6th SEPTEMBER 2015 PSHOTROPIC AND NARCOTICS SUBSTANCES ACT

Law Commission Report
The Narcotics Drugs And Psychotropic Substanc
LAW COM MISSION OF mm/x

ONE I IUNDR,}:iD F lF'I'Y~l*'l1*' TH IUj3'P0ART

ON

.NAI'(COTI('§'. DRUGS AN D Ii'SYCjl%lC)'%l'!{(i)Pl(_7

SU I3S'"l'A?N(3F,S /\('jT"l', 1985
('/\(ff"I" NO. 61 (_)l'" 1985)

JULY, 1997



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JUSTICE

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D.O.No.1"(3)(3§}/96--LC(LS) Julv _ 
Dear Hon'ble Minister,
l have great pleasure in forwarding herewith tht./~ 

Report on the Narcotic Drugs and Psychotropic Substetncegs ,»\-7=',.

Drug; abuse was become one of the curses of the Rc'r','iF','

is a ."flC:'l{'ucC'i which threatens public life and leads to CiCZ§%."':"i"""

not only oi the family' but also of the society. There is a 
control this malady. It has been felt that the Narc tic i7l't3,{--.
Psychotropic Substances Act, F985, despite amendment '
1988, has not yielded the desired results. "'

 

the Law

has, therelore, considered it necessary to undefiake a   

Narcotic Drugs and Psychotropic Substances Act, i983.

 

In order to elicit public opinion on the s '/
Commission circulated a questionnaire setting out various :'i."~,'D-","'
the subject under study. The Commission also organised :1 x\.«>~"'
at Goa and a National Seminar on Criminal Justice in Intlie: ;'
Delhi '.*-:h'e1"ei.r. the various aspects of law relating to control  via--~+
have been discussed.

    

The recommendations have been made with ax i./inA..'.'  :~h~»
loopholes anti make the [)l'OVlSiOPS more elleetive. 'tie ht'-g'<.': Hm
recosmnentiatit:-ns, if implemented, will control the rnalnrig.-'
considerabie extent.

with 1'eg.;ards,

< K.J;"\\5'x\{IIII/'\t£I)R;\ :?:c 

Hon'ble Shri Ramakant D.Khalap,
.\lini.'tcr of State for Law :3: Justice,
Snastri lfihavan,

.\ew l3c:,ll':i.



CHAPTER I

CHAPTER II

CHAPTER III

CHAPTER IV

CHAPTER V

CHAPTER VI

ANNEXHRE I

ANNEXURE II

ANNEXURE III

ANNEXURE IV

ANNEXURE V

ANNEXURE VI

_I . E.-_N.__J _ 8.

INTRODUCTION

MENACE OF DRUG ABUSE AND DRUG

TRAFFICKING.

CONSTITUTIONAL GOALS AND THE
INTERNATIONAL COMVENTION ON DRUGS.

NARCOIIC DRUGS AND PSYCHOIRUPIC
SUBSTANCES ACT:

MANDATORY AND DIRECTORY PROVISIONS:
DUTIES OF EMPOWERED OFFICER.

CONCLUSIONS AND RECOMMENDATIONS.

.A,N.['.1.E £48 E .8

THE QUESTIONNAIRE ON THE NHPS ACT,

A REVIEW.

PAGES

ACT, 1985 ISSUED BY THE LAW COMMISSION.

COMMENTS RECEIVED ON THE
QUESTIONNAIRE ISSUED BY THE LAW

COMMISSION.

THE PUNISHMENTS PROVIDED FOR
OFFENCES UNDER NDPS ACT,
AMENDED BY ACT NO.2 OF

NATIONAL DRUG ENFORCEMENT
STATISTICS AS ON 31.8.1996
(PROVISIONAL).

PROCEEDINGS OF THE WORKSHOP HELD

AT GOA.

PROCEEDINIS OF THE WORKSHOP HELD
AT TVEW ITETJTI.

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101-120
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CHAPTER I

1 NI.E?.QD_,Qll,QN

1.

1 Administration of Criminal Justice System.

with the evolution of mankind from primitive stage to the stage of social welfare state, the _administration of criminal law has assumed great importance. As long as the human beings were “God–fearing” and had faith that their actions were being watched by the “ALMIGHTY” the need for the administration of criminal justice was not felt. However, with the passage of time and the people becoming more materialistic, a section of the society consisting of misguided and disgruntled human beings lost faith in the “ALMIGHTY” and started thinking that their actions could not be seen by anybody. These misguided persons indulged in criminal activities which led to the necessity for administration of criminal justice. In addition, the activities to be termed as “criminal activities” have also undergone change with the passage of time. what was regarded not harmful fifty years ago has become the greatest evil of the day in view of changed circumstances, new researches, new thinking and modern way of life.

