Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 I-21 Chapter-heads I-25
Step 1 : Information should be reduced into writing by of the Act, who has actually received the informationMandatory
Alkaloids present in opium poppy including opium and poppy straw
drugs explained
drugs explained
substances explained
of narcotic drugs for relief of pain and suffering
‘The multilingual dictionary of narcotic drugs and psychotropic substances under international control’ Single Convention on Narcotic Drugs, 1961 (the dictionary) 110 the dictionary
International Union of Pure and Applied Chemistry (IUPAC) nomenclature
Filing of prosecution complaint/charge sheet after obtaining 115
“Is investigation in NDPS cases complete without CRCL/ FSL report of the recovered and seized substance?” 115
Obligation of the prosecution to report and certify that recovered and seized substance, on the basis chemical analysis test report, does not fall under the ambit of the Act
Whether bail orders can be cryptic?
Whether the conditions of bail imposed by the High Court, in the usual course, can be relaxed or interfered in exercise of its jurisdiction under article 136 of the Constitution of India by the Supreme Court of India?
145
146
147
Some other issues arising out bail orders and the observations of the Hon’ble Supreme Court/Hon’ble High Courts 148
Unaccounted and illegal possession of opium-grant of bail 346
Restraint in movement and control of movement during panchnama proceedings - When the person accused of the offence is to be produced before the magistrate 349
Violation of other provisions of other acts and intimation to other agencies - Precautions to be taken 349
Entering India on fake passport and seizure of 100 grams of heroin - Whether entitled to bail 351
Designer drugs or new psychoactive substances
Offence under the Act
Inter-relation between NDPS Act, 1985 & Drugs and Cosmetic Act, 1940
in relation to Drugs & Substances
Legal requirements to carry out activities/operations lawfully
Applicability of Foreign Trade Policy (FTP) 459
Applicability of the Customs Act, 1962 460
Applicability of PMLA, 2002 460
Can a proceeding initiated under the PMLA, 2002 survive when even after investigation into the scheduled offences comes into a close, by virtue of the fact that the Ld. Trial Court discharges or acquits the accused? 460
Panchnama/mahazar/seizure memo/seizure list, should be prepared on the spot 487
Opening of the baggage of the passenger by the team members when her personal search is being takenWhether allowed and connected issues with the baggage cases? 487
“Reasons to believe’’ explained 492
Search under warrant or authorisation 493
Personal knowledge or information may relate to any of the following offences 494
The search warrant or authorisation to search a building, conveyance or place under section 41 of the Act, can be issued when the following conditions are met 495
Search without warrant or authorisation 496
The search of building, conveyance, place, etc. under the Act may involve, any of the following situations/circumstances 498
Search of a person 501
Legal right under section 50 of the Act 501
Whether a female suspect is required to be searched by 502
Whether a notice under section 50 can be oral? 503 person 504
Exercise of option to be searched before the nearest Magistrate 506
Section 50 through the prism of Hon’ble Supreme Court landmark judgments 506
Latest position in view of the judgment on section 50 507
Exception under section 50 508
Interpretation of the word ‘’taken’’ in section 50 explained 508
Various situations and circumstances when the search of a person is taken 509
Preparation of list pursuant to search of a person 512
Search of building, place, animal or conveyance 513
Difference between section 42 and section 43 of the Act 513
Analysis of section 49 of the Act
Use of animal for concealment of drugs
Rummage or search of vessels
or search of aircraft
of lockers
of automobile
Search of licenced factory premises
Special care while busting illicit drug manufacturing units/ illicit labs manufacturing drugs/legal pharmaceutical companies diverting controlled substances 522
CHAPTER 14
Seizure meaning
of
Note : Document excludes passport
Whether the Passports Act, 1967 is applicable to Foreign Nationals and accordingly whether it would also include within its domain the impounding and cancellation of such passports?
