The NDPS Act has been enacted to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the control and regulation of
operations relating to Narcotic Drugs and Psychotropic Substances. The act
prohibits the production, manufacturing, cultivation, possession, sale,
transportation, purchasing and consumption of any Narcotic Drugs and
However, during the passage of time and the development
in the field of illicit drugs traffic and drug abuse, many deficiencies in the
existing laws have come to notice, in particular with provisions regarding Bail
(sec.37) and as to the admissibility of the confession made by the Accused
Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail under
Sec. 439 CrPC:
A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause
stating that, Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 no person accused of an offence prescribed therein shall be
released on Bail unless the conditions contained therein were satisfied. Both
the grounds must be satisfied before granting Bail i.e.
- The Public Prosecutor must be given an opportunity to oppose the
application for such release, and
- Where the Public Prosecutor opposes 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
Criminal Procedure Code is not applicable where any different procedure has been
prescribed by any law. Since the Act prescribes a separate provision for Bail,
the general provisions of Bail under the CrPC will not be applicable. The Act
has been enacted with a view to make stringent provisions for the control and
regulation of the operations relating to NDPS.
That being the underlying object
of the Act, Sec. 37 of the Act, in negative terms limits the scope of the
applicability of the provisions of the CrPC regarding bail and it cannot be held
that the High Court's power to grant Bail under Sec. 439 of the CrPC are not
subject to limitations mentioned under Sec. 37 of the Act. The Non-obstante
clause with which the section begins is to be given its due meaning and it
clearly intends to restrict the powers to grant bail.
However, sub-section (3)
of Sec. 36-A of the Act does not effect the special powers of the High Court
regarding Bail under Sec. 439 of the Code of Criminal Procedure. For the
offences punishable under Sec. 37 of the Act, discretionary power given to the
Court to order to release of a person is more rigorous and is to be used very
cautiously, unlike order to release a person on bail by exercising the power
under Sec. 439 of the CrPC.
Release under NDPS Act is based on conditions
mentioned in Sec. 37 of the Act apart from other factors, including the
paramount consideration like in case of release whether the accused will flee
from justice or will he make an attempt to tamper with the prosecution evidence.
The discretionary power conferred under Sec. 439 of CrPC is subject to the
limitations imposed under Sec. 37 of the NDPS Act.
Considerations for granting bail under NDPS Act:
Before granting bail, the Court is called upon to satisfy itself that there are
reasonable grounds for believing that the accused is innocent of the offence and
that he is not likely to commit any offence while on bail, the allegations of
the fact, the police report have to be closely examined before recording a
finding as to whether the conditions given under the said section, are fulfilled
Powers of the High Court under Sec. 439 of CrPC are curtailed in any way
except that they are to be exercised with embargo and conditions as laid down
under Sec. 37 of the Act.
Ordinarily, on a bare reading of these provisions, it
would look as if the Court is to adopt a negative approach and to decline bail
but when the legislature have required the court to record a finding of its
satisfaction of certain facts, the duty cast on the court is in positive terms.
Grant of Bail is a rule and its rejection is an exception.
Grounds for Cancellation of Bail:
What has been stated in Sec. 37 of the Act would be applicable, accordingly when
the question of release on bail is considered. But once an accused has been
released on Bail, the normal criminal law would spring into action and bail
would be open to be cancelled only on the grounds on which Bail can be otherwise
The important grounds for cancellation of Bail are:
- Where the accused misuses his liberty by indulging in similar criminal
- Interferes with the course of investigation,
- Attempts to tamper with evidence or witnesses,
- Likelihood of fleeing, etc.
Non-compliance with mandatory provisions regarding Sec 42 & 50 of the Act:
The provisions of Sec. 42 and 50 are mandatory in nature and contravention of
the said sections will not only vitiate the entire proceedings but will also
entitle the accused for Bail and in certain cases for acquittal as well.
The provisions of Sec. 42 are intended to provide protection as well as lay down
a procedure which is mandatory and should be followed positively by the
Investigating Officer. He is obliged to furnish the information to his superior
officer forthwith. Compliance of Sec.42 is mandatory and there cannot be an
escape from its strict compliance.
Sec. 50 of the Act provides for condition under which search of a person is to
be conducted. Failure to do so, would constitute violation of the imperative
requirement of law, ultimately resulting in acquittal of the accused.In terms of
Sec. 50 of the NDPS act, a duty has been cast upon the authorized officer, who
is acting on the prior information for making search of a person, to inform the
same person about the right available under Sec. 50(1) of the act i.e. the
person is required to be taken to the Gazetted Officer or the nearest Magistrate
for making such search.
