OVERVIEW OF NDPS ACT 1985 1 q The

OVERVIEW OF NDPS ACT, 1985 1

q The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) consolidates the erstwhile principal Acts, viz. the Opium Act 1857, the Opium Act 1878 and the Dangerous Drugs Act, 1930. In addition to it there are some regional enactments such as the Bengal Excise Act which supplement the central act. q Preamble An Act 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, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. 2

Act applicable to the following substances q Cannabis (hemp), s. 2 (iii) (a) charas (separated resin of plant) and hashish ganja (flowering and fruiting top except leaves and seeds) any mixture q Cannabis plant, s. 2 (iv) q Medicinal cannabis 3

q Coca derivatives, s. 2 (v) crude cocain i. e. extract of leaf ecgonine and derivatives cocain i. e. salt preparation of cocain all preparations >0. 1 cocain q Coca leaf, s. 2 (vi) Coca plant, s. 2 (vii) q 4

q q Ø Ø q q q Opium, s. 2 (xv) i. e. juice of opium poppy Opium derivative, s. 2(xvi) Medicinal opium Preparation Alkaloids : morphine, codeine, thebaine and their salts Diacetylmorphine or heroin Opium poppy, s. 2 (xvii) Poppy straw, s. 2 (xviii) i. e. all parts except seeds Poppy starw concentrate, s. 2 (xix) i. e. poppy straw subjected to process for concentration 5

Narcotic Drugs s. 2 (xiv) “Narcotic drug” means: q Coca leaf q Cannabis (hemp) q Opium q Poppy straw and q All manufactured goods 6

Psychotropic Substances s. 2(xxiii) “Psychotropic Substance" means : q any substance, natural or synthetic, or q any natural material or q Any salt or preparation of such substance or q material included in the list of psychotropic substances specified in the Schedule; 7

Controlled Substance s. 2 (viid) “Controlled substance” means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance. 8

Manufactured Drug s. 2 (xi) “Manufactured drug” means: a) b) All coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; Any other narcotic substance or preparation which the Central Government may declare to be a manufactured drug. 9

Essential Terms q q q Small Quantity……………. s. 2(xxiiia) Commercial Quantity…………………. . s. 2(viia) Controlled Delivery…………. s. 2(viib) Controlled Substance…………………. . s. 2(viid) Illicit Traffic………………. . s. 2(viiia) Manufactured Drug…………s. 2(xi) Board…. …………………s. 2(ii) Narcotic Commissioner……………… s. 2(xiii) Manufacture………………s. 2(x) Preparation………………. . s. 2(xx) Production………………. . . s. 2(xxii) 10

PUNISHMENT Chapter IV Offences & Penalties 11

Violation Penalty Section of the Act Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substances A. Small quantity - RI up to 6 months or fine up to Rs. 10, 000 or both. B. More than small quantity but less than commercial quantity - RI up to 10 years + fine up to Rs. 1 Lakh. C. Commercial quantity - RI 10 to 20 years + fine Rs. 1 to 2 Lakhs, the court may for reasons to be recorded impose fine above Rs 2 Lakhs Poppy Straw-15 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 12

Violation Penalty Section of the Act Cultivation of opium, cannabis RI up to 10 years + fine up to Rs. 1 lakh or coca plants without licence Opium -18(c) Cannabis - 20 Coca-16 Embezzlement of opium by licensed Farmer 19 RI for 10 to 20 years + fine Rs. 1 to 2 lakhs (regardless of the quantity) External dealings in NDPS-i. e. RI 10 to 20 years + fine of Rs. 1 to 2 lakhs engaging in or (Regardless of the quantity) controlling trade whereby drugs are obtained from outside India and supplied to a person outside India 24 Knowingly allowing one's premises to be used for committing an offence Same as for the offence 25 Violations pertaining to Controlled substances RI up to 10 years + fine Rs. 1 to 2 lakhs 25 A Financing illicit traffic and harbouring offenders RI 10 to 20 years + fine Rs. 1 to 2 lakhs 27 A 13

