Recently, questions were raised about the powers of the police and the protections available to the accused when Delhi’s law minister Somnath Bharti, accompanied by members of his party and the police, conducted an impromptu ‘raid’ on the residence of some African nationals, most of them women. Mr. Bharti supposedly took the drastic step — a raid without a warrant —following alleged police negligence of complaints made by other residents of the neighbourhood, of a drugs-and-prostitution racket in the locality.
Two statutes — Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (“PITNDPS Act”) — govern the offences of the consumption, illegal manufacture, illegal trade, and illegal distribution of narcotic drugs and psychotropic substances in India. The NDPS Act defines offences, prescribes the procedure for investigation including searches, seizure, and arrests, and provides for punishments for each offence. The PITNDPS Act focuses on detention orders.
Both statutes are considered draconian and Indian courts have had to read down their stringent provisions often. For instance, ‘minor offences’ — those offences under the NDPS Act that carry punishments of jail terms less than three years —are now considered “bailable” by the Bombay High Court. In another landmark pro-rights’ judgment, the Bombay High Court found that Section 31-A of the NDPS Act, which provides for the death penalty in certain situations, did not measure up to the procedural safeguards envisaged by the Constitution. It is interesting to note that almost 32 countries in the world prescribe the death penalty for drug related offences, and India is one of these.
Search under the NDPS Act
In the NDPS Act, Chapter V (Sections 41 to 68) enlists the procedure for searches, seizures, and arrests. Under Section 42 — important in the recent context — an officer may search and arrest a person in relation to a drug offence without a prior warrant between sunset and sunrise, only if there is ground to believe that the time required to obtain such a warrant will enable the person to be searched to hide or dispose off the illicit items. In such a case, the officer carrying out the search needs to record his grounds for carrying out the search before conducting the search, along with the information on which his actions are based and send this to his superior officer within seventy-two hours. Section 43 of the NDPS Act provides for searches and seizures in public places (such as hotels and modes of conveyances).
Article 22 of the Constitution of India encapsulates the fundamental rights of an arrested person to be informed of the grounds for an arrest, to be produced before a Magistrate within twenty-four hours, and to mount a defence. This constitutional protection finds application in the NDPS too.
Under Section 50, a person has the right for the search to be conducted in front of a Magistrate or a Gazetted officer. Further, the officer carrying out the search must inform the person being searched of their right to have a Magistrate or a Gazetted Officer present when the search is to be carried out. Moreover, all searches of persons must be done after they have been clearly informed of their rights. Recently in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, the Supreme Court stated that any conviction based on the recovery of an illicit item in a search conducted without informing the accused of this right would stand vitiated. It is also a legislative requirement under Section 50(4) that only women police officers may search women.
Protections during arrest
Under Section 42 of the NDPS Act, a person may be arrested without a warrant, on the suspicion of the commission of a drug-related offence. Such an arrest, however, must be immediately followed by the provision of a written order outlining the grounds of arrest and the production of the arrested person before a Magistrate.
The Code of Criminal Procedure, 1973 (“CrPC”), sets out the general criminal procedure related to most penal offences and fills in the gaps left by the NDPS Act and the PITNDPS Act. Under the CrPC, an arrest may be made by a junior police officer without a valid warrant upon a written order containing the substance of the order for arrest. The person under arrest must be produced before a Magistrate without delay and under Section 41(1)(a) of the CrPC, a person may be arrested without a warrant if there exists ‘reasonable suspicion’ of such a person being ‘concerned’ in a ‘cognizable offence’ (where arrest may be made without a warrant). Needless to say, offences under the NDPS are cognisable.
In recent times, India’s domestic law enforcement has shown signs of disquieting vigilantism. It is a common practise during raids for the police to require all persons present at the venue of the raid to submit to blood or urine tests. This practise is completely extra-judicial. There is no mention in the NDPS or in the PITNDPS of the immediate testing of a person in relation to a drug-offence. Unlike some other laws, such as the Motor Vehicles Act, 1939 that provides for testing for the presence of alcohol in offences of drunk driving, there are no legal provisions under the NDPS Act to permit testing for drug use.
Time and again, the judiciary has asked for strict interpretation and application of stringent laws such as the NDPS, in order to minimise the risk of human rights’ violations. Body searches of an invasive nature, and sampling of urine or blood amount to a violation of the integrity of the human body. Such acts need to be authorised by law. Without specific provisions enabling such actions by law enforcement officials, investigations become fishing expeditions in the murky waters of human rights violations. Just last year, the Supreme Court laid down extensive guidelines on the interpretation and application of the legislative provisions relevant to testing such samples in Thana Singh v. National Bureau of Narcotics. The Court also highlighted the lack of adequate Central Forensic Science Laboratories that could possibly carry out such tests with minimal interference.
