Legal Processes In The NDPS Act Of 1985

Index

1. Introduction: NDPS Act
2. Complaint Process With The Narcotics Control Bureau (NCB)
3. Understanding The Calculation Of Prohibited Substance Quantity In Narcotic Cases
4. Types Of Offender Under The Narcotic Drugs And Psychotropic Substances (NDPS) Act
5. Jurisdiction For Appeals Under The NDPS Act
6. Establishment And Functions Of Special Courts Under The NDPS Act
7. Essential Procedural Aspects To Understand In Legal Proceedings
8. Bail Provisions In NDPS Act Offences
9. Penalties For Consumption
10. Latest Judgements
11. Conclusion 

Introduction: NDPS Act

The Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985 stands as a pivotal legislation in India’s legal framework, aiming to combat drug abuse and trafficking. Understanding the complaint and trial procedures under this Act is crucial for both law enforcement agencies and individuals involved in legal proceedings. From lodging a complaint with the Narcotics Control Bureau (NCB) to navigating the intricacies of bail provisions and the specialised functions of Special Courts, this article delves into the procedural intricacies that define the NDPS Act’s legal landscape.

Complaint Process With The Narcotics Control Bureau (NCB)

The designated officers from departments such as central excise, narcotics, and customs, authorised by the government under the Narcotic Drugs and Psychotropic Substance Act (NDPS), 1985, should receive the report. This report initiates the investigation process, as outlined in Section 36-A(4), which mandates the completion of the investigation within 180 days. However, the Special Court has the authority to extend this period up to one year based on the case’s specifics.

Alternatively, individuals can file a complaint with the Narcotics Control Bureau (NCB) by contacting them through the email address or phone number provided on their official website.

Understanding The Calculation Of Prohibited Substance Quantity In Narcotic Cases

The Narcotic Drugs and Psychotropic Substances Act provides a comprehensive list of banned substances, including both small and commercial quantities. In a notable Supreme Court judgement, guidelines were established for calculating the quantity of these prohibited substances. Specifically, if a prohibited substance is discovered during a search mixed with a neutral substance, the calculation of the substance’s quantity for determining legal consequences will focus solely on the amount of the prohibited substance itself, not the entire mixture.

Types Of Offender Under The Narcotic Drugs And Psychotropic Substances (NDPS) Act

1. First-time Offender: This refers to an individual who is caught and charged with a drug-related offence under the NDPS Act for the first time. First-time offenders may receive more lenient treatment compared to repeat offenders, especially if the offence is non-violent and involves possession or consumption of small quantities of drugs. Punishments for first-time offenders may include fines, mandatory rehabilitation programs, or in some cases, probation.
2. Second-time Offender: A second-time offender is someone who has previously been convicted or charged under the NDPS Act and is caught again for a drug-related offence. Second-time offenders typically face harsher penalties compared to first-time offenders. Penalties may include higher fines, longer periods of imprisonment, or mandatory participation in drug treatment programs. The judicial system often views repeat offences more severely due to the individual’s prior knowledge of the legal consequences.
3. Third-time Offender: A third-time offender is an individual who has been convicted or charged under the NDPS Act on two previous occasions and is caught again for a drug-related offence. Third-time offenders face even more severe penalties than first and second-time offenders. The judicial system considers repeat offences as a serious disregard for the law, and punishments may include substantial fines, longer prison sentences, and limited options for rehabilitation or probation. In some jurisdictions, habitual offenders may face mandatory minimum sentences or enhanced penalties based on the number of prior convictions.

These classifications help legal authorities and courts determine appropriate sentencing and rehabilitation measures based on the individual’s history of drug-related offences under the NDPS Act.

Jurisdiction For Appeals Under The NDPS Act

This appeal can be made to the High Court of the state where the Special Court is situated. As previously mentioned, the Special Court under the NDPS Act holds powers equivalent to that of a Sessions Court. Therefore, according to the Code of Criminal Procedure, the jurisdiction for appealing to the High Court will be from the sessions court.

Establishment And Functions Of Special Courts Under The NDPS Act

The government is mandated to establish Special Courts for expeditious trial of offences outlined in the NDPS Act. These Special Courts will be established in specific areas or as determined by the government through an official notification in the gazette. Notably, these Special Courts are to be considered as Courts of Session under the legal framework.

