Final Project of Evidence

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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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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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/ndpsact


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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 interstate,

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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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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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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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.html


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3. THE HINDU, Saturday 5th Feb. 20054. THE HINDU, 30th November 2003

Final Project of Evidence

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