Violation Penalty Section of the Act Attempts, abetment and criminal conspiracy Same as for the offence Attempts-28 Abetment and criminal conspiracy 29 Preparation to commit an offence Half the punishment for the offence 30 Repeat offence One and half times the punishment for the offence. 31 Death penalty in some cases. Death Penalty 31 A Consumption of Drugs (Personal) Cocaine, morphine, heroin - RI up to 1 year or fine 27 up to Rs. 20, 000 or both. Other drugs. Immunity Imprisonment up to 6 months or fine up to Rs. 64 A 10, 000 or both. Addicts volunteering for deaddiction treatment enjoy immunity from prosecution Punishment for violations Imprisonment up to six months or fine or both not elsewhere specified 32 14

SEARCH & SEIZURE � S. 41. Power to issue warrant and authorisation - Gazetted Officers of the empowered Departments can authorize searches. Such authorization has to be based on information taken down in writing. � S. 42. Power to entry, search, seizure and arrest without warrant and authorisation - 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. 15

� � � S. 43. Power of seizure and arrest in public place S. 50. Conditions under which search of persons shall be conducted S. 52. Disposal of persons arrested and articles seized S. 53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station S. 55. Police to take charge of articles seized and delivered S. 57. Report of arrest and seizure 16

q The power of search and seizure in any system of jurisprudence is an overriding power of the State for the protection of social security and that power is necessarily regulated by law. q Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. q Seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act. q In Search and Seizure, due process and privacy is to be ensured DRI v. Md. Nisar Holia, (2008) 2 SCC 870 17

q Substantial Compliance within 72 Hours (after 2001 amendment). However the same 72 Hours need not be retrospective Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212. q In Kishan Chand v. State, (2013) 2 SCC 502 the difference between Section 57 and Section 42 is clearly chalked out. q About Independent Witness: §No animosity with official witness. §Non examination of independent witness is not fatal. Sumit Tomar v. State of Punjab, (2013) 1 SCC 395. §The contray view was adopted in Sarju v. State of U. P, (2009) 13 SCC 698; Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. 18

SAMPLE & DISPOSAL q S. 52. Disposal of persons arrested and articles seized q S. 52 A. Disposal of seized Narcotic Drugs and Psychotropic Substances q In UOI v. Mohanlal, (2012) 7 SCC 712 section 52 A was discussed at lenghth and elaborated. q S. 55. Police to take charge of articles seized and delivered q In Noor Aga (supra) the apex Court observed that there should be substantial compliance of the control over and the production of the narcotics (para- 87 -91 and para 100. ) q No evidence as to where narcotic was kept since seizure till FSL led to acquittal in Asok v. State of M. P. , (2011) 5 SCC 123. q In Jarnail Singh v. State, (2011) 3 SCC 521, the delay per se was not fatal was opined and adjudicated upon. 19

CONFESSIONS S. 67. Power to call for information, etc. ADMISSIBLE NOT ADMISSIBLE 20

q NOT ADMISSIBLE WHEN BEFORE A CUSTOMS OFFICER: Noor Aga v. State of Punjab (2008)16 SCC 417. Raju Premji v. Customs (2009) 16 SCC 496. Nirmal Pehlwan @ Nimma Singh v. Inspector , Customs House Punjab (2011) 12 SCC 298. q CUSTOMS OFFICER IS NOT A POLICE OFFICER : This was clearly stated in Perry Rustomji Basta v. State of Maharashtra (1971) 1 SCC 847. 21

q ADMISSIBLE : In Various Judgments The Apex Court Has Stated As To When The Confessions Are Considered Admissible: Kanhaiyaal versus Union of India (2008) 4 SCC 668. M. Prabhulal versus Directorate of Revenue Intelligence (2003) 8 SCC 449. Ram Singh versus Central Buruea of Narcotics (2011) 11 SCC 347 Raj Kumar Karwal versus Union of India (1990) 2 SCC 409 22

q CERTAIN ADMISSIONS ARE NOT RELIED UPON: Those made by illiterate persons: Union of India v. Bal Mukund, (2009) 12 SCC 161. When the admissions are not put in Section 313 of Criminal Procedure Code. Inspector of Customs, Akhnoor, Jammu & anr v. Yeshpal versus Anr. (2009) 4 SCC 769. When there is lack of corroboration. Francis Stanly versus I. O. , NCB (2006) 13 SCC 210. 23

