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Procedure Of Arrest, Search And Seizure Under The NDPS Act 1985 And Legal Rights Of A Person

The Narcotic Drugs and Psychotropic Substances Act, 1985, or in short the NDPS Act was enacted in the year 1985 and amended from time to time. This Act was introduced to prevent the growing menace of drug abuse and to provide stringent punishment for the offenders who deal in the drug trade. Being a Special Act gives special powers to the law enforcement agencies. However, sufficient safeguards have also been provided in the Act to protect a citizen's rights and stop necessary harassment.

When Can A Police Officer Conduct A Search Of A Person Or A Premises, Vehicle Etc Under The NDPS Act:
Section 41 of the Act.
  1. On the basis of a Warrant issued by a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government on this behalf,
    The Court may issue a warrant:
    1. for the arrest of any person, whom he has reason to believe to have committed any offence punishable under this Act, or
    2. for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or
    3. any document or other article which may furnish evidence of the commission of such offence or 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 VA of this Act is kept or concealed.
  2. On the basis of an Authorization issued by an officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government:
    1. If he has reason to believe from personal knowledge or information given by any person
    2. and taken in writing
    3. that any person has committed an offence punishable under this Act
    4. or that any narcotic drug or psychotropic substance or controlled substance or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property is kept or concealed in any building, conveyance or place.

      The above officer may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

      The officer to whom a warrant is addressed and the officer who authorised the arrest or search or the officer shall have all the powers of an officer acting under section 42. of the Act.

      Section 42 of the Act
  3. Without warrant or authorization
    Section 42 gives power of entry, search, seizure and arrest without warrant or authorization.
    Who can arrest and search:
    1. Any such officer (being an officer superior in rank to a peon, sepoy or constable)
    2. of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as empowered by the State Government,

      When and how can he arrest or conduct search:
      1. When such officer has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset.
         
      2. He may:
        • enter into and search any such building, conveyance or place;
        • And in case of resistance, break open any door and remove any obstacle to such entry;
        • seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act.
           
        • detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
          Proviso - Search at Night
          Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

          Important Note :- Where an officer takes down any information as given to him and recorded in writing under or records grounds for his belief for conducting search at night under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

          In Karnail Singh v/s State of Haryana (2009) 8 SCC 539 the Constitution Bench Bench of hon'ble Supreme Court held that:
          "In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer.

          But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.
        Section 43 of the Act
  4. Search and detention in public place
    Section 42 gives power of seizure and arrest in public place to an officer of any of the departments mentioned in section 42.
    Such officer may:
    1. seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act.
    2. detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
    Explanation:
    "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

    Under this section there is no requirement of information being recorded in writing or requirement of Warrant or Authorization for conducting search during night and recording of ground of belief in this regards

    However In Boota Singh & Others Vs State of Haryana (Criminal Appeal No.421 of 2021) , Double Bench of Supreme Court on 16 April 2021 after referring its judgement in Karnail Singh Vs State of Haryana held that the vehicle in question was a private vehicle belonging to accused Gurdeep Singh and was not a public conveyance, though parked on a public road hence provision of section 42 of the Act would be attracted and in the absence of non compliance of this section the accused was liable to be acquitted. The explanation of state that that the vehicle was being used for passengers and was searched on a public place and hence section 43 was attracted, was discarded by the court.

Search How To Be Conducted

Section 50 of the Act stipulates the conditions under which search of persons shall be conducted.
  1. Any officer duly authorised under section 42, shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
  2. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
  3. The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
  4. No female shall be searched by anyone excepting a female.
  5. When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
  6. After a search is conducted under sub-section (5), the officer shall record the reasons for such belief that necessitated such search and send a copy thereof to his immediate official superior within seventy-two hours.

How compliance of this section is to be made:
  1. The authorized officer either in writing or orally should inform the person about his legal right to be searched before a Gazetted Officer or a Magistrate and that he can be produced before such officer or magistrate. This fact needs to be proved during the trial by way of oral or documentary evidence. Thus, whenever a person wishes his search to be conducted before a Gazetted Officer or a Magistrate it is mandatory for the officer to take him to such officer/magistrate.
     
  2. In Arif Khan @ Agha Khan vs The State of Uttarakhand while relying upon its judgment in Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011(1) SCC 609 the Supreme Court held that:
    1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer;
    2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer;
    3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband Charas from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband Charas as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer;
    4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.


    Meaning thereby that under section 50 NDPS Act search of a person should be conducted only before a Gazetted Officer or a magistrate. Other wise it would amount to noncompliance of the section and would result in acquittal of the case.

    However, since this judgement was based on Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011(1) SCC 609 which only held that:
    "it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance…..

    Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

    The judgment in Arif Khan v/s State created ambiguity among various courts which took different views. The issue was referred to the Chief Justice of the High Court. The Double Bench of Delhi High Court in Nabi Alam v/s State held that:
    "In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act."

    This means that the person is required to be taken before the Gazetted Officer or a magistrate only when he chooses so.
     
  3. Except the above offer of search before a gazetted officer or a magistrate, no other option should be given which may prejudice the right of the person being searched ( State of Rajasthan v/s. Parmanand & Anr. Criminal Appeal No.78 of 2005 decided by Supreme court on 28.02.2014)

Procedure Regarding Seizure And Disposal Of Seized Contraband

According to Section 52 of the Act:
  1. Every person arrested and article seized under a warrant shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
  2. Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43, or section 44 shall be forwarded without unnecessary delay to the officer-in-charge of the nearest police station, or the officer empowered under section 53.

Section 55 of the Act states that:
  1. 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.

However, as per judgment of the Supreme Court in 'Union of India vs Mohanlal & Anr' ( Criminal Appeal No.652 OF 2012 decided on 28.01.2018, whenever any narcotic drug or psychotropic substance or controlled substance is seized it should be deposited with the Officer Incharge of a Police Station empowered u/s 52A and 53 of NDPS Act, .who shall then make an application before the concerned magistrate or taking out samples u/s 52 A of the Act.

The court held that:
"No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order."

Procedure Regarding Arrest

Section 52 of the Act states that:
  1. Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
  2. Every person arrested under a warrant shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
  3. Every person arrested shall be forwarded without unnecessary delay to the officer-in-charge of the nearest police station, or the officer empowered under section 53.

Section 57 of the Act.
Whenever any person makes any arrest or seizure, under this Act, he shall make a full report of all the particulars of such arrest or seizure to his immediate official superior within forty-eight hours after such arrest or seizure.

Other safeguards
Article 22 of the Constitution of India
  1. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
     
  2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate


Section 50 of Criminal Procedure Code ( CrPC)
  1. Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.
     
  2. Where a police officer arrests without a warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Directions issued by the Supreme Court in 'D K Basu Vs State of West Bengal' regarding detention:
  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible, and clear identification and name tags with their designations.
  2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest such memo shall be attested by at least one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made.
  3. A person who has been arrested or detained shall be entitled to have one friend or relative or other person known to him being informed, about his arrest and place of detention
  4. The arrestee should, where he so requests, be also examined at the time of his arrest, and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.
  5. The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody
  6. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

Written By: Prem Chandra Khanduri - BSc ( Hons) L.LB, MBA, MA( Psychology), Diploma in Human Rights , Presently working in Delhi Police as Inspector , Worked in NCB, Narcotic, and Crime Branch of Delhi Police and has vast experience of NDPS act cases.

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