Procedure where seizure not practicable
How to overcome the provision of section 25 of the Indian Evidence Act, 1872 while recording a statement of a person accused of an offence under section 67 of the NDPS Act, 1985? 552
Can summons issued under section 67(c) to a person be quashed by a High Court ? 554
Interplay of the provisions of Customs Transit Declaration (CTD) issued under the provisions of the Customs Act, 1962 for goods destined to Nepal with the provisions of the NDPS Act, 1985 and maintainability of the writ petition for release of the trailer(vehicle) to the hirer 557
Interrogation 559
Meaning & objectives of interrogation 565
Recording of statement under section 67 of the Act 566 In this book, the usage of the phrase ‘police empowered basically are responsible for maintaining law, public order from the other empowered departments such as NCB, DRI, State Excise, Customs, etc., who have been referred to as 567
Discrepancies in the prosecution’s case, prosecution unable to connect the evidence available to the guilt of the accusedEffect of the same 570
Can an appeal against conviction could be treated as infructuous merely for the reason that the convicted appellant had served out the sentence awarded by the trial court? 578
CHAPTER 16
ARREST
Legal provisions 581
Purpose of arrest 581
Consequence of arrest 582
Offences warrant arrest 582
Arrest memo 583
Guidelines in compliance with the directions of the Hon’ble Supreme Court in ‘D.K. Basu v. State of W.B.’ 583 Bail 584
Jama Talashi 585
CHAPTER 17
Legal purpose 586
Place & time of drawal of sample 587
In terms of section 3(a)(i) and (ii) of the Cr.P.C., 1973, the term magistrate shall be construed in relation to an area outside a metropolitan area, to a judicial magistrate and in relation to a metropolitan area, as a reference to a metropolitan magistrate 587
Procedures 587
Manner of drawal of samples 588
Despatch of samples 592
Designated laboratories to whom the samples to be sent 592
Custody of duplicate samples 592
Re-testing of samples 592
Appeal against judgment passed not in commensuration with the gravity of the offence and in spirit of the sentence stipulated under various sections of the Act
Criminal Appeal Under Section 374(2) of Cr.P.C. 1973
At what stage does the court discharge a person
Lodging of separate FIR/Case in furtherance of information obtained under section 173(8) of Cr.P.C., 1973 - Whether permissible? 661
Filing of single complaint/charge sheet involving multijurisdiction circumstances explained
CHAPTER 21
Provisions of bail under the Act 663
Whether an anticipatory bail application would be maintainable by an accused who is already arrested and is in magisterial custody in relation to another crime? 665
Grant of anticipatory bail - Applicability of Tofan Singh’s judgment 665
SLP in the Hon’ble Supreme Court and its repercussions 666
Whether parity can be pressed into service as a sole ground for grant of bail under the NDPS Act, 1985? 671
Grant of bail on account of wrong reportage by FSL/CRCL 678
Concept of default bail 679
Interplay between section 36A(4) of the Act and section 37 of the Act 680
Whether the report of Public Prosecutor (PP) should be submitted before the expiry of 180 days seeking extension of detention under proviso to section 36A(4) of the Act? 682
counted? 688
Whether government holidays are to be excluded for the sheet/challan? 688
Whether a person accused of an offence under the Act having waived of his right to seek default bail and his application for bail being rejected on merits, can he seek default bail belatedly? Alternatively, whether a person his bail application which came to be decided on merits, default bail belatedly? 689
sheet” should be sought 690
Non-service of notice to the person accused of an offence
follow explained 690
Rejection of the application for extension of time limitConsequences that follow explained 691
Analysis of parallel provisions under MCOC Act 693
Duty of courts to inform the accused of the rights for default bail 694
Whether any condition of deposit of amount as imposed can be imposed by the trial court/High Court? 694
supplementary charge sheet after having been enlarged on default bail? 695
during the period 695
When is the police report said to be complete and taken cognizance of? 702
Interplay of sections 468 and 473 of Code of Criminal Procedure, 1973 (Cr.P.C, 1973) vis-a-vis the provisions of NDPS Act, 1985 707
Cancellation of default bail - Explained 709