1.2 Emergence of white collar crimes. The crimes are generally of two kinds:

(a) Traditional crimes affecting individual persons, like murder, theft, assault, etc.;

(b) White Collar Crimes ‘or Socio Economic Crimes affecting the public at large like smuggling, hoardings, adulteration, illicit trafficking and sale of narcotic drugs and psychotropic substances etc. white collar crimes are of recent origin and may be defined as all illegal acts committed by unlawful means –the purpose being to obtain money or property or business or personal gain or profit. Such crimes are committed by the organised gangs having influence. some of the salient features of the white collar crimes are as under:–

(a) there is no social sanction ‘against such white collar crimes;

(b) these crimes are committed by organised gangs equipped with most modern technology;

(c) there is generally a nexus between the politicians, law enforcing agencies and the offenders indulging directly in such crimes;’

(d) there is no organised public opinion against such crimes; and ..:3 E’

(e) the traditional crimes are isolated crimes, while the white collar crimes are part and parcel of the society.?

1.3 Drug Trafficking and illicit use of Narcotic Drugs and Psychotropic Substances.

The genesis and development of the Indian drug trafficking scenario are closely connected with the strategic and geographical location of India which has massive inflow of heroin and hashish from across the Indo-Pak border originating from “Golden Crescent” comprising of Iran, Afganistan and Pakistan which is one of the major illicit drug supplying areas of the world.3 On the North Eastern side of the country is the “Gold Triangle” comprising of Burma, Loas and Thailand which is again one of the largest sources of illicit opium in the world.’ Nepal also”is a traditional source of cannabis, both herbal and resinous.5 Cannabis is also of wide growth in some states of India. As far as illicit drug trafficking from and through India is concerned, these three sources of supply have been instrumental in drug trafficking. Prior to the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments. The principal Central Acts were (a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) the Dangerous Drugs Act, 1930.

Substances Act, Drugs The preamble to the Narcotic Drugs and Psychotropic 1985 provides as under:

An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.”

The Statement of Objects and Reasons for the Narcotic and Psychotropic Substances Act, 1985(NDPS Act) laid down as under:

“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 organised gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine with repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the courts with nominal punishment. 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 the 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 also India has acceded.”

In view of what has been stated above, an urgent need was felt 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 abuses, 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 is a party.

The effect of iiiicit trafficking and use of Narcotic Drugs and Psychotropic Substances.

The iiiicit trafficking in Narcotic Drugs and Psychotropic Substances has ied to drug addiction. The anguish of the Supreme Court of India was expressed in case “Durand Didier v. Chief Secretary, Union Territory of Goaa

the foiiowinq words:~ “with deep concern, we may point out thnt the organised activities of the underworid and the cinndestine smuggling of narcotic drnqn and psychotropic substances into this country and iiiegai trafficking in such drugs and substances have led tn drug addiction among a sizeabie section of the iiiiiil i (2, i)iif’i.i «Iii! sir i y i.iir~ £1(i() lriri(:ciii1.:: ;i:irJ i1i;i1ririii1.’: (Ji both sexes and the menace has assumed sorioun and ninrminq proportions in the recent yours. ihnrvioro, in order to effectiveiy controi and eradicntn the proliferating and booming devastating menace, hflufllhg deleterious eftects and deadiy impact on the society as a whoie, the Pariiament in its wisdom, ha: made effective provision by introducing this Act Bi of 1985 specifying mandatory minimum impritwnmunt and Finn. Thu nnntanco of ‘ tan ynnru riqnrunn imnrinnnmnnt and Lhn iinn ni Hw.i,nn,nnn/ wiih Lnn <i(\f’:iLii L (3 i:iii::(i, zisz iH()(ii F irari tiy Liiri iii (iii r;(iiir 1., ririrsn not cnii For interference.”

1.5 However, innpito of enactment oi the HHPH Ant as amended in 1989, the menace of drug trafficking and drug abuse is on the increase and the conviction rate in cases under this Act is extremeiy iow. From this it appears that nithnr the innouunt nornonn nrn hoinn hunt to Lhw LHHILH or there is some procedurai defect or deficiency which benefits the acciised to get acquittal from i,iHf*. (‘,f)lii’ In ‘-/ire.-w of the deep concern at the growing incidence of drug abuse occurring in different parts of the country to piug the ioophoies in the law and procedure for combating iiiicit trafficking and, among others, to eifectiveiy deal with drug oFFenders the Law Commission has suo motu taken up the ntudy of the Fo1iowing:–

(n) to study the mnnnco oi Lhu drug nhnuo nnd drug trafficking nnd its effect on youth in India;

(b) to scrutinise the Directive Princinlnm ni Ctntn Poiicy enshrined in the Constitution of Tndin and the provisions of Internntionai Conventions on Narcotic Drugs and Psychotropic substances;

(c) to understand the magnitude of the Drohiem of iiiicit trafficking and use of narcotic drugs and psychotropic suhstnncan ViHWH”Vi!1iiH’ hiiirmitinn in tho NDPU Act;

id) to nnwminw Lhn rwinvnnt iroviuionn oi Lhw nnwx i Act and their interpretation by the Courts and (0) to identify the flrllQrl(J!rlFEfll’,!’. r”0(‘JlllY”,(i for morn-

effective implementation of the NDPS Act.

