NDPS Act and Special Procedures

Criminology

Socio Economic Legislations

NDPS Act and Special Procedures

Component - I (A)- Personal Details

Role Name Affiliation

Principal Investigator Prof (Dr.) G S Bajpai Registrar, National Law University Delhi

Paper Coordinator Dr. Rangin Pallav Tripathy Assistant Professor, National Law University, Odisha Content Writer/Author Neeraj Tiwari Assistant Professor, National

Law University, Delhi Content Reviewer Dr. Mrinal Satish Associate Professor, National

Law University, Delhi

Component - I (B) Description of Module

Description of Module

Subject Name Criminology

Paper Name Socio-Economic Legislations

Module ID 16

Module Name/Title NDPS Act and Special Procedures

Pre-requisites General understanding of procedure relating to search, seizure, bail etc. under the Code of Criminal Procedure, 1973 and under the NDPS Act, 1985

Objectives 1. To present a comprehensive understanding of the procedure under NDPS Act.

2. To make the learners aware of the consequences of non-compliance of the mandatory procedure.

3. To make the learners understand the role of judicial rulings in streamlining the procedure.

Keywords Narcotic drugs, search, seizure, bail, chance recovery

Table of Contents:

1.

2.

2.1. Entry, Search, Seizure and Arrest 2.2. Comparison between Section 42 and 43

2.3. ‘Non-Compliance’ versus ‘Substantial Compliance’ under section 42

2.4. Applicability of section 42 on arrest, search and seizure conducted by Empowered Officer

3. Cases of ‘chance recovery’

4. Conditions preceding search of a person 4.1. Nature of Compliance of Section 50

4.2. Evidentiary value of seized article during an illegal search 4.3. Scope of expression ‘search of person’ under Section 50 4.4. Search of Females

5. Bail under NDPS Act

5.1. Relevancy of purity of drug while considering bail application under section 37

6. Summary

Learning Outcome:

1. To present a comprehensive understanding of the procedure under NDPS Act

2. To make the learners aware of the consequences of non-compliance of the mandatory procedure

3. To make the learners understand the role of judicial rulings in streamlining the procedure.

1. Introduction:

The impact of drug abuse is huge in our society. Recently Indian cinema has also depicted the cause and concern surrounding this social evil. It was a challenge for the law makers to formulate a regulatory regime which can effectively deal with the problem of drug abuse and drug trafficking in our society. The NDPS Act was enacted with this object.

The NDPS Act prescribes harsh punishment which requires striking of balance between the enforcement of law and protection of citizen from oppression and injustice. The law has to be strict enough to create deterrence in the minds of possible offenders. At the same time it must also ensure that due process requirements are duly recognised and incorporated in various provisions and the chances of abuse of power is negated.

Under the Act most of the offences require mere proof of possession of the contraband to determine the criminal liability of any accused person. Some of these contrabands are easily available in the drug market which increases the risk of planting such drugs on innocent people. Hence it becomes very important to provide procedural safeguards which are less susceptible to arbitrary use of power by the authorities. It must be ensured that no unwarranted search should be made and persons must be search with utmost good faith and the veracity and authenticity of evidence obtained from such search is maintained. The law enforcement agencies should be allowed to use the provisions of the Act as tools to harass and oppress the citizens.

Aim of this paper is to analyse various processes provided under the Act to apprehend drug offender and control drug abuse. Chapter V of the Act deals with procedural aspects in NDPS related cases.

2. Pre-Trial Procedures

2.1Entry, Search, Seizure and Arrest:

Search and seizure are steps essential in the conduct of investigation of a criminal case. The necessity and usefulness of search and seizure during the investigation can not be questioned. One of the requirements of our criminal justice system is ‘fairness’ in procedure. The NDPS Act contemplates different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise, in private place and in public place. Section 41, 42 and 50 of the Act together provide checks on the exercise of powers by the authority. These provisions are inserted to provide fairness in the process of search, seizure and investigation. It operates as a preventive measure and protects innocent persons from being falsely implicated.

The act of search and seizure is antithesis to individual liberty. The act of search interferes with the right to hold and enjoy the property whereas the act of seizure puts temporary restriction on right to possess the property. It is not disputed that both search and seizure are accepted norms in criminal procedure but reasonable restriction must be put in the exercise of these powers by law enforcement agencies.