A Special Court is composed of a single judge, appointed by the government in consultation with the Chief Justice of the High Court. Prior to appointment, the judge must have served as a sessions judge or an additional sessions judge. This ensures that the judge presiding over the Special Court possesses the necessary experience and qualifications.

The jurisdiction of the Special Court extends to all offences specified in the NDPS Act that carry a punishment exceeding three years. Such offences fall under the purview of the Special Court, emphasising the importance of these courts in handling serious NDPS-related cases efficiently.

The Special Court has the authority to take cognizance of offences based on a police report or a complaint filed by an officer of the state or central government. This signifies the Special Court’s role in initiating legal proceedings against individuals accused of violating the NDPS Act.

Additionally, the Special Court is empowered to conduct trials for accused individuals who are charged with offences not only under the NDPS Act but also under the provisions of the Code of Criminal Procedure (CrPC). This broadens the scope of cases that the Special Court can handle, ensuring comprehensive legal proceedings.

During the proceedings before the Special Court, the relevant provisions of the Code of Criminal Procedure, 1973, including those related to bail and bonds will be applicable. This ensures that the legal framework governing criminal trials, as outlined in the CrPC, is upheld and followed in cases under the NDPS Act before the Special Court.

Furthermore, sentences awarded under the NDPS Act, including those related to suspension, remission, or commutation, cannot be altered. This strict provision underscores the seriousness with which offences under the NDPS Act are viewed, emphasising the need for stringent legal measures.

In terms of prosecution, the individual conducting the prosecution before the Special Court is recognized as a public prosecutor, highlighting their official role and responsibilities in presenting the case and seeking justice in accordance with the law.

Essential Procedural Aspects To Understand In Legal Proceedings

The initial aspect is called a pre-trial procedure. It’s functions include :

1. According to Section 42-1 of the NDPS Act, the officer must record information received or personal knowledge in writing.
2. A copy of this written record must be sent to the officer’s superior within 24 hours.
3. If the search is directed by a Magistrate or Gazetted Officer, a search authorization is required.
4. Before conducting the search, the Designated Law Enforcement Officer (DLEO) should persuade two respectable independent residents of the area to witness the process.
5. In case residents refuse, the DLEO must issue a written notice mandating their participation as witnesses. Refusal after this notice would be punishable.
6. The entire search process must be recorded on video.
7. Prior to searching a suspect, the Designated Law Enforcement Officer (DLEO) and their team must issue a notice to the suspect, outlining their legal rights regarding whether the search will be conducted by the DLEO or before a Magistrate or Gazetted Officer. If the suspect opts for the latter, they must be taken before such authority for a decision on the search.
8. If the DLEO believes that taking the suspect to a Magistrate or Gazetted Officer might lead to the loss of prohibited substances or related articles, they can proceed with the search themselves. Afterward, they must record the reasons for this belief and report it to their immediate senior within 72 hours.
9. During the search, if prohibited substances (ND, PS, or CS) are discovered along with money suspected to be proceeds from their sale, they will be confiscated, and samples of the substances must be collected.
10. The DLEO is responsible for preparing a panchnama in five sections, covering substance recovery, document recovery, witness names, and other search details.
11. Following the search, the DLEO must initiate an inquiry and conduct one-to-one examinations with witnesses, the property owner, substance owner, and anyone familiar with the case’s facts. These individuals must provide handwritten statements in a language they understand, endorsing the statement as “before me” and “recorded by me” on the final page.
12. Women should only be searched by female police officers. 
13. The seized substances ND, PS, and CS are disposed of before trial due to their vulnerable nature, which poses a high risk of being robbed, thus undermining the purpose of the NDPS Act.