Suspension of sentence pending the appeal, release of accused - Convict on bail 712
Grant or refusal of bail, in a case involving commercial quantity of contraband substances under the NDPS Act, 1985 in respect of under trial prisoners 717
CHAPTER 22
Adversarial system 751
The manner of conducting trial, as has been brought out herein above in para 22.1 gets buttressed with the judgment of the Hon’ble High Court of Delhi in the case of Nafe Singh and others 754
Fundamentals in trial 759
Trial in NDPS cases 760
whether admissible? 761
Admissibility of document 763
original petition before the Hon’ble High Court under section 482 of the Cr.P.C., 1973 763
section 200 of Cr.P.C., 1973 on account of the fact that some other persons who might have committed the offences, but were not arrayed as accused and were not charge sheeted? 765
Rights of an accused to defend himself in a court of law by using the provisions of section 91 of Cr.P.C., 1973 767
Whether the accused has right to seek production of documents, under section 91 of the Cr.P.C., 1973 at the stage of framing charge, which are in custody of investi-
with the report? 769
Preserving of CDR along with tower location of raiding 772
How
give evidence in court? 773
Detaining authority 845
Grounds of detention 845
Execution of detention order 845
Communication of grounds of detention 846
Language of communication 848
Absconding persons 848
Advisory boards 849
Period of detention 850
Section 37 of the NDPS Act vis-a-vis the PITNDPS Act 850
CHAPTER
PART IV
PHARMACEUTICAL INDUSTRIES
Narcotic drugs & psychotropic substances
861
Narcotic drugs including ‘Essential Narcotic Drugs’ 864
Psychotropic substances 867
Controlled substances 868
Provisions under the D&C Rules, 1945 869
Huge recovery of 12 lac tramadol tablets - Non-booking of case under the Act - Transfer of case to the Central Bureau of Investigation 871
PART V
KNOWLEDGE ENHANCEMENT TOPICS
TOPIC 1 Opioids Versus Cannabinoids 877
TOPIC 2 Cannabis Plant - Myths, Realities, and Laws in India 881
TOPIC 3 CBD Oil Versus Hemp Seed Oil 892
TOPIC 4 Electronic evidence admissibility and proof required thereof 901
TOPIC 5 909
TOPIC 6 Vexatious entry, search, seizure or arrest - Free and fair investigation-protection of action taken in good faith-interdependence thereof - Dealing in drugs by empowered 917
TOPIC 7 Controlled delivery 926
TOPIC 8 Offences by Companies 932
TOPIC 9 Commission of offence under the Act by Juvenile 936
TOPIC 10 Use of animals as courier of drugs or for concealment of drugs 944
TOPIC 11 The Repatriation of Prisoners Act, 2003 read with Transfer of Prisoners (Republic of India) Regulations, 2006 in Drugs Cases 950
TOPIC 12 Inter play amongst the provisions of (i) the Foreign Trade (Development and Regulation) Act, 1992 & Foreign Trade Policy 2015-20 framed thereunder, (ii) Drugs and Cosmetics Act, 1940 & the Rules made thereunder, (iii) the NDPS Act, 1985 & the Rules made thereunder and (iv) the Customs Act, 1962 956
TOPIC 13 Procuring Independent witnesses - How to overcome by using the provisions of section 56 of the Act 965
CHAPTER
STEP-BY-STEP PROCEEDINGS & DOCUMENTATION IN DETECTION----->
OF NDPS CASES IN A CONDENSED FORM
Enforcement operations under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 against an individual or an entity are initiated in instances when there is sufficient information available to reasonably believe that a breach of narcotic drugs law enumerated in the Act has been committed or being committed by non-compliance or evasion of the prohibitory provisions of the Act, which resulted in commission or would result in commission of offence(s) punishable under the provisions of the Act.
The offences under the Act being more serious in nature, stringent punishment has been provided under the Act and consequentially a higher degree of proof by prosecution is required to convict an accused. Mere detection of an offence by making seizure of contraband drugs or substances and arrest of the person(s) involved in the prohibitory activities do not establish the guilt of the person in trial before the court under the NDPS Act, 1985.
The crux of the various judgments of the Hon’ble Supreme Court of India and High Courts with reference to secure legal punishment of a person, accused of an offence related to any narcotic drug or psychotropic substance or controlled substance falling under the ambit of the NDPS Act, 1985 are -
The offences under the Act being more serious in nature higher degree of proof by prosecution is required to convict an accused.