Section 41, 42 and 43 of the Act broadly state the procedure relating to search and seizure. Sub section (1) of Section 41 confers power on Metropolitan Magistrate, Magistrate of First Class or Magistrate of Second Class (if authorised so by the State Government) to issue warrant for arrest or search against any person whom he has reason to believe to have committed any offence under the Act.

Such warrant may be issued to carry out search at any time of

- any building, conveyance or place in which he has reason to believe that any narcotic drug or psychotropic substance or controlled substance has been committed or

- any document or other article is kept or concealed which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under the Act Sub section (2) of section 41 confers power on gazetted rank officers of the Central and State Governments from departments like central excise, narcotics, custom, and revenue intelligence including paramilitary forces and armed forces to issue authorization for similar purposes. These officers are known as ‘empowered officers’. They may act either on their personal knowledge giving reason to believe or on information given by any person which is reduced in writing that any offence under the Act has been committed or such substances are kept or concealed in any building, conveyance or place. The empowered officer may authorise any subordinate officer (authorised officer) above the rank of peon, sepoy or constable to arrest such a person or conduct such search.

If the arrest or seizure is made pursuant to a warrant issued under sub section (1) of section 41, the person arrested or the article seized has to be forwarded to the Magistrate. If the arrest or seizure is made under section 41(2), 42, 43 or 44 the person arrested or the article seized has to be forwarded to the officer in charge of the nearest police station or the officer empowered under section 53 of the Act. The role of the officer (other than a police officer) effecting arrest or seizure ends with the disposal of the person arrested and the article seized in the manner provided under section 52 and 52A of the Act. (Raj Kumar Karwal v. Union of India [AIR 1991 SC 45]).

Section 41(3) of the Act confers power on the officers acting under section 42 and categorizes them as (a) the officer to whom warrant is issued under section 41(1) (b) the officer who authorized the arrest or search under section 41(2) and (c) the officer who is so authorized under section 41(2) by the empowered officer. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including power of search and seizure.

By virtue of section 51 of the Act search and seizure under sections 41, 42 of the Act would be regulated by the general provisions relating to search and seizure under sections 100 and 165 of the Code of Criminal Procedure (hereinafter referred as ‘Code’). Thus, the officer conducting search and seizure is required to follow the safeguards provided under the Code, in addition to the safeguards provided under the NDPS Act. If the officer fails to strictly comply with the procedure enumerated in the Code including the requirement to record reasons, such failure would only amount to irregularity and would not vitiate the trial. The effect of such failure has to be borne by the courts while appreciating evidence in a given case. The court must consider whether any prejudice has been caused to the accused. ([State of Punjab v. Balbir Singh AIR 1994 SC 1872])

Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. Section 42 deals with ‘building, conveyance or enclosed place’ whereas section 43 deals with power of seizure and arrest in public place. Section 42 comprises of two components. The first part deals with the recording of the information and the second part deals with the conduct of the search. First part of the section can further be divided in to two parts based on the source of information received. The information may come either from personal knowledge of the officer or may be given by any person and which is taken down in writing.

The search, seizure and forfeiture may be conducted between sunrise and sunset. Though proviso to section 42 creates an exception to this rule and provides that where the officer has reason to believe that search warrant cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the 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.

Clause (2) of section 42 requires the officer taking down the information in writing so received by any person or the grounds for his belief to search any place between sunset and sunrise shall be forwarded to his immediate superior officer within 72 hours. The fixed time period of 72 hours was brought by an amendment in 2001 which has replaced the word ‘forthwith’. It was noticed that such amendment came to remove the ambiguity or leverage in implementing the word ‘forthwith’ and absolute certainty was brought by binding the officer concerned to send the intimation to the superior officer

within 72 hours from the time of receipt of information. The legislative intent was to provide greater certainty to the time in which the information should reach to the senior official and to strengthen the safeguards provided to an accused person. The provisions of section 42 are intended to provide protection as well as law down a procedure which is mandatory and should be followed positively by the I.O. While total non compliance with requirements of sub section (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation of delay will be acceptable compliance. (Sukhdev Singh v. State of Haryana [(2013)2SCC212])

2.2. Comparison between Section 42 and 43:

Both these sections contemplate two different situations. While section 42 provides for entry into or search of any building, conveyance etc. section 43 contemplates search or seizure made in any public place or in transit. The requirement of recording satisfaction under the proviso to section 42(2) for carrying out a search between sunset and sunrise is not applicable for a search made under section 43 between sunset and sunrise. In State of Punjab v. Balbir Singh (AIR 1994 SC 1872) the Supreme Court has held that the empowered officer while acting under section 43 need not record any reasons of his belief and that section 43 does not provide anything to mean that the empowered officer acting on a prior information need to record the same before carrying such search or seizure.

