To control the production, dissemination, and use of drugs and psychotropic substances, the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act“) criminalises any such activity that is not expressly permitted.
The definitions of the terms ‘narcotic drugs’ and ‘psychotropic substances’ are wide. ‘Narcotic drug’, under Section 2 (xiv) of the Act, includes coca lead, cannabis (hemp), opium, poppy straw, and all goods manufactured from these materials. ‘Psychotropic substance’, under Section 2 (xxiii) means, “any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule”.
This Act, through Section 8, prohibits the cultivation of any plant which comes under the definition of ‘narcotic drug’ as well as the production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, import inter-state, export inter-state, import into India, export from India, or transshipment of any narcotic drug or psychotropic substance.
Essentially, the law warns against dealing with any drug or psychotropic substance without specific authorisation. It only permits such authorisation to be provided for medical and scientific purposes.
Presumption of ‘culpable mental state’
Section 35 of the NDPS Act mandates that the court shall presume the “culpable mental state” where such a culpable mental state is relevant for prosecution. “Culpable mental state” under this Section means intention, knowledge, and motive, which are intimate parts of acts such as sale, transport, production, import, export, and possession under this Act. If drugs for example, are found in someone’s car, that person’s intention is presumed as far as possession and consumption is concerned. Depending on the facts of the case, this intention and motive may be extended to the transport and sale of the drugs. This reverses the burden of proof.
Of course, such presumption would only arise once the basic evidentiary burden of establishing a link with the offence has been established. The Supreme Court had observed in Bhola Singh v. State of Punjab, (2011) 11 SCC 653, referring to its judgment in Noor Aga v. State of Punjab and Another (2008) 16 SCC 417, that “as this Section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the initial burden to prove the foundational facts that Section 35 would come in to play.” As such, the burden of proving the ‘foundational fact’ beyond reasonable doubt remains on the prosecution.
Of course, the Section also states that the accused can always prove that such a culpable mental state did not exist, but that proof also has to be beyond reasonable doubt. Section 35(2) of the Act states this clearly and specifies that the applicable standard on the accused shall be that of ‘beyond reasonable doubt’ and not that of ‘preponderance of probablities’. Section 54 creates another presumption, regarding the possession of illicit articles. There is a presumption of the commission of an offence under the NDPS Act if a person cannot account for the possession of any narcotic drug, psychotropic substance, or any apparatus or material used for their manufacture. As such, possession in NDPS cases is often all that is required to be proved. In 2009, the Supreme Court upheld the constitutionality of Sections 35 and 54 in Noor Aga.
Wide powers of search and seizure
Sections 40 to 49 of the Act give wide powers of search and seizure both to Magistrates and to empowered officers (these could be police officers above the rank of Constable and officers of the Revenue, Excise, Drugs Control Departments, and other departments that have been authorized). Essentially, any empowered officer, if they have reason to suspect any link with offences under this Act, has the power to search persons, enter buildings, search transport, and seize any materials that they suspected are linked to an offence under the Act.
While much of this power is untrammelled, defence lawyers often use Section 50 of the Act. It mandates that a person, before being searched, has to be given a caution that he has the right to be searched by a gazette Officer or the nearest Magistrate. Since the penalties mandated by this Act and the procedure for trial are so harsh, the courts have taken this right very seriously. A constitution bench of the Supreme Court held in Vijaysinh Chandubha Jadeja v. State Of Gujarat, (2011) SCC 609, that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act was not borne out from the language of Sub-section (1) of Section 50. “The question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”
Practically, however, searches continue to be on the spot and compliance with Section 50 (in case of a personal search, as opposed to the search of a vehicle or a building) remains one of the most contested issues in an NDPS trial.
Admissibility of statements recorded during investigation
Section 53A of the Act provides for the admissibility and relevance of statements recorded by officers of the Revenue, Customs, and any other empowered departments during the course of the investigation. Section 67 (and Section 108 of the Customs Act) empowers authorised officers to summon documents, examine any person, and to record their statements. The issue here is whether the bar under Section 25 of the Indian Evidence Act, which is a strict bar against the admissibility of any confessional statement to the police, applies in such cases also. The Supreme Court has held in Noor Aga that such statements would be inadmissible for being barred by Section 25 for the reason that Section 53 of the NDPS Act deems any person investigating under this Act to be a deemed police officer. There is also a contrary judgment of the Supreme Court in Kanhaiyalal v. Union of India, AIR 2008 SC 1044. These conflicting positions taken by two division benches of the Supreme Court has been referred to a larger bench in Tofan Singh’s case (Criminal Appeal No. 152 of 2013) and is awaiting a hearing.
Section 37(b) of this Act is similar to provisions found in some harsh penal statutes such as the UAPA and the MCOCA (and the PMLA’s bail provision that the Supreme Court recently struck down). Section 37(b) states that where the offence involves a commercial quantity (this quantity varies according the drug involved), or where the offence is one regarding activities outside India (Section 24), or where the offence involves trafficking or harbouring offenders (Section 27A), or where it involves embezzling of opium by an authorised cultivator (Section 19), bail is not to be granted unless the Court is satisfied that there are “reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.” Ordinarily, the experience of bail under the NDPS, even in cases where Section 37(b) does not apply, has been that it remains a stricter affair than in regular cases under the Indian Penal Code.
Immunity from prosecution
While Section 307 of the CrPC empowers courts to issue pardons to an accused for turning approver during the trial, Section 64 of the NDPS Act empowers the government to grant immunity from prosecution to individuals who can assist in an inquiry or trial. The discretion is that of the government but like other administrative actions, is open to scrutiny by a writ court. As held by the Hon’ble Supreme Court in Jasbir Singh v Vipin Kumar Jaggi, (2001) 8 SCC 289, “the power conferred on the NCB is not an arbitrary one. Reasons are required to be recorded in writing. Needless to say, the reasons would have to be appropriate and germane to the object sought to be achieved by the exercise of such power.” It is pertinent to mention here that the trial court cannot overrule the grant of such immunity.
Penalties under this Act range from short imprisonment to the death sentence (in case of certain categories of repeat offenders). However, penalties depend on the amount of incriminating material recovered, that is, whether it is a small or a commercial quantity or a quantity that falls in the middle. The punishment increases with the quantity. These quantities differ from substance to substance. For instance, a commercial quantity for cannabis is 1 kg but the commercial quantity for cocaine is 100 grams. A small quantity for cannabis is 100 gram while the same for cocaine is 2 grams. The government, through a recent notification, had stated that regardless of purity, the physical weight of the recovered material (regardless of whether it is pure) should be the sole determinant. Essentially, this means that if cocaine is mixed with some other substance, it would be considered a commercial quantity if it weighs 100 gm on a scale, even though the actual percentage of cocaine might be just 25 grams. The Supreme Court has referred this issue to a larger bench in Hira Singh v. Union of India (Criminal Appeal No. 722 of 2017).
Sarim Naved is a Delhi-based advocate.