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7/31/2019 Final Project of Evidence
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Proof of facts under Narcotic Law 2
ACKNOWLEDGEMENT
It is my privilege to record my deep sense to perform gratitude to those who
helped me in completion of this project.
In making of this project many people helped me immensely directly or
indirectly. First of all I would like to thankMr. P.K. Pandey who had given mean idea and encouragement for making this project. where I would also like to
thank my friends for being cordial in order to make conducive environment of
the CNLU Hostel.
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Proof of facts under Narcotic Law 3
RESEARCH METHODOLOGY
Research Methodology is a systematized investigation to gain new knowledge about
the phenomena or problems. Legal phenomena require their own research
methodology. The research methodology applied here is doctrine method of research.
The systematic investigation of problems and of matters concerned with the topic
Proof of facts under Narcotic Law has been done. The books in the library and
materials available on the internet have been used to study about the topic. The main
goal of this research is to understand the concept of Narcotic Law and its Evidentiary
value under Indian Legal system.
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Proof of facts under Narcotic Law 4
CONTENT
1. INTRODUCTION.5-72. IMPORTANT SECTIONS & OFFENCES...8-103. PUNISHMENT UNDER NDPS ACT..11-144. IMMUNITIES UNDER THE NDPS ACT...14-155. PROCEDURE....16-196. PROOF OF FACTS UNDER NARCOTIC LAW....20-247. CONCLUSION25
BIBLIOGRAPHY
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INTRODUCTION
The statutory control over narcotic drugs was being exercised under The Opium Act, 1857,
The Opium Act, 1878 and The Dangerous Drugs Act, 1930. The provisions of these
enactments were found to be inadequate because of the passage of time and developments in
the field of illicit drug traffic and drug abuse "at national and international level. To
consolidate and to amend the existing laws relating to narcotic drugs a comprehensive
legislation was considered to be necessary. Accordingly the Narcotic Drugs and Psychotropic
Substances Bill, 1985 was introduced in the Lok Sabha on 23rd
August, 1985.
OBJECTS
The statutory control over narcotic drugs is exercised in India through a number of Central
and State enactments. The principal Central Acts, namely, the Opium Act, 1857, the Opium
Act, 1878 and the Dangerous Drugs Act 1930 were enacted a long time ago. With the passage
of time and the developments in the field of illicit drug traffic and drug abuse at national and
international level, many deficiencies in the existing laws have come to notice, some of
which are indicated below:
(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the
challenge of well-organized gangs of smugglers. The Dangerous Drugs Act, 1930 provides
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for a maximum term of imprisonment of 3 years with or without fine and 4 years
imprisonment with or without fine for repeats offences. Further, no minimum punishment is
prescribed in the present laws, as a result of which the courts with nominal punishment have
some times let off drug traffickers. The country has for the last few years been increasingly
facing the problem of transit traffic of drugs coming mainly from some of our neighbouring
countries and destined mainly to Western countries.
(ii) The existing Central laws do not provide for investing the officers of a number of important"
Central enforcement agencies like Narcotics, Customs, Central Excise, etc., with the power
'of investigation of offences under the said laws.
(iii) Since the enactment of the aforesaid three Central Acts a vast body of international law in the
field of narcotics control has evolved through various international treaties and protocols. The
Government of India has been a party to these treaties and conventions, which entail several
obligations which are not covered or are only partly covered by the present Acts.
(iv) During recent years new drugs of addiction which have come to be known as psychotropic
substances have appeared on the scene and posed serious problems to national governments.
There is no comprehensive law to enable exercise of control over psychotropic substances in
India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to
which India has also acceded1.
2. In view of what has been stated above, there is an urgent need for the enactment of a
comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia,
should consolidate and amend the existing laws relating to narcotic drugs, strengthen the
existing controls over drug abuse, considerably enhance the penalties particularly for
trafficking offences, make provisions for exercising effective control over psychotropic
substances and make provisions for the implementation of international conventions relating
to narcotic drugs and psychotropic substances to which India has become a party.
3. The Bill seeks to achieve the above objects2.
This act laid down the provisions to prohibit:
(i) A person, who assists a narcotics trafficker in concealing the narcotics in his apartment so
that the trafficker may avoid detection, is involved in illicit traffic;R. v. Jackson3,
1
Ins. by Act 2 of 1989, sec. 2 (w.e.f. 29-5-1989).2 Ins. by Act 9 of 2001, sec. 2 (w.e.f. 2-10-2001).3 (1977) 35 CCC (2d) 331.
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(ii) It may be noted that clause (iv) of section 2 (viiia) is independent of other clauses and is
in the nature of a residuary provision. It would include an activity of distribution; R. Parkash
v. State of Karnataka4.
(iii) The definition of the term 'manufacture' as contained in section. 2(x) is .an inclusive one.