1.6 In order to elicit public opinion on the subject, the Commission circulated a questionnaire onNDPS Act to the Registrars of High Courts, Presidents of High Court Bar Associations and District Courts Bar Associations, Home Secretaries of all States and Union Territories, Police officials and Chairmen of State Law Commissions, setting out various aspects of the subject under study. Comments received on the questionnaire are summarised in Annexure II. The Commission had also organised Seminar on “Criminal law and Narcotic Drugs Psychotropic Substances” in collaboration with the Government of Goa on 18th January, 1997 at Panaji, Goa and “National Seminar on Criminal Justice in India” at Vigyan Bhavan, New Delhi on 22nd & 23rd February, 1997. In the seminar, judges, jurists, advocates, law professors, magistrates, public prosecutors and police officers expressed their views on various aspects of the subject. The Commission while formulating this report has taken into consideration the views expressed at the seminars.

FOOT NOTES CHAPTER-I Barowaiia J.N., commentary on the Narcotic Drugs and PsxchotrcsficSubstances Act, 1985 (1992) pp. 614-615.

Ibid S.V.Joga Rao, “Law and Po11cy on Drug Trafficking: A Phenomeno1og1ca1 study with specia1 reference to Banga1ore City”, 35 JILI (1993) p.56.

Ibid.

Ibid.

A.I..R. 1989 S.C. 1966 at 1971.

CHAPTER II MENACE OF DRUG ABUSE AND DRUG TRAFFICKING 2.1 The use of narcotic drugs for scientific and medicinai purpose.

The use of narcotic drugs and psychotropic substances for scientific and medicinai purpose is indispensabie. For the preparation of a number of iife saving drugs like morphine, pethadine and tranquiiisers, these drugs and substances are required. India is one of the ieading producers of opium in the world for medicinal and scientific purposes. Due to the use of narcotic drugs and psychotropic substances for scientific and medicinal purposes, the production of the same cannot be banned aitogetner, but the production can be controiied and reguiated by the government to prevent iiiicit trafficking and iiiicit use of the same.

2.2 The menace of drug abuse.

Drug addiction has become one of the curses of our times a menace which threatens pubiic health an: results in the dissolution of human personaiity, promoting conditions for various forms of human degradation, whose consequences spread to crime and iawiessness. One of its tragedies iies in its morbid assaui: on youth resuiting more o’:en than not in mental disorientation and emotional derangement, pushing the victim towards a fate from which there is seldom any hope of recovery. The evil is insidious and operates secretly and it often comes to be known to others only after the addict has crossed the point of no return. The consequences are farwreaching, because in attacking the younger generation of a country, it destroys the flnwwr «f a nation’s future. History provides many examnlen mf the wilful subversion of a nation’s culture~ its social valuem and ‘its integrity by the systematic corruption of its youth through smuggled drugs. The dangers following illicit traffic in narcotic drugs have been recognised worldwide, and so agitated is the conscience of the world COmmUHlTy that they are now the subject of International Convention.’ For the effective implementation of legal and social measures to tackle the problem of drug addiction, it is necessary to ascertain the causes of drug addiction which can be detailed as under:

(a) Drug War.

The drug war is being fought by some other countries on our land with our men, money and.our materials. The drug addicted boy is more prone to be a criminal and tho nwflmfllfia are there that the Indian youths are being made drug addicts niui thrwi giivcui (h uch: niui vuiniuinri wliilr~ nlwidiiiq thrnn inivy tn Indian territory to use the same to make more addicts and to xi r’«~;i l.L= 1 i}! i k)l i e: L. :\<: t.i \/ i 1; i (313 . l lit: r usl”< ii :2 , «: l.i iv .l, zir. 1, i’)! l l rx required to check these activities.

(b) Organised gangs of the smugglers.

Drug addication is the result oi the work of gangs of smugglers who want to create demand for the supply of their narcotic drugs and psychotropic substances and if the demand is more the prices for the narcotic drugs would be higher (“Hi lll l.ili:’. way l.h«: .1-.lllll£_i{.’]’i¢’.*li”. mm r<:.’~.huh:-.lhlt= lur rlrtu; addiction. This type of activities of smugglerm also requires strict nation.