The expression ‘reason to believe’ clearly states that power to make search, seizure and arrest under section 42 is founded upon the satisfaction of the officer concerned. Such belief may be founded upon some secret information. Section 43, which provides search in public place, may not attract the rigours of section 42. This means that even subjective satisfaction on the part of the authority, as required under section 42, need not be complied with, if the place where the search is to be made is a public place. This understanding of these provisions was doubted by the Supreme Court in the case of Directorate of Revenue v. Mohd. Nisar Holia [(2008) 2 SCC 370]. The SC clarified that it is one thing to say that section 42 has no application where the search is to be made at a public place which is open for general public. But it is another thing to contend that where the search is being made on prior information leaving enough time for compliance of reducing the information to writing, sending the same to superior officer, obtaining his permission and recording the reasons therefor coupled with the fact that the place which is required to be searched is not open to public although situated in a public place like room of a hotel. Whereas hotel is a public place, a room occupied by a guest may not be.

An authority cannot be given an untrammelled power to infringe the right to privacy of any person.

On the contrary, in the case of Ganga Bahadur Thapa v. State of Goa (2000 SCC (Criminal) 13) the Court has treated a hotel room occupied by the customer as public place as contemplated by section

43 of the Act. Merely because a customer is allowed to occupy a room in the hotel, it would not cease to be a hotel.

2.3. ‘Non-Compliance’ versus ‘Substantial Compliance’ under section 42:

The Supreme Court in State of Punjab v. Balbir Singh (AIR 1994 SC 1872) has noticed that the procedure prescribed under section 42 is not being followed consistently. Even the high courts have given divergent opinion on the nature of its compliance. The SC was of the view that

“The very fact that the officer taking down any information or recording reasons for his belief under the proviso to section 42 (to carry out search between sunset and sunrise) is required to send forthwith a copy thereof to his immediate senior official itself gives strong indication that the provision is mandatory. The purpose of such procedure is to cross verify whether there was sufficient reasons for such search, seizure or arrest. The safeguards provided have to be observed strictly. Though the officer need not record reasons for carrying out arrest or search between sunrise and sunset as given in section 42(1) of the Act.”

“The said provision makes it obligatory that the set of officers mentioned therein, on receiving any information, reduce the same into writing and also record the reasons for the belief while carrying out arrest or search and to that extent the provisions are mandatory. If there is a total non compliance of the requirements the same affects the prosecution case and therefore vitiates the trial. But if there is undue delay which can be sufficiently explained then it will be a question of fact in each case.”

Regarding the consequences of non-compliance of section 42 the Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (AIR 2000 SC 821) borrowed the view expressed by the

Constitutional Bench in State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) where the Court has compared the impact of non-compliance of section 42 with that of section 50. Following observation of the Constitutional Bench is worth quoting:

“If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been com-mitted) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.”

Though the SC in State of Punjab v. Baldev Singh (supra) settled the position on non-compliance of section 42 of the Act but the subsequent decision of the SC in Roy V.D. v. State of Kerala (AIR 2001 SC 137) differed from the views rendered by the Constitutional Bench. The SC was of the view that arrest and search in violation of sections 41 and 42 of the Act will be per se illegal and will vitiate the trial. In Sajan Abraham v. State of Kerala (AIR 2001 SC 3190) the SC was of the view that substantial compliance is enough and strict compliance may be avoided in cases justifying circumstances. The Court has stated that

“In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug, traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The court however while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.”

Finally these conflicting opinions were brought before a Constitution Bench in Karnail Singh v. State of Haryana (AIR 2009 SCW 5265) where the Court has clarified the ratio of Abdul Rashid Ibrahim and Sajan Abraham. The court enumerated the effect of these decisions as follows:

“(c) 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 of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42...”