Where the definition is an inclusive definition, the word not only bears its ordinary, popular
and natural sense whenever that would be applicable but it also bears its extended statutory
meaning; S.K. Gupta v. K.P. Jain5,
(iv) Heroin being an opium is manufactured drug; Paul Kuki v. State of West Bengal6,.
(v) It is true that opium is substance, which once seen and smelt can never before gotten
because opium possesses a characteristic appearance and a very strong and characteristic
scent. It is possible for people to identify opium without having to subject the product to a
chemical analysis. It is only when opium is in a mixture so diluted that its essential
characteristics are not easily visible or capable of being apprehended by the senses that a
chemical analysis may be necessary;Baidyanath Mishra v. State of Orissa7.
3. Power to add to or omit from the list of psychotropic substances.- The Central Government
may, if satisfied that it is necessary or expedient so to do on the basis of: (a) the information
and evidence which has become available to it with respect to the nature and effects of, and
the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or
any salt or preparation of such substance or material; and
(b) the modifications or provisions (if any) which have been made to, or in any International
Convention with respect to such substance, natural material or salt or preparation of such
substance or material8.
by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of
psychotropic substances specified in the Schedule such substance or natural material or salt
or preparation of such substance or material.
4 (1980) Cr LJ 1655 AIR 1979 SC 734.
6 (1993) 3 Crimes 660 (Cal) (DB)7 ,(1967) SCD 1165: 34 Cut LT 1.8 Came into force on 14-11-1985, vide 5.0. 821 (E), dated 14th November, 1985.
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IMPORTANT SECTIONS & OFFENCES
The important sections, offences, and under the Act.
Section 15: Punishment for contravention in relation to poppy straw:
Whoever in violation of the provisions of this Act or any rules or conditions of license
granted there under produces, possesses, transports, imports-exports (inter-state) sells,
purchases, uses or warehouse poppy straw or removes or does any act in respect of
warehoused poppy straw shall be punishable with rigorous imprisonment for a term which
shall not be less than ten years but which may extent twenty years and shall also be liable to
fine which shall not be less one lakh rupees but which may extend to two lakh rupees9. The
court impose fine exceeding two lakh rupees for reasons to be recorded in the judgment.
Section 16: Punishment for contravention in relation to coca plant and coca leaves.
The offence made punishable by section 16 is contravention of the Act, or a rule or order
made the Act, or a condition of license granted under the Act. The acts punishable are (i)
9 Subs. by Act 9 of 2001, sec. 3, for clause (i) (w.e.f. 2-10-2001).
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cultivation of or gathering any portion of coca plant or (ii) one of the eight acts mentioned in
relation to coca leaves.
Section 17 punishes certain acts in relation to prepared opium.
Section 18 punishes act is in contravention to law in relation to cultivation of opium poppy
or, doing any of the enumerated acts in relation to opium.
Section 19 deals with punishment for embezzlement of opium by cultivator; The NDPS Act
views the contraventions in relation to poppy straw, coca plant and its leaves, prepared
opium, opium poppy and opium embezzlement of opium by the cultivator very seriously10
.
All such offenses carry rigorous imprisonment for a period between 10 to 20 years and a fine
between rupees one to two lakhs or even more.
Section 20: Punishment for contravention in relation to cannabis plant and cannabis states
that whoever in violation of the provision of this Act or any rules or orders conditions on
license granted there under:
cultivated any cannabis plant or; produces, manufactures, possesses, sells, purchases,
transports, imports-exports (interstate) or uses cannabis.
Where such contravention related to ganja or the cultivation of cannabis plant, the offender
shall be punished with rigorous imprisonment for a term which may extend to five years and
shall be also liable to fine which may extend to fifty thousand rupees.
Where the contravention related to cannabis other than ganja shall be punishable with
rigorous imprisonment for a term which shall be less than ten years but which may extend to
twenty years and shall also be liable for fine which shall not be less than one lakh rupees, but
which may extend to two lakh rupees. The court may impose fine exceeding two lakh rupees
for reasons to be recorded in the judgment11
.
Section 22: Punishment for contravention in relation to psychotropic substances: It states that
whosoever in violation of the provisions of this Act or any rules, orders or conditions of
license granted there under manufactures, processes, sells, purchases, transports, imports,
exports (interstate) or uses any psychotropic substances shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years but which may extend to
10 Ins. by Act 9 of 2001, see. 3 (w.e.f. 2-10-2001).11 Clause (viia) ins. by Act 2 of 1989, sec. 3 (w.e.f. 29-5-1989) and relettered as clause (viid) by Act 9 of 2001, sec. 3 (w.e.f.
2-10-2001).
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twenty years and shall also be liable for fine which shall not be less than one lakh rupees but
which may extend to two lakh rupees. The court may impose fine exceeding two lakh rupees
for reasons recorded in the judgement.
What matters for the purpose of applying the expression 'psychotropic substance' is the
international name and not trade name. The Schedule to the Act has the names internationally
used.