(c) Personal or family reasons.

There are some personal or family reasons leading to drug addiction which can be detailed as new experiment, curiosity, bad environment, lack of family care, lack of discipline, hippy or peer cult, to escaping from their realities of life and having some pleasure and thrilling experience. This type of drug addiction requires reformative approach to bring addicts hack into the main stream of life.3 2.3 The menace of drug trafficking.

The trafficking in illegal drugs means to amass illngnl wealth in n short time, which in an nnt hi pnriidy which no society can condone. Traffickers in illicit drugn have been described as “merchants of death and destruction”. /\ Hill r (it’ i'<i r’ lllil)/ la i l “l r llll’ r) r” l;v/ri ;i« tr (2 firl!. , illli, :: rl r air; i,.l.’li’i’ii_’.i\(H’ Li(‘i§i.f’i))’1′- Llm livmg; ml l,liui.1:;:.ii’i(.l:, ml lmyz. nrwl (iir l’.

at the some time, to whom he supplies the drugs, hy pushing them to a stage from where there is no return and thereby not only ruining them and their families but also the llilt icdl.

2.4 Drug abuse and AIDS.

The menace of drug abuse has become more serious in recent times due to spread of HIV virus in India. nnx of victims of AIDS can be linked with drug abuse. HIV can be acquired in three ways – (a) through sex, (bl through blood and (C) by birth from parents suffering from Hlv. As far as acquiring of HIV through sex is concerned, the drug nddictfi are more exposed to the same because a drug addicted boy or girl can pay any price and unminufully can go to the nyinnt of even in indulging in sex abuse. HIV can also he acnuired by the drug addicts through blood while sharing of the needles. A stage comes when drug addicts rvqH5r” intravenous injections of drug to get kick and quick nifuct and such an addict is not mentally sound at that ntnqn and can use any needle timely aveilable and thereby prone to acquire HIV if the needle was previously used by any pernon infected with HIV.

2.5 An Appraisal.

iur dealing with the WHHHLH nl’druq uhunn nnd iilirit trtiffinthiiiq tflierriin riun tn ;ie0§y”apiiicr1l lr;p:H,inii of Irmliu lififlvofin ‘W7(H iH7N li?I.fihI]|.E” mild “CKELJDFFJ CH€fFHJFiiI”, ttu: nnaicxr sources for i11icit opium and its derivatives, their markets being in western countries, the danger of India being a transit rout is aiways there which has its own impact and effect locaiiy particu1ar1y on the youth because the suppiy for them becomes easier. Therefore, it is imperative to take stringent measures by bringing about suitabie amendments in the NDPS Act by making it more effective to combat this menace.

FOOT NOTES CHAPTER – II See foreward of Mr. Justice R.S. Pathak, former Chief Justice of India ‘and former Judge, International Court of Justice, to Barowa1ia’s Commentary on the Narcotic Drugs and Psychotropic Substances Act, 1985 (1992) Barowalia J.N.’s 1ecture in Nationa1 Seminar on Drug Abuse he1d in Sardar Va11abh Bhai Pate1 Nationa1_ Po11ce Academy, Hyderabad (3rd May, 1974).(Unpub1ished) CHAPTER III CONSTITUTIONAL GOALS AND THE INTERNATIONAL CONVENTION ON DRUGS 3.1. The Directive Princip1es of State Po1icy.

The Directive Principies of State Policy enshrined in part IV of the Constitution of India are fundamental in the governance of the country as Baid down in Artic1e 3? of the Constitution, which is reproduced beiowz “The provisions contained in this Part sha11 not be enforceabie by any Court, but the princip1es therein Taid down are neverthe1ess fundamental in the governance of the country and it shaii be the duty of the state to appiy these principies in making iaws.”

The Directive Principies can be described as sacared and inaiienabie as they represent the poiicies and the programmes which the tate shouid achieve. whi1e the Fundamentai Rights impose a duty on the State not to vioTate them, the Directive Principles of Statae Po1icy impose corresponding duty on the State to appiy them in making the laws For the weifare of the people. The objectives underiying both in the Fundamental Rights and in the Directive Princip1es of State Po1icy are equa1Ty important and go together and represent the kind of the society which we wish to create in India. One of the Directive Princip1es of the State Po1icy enshrined in Artic1e 47 of the Constitution of India 1ays down as under: “The State sha11 regard the raising of the 1eve1 of nutrition and the standard of 1iving of its peop1e and the improvement of public hea1th as among its primary duties and, in particu1ar, the state sha11 endeavour to bring about prohibition of the consumption, except for medicina1 purposes, of intoxicating drinks and of drugs which are injurious to hea1th.”