While the common practise of the law enforcement authorities to subject persons to such ‘tests’ without legislative or judicial authority is high-handed, it is yet to be more strictly monitored. On the other hand, a legal provision that regulates testing strictly in drug-related offences can also be a used by suspects, since innocence can then be proved on the basis of scientific fact.
Foreigner or not, it is important to know one’s rights when faced with accusations of having committed an offence under a strict legal machinery in place to combat drug trafficking. It is hoped that those tasked with formulating, upholding, and interpreting the law, ensure procedural safeguards at every stage of the criminal justice system in favour of the accused.
(Suhasini Rao is part of the faculty on myLaw.net.)
Note: The post has been edited once since publication.
4 replies on “Drug-related offences: When midnight raids without a warrant and urine and blood tests are illegal”
I completely understand the detailed provisions of law illustrated in course of your article. But i couldnt find any conclusion as to the illegality or the lack of it in the actions taken by Delhi’s law minister . Kindly comment on the matter as you have explained in the NDPS act search without warrant in extreme situation can be conducted and motor vehicles act allows for analyses as to whether occupants of a vehicle is DUI.
I could not figure out from the article that you are saying whether the alleged “raid” was legal or illegal. Though on sampling I understand you are against it.
There is also a factual error in your analysis, more coming from the news report that actual event. – Mr. Bharti did not raid. He called the police. In strict legal parlance – He informed the police. – thereby gave police the first information – that should have been the FIR. What happens thereafter is the action that the police is supposed to take. –
It is when the police did not take action. that the events got heated up. a youtube search of raw video of what really happened that night would give you a much clearer picture. – there is this one video, where the three african ladies are put in a car. at one stage – you could see one of them rubbing a white powder in her gloves/ hands.
In another video an african lady runs away and is chased by a lady constable. – when the lady is apprehended, there is no protest. no shouting. nothing. – doubts arise whether on the way she disposed off some drugs on her person.
Whatever law that you have cited, – minor offences being term as bailable – well that is pretty logical. mostly because all offences which the punishable with less than 3 years are bailiable. – not because they are draconian. but because thats how CrPC classifies bailiable and non bailable offences. (most, not all)
A blood sample/ urine sample are against the law ?
Thana Singh case is about sample testing and not sample collection. Also from whatever little I understood the case talks about sample of the seized goods and not sample of blood/ urine.
Another point is – sample collection may be illegal. but under indian law, even illegally collected evidence – if relevant is not to be ignored. – so if sample is collected and it turns out to be positive – that the sample was collected illegally is no defense.
A congress leader – ND TIwari was forced to give a sample. Point is- sometimes such samples are required to be given .
While, I totally understand and appreciate your argument with respect to testing and the jury is out there on what is right way and what is not.
I strongly disagree that the raid per-se was wrong.
There was an offence. The police was informed. the police now had the “first Information” and hence the FIR.
Their only job now is to investigate. to check the veracity of the FIR/ complaint.
the person complaining is not some random person. – that one can counter argue that police cannot possibly check/ investigate each and every complaint made. but when the police has been specifically called at 3AM, on a specific information of the law minister. – they have to investigate.
Had the police simply done their job – and nothing would have come, that would have put the minister under even more embarrassment. but then had the police done their job, everyone would have known how right the minister is!
As of now, the true facts of the case have not been made public through official channels.
Of focus should be the question whether the due process of the law was followed.
Were the persons that were searched informed of their right to have a Magistrate present during the search?
Under what legal provisions were tests carried out/ samples obtained, especially since the NDPS does not provide for either of these in the text of the Act?
Most importantly, were the persons that were searched provide with the grounds of the search and was there, subsequently, a written report provided to the appropriate authorities, as per legal provisions?
Why have a legal system at all when Saurabh can just declare, “There was an offence.” ?
And of course, the police *have* to investigate when the law minister says so, and in the manner and extent to which the law minister says so. And its okay to knowingly commit illegal acts (forced testing) when the conclusion was foregone-according-to-Saurabh. And liability for those illegal acts would of course be borne by the police, which is fine.
Should it be okay for police to randomly raid homes looking for black money?
Should it be okay for police, on the say-so of the law minister, to blood test every student in IIT for signs of cannabis use?
What about every student of NLSIU? NALSAR? What about the faculty?
Should it be okay for police, on the say-so of the law minister, to blood test every lawyer in Tis Hazari for traces of cannabis?
What about information from other people?
What bout information supposedly from anonymous people?