Section 23: Punishment for illegal import/export from India or tans-shipment of narcotic
drugs and psychotropic substances states whoever in violation of the provisions of this Act or
any rules or orders or conditions of licence or permit granted or certificate or authorization
issued there under, imports/exports from India or transships any narcotic drug or
psychotropic substance shall be punishable with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to twenty years and shall also be liable
for fine which shall not be less than one lakh rupees but which may extend to two lakh
rupees. The court may impose fine exceeding two lakh rupees for reasons to be recorded in
the Section 25: Punishment for allowing premises, etc. to be used for commission of an
offence states "whoever being the owner or occupier or having the control or use of any
house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used
for the commission by any other person of an offence punishable under any provisions of this
Act shall be punishable with rigorous imprisonment for a term which shall not be less than
ten years by which may extend to twenty years and shall also be liable for fine which shall
not be less than one lakh rupees but which may extend to two lakh rupees. The court may
impose fine exceeding two lakh rupees for reasons to be recorded in the judgment."
Section 29 provides for punishment for abetment and criminal conspiracy.
Section 30 deals with preparation to do or omit to do anything which constitutes an offence
under the Act.
Section 31 provides for enhanced punishment for certain offences after previous conviction.
A previous conviction in an Indian court may be proved by admission of the accused, by
verified copy of the sentence, by a certificate signed by the officer in charge of the jail in
which the punishment or any part of thereof was undergone or by production of the warrant
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of commitment under which the punishment was suffered12
. Evidence of previous conviction
cannot be given unless the accused is convicted in the present case.
Section 31-A provides for death penalty for certain offences after previous conviction. This
sections lays down mandatory death sentence for certain offences under the Act and suffers
from the possible conflict with article 14 and 21 of the constitution. This is similar to section
303 of the Indian Penal Code, where under death sentence was mandatory for murder
committed by persons undergoing sentence for life imprisonment Section 303 IPC has been
declared unconstitutional13
. The same fate may follow section 31 -A. This section also suffers
from impropriety in as much as it totally rules out individualization of punishment and
precludes the court from measuring the guilt of the offender.
PUNISHMENT UNDER NDPS ACT, A REVIEW
NDPS Act views drug offences very seriously and penalties are stiff. The quantum of
sentence and fine varies with the offence. For many offences, the penalty depends on the
quantity of drug involved - small quantity, more than small but less than commercial quantity
or commercial quantity of drugs. Small and Commercial quantities are notified for each drug.
Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence
attract the same punishment as the offence itself14
. Preparation to commit an offence attracts
half the penalty. Repeat offences attract one and half times the penalty and in some cases
death penalty. Since the penalties under this Act are very stiff, severalprocedural safeguards
have been provided in the Act. Some immunities are also available under the Act15
.
The penalties for various offences under the NDPS Act are as follows:
OFFENCES AND PENALTIES
Offences Penalty Sections of the Act
12 Ins. by Act 2 of 1989, sec. 3 (w.e.f. 29-5-1989).
13 Subs. by Act 9 of 2001, sec. 4, for sub-sections (2) and (3) (w.e.f. 2-10-2001).14 Ins. by Act 2 of 1989, sec. 4 (w.e.f. 29-5-1989).15 Ins. by Act 2 of 1989, sec. 6 (w.e.f. 29-5-1989).
http://dor.gov.in/ndpsacthttp://dor.gov.in/ndpsacthttp://dor.gov.in/ndpsacthttp://dor.gov.in/ndpsact7/31/2019 Final Project of Evidence
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Cultivation of opium,
cannabis or coca plants
without licence
Rigorous imprisonment-up to 10
years + fine up to Rs.1 lakh
Opium - 18(c)
Cannabis - 20 Coca-
16
Embezzlement of opium
by licenced farmer
Rigorous imprisonment -10 to 20
years + fine Rs. 1 to 2 lakhs
(regardless of the quantity)
19
Production,
manufacture,
possession, sale,purchase, transport,
import inter- state,
export inter-state or use
of narcotic drugs and
psychotropic substances
Small quantity - Rigorous
imprisonment up to 6 months or
fine up to Rs. 10,000 or both. More
than small quantity but less thancommercial quantity - Rigorous
imprisonment. up to 10 years +
fine up to Rs. 1 Lakh. Commercial
quantity - Rigorous imprisonment
10 to 20 years + fine Rs. 1 to 2
Lakhs
Prepared opium-17
Opium 18
Cannabis - 20
Manufactured drugs
or their preparations-
21 Psychotropic
substances -22
Import, export or
transhipment of narcotic
drugs and psychotropic
substances
Same as above 23
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
Rigorous imprisonment 10 to 20
years + fine of Rs. 1 to 2 lakhs
(Regardless of the quantity)
24
Knowingly allowing
one's premises to be
used for committing an
Same as for the offence 25
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offence
Violations pertaining to
controlled substances
(precursors)
Rigorous imprisonment up to 10
years + fine Rs. 1 to 2 lakhs
25A
Financing traffic and
harbouring offenders
Rigorous imprisonment 10 to 20
years + fine Rs. 1 to 2 lakhs27A
Attempts, abetment and
criminal conspiracySame as for the offence
Attempts-28
Abetment and
criminal conspiracy
29
Preparation to commit
an offence
Half the punishment for the
offence30
Repeat offence
One and half times the punishment
for the offence. Death penalty in
some cases.