3.2. Internationa1 Conventions on Narcotic Drugs 1912-1953.

To contro1 and regu1ate the supp1y of opium and other narcotic drugs, the fo11owing Internationa1 Conventions were entered into between 1912-1953:-

1912. Internationa1 Opium Convention (the Hague, 2–3,1912).

1925 Agreement Re manufacature, internationa1 trade and use of prepared opium (Geneva, 13.7.1925).

1931 Concention manufactaurae and distribution of narcotic drugs (Geneva 13.7.1921) Agreement Re Opium smoking in the Far~East (Bangkok 1936 Convention for the nupreenion of illicit CFTlffi(1 iii d:nigerxuin (iFlH]R (finruavai 2h.€1.1’H4fl) 1946 Protocoi Amending the 1912, 1925, 1U?1 and 1936 instruments (lake Snnuonn, 11.1?.i”4t) 1948 Protocoi extending the 1931 Convention to synthetic narcotic drugs (Paris, 19.11.*qAn) 1953 Protocol Re cultivation of the opium Poppy and production Trade and use of Opium (New York, 23.6.1953).

3.3. Single Convention on Narcotic Drugs 1961.

In the second haif of 20th cnntniy. the whitn Lmiiwi crimes assumed alarming proportions. Under white collar crimes aiso the ‘drug addiction’ and the ‘i11icit traffic in narcotic drugs and psychotropic substances’ became such a menace that the dangers foiiowing iiiicit traffin in naracotic drugs affected the worid community and the name hnunmw tho snhjont of intninntinnnl Cnnvvntinna. India in u

4.H’1″

pxriy to the “flinqin Cnnvnntinn on Hd1MhLiL Minn , I ,1 , the preamble of which briefly out–lined the importance of effective measures against abuse of narcotic drugs in the following words:

“The parties, concerned with the health and welfare of mankind, Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes, Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind, Conscious of their duty to prevent and combat this evil, Considering that effective measures against abuse of narcotic drugs require co–ordinated and universal actaion, Understanding that such universal action calls for international co–operation guided by the same principles and aimed at common objectives, Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned should be within the framework of that organisation.

Desiring to conclude a generally acceptable internationai convention repiacing existing treaties on narcotic drugs, iimiting such drugs to medicai and scientific use, and providing for continuous internationai co–operation and controi for the achievement of such aims and objectives.”

The Convention after iaying down in Articie 33 that the party was not permitted the possession of drugs except under iegai authority provided for action against the iiiicit traffic in Articie 35 and for penai provision in Articie 36 of the convention which provide as under:

“Articie 35 Action against the iiiicit traffic.

Having due regard to their constitutionai, 1ega1 and administrative systems, the parties shaii:

.(a) Make arrangements at the nationai 1eve1 for co-ordination of preventive and repressive action against the iiiicit traffic; to this end they may usefuiiy designate an appropriate agency responsibie for such co–ordination;

(b) Assist each other in the compaign against the iiiicit traffic in narcotic drugs;

(C) Co–operate cioseiy with each other and with the competent internationai organizations of which they are members with a view to maintaining a co–ordinated compaign against the i11icit traffic;

(d) Ensure that international co–operation between the appropriate agencies be conducted in an expeditious manner; and

(e) Ensure that where 1ega1 papers are transmitted internationaiiy for the purposes of a prosecution, the transmitta1 be effected in an expeditious manner to the bodies designated by the Parties; this requirement sha11 be without prejudice to the right of a party to require that 1ega1 papers be sent to it through the dip1omatic channe1;

Article 35 PENAL PROVISIONS

1. (a) Subject to its constitutiona1 1imitations, each party sha11 adopt such measures as wi11 ensure’ that cuitivation, production, manufacture, extraction, preparation, possession, offering, offering for sa1e, distribution, purchase, saie, de1ivery on any terms whatsoever, brokerage, dispatch, despatch in transmit, transport, importation and exportation of drugs contrary to the provisions of this convention, and any other action which in the opinion of such party may be contrary to the provisions of this Convention, shaii be punishable offences when committed intentionally, and that secious offences shall be liable to adequate punishment particularly by imprisonment or other penalities of deprivatior of liberty.

(b) Nothwithstanding the preceding subparagraph, when abusers of drugs have committed such offence, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after–care, rehabilitation and social reintegration in conformity with paragraph 1 ofarticle 38.

2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

(ii) Intentional participation, in ccnspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connection with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

(iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptabie in conformity with the iaw of the party to which application is made, and if such offender has not already been prosecuted and judgment given.