Another aspect is the procedure during trial.  Their functions include :

1. To initiate prosecution and trial proceedings against an accused person under the NDPS Act, a police report or complaint must be submitted to the special or designated NDPS Court, which is a court of sessions. Upon reviewing the police report or complaint, the court takes cognizance of the offence.
2. The police report or complaint must be filed within 180 days (or any extended period determined by the court) for offences involving Section 19, 24, 27A, or commercial quantity, and within 60 days for other cases.
3. The NDPS Act specifies that the trial in the Special Court will follow the procedures of a sessions court, and the Special Court is vested with the same powers as a sessions court.
4. The prosecution of the case will be conducted by the public prosecutor, who will present the charge and propose evidence proving the accused’s guilt when the accused is brought before the court.
5. After hearing both the accused and the prosecution, and examining the evidence, if the judge finds insufficient grounds for the case, they have the authority to discharge the accused.
6. If the judge determines that the case merits trial, they will formally frame the charge and explain it in detail to the accused. The accused will then be asked to either plead guilty or not guilty.
7. If the accused pleads guilty, the judge will record the plea and may proceed to convict them at their discretion.
8. If the accused pleads not guilty, the judge will set a date for the examination of witnesses and may issue processes to compel witness attendance or document production upon prosecution’s request.
9. During subsequent hearings, witnesses will be cross-examined, prosecution evidence will be presented, and the accused will have the opportunity to present their defence and any supporting evidence, including written statements.
10. The accused may also request the court’s assistance in compelling witness appearance or evidence production, but such requests must not be deemed as delaying tactics.
11. Following the completion of witness examinations and arguments, the prosecutor will summarise the case, and the accused or their representative may respond to any legal points raised. The judge will then deliver a judgement.
12. If dissatisfied with the judgement, the aggrieved party can seek recourse through appeal or revision in the Hon’ble High Court.

Bail Provisions In NDPS Act Offences

All offences under the NDPS Act are cognizable and non-bailable. Individuals accused of specific offences such as those outlined in Section 19, Section 24, Section 27A, or offences involving commercial quantities are not eligible for bail on personal bond unless the public prosecutor has been given an opportunity to oppose the bail application. The accused must also convince the court that they will not commit any prohibited acts under the NDPS Act while on bail.

In cases where an addict is found guilty of offences related to a small quantity of narcotics or psychotropic substances, and the court deems it suitable considering the offender’s age, character, antecedents, or physical/mental condition, the court may, with the offender’s consent, direct their release for medical treatment such as detoxification or de-addiction, instead of immediate imprisonment.

Magistrates hold discretionary power regarding the grant of bail. Offenders can seek anticipatory bail from the Hon’ble High Court under the CrPC.

Failure by the Designated Law Enforcement Officer (DLEO) to complete investigations within the prescribed time frame can lead to delayed filing of a complaint, which automatically grants the accused the right to seek bail. The quantity of contraband recovered is among the factors considered for bail eligibility.

Penalties For Consumption

The consumption of certain substances is considered punishable under the law. If the consumed substance is cocaine, morphine, diacetyl-morphine, or any other specified narcotic drug or psychotropic substance, the punishment can include rigorous imprisonment for up to one year, a fine of up to twenty thousand rupees, or both. For any other narcotic drug or psychotropic substance consumed, the punishment may include imprisonment for up to six months, a fine of up to ten thousand rupees, or both.

Latest Judgements

1. In the case of Moly v. State of Kerala, Section 36 of the NDPS Act aims to establish Special Courts to expedite trials. It suggests that if a sessions court handles cases under this Act, it defeats the purpose of ensuring swift trials.
2. According to the ruling in State of Punjab v. Balbir Singh, officers empowered under Section 43 are not required to document their reasons for suspicion. Section 43 does not mandate such documentation, especially when acting on prior information before conducting a search or seizure.
3. As per the judgement in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, if the officer in charge receives information about the consumption, use, sale, or storage of narcotics or psychotropic substances in a sealed or enclosed space, they must document this information in writing and forward it to their immediate superior.

Conclusion

In conclusion, the complaint and trial procedures outlined in the NDPS Act are designed to ensure swift and effective action against drug-related offences. From the initial lodging of complaints with the NCB to the adjudication of cases in Special Courts, every step is geared towards enforcing the law while safeguarding the rights of all parties involved. The bail provisions and specialised functions of Special Courts further contribute to a comprehensive legal framework aimed at combating drug abuse and trafficking, highlighting the Act’s significance in India’s legal system.