The case of Karnail Singh has finally set the controversy at rest and concluded that section 42 demands substantial compliance but in no situation a total non-compliance is permissible. Though, the non-compliance of procedure under section 42 will not vitiate the trial if it has not cause any prejudice to the accused.

2.4. Applicability of section 42 on arrest, search and seizure conducted by Empowered Officer:

The question whether procedure laid down in section 42(2) is applicable to gazetted rank officers empowered under section 41(1) has been answered in negative by the Supreme Court.

The SC in G. Srinivas Goud v. State of A.P. [(2005) 8 SCC 183] considered the question whether it is necessary for the gazetted rank officers to comply with the procedure of sending the information taken down in writing to immediate official superior within 72 hours. The Court has highlighted the scheme of arrest, search and seizure under section 41 and 42. Section 41(2) covers cases where arrest or search is carried out with the authorisation of the empowered officer. In such situation the empowering officer has knowledge what the authorised officer is ordered to do hence reporting is not needed. Whereas section 42(2) deals with cases where arrest or search is made without authorisation which require for reporting. The Court has observed that

“It will be anomalous to say that officers of gazetted rank who are conferred with power to authorise junior officers to carry out arrest, search and seizure, are required to report to their superior officers when they carry out arrest, search or seizure on their own. As already seen the rationale for this provision of informing superiors appears to be that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source

of power of authorization. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under section 42(2) cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things.”

3. Cases of ‘chance recovery’:

The Act makes distinction between a search conducted on the basis of prior information and a search where the officer comes across commission of an offence under NDPS Act accidentally or by chance.

Sometimes contraband items may be recovered from the possession of any person in routine search conducted for different reasons in any public place. Such cases come within the category of ‘chance recovery’. The courts have uniformly held that section 42 has no application in chance recovery cases and the rigour of law need not be complied with in such cases. (Directorate of Revenue v. Mohd.

Nisar Holia [(2008)2SCC370])

The condition for applicability or non-applicability of section 50 is not necessarily whether the search or seizure was made on the basis of prior information or otherwise, but the real test is whether the officer effecting search as per section 41, 42 and 43 has a chance to comply with the provisions of section 50. The existence of reason to believe on the part of the officer that the person is in possession of the contraband will be decisive of the application of section 50. Based on this the courts in a series of cases have held that section 50 will not apply to any ‘chance recovery’ made during the normal

The position of law is aptly put by the Supreme Court in Ahmed v. State of Gujarat (AIR 2000 SC 2790) in the following terms

“In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order.”

In the case of Gurbax Singh v. State of Haryana [(2001) 3 SCC 28] a person carrying poppy straw in a gunny bag was nabbed by a police officer at the railway station during routine check up. It was held that in such scenario the police officer had neither the information nor the knowledge that the gunny bag could have any contraband drug in it. Hence, the issue regarding applicability of section 50 of the Act does not arise.

Similarly in the case of State of HP v. Sunil Kumar(AIR 2014 SC 2564) where the bus was being checked for ticket less travellers and one passenger who looked suspicious and when searched was found hiding ‘charas’ under his belly. The Supreme Court has held that neither there was prior information nor bus was being checked for probable recovery of contraband, therefore, it amounts a chance recovery and section 50 of the Act would not be attracted. The Supreme Court has made it clear that suspicion cannot be equated with ‘reason to believe’ as required under the Act.

Where search, seizure or arrest under the provisions of the Code are carried by an empowered officer who comes across a person being in possession of the contraband drug, he is required to follow from that stage the procedure laid down in the NDPS Act and continue the investigation as provided thereunder. Where the investigating officer is not an empowered officer then he is expected to inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act.

4. Conditions preceding search of a person:

The procedural safeguard prescribed under section 50 must be complied with before making any search of persons under sections 41, 42 and 43 of the Act. It serves dual purpose- protect a person against planting any incriminating article and also establish credibility to the search and seizure conducted by the empowered officer. The rights conferred by section 50 are extremely valuable

keeping in view the severity of sentencing scheme under the Act. The rationale behind this provision was stated by the SC in State of Punjab v. Baldev Singh (AIR 1999 SC 2378) in the following words:

“To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case.”