(b) (i) Each of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this articTe shaii be deemed to be inciuded as an extraditabie offence in any extradition treaty existing between Parties. Parties undertake to inciude such offences as extraditable offences in every extradition treaty to be conciuded between them;

(ii) If a party which makes extradition conditionai on the existence of a treaty receives a request for extradition from another party with which it has not extradition treaty, it may at its option consider this convention as the iegal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2(a) (ii) of this articie. Extradition shaii be subject to the other conditions provided by the 1aw of the requested party:

(iii) Parties which do not make extradition conditionai on the existence of a treaty sha11 recognize the offences enumerated in paragraphs 1 and 2(a) (ii) of this article as extraditabie offences between themseives, subject to the-

conditions provided by the iaw of the requested party; and

(iv) Extradition sha11 be granted in conformity with the Taw of the party to which application is made, and, notwithstanding subparagraphs (b) (i), (ii) and (iii) of this paragraph, the party shall have the right to refuse to grant the extradition in cases where the competent authorities consider that the offence is not sufficiently serious.

‘3. The. provisions of this article shall he subject to the provisions of the criminal law of the party concerned on Questions of jurisdiction.

4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined prosecuted and punished in conformity with the domestic law of a party.

3.4 The Convention on Psychotropic Substances 1971.

Thereafter the Convention of Psychotropic Substances 1971 was adopted to which India is a party and the preamble to said convention provide as under:–

“The parties, Being concerned with the health’ and welfare of mankind.

Noting with concern the public healtr and social problems resulting from the abuse of certain psychotropic substances;

Determined to prevent and combat ,abuse of such substances and the illicit traffic to which it gives rise;

Considering that rigorous measures are necessary to restrict the use of such substances to legitimate purposes;

Recognising that the use of psychotropic substances for medical and scientific purposes is indispensable and that their availability for such purposes should not be unduly restricted;

Believing that effective measures against abuse of such substances require co-ordination and universal action;

Acknowledging the competence of the United Nations in the field of control of psychotropic substances and desirous that the international organs concerned should be within the framework of that organization;

Recognising that an international convention is necessary to achieve these purposes;

After providing for special provision regarding the control of preparations psychotropic substances, the convention provide for measures against the abuse of psychotropic substances inarticle 20, action against the illicit traffic in article 21 and the penal provision in article 22 in the following words:-

Article 20 MEASURES AGAINST THE ABUSE OF PSYCHOTROPIC SUBSTANCES

1. The parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, the rehabilitation and social reintegration of the persons involved, and shall co–ordinate their efforts to these ends.

2. The parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers ot psychotropic substances.

3. The parties shall assist persons whose work so requires to gain an understanding of the problems of abuse of psychotropic substances and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of such substances will become widespread.

Article 21 ACTION AGAINST THE ILLICIT TRAFFIC Having due regard to their constitutional, legal and administrative systems, the parties shall:

(a) Make arrangements at the national level for the co–ordination of preventive and repressive action against the iiiicit traffic; to this end they may usefuiiy designate an appropriate agency responsible for such co–ordinaticn;

(b) Assist each other in the campaign against the iiiicit traffic in psychotropic substances, and in particular immediateiy transmit, through the diplomatic channei or the competent authorities designated by the parties for this purpose, to the other parties directiy concerned, a copy of any report addressed to the Secretary–Genera1 under articie 16 in connection with the discovery of a case of iiiicit traffic or a seizure;

(c) Co–operate closeiy with each other and with the competent international organizations of _which they are members with a View to maintaining a co-ordinated campaign against the iiiicit traffic;

(d) Ensure that internationai co–operation between the appropriate agencies be conducted in an expeditious manner; and

(e) Ensure that, where iegai papers are transmitted internationally for the purpose of judiciai proceedings, the transmittai be effected in an expeditious manner to the bodies designated by the parties; this requirement shaii be without prejudice to the right of a party to require that iegal papers be sent to it through the diDi0matiC Cha””91-

Artic1e 22 PENAL PROVISIONS

1. (a) Subject to its constitutionai 1imitations, each Party shali treat as a punishabie offence, when committed intentionaiiy, any action contrary to a law or reguiation adopted in pursuance of its obiigations under this Convention, and shall ensure that serious offences sha11 be iiable to adequate punishment, particuiariy by imprisonment or other penaity of deprivation of iiberty;

(b) Not–withstanding the preceding sub–paragraph, when abusers of psychotropic substances have committed such offences, the parties may provide either as an a1ternative to conviction or punishment or in addition to punishment that such abusers undergo measures of treatment, education, after care, rehabiiitation and sociai reintegration in conformity with paragraph 1 of articie 20.

2. Subject to the constitutiona1 iimitations of a party, its iega1 system and domestic 1aw:–

(a)(i) If a series of related actions constituting offences under paragraph 1 has been committed in different countries, each of them sha11 be treated as a distinct offence;

(ii) Intentiona1 participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in connection with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

(iv) Serious offences heretofore referred to committed, either by nationals or by foreigners shall be prosecuted by the party in whose territory the offence was committed, or by the party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the party to which application is made, and if such offender has not already been prosecuted and judgment given.

