Proof of facts under Narcotic Law 1

CHANAKYA NATIONAL LAW UNIVERSITY

Evidence law Proof of Facts Under Narcotic Law

SUBMITTED TO

Mr. p.k. pandey

SUBMITTED BY:

Sanni kumar Roll no. 454 ,4th SEM. B.A LL.B(HONS)

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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 thank Mr. P.K. Pandey who had given me an 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.

Sanni kumar

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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.5-7 2. IMPORTANT SECTIONS & OFFENCES...8-10 3. PUNISHMENT UNDER NDPS ACT..11-14 4. IMMUNITIES UNDER THE NDPS ACT...14-15 5. PROCEDURE....16-19 6. PROOF OF FACTS UNDER NARCOTIC LAW....20-24 7. 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
rd

Substances Bill, 1985 was introduced in the Lok Sabha on 23 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 2

Ins. by Act 2 of 1989, sec. 2 (w.e.f. 29-5-1989). 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 5

(1980) Cr LJ 165 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)

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 11

Ins. by Act 9 of 2001, see. 3 (w.e.f. 2-10-2001). 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, several procedural 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
12 13

Penalty

Sections of the Act

Ins. by Act 2 of 1989, sec. 3 (w.e.f. 29-5-1989). 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).

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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 Coca16

Embezzlement of opium by licenced farmer

Rigorous imprisonment -10 to 20 years + fine Rs. 1 to 2 lakhs 19 (regardless of the quantity) Small quantity Rigorous Prepared Opium Cannabis opium-17 18 20

Production, manufacture, possession, purchase, import

imprisonment up to 6 months or fine up to Rs. 10,000 or both. More sale, than small quantity but less than transport, commercial quantity - Rigorous

inter-

state, imprisonment. up to 10 years +

Manufactured drugs or their preparations21 Psychotropic

export inter-state or use fine up to Rs. 1 Lakh. Commercial of narcotic drugs and quantity - Rigorous imprisonment psychotropic substances 10 to 20 years + fine Rs. 1 to 2 Lakhs Import, export or Same as above

substances -22

transhipment of narcotic drugs and psychotropic substances External dealings in

23

NDPS-i.e. engaging in or controlling drugs trade Rigorous imprisonment 10 to 20 are years + fine of Rs. 1 to 2 lakhs 24

whereby

obtained from outside (Regardless of the quantity) India and supplied to a person outside India Knowingly allowing 25

one's premises to be Same as for the offence used for committing an

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offence Violations pertaining to controlled (precursors) Financing traffic substances

Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs

25A

and Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs

harbouring offenders

27A

Attempts-28 Attempts, abetment and criminal conspiracy Same as for the offence Abetment and criminal conspiracy 29 Preparation to commit Half an offence the punishment for the

offence One and half times the punishment

30

Repeat offence

for the offence. Death penalty in 31 Death - 31A some cases. Cocaine, morphine, heroin -

Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or Consumption of drugs both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts 27 Immunity - 64A

volunteering for treatment enjoy immunity from prosecution Punishment for

violations not elsewhere specified

Imprisonment up to six months or fine or both

32

SMALL AND COMMERCIAL QUANTITIES

For several offences under the NDPS Act, the punishment depends on whether the quantity of drug 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 Amphetamine Buprenorphine Charas/Hashish Cocaine Codeine Diazepam Ganja Heroin MDMA Methamphetamine Methaqualone Morphine Poppy straw Small Quantity 2 grams 1gram Charas/Hashish 2 grams 10 grams 20 grams 1 kg 5 grams 0.5 gram 2 grams 20 grams 5 grams 1 kg Commercial Quantity 50 grams 20 grams 1 kg 100 grams 1 kg 500 grams 20 kg 250 grams 10 grams 50 grams 500grams 250 grams 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 a Gazetted 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 empowered Departments 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, the grounds 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 superior within 48 hours [section 57]18. IMMUNITIIES FOR DRUG OFFENCES 1. Officers: Officers acting in discharge of their duties in good faith under the Act are immune from suits, prosecution and other legal proceedings (Section 69).

16 17

Subs. by Act 9 of 2001, sec. 7, for sub-clauses (i) and (ii) (w.e.f. 2-10-2001). 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 offences involving small quantities will be immune from prosecution if they volunteer for deaddiction. 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 order to 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 by the 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 Recovery Prosecution Confessions made by accused before Customs authorities During trial confession retracted Conviction by courts below On appeal, held: Conviction not justified In the facts of the case, recovery not proved beyond reasonable doubt Investigation of the case not fair and reasonable There 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 accused Constitution of India, 1950 Articles 14 and 21 Standing Order No. 1 of 1989 Section 3.1- Evidence Act, 1872- s. 114 (e) and (g) Customs Act, 1962 s.110(1B) . ss. 35 and 54 Reverse burden of proof Constitutional validity of Held: Are exfaciedel not unconstitutional A 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 21 Constitutionality 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. 25 Customs Act, 1962 ss. 108 and 138B International 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 6.2Evidence Reverse burden of proof. Evidence Confession Retracted confession Reliance on For conviction under NDPS Act Confession made under s. 108 of Customs Act Plea 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, 1950 Article 20(3) -Penal Code, 1860 ss. 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, 1950 Article 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 two occasions. 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, 410C,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 Ors23 referred 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 23

2008 (2) SCC 370 1999 (7) BCLR 771(CC) 24 2006 UKPC 13 25 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 Prosecutions27 referred 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.

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JT 2006 (12) SC 416 2005 (1) All ER 237 28 http://advocatemmmohan.wordpress.com/2011/10/30/narcotic-drugs-and-psychotropic-substances-act-1985-ss-22-23-52a53-and-53a-possession-of-contraband-recovery-prosecution-confessions-made-by-accused-before-customs-authoritiesduring/

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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. 2. 3. 4. 5. www.google.com www.legalserviceindia.com/article/l176-Narco-Analysis.html www.hindu.com/2007/05/07stories/2007050203861100.hmt www.legalsutra.org

www.india.gov.in/allimpfrms/allacts/2482.

JOURNAL: 1. Criminal law journal, Oct 2009, (Journal section) 2. Criminal law journal, July 2009, (Journal section)

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3. THE HINDU, Saturday 5th Feb. 2005 4. THE HINDU, 30th November 2003