The standard of proof required to prove the guilt of the accused on prosecution is ‘beyond all reasonable doubt’.
PART I : PREVIEW
The procedural law including the mandatory provisions under the Act empowered under the Act, while conducting or undertaking each and every enforcement operations under the Act namely search, seizure, arrest, investigation etc., so that no doubt is created on the guilt of the accused at the end of the judicial process.
Proper documentation and contemporaneous records of each step strengthens the prosecution case.
The ‘FLOWCHART’ of various enforcement operations in preceding chapter gives a glance of enforcement provisions with reference to practical implementation of the provisions of the Act. The present chapter summarizes the issues right from the receipt of information/detection of case to prosecuting the accused in the competent courts. This chapter is knowledge-enhanced version of the preceding chapter deals, in more details of each stage in ‘FLOWCHART’ with reference to different situations and circumstances of a case and consequential compliance of law and procedures.
For ‘control of supply’ of narcotic drugs, psychotropic substances, controlled substances and ‘Suppression of Illicit Trafficking’ in narcotic drugs and psychotropic substances, the Act empowers various departments of the Central Government and the State Governments to exercise the powers under the Act and to act as Drug Law Enforcement Agencies (DLEA). The Act further empowers certain rank of officers of the departments empowered under the Act to exercise the powers of search, seizure, arrest, investigation, prosecution etc. No officer other than an officer empowered under the Act can exercise the enforcement powers provided in the Act.
Detection of cases under the Act fall under three categories viz.
(I) on the basis of prior secret information; or
(II) on the basis of prior personal knowledge; or
(III) by chance/accidental detection of commission of an offence.
The Empowered Officers are required to comply with the prescribed procedures of law in all the above categories of detection of commission of an offence under the Act. The settled procedures of law are required to be strictly adhered to by the officers from the stage of receiving of prior information on commission of an offence or from the stage of personal knowledge about the commission of an offence or from the stage of by chance/accidental detection of commission of an offence as the case may be, to the stage of filling of prosecution complaint/ charge sheet before the competent Court.
Information - May be received from any person (public, officer/official of same organisation or other empowered organisation or non-empowered organisation) by any of the following officers/officials :-
A. section 41(2) of the Act; or
B of the Act; or
C. administration/establishment, sepoy, constable, peon etc.]; or
D. under section 41(2) or section 42(1) of the Act [Income Tax, Enforcement Directorate, Forest department etc.].
The process of gathering or collection or receiving of secret specific information relating to commission of an offence under the Act involves, different situations depending on when and by whom the information is gathered or collected or received. The Act provides procedures of recording/reducing the information into writing in different situations, which are mandatory in nature. These situations are :--
1.
empowered under section 41(2) of the Act in writing. The person (informant), may or may not disclose his/her identity on the written information. However, his/her(informant), left thumb impression/right thumb impression
PART I : PREVIEW
with date and time should be obtained on written information and signed said written information ; Or
reduce the information into writing, under his signature and designation, mentioning therein the date and time of recording the said information and should not pass on the information received by him to his subordinate 1
under section 42(1) of the Act in writing. The person (informant), may or may not disclose his/her identity on the written information. However, his/her (informant), left thumb impression/right thumb impression with date and time should be obtained on written information and signed by said written information; Or -
self reduce2 + 3 + 4 the information into writing under his signature and designation, mentioning therein the date and time of recording the said information.
information as ‘’secret information’’. Furthermore, information received as a part of follow up action, which are in fact forming part of a single transaction, should not be passed on as ‘’secret information’’. 3.
under section 41(2) or section 42(1) of the Act, over phone. Such inforwho has received the information over phone.
1. See BAIL No. - 10163 of 2019 decided on 24.07.2020 by the Lucknow Bench of the Hon’ble Allahabad High Court in the case of Vinay Kumar Mishra v. Union of India through Zonal Director, NCB, Lucknow.
2. Readers should note at this stage the usage of the word ‘’person’’ in section 41(2) and section 42(1). The word ‘’person’’ is used as an ‘’informant’’(i.e. who gives or passes on information) and it is in the fact that the advocate representing the accused could agitate the matter before the Trial Court in trial proceedings or for grant of bail before the Trial Court or in jurisdictional High Court.