(b) It is desirable that the offences referred to in paragraph 1 and paragraph 2(a)(ii) be included as extradition crimes in any extradition treaty which has been or may hereafter be concluded between any of the parties, and, as between any of the parties, which do not make extradition conditional on the existence of a treaty or on reciprocity, be recognized as extradition crimes; provided that extradition shall be granted in conformity with the law of the party to which application is made, and that the party shall have the right to refuse to effect the arrest or grant the extradition in case where the competent authorities consider that the offence is not sufficiently serious.

3. Any psychotropic substance or other substance, as well as any equipment, used in or intended for the commission of any of the offences referred to in paragraphs 1 and 2 shall be liable to seizure and confiscation.

4. The provisions of this article shall be subject to the provisions of the domestic law of the party concerned on questions of jurisdiction.

5. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a party.

3.5. The Protocol of 1972 amending the single Convention on’narcotic drugs (Geneva; 25.3.1972).

with the passage of time, it was found that the illicit trafficking and illicit use of narcotic drugs is on the increase at the international level and, therefore, resolutions were adopted by United International Conference to consider the amendment of Single Convention on narcotic drugs, 1961, had passed the following resolutions II and III:-

Resolution II Assistance in Narcotics Control.

The Conference Recalling that assistance to developing countries is a concrete manifestation of the will oi the international community to honour the commitment contained in the United Nations Charter to promote the social and economic progress of all people; Recalling the special arrangements made by the United Nations General Assembly under its resolution 1295 (XIV) with a view to the provision of technical assistance for drug abuse control;

welcoming the establishment pursuant to United Nations General Assembly resolution 2719(XXV), of a United Nations Fund for Drug Abuse Control;

Noting that the Conference has adopted a new article 14 viz. concerning technical and financial assistance to promote more effective execution of the provisions of the Single Convention on Narcotic Drugs, 1961;

1. Declares that, to be more effective, the measures taken against drug abuse must be co–ordinated and universal;

2. Declares. further that the Fulfilment by the developing countries of their obligations under the Convention will be facilitated by adequate technical and financial assistance from the international community.

Resolution III Sociai Conditions and protection against drug addiction The Conference;

Recaiiing that the preambie to the Single convention on Narcotic Drugs, 1961, states that the parties to the Convention are “concerned with the heaith and weifare of mankind” and are “conscious of their duty to prevent and combat” the evii of drug addiction, Considering that the discussions at the Conference have given evidence of the desire to take effective steps to prevent drug addiction;

Considering that, while drug addiction 1eads-

to personai degradation and sociai disruption, it happens very often that the depiorabie sociai and ‘economic conditions in which certain individuais and certain groups are iiving predisposeg them to drug addiction;

Recognizing that sociai factors have a certain and sometimes preponderant infiuence on the behaviour of individuais and groups;

Recommends that the parties:

1. Shouid bear in mind that drug addiction is often the resuit of an unwhoiesome sociai atmosphere in which those who are most exposed to the danger of drug abuse iive;

2. Shouid do everything in their power to combat the spread of the illicit use of drugs; and

3. Should develop leisure and other activities conducive to the sound physical and psychological health of young people.

Apprehension about the sharp increase in drug problems during the late seventies led to formulation by the General Assembly in 1981 of an International Drug Abuse Control Strategy and a five year action programme (1982-86). It provided for a series of policy measures dealing with various aspects of drug control, traffic and treatement of addicts. The six–point strategy called for, (i) improving the international drug control system through wider adherence to existing treaties; (ii) co–ordinating efforts to ensure balance between supply and demand of drugs for legitimate use; (iii) steps for eradication of illicit drug.

traffic including finding income producing alternatives for illicit drug producers; (iv) intensifying efforts to detect and dismantle clandestine laboratories and trafficking organisations; and (v) measures to prevent drug abuse and promote treatment, rehabilitation and social integration of drug abusers. The programme of action set out specific activities for UN and member governments to achieve these objectives. The Commission on Narcotic Drugs was asked to monitor and co–ordinate their implementation.’ The 1984 Declaration on the Control of Drug Trafficking and Drug Abuse viewed drug trafficking and drug abuse as “an international criminal activity” a grave threat to the security and development of many countries and peoples which should be combated by all moral, legal and institutional means, at the national, regional and international levels. It identified the eradication of this evil as the collective responsibility of all States and affirmed the willingness of member States to intensify efforts and co–ordinate their strategies in that area.?

