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Salient Features of The Narcotic Drugs And Psychotropic Substances Act, 1985. And The Judicial Voice

This is a special Act, while adopting the liberal construction of the Act, it is found that the Act has been enacted with a view to make stringent provisions for the control and regulation of operation relating to the narcotic drugs and psychotropic substances.

Here, it will be apt to reproduce some of the provisions commonly used in day to day working of the courts.
Section 1. (1) XXX

(2) It extends to the whole of India [ and it applies also-
(a) to all citizens of India outside India;
(b) to all persons on ships and aircraft registered in India, wherever they may be.]

(3) XXX

Section 32A- No suspension, remission or commutation in any sentence awarded under this Act.-

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.

In Union of India Vs. Mahaboob Alam, (2004) SCC(Cri) 912it was held that though the Court has the power of granting bail pending appeal in spite of the language of Section 37 of the NDPS Act, the same should be done only and strictly subject to the conditions spelled out in Section 37 of the Act.

Section 33- Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.

Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27.

Section 35- Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.- in this Section “culpable mental state” includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this Section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

54. Presumption from possession of illicit articles
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.

In State of Punjab Versus Rampal, 2009(2) RCR Criminal 762,Hon'ble Apex Court defined the meaning of word ‘possession’ that it need not only be physical possession but can also be constructive one that is having power and control over the article in question while the person to whom physical possession is given holds it subject to that power or control. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.

Conscious possession - Meaning explained :-
(1) Whether there was conscious possession has to be determined with reference to the factual backdrop.
(2) The expression 'possession' is a polymorphic term which assumes different colors in different contexts - It may carry different meanings in contextually different backgrounds - It is impossible.
(3) To work out a completely logical and precise definition of "possession" uniformly applicable to all statutes.
(4) The word 'conscious' means awareness about a particular fact - It is a state of mind which is deliberate or intended.
(5) Possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question; while the person whom physical possession is given holds it subject to that power or control.

(6) The word 'possession' means the legal right to possession.

(7) Once possession is established the person who claims that it was not a conscious possession has to establish it.

In Balwinder Singh Versus Assistant Commissioner, Customs and Central Excise, 2005 AIR, Supreme Court 2197,the accused/ appellant was registered owner of the truck from which heroine and opium was recovered. Appellant sold the truck prior to the occurrence but the registration was not changed to the name of purchaser. No evidence came on record that the accused appellant knowingly allowed any person to use vehicle for any illegal purpose. It was held that accused/ appellant had no control over the vehicle nor he was in the possession of truck.

In Baldev Singh Versus State of Haryana, 2015(4) RCR (Criminal) 1014,it was held by Hon'ble Apex Court that once possession is proved, then it is for the accused to establish that he was not in conscious possession of the contraband.

Section 36A-Offences triable by Special Courts.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) XXX

(b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-Section (2) or sub-Section (2A) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorize the detention of such person in any custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are friable by the Special Court where such Magistrate considers-
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorized by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) XXX

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-Section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”.
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.
Section 55. Police to take charge of articles seized and delivered.

An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

Section 57. Report of arrest and seizure.

Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior.
Provisions of Sections 55 and 57 not complied with - Conviction bad in law and set aside

Provisions of Sections 52, 55 and 57 are not mandatory - They are only directory.

Provisions of Sections 52 and 57 are directory - Violation of these provisions would notipso factoviolate the trial or conviction - However, Investigating Officer cannot totally ignore these provisions and such failure will have bearing on appreciation of evidence regarding arrest of accused or seizure of article.

52-A. Disposal of seized narcotic drugs and psychotropic substances
(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.]

(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-Section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of orgin and other particulars as the officer referred to in sub-Section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application to any Magistrate for the purpose of-
(a) Certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-Section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-Section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

Some of the important citations:
(1) Iqbal Moosa Patel Versus State of Gujarat 2011(1) RCR (Criminal) 473 (SC)- Sections 21, 29, 8(c) NDPS Act, 1985, Sections 103, 102 Indian Evidence Act, 1872-
It was held by Hon'ble apex Court that “proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice.”

(2) Jagdish Rai Vs. State of Punjab AIR 2011 SC 1568-Sections 35,54-
“Appellant driving motorcycle. On intercepted by the police, appellant tried to turn away and flee. It can be presumed that appellant was conscious of the fact that pillion rider is carrying opium.”

(3) Roop Singh Vs. State of Punjab 1996(1) R.C.R. (Cr.) 146 (P&H) (Division Bench)-
“Giving up of independent witness by the prosecution in the present day situation prevailing in the society is fully justified and no adverse inference can be drawn against the prosecution.”

(4) Davinder Kumar Vs. State of Punjab 2012(2) R.C.R. (Cr.) 600 (DB)-Sections 42,43- “when recovery of contraband is effected from the vehicle in transit, Section 43 of the Act shall apply and not Section 42”.

(5) Dharampal Singh Vs. State of Punjab (2010) 9 SCC 608- Sections 18,35,54- Under Section 18- “Once possession is established, accused who claims that it was not a conscious possession, has to establish that it was not, because it is with in his special knowledge”.

(6) Akmal Ahmed Versus State of Delhi 1999 Criminal Law Journal, 2041 (SC)-“The evidence of search or seizure, made by the police, will not become vitiated solely for the reasons that the same was not supported by an independent witness”.

(7) State of Punjab Versus Baldev Singh 1999(6) SCC 172-“drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illegal activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affecting the economic policies of the State, corrupts the system and is detrimental to the future of a country”.

(8) State of Himachal Pradesh Versus Pawan Kumar 2005(2) RCR (Criminal) 621- “those who indulge in this kind of nefarious activities should not go Scot free on technical pleas which come handy to their advantage in a fraction of second”.

(9) It is held in Arif Khan @ Agha Khan Vs. State of Uttarakhand 2018(2) R.C.R. (Criminal) 931by Hon'ble apex Court that “it is mandatory on the part of authorized officer to make suspect aware of existence of his right to be searched before Gazetted Officer or Magistrate, if so required by him and this requires struck compliance. Evidence adduced by prosecution neither suggested nor proved that search and recovery made in presence of magistrate or gazetted officer. Accused entitled for benefit of doubt.”

10. In State of Haryana Versus Jarnail Singh, 2004(2) RCR Criminal 960,Hon'ble Apex Court held that Section 50 is applicable only when personal search of accused is made. When search is made from vehicle Section 50 has no applicability.

11. In Ajmer Singh Versus State of Haryana, 2010(3) SCC 746,it was held by Honorable Apex Court that search and recovery from a bag, briefcase, container etc. does not comes within ambit of Section 50.

12. Recently, in Mohan Lal Versus State of Punjab, Criminal Appeal No. 1880 of 2011, decided on 16.8.2018,A three judge bench of Hon’ble Apex Court held that “fair investigation which is the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. If an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendance consequences for the complainant himself. The result of the investigation therefore, be a foregone conclusion.

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