31 Death - 31A
Consumption of drugs
Cocaine, morphine, heroin -
Rigorous imprisonment up to 1
year or fine up to Rs. 20,000 or
both. Other drugs- Imprisonment
up to 6 months or fine up to Rs.
10,000 or both. Addicts
volunteering for treatment enjoy
immunity from prosecution
27 Immunity - 64A
Punishment for
violations not elsewhere
specified
Imprisonment up to six months or
fine or both32
SMALL AND COMMERCIAL QUANTITIES
For several offences under the NDPS Act, the punishment depends on whether the quantity ofdrug involved is small, is more than small but less than commercial or is commercial. Small
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and Commercial quantities for each drug have been notified. The quantities for some
common drugs are as follows:-
Drug Small Quantity Commercial Quantity
Amphetamine 2 grams 50 grams
Buprenorphine 1gram 20 grams
Charas/Hashish Charas/Hashish 1 kg
Cocaine 2 grams 100 grams
Codeine 10 grams 1 kg
Diazepam 20 grams 500 grams
Ganja 1 kg 20 kg
Heroin 5 grams 250 grams
MDMA 0.5 gram 10 grams
Methamphetamine 2 grams 50 grams
Methaqualone 20 grams 500grams
Morphine 5 grams 250 grams
Poppy straw 1 kg 50 kg
Procedural safeguards and immunities under the NDPS Act
The Narcotic Drugs and Psychotropic Substances Act, 1985 views drug offences very
seriously and prescribes stiff penalties. The Act follows a graded system of punishment with
the punishment varying with the quantum of punishment being dependent upon whether the
offence pertains to small, commercial and intermediate quantities of narcotic drugs and
psychotropic substances. For offences involving commercial quantities of drugs, a minimum
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penalty of ten years rigorous imprisonment is prescribed, which may extend to twenty
years16
. Repeat offences attract one and half times the penalty and in a few cases even the
death penalty. Alongside these stringent provisions, the Act has procedural safeguards as
follows:
1. Personal search: Any person being searched has a right to be searched before aGazetted Officer or a Magistrate (Section 50). The officer searching the person has to
explain to the person that he has a right to be searched before a Gazetted Officer or a
Magistrate and if the person wishes to be searched before a Gazetted Officer or a
Magistrate he should be taken to the Gazetted Officer or the Magistrate and searched.
However, if the officer has reason to believe that it is not possible to take him to a
Gazetted officer or a magistrate without giving him a chance to part with the drug,
controlled substance, etc., he can search him under Section 100 of the Cr. P. C.
[Section 50(5) and 50 (6)].
2. Searches: As per Section 41 of the NDPS Act, Gazetted Officers of the empoweredDepartments can authorize searches. Such authorization has to be based on
information taken down in writing17
. As per Section 42, searches can be made under
certain circumstances without a warrant (from a magistrate) or an authorization (from
a Gazetted Officer). In case of such searches, the officer has to send a copy of the
information taken in writing or the grounds of his belief to his immediate official
superior within 72 hours.
3. Arrests: The person who is arrested should be informed, as soon as may be, thegrounds of his arrest [Section 52 (1)]. 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)].
4.
The officer who arrests a person has to make a full report to his official superiorwithin 48 hours [section 57]
18.
IMMUNITIIES FOR DRUG OFFENCES
1. Officers: Officers acting in discharge of their duties in good faith under the Act areimmune from suits, prosecution and other legal proceedings (Section 69).
16 Subs. by Act 9 of 2001, sec. 7, for sub-clauses (i) and (ii) (w.e.f. 2-10-2001).17 Subs. by Act 9 of 2001, sec. 8, for sections 21 to 23 (w.e.f. 2-10-2001).18 Subs. by Act 9 of 2001, sec. 12, for section 31 (w.e.f. 2-10-2001).
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2. Addicts: Addicts charged with consumption of drugs (Section 27) or with offencesinvolving small quantities will be immune from prosecution if they volunteer for de-
addiction. This immunity may be withdrawn if the addict does not undergo complete
treatment (Section 64A).
3. Offenders: Central or state governments can tender immunity to an offender in orderto obtain his evidence in the case. This immunity is granted by the government and
not by the court (Section 64).
4. Juvenile offenders: Juvenile offenders (below 18 years of age) will be governed bythe Juvenile Justice (Care and Protection of Children) Act, 2000.