Failure to inform the concerned person about the existence of such right to be
searched before the Gazetted officer or Magistrate would naturally prejudice to
the accused and hence, any conviction and sentence on the basis of recovery of
contraband articles from the possession of the person concerned during the
search conducted upon, the person cannot be sustained due to clear violation of
the provisions of Sec. 50 of the Act. It is imperative on the part of the
empowered officer to apprise the person intended to be searched of his right and
to be searched before a Gazetted Officer or a Magistrate.
This requirement is mandatory and requires strict compliance. Though there is no
requirement of law that notices under Sec. 50 of the Act has to be given in
writing, but in cases where there is no public witness, in that event at least
the notice ought to be in writing in order to lend credibility to the
prosecution version. At least in those cases, where the entire prosecution case
consists of only police witnesses, there must be notice under Sec. 50 of the
NDPS Act, in writing.
The provisions of Sec. 42, 50 & 57 of the NDPS Act have been made with a
purpose, for a putting check on the powers of the Investigating officers under
Chp. IV of the NDPS Act. When there is non-compliance of these provisions, it
must be held that at any rate the evidence of the Police Officer who failed to
comply with the said provisions, cannot be relied upon implicitly to base the
Whether Confessional Statements made under Sec. 67 of the NDPS Act is
admissible in a Court of Law:
One of the most vexed questions of law involved in the NDPS cases are, Whether
the powers given to empowered officer u/s 67 NDPS Act are akin and in pari
materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the
empowered officer can record confession of the accused u/s 67 NDPS Act? Whether
the confessional statement made by accused before officer empowered u/s 42 NDPS
Act is admissible in evidence? If yes, whether it can be used against himself
and co- accused? Whether empowered officers under NDPS Act are police officers?
A perusal of Sec. 67 shows that, no confession can be recorded u/s 67 since no
such power has been invested with the empowered officer u/s 67 either explicitly
or impliedly. The NDPS Act nowhere defines the word enquiry. The
dictionary meaning of word enquiry is, an act of asking information, an official
But, the officer empowered u/s 42 NDPS Act has no power to investigate the
offences under NDPS Act. Officers empowered u/s 42 are only authorised to enter
and search the place, seize the NDPS and arrest the person believed to have
committed the offence under NDPS Act. Such power of investigation of an offence
can only be exercised by an officer-in-charge of a police station within whose
local jurisdiction the offence is committed.
Section 53 of the NDPS Act empowers the Central or State Govt. to invest powers
of an officer-in-charge of police station for investigation of offences under
NDPS Act, by issuing a notification in Official Gazette. If such officer is not
appointed by such govt., then, such powers of investigation has to be exercised
by officer-in-charge of local police station.
Thus, the power u/s 67 is not akin to power u/s 161 CrPC as the power u/s 161
CrPC can be used during the course of investigation by officer-in-charge of
police station, whereas, the power u/s 67 NDPS Act can be exercised only by the
officer empowered u/s 42 NDPS Act with a view to achieve the object and purpose
of Sec. 42 only, not otherwise. Thus, it implies that no confession u/s 67 can
be recorded by an empowered officer u/s 42.
Now, the next conundrum is whether the confession recorded under NDPS Act by the
officer-in-charge of police station or officer appointed u/s 53 is admissible in
the eyes law? As far as the question of confession before officer-in-charge of
police station is concerned, the section 25 of the Indian Evidence Act is very
much clear on this aspect.
Section 25 of the Indian Evidence Act reads as:
25. Confession to police officer not to be proved. - No confession made to a
police officer, shall be proved as against a person accused of any offence.
Meaning thereby, no confession made before officer-in-charge of police station
investigating offence under NDPS Act is admissible and hence, cannot be relied
upon as officer-in-charge of police station is a police officer. Thus,
confession of an accused, under NDPS Act, can only be recorded by an
officer-in-charge of concerned police station conducting investigation or the
officer empowered by the government u/s 53 NDPS Act. However, the officer
empowered to investigate u/s 53 are also police officers within the meaning of
section 25 Evidence Act.
Thus, the confession recorded by an officer empowered to investigate u/s 53, can
never be admissible in the eyes of law, unless there is such express provision
in the NDPS Act, as it would be against the policy and object of section 25
However, it is a settled law that officers of the N.C.B. are not Police Officers
and the statement of the accused recorded by them is admissible in evidence. A
statement under Sec, 67 of the Act, is admissible in evidence and can be
considered by the Court as against the Accused.
It is also a settled law, that if the same is found to be made voluntarily, then
the same can be made the sole basis of conviction of accused. Such a statement
can only be disregarded, if it is shown that the same was caused by inducement,
threat or promise, by a person in authority as envisaged under Sec. 24 of the
Written By: Aditya Rai - Adv. Balasaheb Apte College Of Law, Mumbai
E-mail address: [email protected], Ph No: 8976404297