The duty to inform the suspect of his right to be search before a Gazetted Officer or a Magistrate is a necessary sequence for enabling him to exercise his right under section 50. Non intimation of such a right to the suspect would be violative of the ‘reasonable, just and fair’ procedure and the safeguard would be rendered meaningless and futile. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. Failure to inform the person and failure/refusal to produce him before a gazetted officer or a Magistrate will amount to non compliance of the procedure laid down in section 50 of the Act.

4.1. Nature of Compliance of Section 50:

Whether the procedural requirements under section 50 are mandatory or directory in nature and if mandatory to what extent and what is the consequence of its non-compliance, these issues have come up for judicial scrutiny many a times.

As early as in 1995 the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat [(1995) 3 SCC 610] has held that the compliance of section 50 is mandatory. The officer conducting the search must specifically depose in the court of law that he had informed the person to be searched about his right to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate.

The Constitution Bench in State of Punjab v. Baldev Singh (AIR 1999 SC 2378) has held that section 50 implicitly makes it imperative and obligatory and cast a duty on the officer to ensure that search of the concerned person is conducted in the manner prescribed under section 50. He must be informed of his right and in case he opts to be search in the presence of a Magistrate or a gazette Officer, failure to take him before the respective authorities would cause prejudice to him and render the recovery of the illicit article doubtful and vitiate the conviction and sentence.

The Court has further stressed that

“Use of evidence collected in breach of safeguards provided in section 50 would render the trial unfair. Unfair trial is contrary to our concept of justice. Argument that the society would suffer if such evidence is excluded was repelled with observation that the means to achieve the end result must be above board and remedy lies in investigating agencies following the rules scrupulously.

Presumption under section 54 of NDPS Act can only be drawn when it is established that the accused was found to be in possession of contraband in a search conducted in accordance with the mandate of section 50.”

In another Constitution Bench decision in Vijaysinh Chandubha Jadeja v. State of Gujarat (AIR 2011 SC 77) the Supreme Court has noticed that the law laid down in Baldev Singh’s case is not being followed uniformly. It was desired by the Bench that the matter requires some more clarification. The Constitution Bench has refused to accept the theory of ‘substantial compliance’ and held that the concept of ‘substantial compliance’ within the requirement of section 50 of the NDPS Act as introduced and read into the mandate of the said section is neither borne out from the language of sub- section (1) of section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case. It is imperative on the part of the officer to apprise the person intended to be search of his right under section 50. The form of such information is not material but the substance thereof has to be clearly conveyed to the person. He should be made aware of his right and this mandatory provision requires strict compliance. Section 50 prescribes minimum procedural limitations on the exercise of such

extensive statutory power by the officer under the Act. The safeguard under the provision is provided with an object to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies.

An interesting fact situation has emerged in the case of State of Rajasthan v. Parmanand (AIR2014SC1384) where two individuals were nabbed on prior information. Both were served with a notice stating their right under section 50 to get searched in the presence of any nearest Magistrate or any gazetted officer or in the presence of Superintendent of the raiding party. On this notice, first individual gave consent for both to be searched in the presence of the Superintendent of the raiding party. During search the contraband was recovered from the bag of first individual. It was held that section 50 was breached inasmuch as a third option of being searched in presence of Superintendent was given. The purpose of having protection under section 50 to search the accused in the presence of a nearest Magistrate/ nearest gazetted officer is to make the process of search more reliable and authentic. It was also observed by the Court that section 50 was also breached because the officer did not serve individual notice to both the accused persons. Service of a common notice not only amounts to dilution of their right but also create confusion. It may not be clear or unequivocal. In such case both of them should have been served individual notice to give their individual consent.

4.2. Evidentiary value of seized article during an illegal search:

The issue of evidentiary value of the articles seized during an illegal search came up for consideration in various cases. The Court in Balbir Singh and Ali Mustafa Abdul Rahman Moosa was of the view that ‘unlawful possession’ of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond reasonable doubt. Contraband seized as a result of illegal search and seizure cannot be used to fasten the liability of unlawful possession of the contraband on the person.

But other set of cases like State of Punjab v. Jasbir Singh [(1996) 1 SCC 288] and Himachal Pradesh v. Pirthi Chand [1996 (2) SCC 37] have shared the opinion that the evidence collected in an illegal search is not inadmissible in evidence under the Indian Evidence Act. The illegality of search will not make the evidence collected bad in law and same would be admissible at the trial. The Evidence Act prescribes relevancy as the only test for admissibility of evidence.