5. Immunities to diplomats as applicable.
PROCEDURE
Section. 41. Power to issue warrant and authorisation.-(l) A Metropolitan Magistrate or a
Magistrate of the first class or any Magistrate of the second class specially empowered by the
State Government in this behalf, may issue a warrant for the arrest of any person whom he
has reason to believe to have committed any offence punishable under this Act, or 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 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 V A of this Act is kept or concealed19
:
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs,
revenue intelligence or any other department of the Central Government including the
paramilitary 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
19 Ins. by Act 2 of 1989, sec. 9 (w.e.f. 29-5-1989).
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general or special order of the State Government if he has reason to believe from personal
knowledge or information given by any person and taken in writing that any person has
committed an offence punishable under this Act or that any narcotic drug or psychotropic
substance or controlled substance in respect of which any offence under this Act has been
committed or 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 V A of this Act is kept or concealed in any building,
conveyance or place, 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.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who
authorised the arrest or search or the officer who is so authorised under sub-section (2) shall
have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation.-
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) 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 in this behalf by general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs
1. Subs. by Act 9 of 2001, sec. 19, for sections 41 to 43 (w.e.f. 2-10-2001). 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, if he 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 in respect of which an offence
punishable under this Act has been committed or 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 V A of this Act is
kept or concealed in any building, conveyance or enclosed place, may between sunrise and
sunset20
,
20 Subs. by Act 9 of 2001, sec. 13, for certain words (w.e.f. 2-10-2001).
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(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) 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 or furnish
evidence of holding any illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter V A of this Act; and
(d) 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:
Provided that if such officer has reason to believe that a search warrant or authorisation
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.
(2) Where an officer takes down any information in writing under subsection (1) or records
grounds for his belief under the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.
43. Power of seizure and arrest in public place.-Any officer of any of the departments
mentioned in section 42 may
(a) 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 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 this Act21
;
.(b) 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.
21 Section36A ins. by Act 2 of 1989, sec. 11 (w.e.f. 29-5-1989) and subs. by Act 9 of 2001, sec.15 (w.e.f.2-10-2001).
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Explanation.-For the purposes of this section, the expression "public place" includes any
public conveyance, hotel, shop, or other place intended for use by, or accessible to, the
public.]
44. Power of entry, search, seizure and arrest in offences relating to coca plant, opium poppy
and cannabis plant.-The provisions of sections 41, 42 and 43, shall so far as may be, apply in
relation to the offences punishable under Chapter IV and relating to coca plant, the opium
poppy or cannabis plant and for this purpose references in those sections to narcotic drugs, or
psychotropic substance,
[or controlled substance], shall be construed as including references to coca plant, the opium
poppy and cannabis plant.
45. Procedure where seizure of goods liable to confiscation not practicable.-Where it is not
practicable to size any goods (including standing crop) which are liable to confiscation under
this Act, any officer duly authorised under section 42 may serve on the owner or person in
possession of the goods, an order that he shall not remove, part with or otherwise deal with
the goods except with the previous permission of such officer.
46. Duty of land holder to give information of illegal cultivation.-Every holder of land shall
give immediate information to any officer of the police or of any of the departments
mentioned in section 42 of all the opium poppy, cannabis plant or coca plant which may be
illegally cultivated within his land and every such holder of land who knowingly neglects to
give such information, shall be liable to punishment.
47. Duty of certain officers to give information of illegal cultivation.-Every officer of the
Government and every panch, sarpanch and other village officer of whatever description shall
give immediate information to any officer of the Police or of any of the departments
mentioned in section 42 when it may come to his knowledge that any land has been illegally
cultivated with the opium poppy, cannabis plant or coca plant, and every such officer of the
Government, panch, sarpanch and other village officer who neglects to give such
information, shall be liable to punishment.
48. Power of attachment of crop illegally cultivated.-Any Metropolitan Magistrate, Judicial
Magistrate of the first class or any Magistrate specially empowered in this behalf by the State
Government [or any officer of a gazetted rank empowered under section 42] may order
attachment of any opium poppy, cannabis plant or coca plant which he has reason to believe
to have been illegally cultivated and while doing so may pass such order (including an order
to destroy the crop) as he thinks fit.
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49. Power to stop and search conveyance.-Any officer authorised under section 42, may, if he
has reason to suspect that any animal or conveyance is, or
50A. Power to under take controlled delivery.- The Director General of Narcotics Control
Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him
in this behalf, may, notwithstanding anything contained in this Act, undertake controlled
delivery of any consignment to
(a) any destination in India;
(b) a foreign country, in consultation with the competent authority of such foreign country to
which such consignment is destined, in such manner as may be prescribed.]