3. In the case of v. NCB 2020 (7) TMI 312 - Delhi High Court, the Courier Agency (Fedex) had detained the said packet and information in this regard had been provided to the NCB. This was passed on as ‘’secret information’’ by the I.O., NCB. The Hon’ble Delhi High Court in para 36 of its judgments has held as under:
4. who is not empowered under the Act. The Act, does not provide recording on the information by following manner: Either
(i) section 41(2) or section 42(1) of the Act without any delay. The from the person (informant). The person (informant), may or may not disclose his/her identity on the written information. However, his/her(informant), left thumb impression/right thumb impression, with date and time should be obtained on the written information date and time of receipt of written information; Ortion into writing under his signature and designation, mentioning therein the date and time of recording the information. Or
( ) ( )
4. MOKIBE MR LEPILE MOSES @ PATRICK UMECHUKWU v. Narcotics Control Bureau in CRL. A. 220/2016 & CRL. M. (BAIL) 1664/2017 & CRL. M. (BAIL) 7725/2020 decided by the Hon’ble High Court of Delhi on 22.2.2021 and reported as 2021(2)TMI 1047 DELHI HIGH COURT. In Para 63 of the judgment, it was held as under:
‘’63. Apart from the above, there is also an issue as to the receipt of secret information as noticed above. Clearly, there was no secret information that was received by PW4 and there is no evidence to such effect. Yet, secret information had been recorded on a slip and put up before the Superintendent, who accepted the same and issued the authorisation for the search’’.
PART I : PREVIEW
(ii) pass1+2 on the said information immediately received by him, to anwriting, under his signature and designation, mentioning therein the date and time of recording the information. The empowered been received by him. Or
(iii) The person (informant), may give information in writing to the such information in writing, should forthwith sign on the written information, mentioning therein his designation, time and date of also make a record of name and designation of the non empowered received by him.
1. See Hon’ble Bombay High Court’s judgment dated 22.05.2020 in Criminal Revision Application No. 83 of 2019 reported as [2020] 116 taxmann.com 729/273 Taxman 23 (Bom.) (other citation: 2020 (5) TMI 534-Bombay High Court) in the case of Anant Vardhan Pathak @ Anant Satish Pathak v. NCB, Mumbai. Anant Vardhan Pathak @ Anant Satish Pathak, the applicant in CRIMINAL REVISION APPLICATION NO. 83 OF 2019 before the Hon’ble Bombay High Court, aged 25 years at the Income Tax Department, conducted a search and seizure operation at Room No. 667 of Taj Palace Hotel, Mumbai on 7.1.2014 in connection with the affairs of the group companies controlled by Yash Birla. During the course of the said operation, Anant Vardhan Pathak @ Anant Satish Pathak, was found in the said room along with co-accused namely Dharmu Rathod. During the course of the said search and seizure operation, one of the co- accused was found in possession of eight small self-knotted transparent polythene pouches containing white powdery substance kept in it in a safe, which was available in the said room, in the presence of the public witnesses. The came, and directed the raiding party to await further instructions as regards the said substance and carry on income tax search proceedings. The contraband was kept in an empty electronic safe in the presence of public witnesses. It was locked. The safe was opened on 10.1.2014 when the
commenced on 7th January 2014 and concluded on 10th January 2014 at 10:30 p.m. An annexure to the said panchnama recorded that during the said search operation, some substance which
( )
by a communication dated 10.1.2014. The said letter dated 10.01.2014, in turn, records that in the course of rummaging the room No. 667 in Taj Palace Hotel, Mumbai wherein the accused No.1 was present, the raiding party came across some substance which appeared to be drug. Request was thus made to the Zonal Director of respondent No.1 to verify the substance and initiate action as may be found appropriate. Thus, the challenge to the tenability of the prosecution on the ground
not empowered under the NDPS Act, did not merit acceptance in the Order dated 22.1.2019 passed by the Special Judge, NDPS, Greater Bombay, on an application for discharge in NDPS Complaint Case No.49 of 2014. Hence, Anant Vardhan Pathak @ Anant Satish Pathak moved a Criminal Revision Application NO. 83 of 2019 before the Hon’ble Bombay High Court.