This issue was finally considered by Constitution Bench in State of Punjab v. Baldev Singh (AIR 1999 SC 2378). After detailed analysis the Bench has summed up the discussion by holding that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 cannot be used as evidence of proof of unlawful possession of the contraband on the accused.

4.3. Scope of expression ‘search of person’ under Section 50:

A careful reading of section 50 would propose that a broad and clear distinction is to be made between the cases where the illicit article was recovered from places other than the person of the accused and the cases where the contraband was alleged to have been concealed on the person of the accused. The safeguards under section 50 are attracted to protect cases falling in the later category only. In other words, section 50 rights are available against body search.

In Kalema Tumba v. State of Maharashtra (AIR 2000 SC 402) the SC was of the view that if a person is carrying a bag or some other article with him and contraband is recovered from it, it cannot be said that it was found from his ‘person’. Search of baggage of a person is not the same thing as search of a person.

In Madan Lal v. Himachal Pradesh (AIR 2003 SC 3642) where nothing incriminating was found on personal search of the accused, but the contraband was found during search of the vehicle. Under these circumstances, it was held that safeguards under section 50 do not extend to search of a vehicle or container or bag or premises.

In Himachal Pradesh v. Pawan Kumar [(2005) 4SCC 350] the police party nabbed the accused while he was trying to run away from the bus which was being checked by the police. A search of the accused and the bag was conducted and contraband was found inside the bag. The Court considered whether protection under section 50 would also apply to bag, briefcase or container etc. being carried by the suspect. The Court has held that inextricable connection test cannot be applied in such cases and the word ‘person’ would mean a human being with appropriate coverings and clothing and also footwear.

The opinion of courts differ in applying section 50 in cases where the search is made of the body of the accused and his belongings (bag, vehicle etc.) and the incriminating articles are recovered from spots other than his body. Similarly whether safeguards under section 50 extends to search of articles in bags or other luggage carried by the person by treating them in his immediate possession or in his physical possession.

In Union of India v. Shah Alam [(2009) 16 SCC 644] the contraband was recovered from the bags carried by the accused persons. Subsequently, their personal search was conducted and nothing was recovered from their person. The Court has followed the ratio of Dilip v. State of Madhya Pradesh [(2007) 1 SCC 450] and concluded that since the procedure under section 50 of the NDPS Act were not complied with at the time when the ‘personal search’ of the accused was conducted, they are liable to be acquitted.

On the contrary in Jarnail Singh v. State of Punjab (AIR 2011 SC 964) ‘personal search’ of the accused was conducted which followed search of his bag and contraband was recovered from his bag but nothing incriminating was recovered on personal search. The accused person has argued that the safeguards provided under section 50 were not complied with but the Supreme Court by applying the ratio of Kalema Thumba and Pawan Kumar has held that Section 50 was not attracted at all in this case.

The Constitution Bench in State of Rajasthan v. Parmanand (AIR2014SC1384) has made effort to streamline the law on this point and held that if the search is conducted merely of the bag carried by the person without any search of his person, section 50 of the NDPS Act will not be attracted. But, section 50 will apply if the bag and his person both are searched regardless of the fact that nothing incriminating was recovered from the personal search.

In Namdi Francis Nwazor v. Union of India [(1998) 8 SCC 534] the Court has observed that if the incriminating article was found from the hand bag carried by the person, it would still be a search of

Court rulings this observation in Namdi Francis case has been characterised as obiter (See, State of H.P. v. Pawan Kumar (AIR 2005 SC 2265); State of Haryana v. Ranbir @ Rana (AIR 2006 SC 1796).

In Gurbax Singh v. State of Haryana (AIR 2001 SC 1002) the Court has held that right of search under section 50 is extension of right conferred under section 100(3) of the Codeand that section 50 would be applicable only in cases where the search of the person is carried out.

4.4. Search of Females:

Sub section (4) of section 50 prescribes procedure for search of females suspected in possession of contraband. It mandates that female shall be searched only by female officials. Even conducting such search utmost decency should be maintained and the dignity of the female should not be jeopardised.

The personal search memo prepared on the spot must invariably mention name of the female officer who carried out the personal search of the woman concerned.