PROOF OF FACTS UNDER NDPS ACT
Narcotic Drugs and Psychotropic Substances Act, 1985: ss. 22, 23, 52A, 53 and 53A -
Possession of contraband RecoveryProsecutionConfessions made by accused before
Customs authorities During trial confession retracted Conviction by courts below On
appeal, held: Conviction not justifiedIn the facts of the case, recovery not proved beyond
reasonable doubtInvestigation of the case not fair and reasonableThere are discrepancies
in the treatment and disposal of physical evidence leading to drawl of negative inference
Cumulative effect of the facts of contradiction in the statements of the official witnesses,failure to examine independent witnesses and nature of confession and circumstances of
recording of confession and other lacunae in the prosecution case, do not lead to guilt of
accusedConstitution of India, 1950Articles 14 and 21Standing Order No. 1 of 1989
Section 3.1- Evidence Act, 1872- s. 114 (e) and (g)Customs Act, 1962s.110(1B) . ss. 35
and 54 Reverse burden of proof Constitutional validity of Held: Are exfaciedel not
unconstitutionalA right to be presumed innocent has to be applied subject to exceptions
Such presumption is a human right and cannot be equated with fundamental right enshrined
under Article 21Constitutionality of penal provision providing for reverse burden of proof
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Proof of facts under Narcotic Law 21
must be tested on the anvil of States responsibility to protect innocent citizens Procedural
requirements are required to be strictly complied with -Evidence Act,1872 s. 25Customs
Act, 1962ss. 108 and 138BInternational Covenant on Civil and Political Rights (1966)
Article 14(2) Universal Declaration of Human Rights (1948) Article 12- European
Convention for Protection of Human Rights and Fundamental Freedoms- Article 6.2-
Evidence Reverse burden of proof. Evidence Confession Retracted confession
Reliance onFor conviction under NDPS Act Confession made under s. 108 of Customs
ActPlea of accused that confession was not voluntary but under threat and distress Held:
Provisions of Customs Act cannot be applied for conviction under any other statute
Customs Officer, by virtue of legal fiction would be deemed to be police officer Thus
confession made to them would run counter to s. 25 of Evidence Act s. 108 must give way
to Article 20(3) of the Constitution A retracted confession can be relied on only if it is
voluntary Burden to prove that confession was made voluntarily is on the prosecution
Narcotic Drugs and Psychotropic Substances Act, 1985- ss. 53 and 53A Constitution of
India, 1950Article 20(3) -Penal Code, 1860ss. 193 and 228 Customs Act, 1962 ss.
108 and 138B. International Law: International Covenant on civil and Political Rights
Article 14 (2)Presumption of innocence Held: It is a human right It cannot per se be
equated with fundamental right under Article 21 of the Constitution Constitution of India,
1950Article 21. Doctrines/Principles:
(i) Doctrine of Compatibility. (ii) Doctrine of constitutionality. (iii) Doctrine of res ipsa
loquitur. Appellant-an Afghan national, presented himself before authorities for Customs
clearance at airport. He was searched by the Gazetted Officer of the Customs Department and
22 packets of brown power weighing 1 Kg. 400 gms. were recovered from a carton belonging
to him. Appellant was taken into custody immediately thereafter by the customs authorities.
He was formally arrested 15 hours after the recovery. Appellant confessed his guilt on twooccasions. As per the Forensic Report, the alleged contraband was found to be of white
colour. Appellant in his examination u/s 313 Cr.P.C. denied in categorical terms that the
carton belonged to him. He also retracted from his alleged confession. Trial Court convicted
the appellant u/s. 22 and 23 of Narcotic Drugs and Psychotropic Substances Act, 1985. The
conviction was confirmed by High Court. In appeal to this court appellant contended that ss.
35 and 54 of the Act imposing reverse burden on an accused is contrary to Article 14 (2) of
the International Covenant on Civil and Political Rights which provides that an accused is
innocent until proved `guilty and thus ultra vires Articles 14 and 21 of the Constitution of
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Proof of facts under Narcotic Law 22
India; that confessions of the accused before customs authorities are inadmissible in evidence
being hit by s. 25 of Evidence Act, as s. 108 of customs Act should be read coupled with s. 53
and 53A of the Act; that a heightened standard of proof is required to be discharged by the
prosecution to establish foundational facts and the same has not been done in the instant case;
that in view of the facts that there was failure to produce physical evidence before the Court,
there was failure to examine independent witnesses and there were discrepancies in the
statements of the official witnesses with regard to search and seizure, conviction is not
sustainable. =Allowing the appeal, the Court HELD: 1.1 The provisions of Sections 35 and
54 of Narcotic Drugs and Psychotropic Substances Act, 1985 are not ultra vires the
Constitution of India. However, procedural requirements laid down therein are required to be
strictly complied with. Only because the burden of proof under certain circumstances is
placed on the accused, the same, by itself, would not render the impugned provisions
unconstitutional. [Paras 43 and 151] [408-B, 452-C,D] 1.2 Sections 35 and 54 of NDPS Act
may have to be read in the light of Articles 14 and 21 of the Constitution of India. However,
limited inroad on presumption would be justified. The Act specifically provides for the
exceptions. It is a trite law that presumption of innocence being a human right cannot be
thrown aside, but it has to be applied subject to exceptions. [Paras 65, 67 and 71] [413-F,
415-A, 416-F] 1.3 Presumption of innocence is a human right as envisaged under Article
14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se
be equated with the fundamental right and liberty adumbrated in Article 21 of the
Constitution of India. A right to be presumed innocent, subject to the establishment of certain
foundational facts and burden of proof, to a certain extent, can be placed on an accused. The
provision for reverse burden is not only provided for under the special Acts like the present
one but also under the general statutes like IPC. The Evidence Act provides for such a burden
on an accused in certain matters, as, for example, under Section 113A and 113B thereof.