collecting and keeping the contraband in the safe custody on 7.1.2014 constitutes a seizure? The Hon’ble Bombay High Court, speaking through N. J. JAMADAR, J, passed a judgments dated 22.5.2020 covering all aspects of the submissions of the counsel for the applicant/petitioner. After going through a catena of case laws including the State of v. 2014 (4) SCC 780 wherein, in the context of compliance of the provisions contained in section 50 of the Act, the Supreme Court considered the question : whether the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of section 50 of the NDPS Act? Placing reliance upon the earlier judgments in the case of State of v. [1994] 70 ELT 481 (SC) and the Constitution Bench judgments in the case of State of Punjab v. Baldev Singh 1999(6) SCC 172, the Supreme Court held that the question posed in that case was no longer and answered the same in the negative. In the process, the Supreme Court explained the concept of chance recovery. Paragraph 13 thereof reads as under :
meaning seems to be a recovery made by chance or by accident unexpectedly. In v. “stumbles on” narcotic drugs when he makes a search. In v. charas. This was treated as a “chance recovery”.”
Thereafter, the Hon’ble Bombay High Court, repelling the arguments put forth by the counsel for suspicious substance, in the circumstances, cannot be clothed with the character of ‘seizure’, in
of the communication dated 10th January 2014 is required to be considered through this prism.”. The Hon’ble High Court went on to further hold that “’the question of the delay in communication with the authority of the respondent No.1, in the backdrop of the fact that the contraband was
credibility of the claim of the prosecution witnesses. However, that is a matter for trial.’’ 2. See v. , in Bail Application No. 3076/2020 decided on 11.2.21 by the Hon’ble High Court of Delhi and reported as 2021 (2) TMI 830 - DELHI HIGH COURT, the FSSAI had opened one plastic package and out of the 10 plastic packages one package was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. The FSSAI is not an empowered department and the onus was on FSSAI to pass on the information to the Customs, which they failed to do so.
Government not empowered under the Act (e.g. Income Tax, Enforcement the department, empowered under the Act. In such cases, the empowered and department, the time and date of receipt of the information.
1. In all the above situations, the veracity, authenticity and reliability of the any action on such information.
3. Additional procedure for the purpose of Reward to the Informer and Gov-
1. When any information is recorded/reduced into writing by a gazetted officer empowered under section 41(2) of the Act, the said officer shall make an entry of the said information report in official record/register before he proceeds himself for further action or immediately after taking necessary action pursuant to the said information, mentioning therein the time and date of entry in the official record/register. Contemporaneous records.
When any information is recorded/reduced into writing by a gazetted officer empowered under section 41(2) of the Act and there is reasonable time for taking action on the basis of said information or reasonable time to issue search/arrest authorisation, the said officer shall make an entry of the said information report and issue of search/arrest authorization in official record/register mentioning therein the time and date of entry of the information report and issue of search/ arrest authorisation in the official record/register. Contemporaneous records.
3. When any information is recorded/reduced into writing by an officer empowered under section 42(1) of the Act and there is reasonable time for taking action on the basis of said information or reasonable time to obtain search/seizure/arrest warrant or authorisation from the Magistrate empowered under section 41(1) of the Act or gazetted officer empowered under section 41(2) of the Act, the said officer empowered under section 42(1) of the Act shall place the information report before the concerned Magistrate or gazetted officer, who on reason to
CH. 2 : STEP-BY-STEP PROCEEDINGS
believe about the authenticity of the said information shall issue the warrant or authorisation, as applicable. In such case the placing of information report before the concerned Magistrate or Gazetted officer is Mandatory. Further, the said officer empowered under section 42(1) of the Act shall also make an entry of the said information report in official record/register before proceeding for obtaining the warrant or authorisation, mentioning therein the time and date of entry in the official record/register. In case of issue of search/ seizure/arrest authorisation, appropriate entry shall also be made simultaneously in proper record/register. Contemporaneous records.