Other than these provisions sub section (5) and (6) were inserted in section 50 by the NDPS (Amendment) Act, 2001. Sub section (5) provides that “when an officer duly authorised 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.” Sub section (6) requires that “after a search, the officer shall record the reasons for such belief which necessitated such search and within 72 hours send a copy thereof to his immediate official superior.”

The rigour of strict procedural requirement under sub section (1) of section 50 seems to get diluted in circumstances mentioned in these sub sections. But the safeguard provided under sub section (6) would deal with such situations by making it imperative and obligatory to forward a copy of the reasons recorded for his belief. The procedure under these sub sections can be restored only in emergent situations. They shall not be employed as a matter of course.

5. Bail under NDPS Act:

The general principles of grant of bail are not applicable is case of offences under the NDPS Act.

Section 37 makes all offences under the Act cognizable in nature which confers power on police to arrest any person without warrant. Sub section (2) of section 37 provides that the limitation mentioned in clause (1) shall be in addition to the limitations provided under the Code or under any other law for the time being in force on granting bail. The limitations under sub clause (2) are applicable in case the offence is one or the other in the nature provided under sections 19, 24, 27A and also for all offences involving commercial quantity.

Though the marginal heading of section 37 uses the expression ‘non bailable’ but the body of the section is silent about whether offences under the Act are bailable or non bailable. It is not disputed that the Statement of Objects and Reasons of the Amendment Act, 1989 which amended section 37 also provide that the offences shall be cognizable and non-bailable. In this regard the Kerala High Court in Mathew v. State of Kerala (2008(3) Crimes 451(Ker.) has observed that

“It is not necessary to search for the principles of law applicable. It is axiomatic in the interpretation of statutes that when the enacted provisions of the statue in the body of the statutory provisions show a particular conclusion, the head note or the objects and reasons cannot nullify or modify the effect of the enacted provisions in the body of the statute...”

To consider any case for bail for offences under these sections or offences involving commercial quantity following conditions must be fulfilled

i) Opportunity is given to Public Prosecutor to oppose the bail application;

ii) the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence; and

iii) that he is not likely to commit any such offence while on bail.

The Allahabad High Court has observed that the bare perusal of section 37 would show that in the matter of bail the provision will prevail over the provisions of the Code only in respect of the offences mentioned therein and in other offences the provisions of the Code regarding bail will apply. The restrictions placed under section 37(1)(b) are mandatory in nature and non observance of the same while allowing bail application will render bail order invalid. The power to grant bail under section 439 of the Code is not only subject to conditions prescribed under the Code but also subject to the limitation under section 37 of the Act. The expression ‘reasonable grounds’ in section 37(1)(b)(ii) though not defined but refers to something more than prima facie grounds which indicate existence of such facts and circumstances which justify that the accused is not guilty of the offence [Abdul Aziz v. State of U.P. 2002 CriLJ 2913 (All.) and Union of India v. Rattan Mallik (2009) 2 SCC 624].

5.1. Relevancy of purity of drug while considering bail application under section 37:

The Supreme Court has opined that the trial courts while dealing with bail applications may consider the quantity of contraband recovered as one of the factors for grant or refusal of bail. Since the quantity of drug plays major role in considering any case to be fit for bail under section 37 it becomes pertinent to understand that what constitute ‘commercial quantity’ and how to calculate the quantity of the contraband seized. Even the sentencing scheme under the Act uses quantity of contraband as parameter to determine length and rigour of the punishment. Depending upon the quantity of contraband seized, the offences under the Act are categorised under small quantity, commercial quantity or less than commercial quantity but more than small quantity.

Therefore, it becomes significant to know that while determining the quantity of the contraband seized whether the percentage of pure drug is taken into consideration or the entire material seized.

Some Courts have taken the view that total weight of the mixture including prohibited substance seized would be considered for determining whether the quantity seized is small quantity or commercial quantity and not the percentage mentioned in the FSL report. The Courts were of the view that the pure drug content in the entire mixture will be irrelevant for the purposes of determining the quantity of the drug.

The Supreme Court examined this issue in E. Micheal Raj v. Narcotic Control Bureau [(2008) 5 SCC 161] where the pure drug content of contraband in the mixture was found to be less than the commercial quantity. The question before the Court was if the weight of the entire mixture is considered it will fall in commercial quantity and if the pure drug content is used as the yardstick it turns out to be non-commercial quantity.