Even otherwise, this Court, having regard to the factual scenario involved in cases, e.g.,
where husband is said to have killed his wife when both were in the same room, burden is
shifted to the accused. The doctrine of res ipsa loquitur providing for a reverse burden has
been applied not only in civil proceedings but also in criminal proceedings. It must be
construed having regard to the other international conventions and having regard to the fact
that it has been held to be constitutional. Thus, a statute may be constitutional but a
prosecution there under may not be held to be one. Enforcement of law, on the one hand and
protection of citizen from operation of injustice in the hands of the law enforcement
machinery, on the other, is, thus, required to be balanced. The constitutionality of a penal
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provision placing burden of proof on an accused, thus, must be tested on the anvil of the
States responsibility to protect innocent citizens. [Paras 44, 51 and 52] [408-C,D, 410-
C,D,E] 1.6 The procedures laid down under the Act being stringent in nature, however, must
be strictly complied with. Provisions imposing reverse burden, however, must not only be
required to be strictly complied with but also may be subject to proof of some basic facts as
envisaged under the statute in question. `Reason to believe, as provided in several provisions
of the Act and as defined in Section 26 of IPC on the part of the officer concerned is
essentially a question of fact. [Paras 46, 47 and 75] [408-E,F, 419-E,G] Directorate of
Revenue and Anr. v. Mohammed Nisar Holia22 referred to. 1.7 The court must assess the
importance of the right being limited to our society and this must be weighed against the
purpose of the limitation. The purpose of the limitation is the reason for the law or conduct
which limits the right. [Para 53] [410-E,F] S v. Dlamini; S v. Dladla and Ors23referred to.
Glanville Williams, Textbook of Criminal Law (2nd Edn.) page 56 referred to. 1.8
Independence of judiciary must be upheld. The superior courts should not do something that
would lead to impairment of basic fundamental and human rights of an accused. [Para 72]
[416-G] The State v. Abdul Rashid Khoyratty24
,referred to. 2.1 The fact of recovery has not
been proved beyond all reasonable doubt which is required to be established before the
doctrine of reverse burden is applied. Recoveries have not been made as per the procedure
established by law. The investigation of the case was not fair. [Para 151] [452-G, 453-A] 2.2
The provisions of NDPS Act and the punishment prescribed therein being indisputably
stringent, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof
beyond all reasonable doubt would be more onerous. A heightened scrutiny test would be
necessary to be invoked. Whereas, on the one hand, the court must strive towards giving
effect to the parliamentary object and intent in the light of the international conventions, but,
on the other, it is also necessary to uphold the individual human rights and dignity as
provided for under the UN Declaration of Human Rights by insisting upon scrupulous
compliance of the provisions of the Act for the purpose of upholding the democratic values. It
is necessary for giving effect to the concept of `wider civilization. It is a well settled
principle of criminal jurisprudence that more serious the offence, the stricter is the degree of
proof. A higher degree of assurance, thus, would be necessary to convict an accused. State of
Punjab v. Baldev Singh25
;Ritesh Chakravarty v. State of Madhya Pradesh26
,relied on. 2.3
22 2008 (2) SCC 370
23 1999 (7) BCLR 771(CC)24 2006 UKPC 1325 1999 (3) SCC 977
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Proof of facts under Narcotic Law 24
Sections 35 and 54 of NDPS Act, no doubt, raise presumptions with regard to the culpable
mental state on the part of the accused as also place burden of proof in this behalf on the
accused; but the said provision would clearly show that presumption would operate in the
trial of the accused only in the event the circumstances contained therein are fully satisfied.