Culpable Mental State & Other presumptions (Section 35/54/60(3)/66) q S. 35. Presumption of culpable mental state q S. 54. Presumption from possession of illicit articles q S. 60(3) Presumption against the owner of any animal or conveyance used in the process q S. 66. Presumption as to documents in certain cases q When a lady of 70 years was being prosecuted under the Act, sitting on the bags of poppy husk and suspicious conduct constituted Culpable Mental State. Balbir Kaur v. State (2009) 15 SCC 795 q In State of Punjab v. Hari Singh (2009) 4 SCC 200 the apex court observed that the Conscious possession must be put to test by examining the accused as per Section 313 of the Code of Criminal Procedure. 24

q Failure to rebut under Section 35/ 60(3) would also be presumption of Culpable mental State was held in Abbas Ali versus State of Punjab (2013) 2 SSCC 195. q The initial burden is on the prosecution to prove the possession has been time and again reiterated by the Supreme Court: Bhola Singh v. State of Punjab (2011) 11 SCC 653. Dharampal Singh v. State of Punjab (2010) 9 SCC 608. Dehal Singh v. State of Himachal Pradesh (2010) 9 SCC 85. Raju Premji v. Customs (2009) 16 SCC 496. Noor Aga v. State of Punjab (2008) 16 SCC 417. q Possession with servant on which there is no absolute control is not enough to determine the culpable mental state was observed in Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347 25

CONFISCATION VERSUS FORFEITURE q S. 61. Confiscation of good used for concealing illicit drugs or substances q S. 62. Confiscation of sale proceeds of illicit drugs or substances q S. 63. Procedure in making confiscations q In Department of Forests v. J K Johnston, (2011) 10 SCC 794 under the Wildlife Act, the court has laid down the distinction in between seizure and confiscation/forfeiture. q Confiscation is Civil Liability whereas Forfeiture is punishment was laid down in State of Karnataka v. A Kunchidanned, (2002) 9 SCC 90. q In State of West Bengal versus Sujit Kumar Rana, (2004) 4 SCC 129, the Court clearly states that there can be no intervention u/s 482 Cr P C but judicial review is possible under Article 226 of the Constitution of India. 26

Confiscation • Civil Liability Forfeiture • Punishment. 27

SENTENCING q Relevant provisions: Sections 34, 39, 40 and 64 A. q S. 34. Security for abstaining from commission of offence q S. 39. Power of court to release certain offenders on probation q S. 40. Power of court to publish names, place of business, etc. , of certain offenders q S. 64 A. Immunity from prosecution to addicts volunteering for treatment 28

q There can be no reduction of sentencing in pending appeals not even under Article 142 of the Indian Constitution : q q Kashmiri Lal v. State of Haryana, (2013) 6 SCC 595 q Navdeep Singh v. State of Haryana, (2013) 2 SCC 584 But during trial however reduction in Sentence is permissible (observed in Union of India v. Shah Alam, (2009) 16 SCC 644 ) 29

Grounds to Reduce sentencing: q On the basis of percentage of heroine, Nikku Khan v. State of Haryana, (2011) 14 SCC 469 q On account of poverty and first time offence, Shaheja Khan Mahebub Khan v. State of Gujarat, (2013) 1 SCC 570 q However, the term of “Probation” is clearly chalked out of the scope in the Act. {Section 39} [Sarju v. State (2009) 13 SCC 698] q Nevertheless, court can impose imprisonment in lieu of Fine [Shantilal v. State (2007) 11 SCC 243] 30

BAIL/SUSPENSION OF SENTENCE (Section 37/32 A) Section 37. Offences to be cognizable and non-bailable Section 32 A. No suspension, remission or commutation in any sentence awarded under this Act 31

q In Samiullaha v. NCB, (2008) 16 SCC 471 the apex court held that cancellation of bail on a subsequent chemical examiner’s report of intermediate quality was not justified. q In Union of India v. Rattan Malik, (2009) 2 SCC 624 the parameters of Section 37 in relevance of bail provisions were laid down. q In Sanjay Kumar Kedia v. Narcotics Control, (2009) 17 SCC 631 the Apex Court in lieu of the statutory provisions contained in Section 36 A (4) laid down the principle of extension of the statutory period and a particular procedure to be followed for the same. q In Thana Singh v. CBN, (2013) 2 SCC 603 apex court held that notwithstanding statutory provisions in Section 37, in a case where half of the maximum sentence has been undergone bail can be granted 32