The Supreme Court held that while determining the quantity of a contraband drug in a mixture containing such drug or substance mixed with any other neutral substance, the weight of such neutral substance is not to be taken into consideration and only the ‘actual content by weight’ of the contraband drug is relevant for the purposes of determining small or commercial quantity.

Even for imposition of the punishment the content of the contraband drug should be considered and not the entire mixture.

Appositely, such finding of the Court was based on the legislative intent behind the 2001 Amendment to the NDPS Act which brought in a rationalized sentencing structure based on the quantity of the prohibited drug recovered from an accused person.

The Court referred to the Statement of Objects and Reasons behind the Amendment Act of 2001 and stated that:

“It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment.

Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material... The intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.”

This decision was followed in State of NCT of Delhi v. Ashif Khan @ Kalu [(2009) 4 SCC 42] and Nikku Khan @ Mohammadeen v. State of Haryana [2011 CriLJ 4365 (SC)] where the accused was found in possession of contraband drug mixed in neutral substance. The Court has awarded lesser punishment by invoking the ratio of E Micheal Raj case that the pure quantity of the contraband was

The Government of India in exercise of its power so conferred by section 2 of the NDPS Act has issued a Notification in 2009 (Notification S.O. 2941(E) dated 18^th November, 2009) to effect following amendment in the Notification of 2001 (Notification S.O. 1055 (E) dated 19^th October, 2001). The relevant part of the Notification is reproduced below:

“In the table at the end after Note 3, the following note shall be inserted, namely:

(4) the quantities shown in Column 5 and Column 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.”

While the Notification of 2001 covered cases of mixture of two narcotic drugs and combination of more than one drug and psychotropic substance, it was silent in cases where the mixture was of one narcotic drug or psychotropic substance with neutral material. It was to remove this anomaly that the Notification of 2009 was issued. It is also believed that such Notification has been issued to alter the position of law laid down by the Supreme Court in E. Micheal Raj case.

Power of the Central Government to issue such Notification was questioned before the Delhi High Court in Abdul Mateen v. Union of India [(2012) 194 DLT 425 (DB)]. It was observed by the Bench that the case of E Micheal Raj was decided prior to coming of Note 4 which has been added by virtue of Notification of 2009. As far as power of Central Government is concerned it has been authorised under the Act to notify the quantity representing the small quantity or commercial quantity for each narcotic drug and psychotropic substance. The definition of ‘preparation’ in section 2(xx) further takes the case in favour of the Central Government. The word ‘preparation’ means any solution or mixture in whatever physical state containing one or more narcotic drug or psychotropic substance. It can be inferred from this that if the mixture has only one narcotic substance then the other material will be a neutral material. Hence it can be concluded that the Central Government has been given power under the Act to specify the quantity with respect to entire mixture and not just its pure drug content.

Finally the Bench has clarified that the decision in E. Micheal Raj has come at a point of time when this so called ‘loop hole’ has not been plugged and therefore the view of this Court is in no way contrary to the Supreme Court.

The NDPS (Amendment) Act, 2014 has cleared all the doubts revolving around this issue. The Statement of Objects and Reasons appended to the Act clearly stated that the intention behind the amendment was to undo the effect of the Supreme Court dicta on pure drug content. It stated:

“The Amending Act of 2001 rationalised the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. Such provisions have sometimes been misinterpreted to imply that in determining quantities, only the pure drug content in the quantum of drug seized should be reckoned. Since the Act duly provides for punishment for preparations of drugs also, this amendment seeks to clarify the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not the pure drug content.”

6. Summary:

It is quite clear from the preceding discussion that the NDPS Act which is generally known and referred as draconian law with harsh punishments has equipped with many procedural safeguards to prevent misuse or arbitrary use of power by the authorities under the Act. The later amendments to the Act have also stressed on bringing procedural due process by suggesting changes in the regime of search, seizure and bail. Scrapping the provision for mandatory death sentence is also a reflection of judicial attempts to make the legislation humane in nature. Differential treatment of drug traffickers, drug paddlers and drug addicts in the matter of sentencing is also a step towards bringing a rationale sentencing scheme.