from the suitcase of the accused and statement of the official is found impaired due to infirmities, then it is not safe to rely upon such statement and convict the accused. In the present case, statements of independent witness and official witness were depicting different stories. Moreover, recovery of the narcotics substance was not proved beyond a reasonable doubt. Therefore, the apex court upheld the reversal of the conviction order of the High Court.
  2. Mohan Lal v. State of Rajasthan [Cri. Appeal No. 1393/ 2010]
    The Hon’ble Supreme Court explained the meaning of ‘Possession of Contraband’. The apex court observed that the term possession has a flexible nature. It keeps on changing with the context and object of the statute. It is essential to define the term ‘possession’ for the purpose of the act. Therefore, it held that both physical possession and conscious possession will be punishable under the sais act. A conscious possession is when any person does not have physical possession of contraband but they control contraband substance that is under someone else physical possession.
  3. Avtar Singh v. State of Punjab [Cri. Appeal No. 2082/ 1996]
    The Hon’ble Supreme Court held that mere possession of the contraband without any other proof would not lead the court to presume to be in possession of the goods. In the present case, a person was merely sitting on the bag of contraband substance and no other proof was there. The Hon’ble court acquitted such person.
  4. Dharampal Singh v. State of Punjab [Cri. Appeal No. 1470/ 2018]
    The Hon’ble Supreme Court held that once under section 18 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 possession of the contraband substance is established then it is upon the accused to prove he is innocent. In the present case, the accused was driving a car when he was stopped by the officer, who was patrolling as usual, to carry out search and a gunny bag containing 65 kg of opium was found in the dicky of the car and the car was not a public car.
  5. Jarnail Singh v. State of Punjab [Cri. Appeal No. 1960/ 2009]
    The Hon’ble Supreme Court held merely because the prosecution did not examine any independent witness, it would not necessarily lead to a conclusion that the accused was falsely implicated. In the present case, the accused was searched and arrested by the officer merely on the suspicion arose when the accuse started running after seeing police. Attempt was also made by the officer to bring any independent witeness from the near village but they all refused. In the present case, the Hon’ble Supreme Court also held that provision of section 50 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is only applicable when person’s body has to be searched and it is not applicable while searching bag which the affected person is carrying.
  6. Mohinder Singh v. State of Punjab [Cri. Appeal No. 2182/ 2010]
    The Hon’ble Supreme Court held that for proving offence under the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985, it is necessary for the prosecution to establish quantity of contraband goods which are allegedly seized from the possession of the accused and the best evidence would be court records as to the production of contraband before Magistrate and deposit of the same in malkhana or document showing the destruction of contraband.
  7. Durga Prasad Jaiswal v. State of A.P. [Cri. Appeal No. 973/ 1997]
    The Hon’ble Telangana High Court held that an empowered officer cannot search a person on prior information without informing such person of the existence of his right to have his search conducted before a gazetted officer or the nearest Magistrate. It is not necessary to go give such information in writing. No prejudice will be caused when the empowered officer takes the person to the nearest Magistrate or gazetted officer for making such search without informing the person concerned about his right to be produced before a gazetted officer or a Magistrate.
  8. Arjun Shamrao Andalkar v. State of Maharashtra [Cri. Appeal No. 331/ 1993]
    The Hon’ble Bombay High Court held that Police Sub-Inspector who lodged the complaint was himself the Investigating Officer. This was not desirable in the interest of fair prosecution. In the present case, officer got personal information that the accused was selling ganja. So, police along with panchas proceeded to spot and caught the accused. On searching him ganja was recovered.
  9. Khekh Ram v. State of H.P. [Cri. Appeal No. 1110/ 2016]
    The Hon’ble Supreme Court held that in a criminal trial, suspicion however grave, cannot take the place of proof and prosecution, to succeed, has to prove its case and establish charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of accused. For aforesaid, prosecution case has to be in the category of “must be true” and not “maybe true”. In this case of alleged recovery of contraband from the vehicle driven by appellant-accused, High Court reversed the acquittal of the appellant, thereby convicting him under Section 20 of the said Act. However, a view taken by the trial court being convincingly reasonable is acceptable in comparison to one adopted by High Court. Hence, the acquittal of the appellant is restored.
  10. State of NCT of Delhi v. Ashif Khan [Cri. Appeal No. 428/ 2009]
    The Hon’ble Supreme Court held for determination of whether the total weight of seized substance or the percentage of narcotics drug or psychotropic substance found in that substance relevant, applying Micheal Raj Narcotic Control Bureau [Cri. Appeal No. 1250/ 2005], it is clear that only the actual percentage of such drug or substance content converted into weight is relevant.

Central laws for the prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances are Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 . These are sufficient to eradicate illicit traffic and abuse of narcotic drugs and psychotropic substances. But the main problem lies in the implementation of such laws. Enforcement agencies have to focus more on its implementation and judicial bodies should try to complete the trial earlier or in a short time because improper implementation and delay in completion of the trial will render such laws less effective.
Authored By: Adv. Anant Sharma & Satwik Sharma

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