4. When an officer empowered under section 42(1) of the Act enter or search any building, conveyance or enclosed place without a search/arrest warrant or authorisation between sunrise and sunset on the basis of an information received and recorded/reduced by him, he shall within seventy-two hours send a copy of the said information to his immediate official superior. Mandatory
The concerned officer empowered under section 42(1) of the Act shall also make proper record of despatch of a copy of the said information to immediate official superior. Contemporaneous records.
5. When an officer empowered under section 42(1) of the Act enter or search any building, conveyance or enclosed place without a search/arrest warrant or authorisation between sunset and sunrise on the basis of an information received and recorded/reduced by him, he shall within seventy-two hours send a copy of the said information along with a copy of recorded grounds of his belief why the search warrant or authorisation could not be obtained before the entry/ search of the building or conveyance or enclosed place to his immediate official superior. Mandatory.
The concerned officer empowered under section 42(1) of the Act shall also make proper record of despatch of copies of the said information and recorded grounds to immediate official superior. Contemporaneous records.
When an officer empowered under section 42(1) of the Act search, seize, detain or arrest in public place on the basis of an information received by him, he shall record/reduce the information in writing and place/send the said information to immediate official superior at the earliest. Mandatory.
Parallel record thereof may also be prepared and maintained. Contemporaneous records.
In case of entry, search, seizure and arrest under section 44 of the Act on the basis of information on offences relating to coca plant, opium poppy or cannabis plant, appropriate procedures depending on applicability of provisions of section 41, 42 or 43 as discussed above shall be followed which may be Mandatory as
PART I : PREVIEW
discussed above or may be required to create Contemporaneous records as the case may be.
Case laws
1. The Hon’ble of Mohan Lal v. The State of Punjab
381-SC- NDPS) held that, a fair investigation, is the very foundation of fair
Varinder Kumar v. State of Himachal Pradesh
law laid down in Mohan Lal (supra) shall be applicable prospectively, meaning thereby, all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by individual facts of the case.
Doubting the correctness of the decision of the Hon’ble Supreme Court in the case of v. reported as 2018-TIOL-381-SC- NDPS (other citation taking the view that in case the
the trial is vitiated and the accused is entitled to acquittal, initially by order dated 17.1.2019 the matter was referred to a larger Bench consisting of three Judges and the three Judge Bench vide order dated 12.9.2019 has referred to a larger Bench of
31.8.2020 in the case of v. ( ), reported as overruled the judgment rendered in the case of v. reported as 2018-TIOL-381-SC- NDPS (other citation and went on to hold that in a case where the informant himself is the investigator, a person accused of an offence under the Act, would not be entitled to an automatic acquittal. The question of bias or prejudice pleaded before the trial court and upwards would entirely depend upon the facts and circumstances of each case. The Hon’ble Supreme Court further held that -
offences under the Act. To take a contrary view would tantamount to amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible. Meaning thereby, the Court cannot import words into the statute.
(i) Besides search warrant or authorisation, the search team is required to be equipped with other items which are essential during the course of
search and seizure of contrabands at the spot viz.
should invariably made part of the complaint/charge sheet. The time and date of issue and return of the seal shall be recorded in a register [Seal Movement Register] which shall also be kept in safe custody of the said
Similarly, the time and date of issue and return of the Field Drug Detection/ sealing materials packaging materials, electronic weighing balance for of narcotic drug or psychotropic substance or controlled substance in the contraband recovered during search proceeding and weighment of the recovered/seized contraband(s) etc., shall also be recorded in a register
Such movement maintained in the Equipment Movement Register shall be appropriately projected in the complaint/charge-sheet.
In addition to the above, the Equipment Movement Register should also be used to record the movement of laptop and the mobile printer (both duly purchased and recorded in the Dead Stock Accounts), when they are taken out for an operation. Contemporaneous records.
(ii) In case of search of premises/conveyance/person etc. involving a foreigner/a person who may not understand/read/write any language
an interpreter should be arranged before initiation of search and the search-seizure proceedings should be conducted in presence of the interpreter besides witnesses who shall interpret the communication
foreigner/person during the entire proceedings of search, seizure and documentation. This fact should also be recorded in documents prepared/generated during the search-seizure proceedings.