An initial burden exists upon the prosecution and only when it stands satisfied, the legal
burden would shift. Even then, the standard of proof required for the accused to prove his
innocence is not as high as that of the prosecution. Whereas the standard of proof required to
prove the guilt of accused on the prosecution is beyond all reasonable doubt but it is
`preponderance of probability on the accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of Section 35 of NDPS Act, the actus reus which
is possession of contraband by the accused cannot be said to have been established. [Para 79]
[421-B,C,D, E] 2.4 With a view to bring within its purview the requirements of Section 54 of
the Act, element of possession of the contraband was essential so as to shift the burden on the
accused. The provisions being exceptions to the general rule, the generality thereof would
continue to be operative, namely, the element of possession will have to be proved beyond
reasonable doubt. [Para 80] [421-E,F] 2.5 Whether the burden on the accused is a legal
burden or an evidentiary burden would depend on the statute in question. The purport and
object thereof must also be taken into consideration in determining the said question. It must
pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain
cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an
evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be
provided with opportunities to effectively defend himself. [Para 81] [421-G, 422-A]
Sheldrake v. Director of Public Prosecutions27referred to. Article by Richard Glover titled
Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof 2006 (4) Web JCLI
referred to. 2.6 In India the statute must not only pass the test of reasonableness as contained
in Article 14 of the Constitution of India but also the `liberty clause contained in Article 21
of the Constitution of India. Placing persuasive burden on the accused persons must justify
the loss of protection which will be suffered by the accused. Fairness and reasonableness of
trial as also maintenance of the individual dignity of the accused must be uppermost in the
courts mind28
.
26 JT 2006 (12) SC 41627 2005 (1) All ER 237
28http://advocatemmmohan.wordpress.com/2011/10/30/narcotic-drugs-and-psychotropic-substances-act-1985-ss-22-23-52a-53-and-53a-possession-of-contraband-recovery-prosecution-confessions-made-by-accused-before-customs-authorities-
during/
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CONCLUSIONS
Application of Cr.P.C. provisions to drug offences under the Act are subject to contrary
provisions in the Act. Sec. 32 A is one such exceptional provision in N.D.P.S. Act wherein it
has been stipulated that no sentence awarded under the Act shall be suspended, remitted or
commuted. Only the offenders under the age of 18 years or convicted for drug abuse in small
quantity have been excluded from the rigour of Sec. 32A.
Sec. 32A was introduced in the law by way of Amendment Act 2 of 1989. The said
Amendment Act was enacted, inter alia, to tighten the bail provisions. However, when a
humane touch to the law was given in the year 2001 the aforesaid draconian provision
remained untouched. Under Sec. 36A (3) the special power of High Court to grant bail to the
accused persons exercising powers conferred under Sec. 439 Cr.P.C. has been maintained. In
the same breath Sec. 36B has preserved the powers of appellate Court conferred under
Chapter XXIX and XXX of Cr.P.C. These Chapters include Sec. 389, which authorizes the
appellate Courts to suspend the orders of sentence pending disposal of appeal. Neither Sec.
36 A (3) nor Sec. 36 B has any reference to Sec. 32 A or vice-versa. This anomaly needs to
be corrected immediately. The Amendment Act 9 of 2001 also over-looked the judgment of
Honble Supreme Court given in the case of Dadu v. State of Maharashtra, 2000 Cri LJ 4619
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:AIR 2000 SC 3203 wherein the Apex Court has declared Sec. 32 A partially
unconstitutional.
Prior to 2001 amendment all the offences were triable by the Special Courts. However, after
the said amendments, the offences which are punishable for a term of more than 3 years only
have been made triable by special Courts. Although Sec. 36A is vague, but it can be logically
construed that all the offences falling in the category of small quantity and punishable upto
3 years imprisonment are now triable by Judicial Magistrates. If so, the appellate authority
against the judgments of Judicial Magistrates should be the Court of Sessions/Special Courts.
In this regard also nothing was said in the amendment. Sec. 36B of the Act, which deals with
appellate powers of High Court, ought to have been amended mutatis-mutandis.
BIBLIOGRAPHY
BOOK REVIEW:
1.
Ratalal & Dheerajlal, The Law of Evidence, 22nd Edn. (2006), Wadhwa Nagpur.2. Dr. Krishnamachari.V, law of evidence, 6th Edn.(2010) Reprint, S.Gogia & Company
WEB SEARCH:
1. www.google.com2. www.legalserviceindia.com/article/l176-Narco-Analysis.html3. www.hindu.com/2007/05/07stories/2007050203861100.hmt4. www.legalsutra.org5. www.india.gov.in/allimpfrms/allacts/2482.
JOURNAL:
1. Criminal law journal, Oct 2009, (Journal section)2. Criminal law journal, July 2009, (Journal section)
http://www.legalserviceindia.com/article/l176-Narco-Analysis.htmlhttp://www.legalserviceindia.com/article/l176-Narco-Analysis.htmlhttp://www.hindu.com/2007/05/07stories/2007050203861100.hmthttp://www.hindu.com/2007/05/07stories/2007050203861100.hmthttp://www.legalsutra.org/http://www.legalsutra.org/http://www.legalsutra.org/http://www.hindu.com/2007/05/07stories/2007050203861100.hmthttp://www.legalserviceindia.com/article/l176-Narco-Analysis.html7/31/2019 Final Project of Evidence
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3. THE HINDU, Saturday 5th Feb. 20054. THE HINDU, 30th November 2003