Provisions of NDPS Act Legal Issues Practical Problems
Provisions of NDPS Act: Legal Issues & Practical Problems -- Subrata Biswas Additional Excise Commissioner, Govt of WB & Former Zonal Director, NCB, MHA, GOI
NDPS Act: Its rigorous Checks & Balances-1 v. A draconian law; but with a purpose v Mandatory presumptions by Judiciary (Secs 35 & 54 - Madan Lal v. State of HP 2003 SCC (Cri) 1664; Piara v. State of Punjab Cri LJ 501, p 506; Kashmir Singh v. State of Punjab 2006 (2) RCR (Crl) 477) 2
NDPS Act: Its rigorous Checks & Balances-2 v Curbs on Bail: Twin Conditions u/s 37(1)(b) and additional binding u/s 37(2) [Union of India v. Thamisharasi 1995(4) SCC 190; State of West Bengal v. Anwar 2000 Cri LJ 2189 p 2198 (Cal)] v. Rigorous penal structure 3
NDPS Act: Its rigorous Checks & Balances-3 v Stringent checks on executive authority v Sanctity of enclosed space: Documentation of information [Sec 42(1)] v Sending of such info to immediate superior [Sec 42(2)] State of Punjab v. Balbir Singh 1994 (3) SCC 299; Thulaseedasan v. State of Kerala 2002 Cri LJ 2522 p 2523 (Ker) v Within 72 hours? Post or Ante…? v Search by GO-no requirement of Sec 42 [Union of India v. Satrohan 2008(8) SCC 313]
NDPS Act: Search u/s 43 v Rigours of Sec 42 not enjoined for operations in public space/transit [Sayar Puri v. State of Rajasthan 1998 Cri LJ 4589 (SC)] Patrick Le Galès 5
NDPS Act: Issues in Sec 50 v ‘Person’ doesn’t include premises [State of Punjab v. Baldev Singh 1999(6) SCC 172] or baggage [State of Rajasthan v. Shanti AIR 2010 SC 43] v Search of premises/baggage followed by search of ‘person’ would attract Sec 50 v Illegality in method/initiation of search not to render collected evidence inadmissible [Dr. Pratap Singh v. Director of Enforcement AIR 1985 SC 989] 6
NDPS Act: Issues in Sec 50 v Suspect to choose between search by raiding officer and search in presence of nearest empowered GO/Magistrate v Suspect can’t choose exactly before whom [Raghbir Singh v. State of Haryana (1996) 2 SCC 201] v Search ordinarily to be conducted only by authorised official [State of Punjab v. Balbir Singh 1994 (3) SCC 299] 7
NDPS Act: Issues in Sec 50 v Suspect to be given clear option—Written or Otherwise [State of Rajasthan v. Ram Chandra 2002 WLC (Raj) 471] v One not to vouchsafe on behalf of another [State of Rajasthan v. Paramanand & anr (2014)5 SCC 345] 8
NDPS Act: Disposal of Alamats (Union of India v. Mohanlal & Anr SCI Cr. Apl 612/2012) v. Sec 52 A v. GSR 339(E) dated 10. 05. 2007 9
Commercial Quantity—What’s that? v Quantities of drugs/psychotropic substances mentioned vide S. O. 1055(E) dated 19 -102001. v Ref: E Michael Raj vs IO, NCB [2008 AIR SCW 7206] v Qty Nfn: S. O. 2941(E) dated 18 -112009. [*Sec 77 of the Act] Subrata Biswas. ZD, NCB 10
Rigours of NDPS Act—Issues involved in granting of bails to the accused • Section 37 (1)(b)—Requirement of Twin Conditions— 37 (2): Additional Conditions: Union of India vs Thamisharasi [1995(4) SCC 190] • HC’s power u/s 439 of Cr. PC also covered. Ref. Rafiq Mohd vs State of Punjab [1994 CLJ 3366 p-3372] Subrata Biswas, ZD, NCB
Illegality in investigation not to render investigation findings inadmissible—Ref. State of Punjab vs Labh Singh 1996 CLJ 3996 • “Reasonable grounds for believing” more than “prima facie” grounds. • Subrata Biswas, ZD, NCB 12
Non therapeutic use of Prescription Drugs— A greater challenge! Drug menace destroys individuals, families and the society at large. Ø Multiple actors are involved at multiple levels. Ø Agencies need to join hands and put up a concerted fight. Ø Subrata Biswas. ZD, NCB 13
- Slides: 13