Further the Commission on Narcotics was called upon in 1984 to begin preparing a new International Convention against Illicit lruffic in Narcotic Drugs and Psychotropic Substances to address areas that seemed to be inadequately covered by existing instrum0nts.3 3.6. The Convention Against illicit traffic in Narcotic Drugs and Psychotropic Substances 1988 (Vienna, 20.12.1988).

Finally, the convention against illicit traffic in narcotic drugs and psychotropic substances was held by United Nations in 1988 and preamble to the said convention recalls deep concern on illicit traffic in narcotic drugs and psychotropic substances in the following words:~ “The parties to this Convention, Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society;

Deeply concerned also by the steadily increasing in-roads into various social groups made oy illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as the illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity;

Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States; Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority;

Aware that illicit traffic generates large financial profits and wealth enabling transnationa’ criminal organizations to penetrate, contaminate and Corrupt the structures of government, legitimate commercial and financial business, and society at all its levels;

Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for doing; Desiring to eliminate the root causes of the problem of absue of narcotic drugs and psychotropic substances, including the illilcit demand for such drugs and substances and the enormous profits derived from illicit traffic;

Considering that measures are necessary to monitor certain substances, including precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs and psychotropic substances, the ready availability of which has led to an increase in the clandestine manufacture of such drugs and substances;

Determined to improve international co–operation in the suppression of illicit traffic by sea;

Recognizing that eradication of illicit traffic is a collective responsibility of all States and that, to that end, coordinated action within the framework of international co–operation is necessary;

Acknowledging the competence of the United hJ:1l;i <)Ii:: lll l,|i(1 1′ iv: l<J ()1″ (:()vil;r C) I ()i ri:ir'<,()l.i r. (J: lJ(}’1 zururl psychotropic nuhntnncnn nnd dndiruun that tho international organs concerned with such ,control shouid be within the framework of that organization;

Re–affirming the guiding principles of existing treaties in the fieid of narcotic drugs and psychotropic substances and the system of controi which they embody;

Recognizing the need to reinforce and suppiement the measures provided in the Singie Convention on Narcotic Drugs, 1961, the 1972 protoco1 Amending the Singie Convention on Narcotic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of i11icit traffic and its grave consequences;

‘Recognizing also the importance of strengthening and enhancing effective iegai means for international co-operation in criminai matters for suppressing the internationai criminai activities of i11icit traffic;

Desiring to conc1ude a comprehensive, effective and operative internationai convention that is directed specifica11y against i11icit traffic and that considers the various aspects of the probiems as a who1e, in particuiar those aspects not envisaged in the existing treaties in the fieid of narcotic drugs and psychotropic substances;”

In artic1e 3, the Convention provide for offences and sanctions as under:–

1. Each Artic1e 3 OFFENCES AND SANCTIONS.

Party shall adopt such measures as may be necessary to estabiish as crimina1 offences under its domestic Taw, when committed intentiona11y:

(a) (i) The

(ii)

(iii)

(iv) production, manufacture, extraction, preparation, offering, offering for saTe, distribution, sa1e, de1ivery on any terms whatsoever, brokerage, dispatcn, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; The cu1tivation of opium poppy, coca bush or cannabis p1ant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended, The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above;

The manufacture, transport or distribution of equipment, materiais or of substances listed

(v)

(b) (1′)

(ii) in Tabie I and Tab1e II knowing that they are to be used in or for the i11i1cit cuitivation production or manufacture of narcotic drugs or psychotropic substances;

The organization, management or financing of any of the offences enumerated in (i), (ii),

(iii) or (iv) above;

The conversion or transfer of property, knowing that such property is derived from any offence or offences estab1ished in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of conceaiing or disguising the i11icit origin of the property or of assistance any person who is invoived in the commission of such an offence or offences to evade the 1ega1 consequences of his actions;

The conceaiment or disguise of the true Iocation, disposition, nature, source, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph;

(c) Subject to its constitutiona1 princip1es and the basic concepts of its 1ega1 system-

(ii)

(iii) The acquistion, possession or use of property, knowing at the time ‘of receipt, that such property was derived from an offence or offences, estab1ished in accordance with subparagraph (a) of this paragraph or from an act of participation in such offence or offences;

The possession of equipment or materia1s or substances listed in Tab1e I and Table II, knowing that they are being or are to be used in or for the i11icit cu1tivation production narcotic drugs or or manufacture of psychotropic substances;

Pub1ic1y inciting or inducing others, by any means, to commit any of the offences estab1ished in accordance with this artic1e or to use narcotic drugs or psychotrpic substances i11icit1y;

DJ

(iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.

Subject to its constitutional principles and the basic concepts of its legal system, each party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drug or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.

3. Knowledge, intent or purpose required as an element of an offence set forth in paragraph I of this article may be inferred from objective factual circumstances. 4 (a) Each party shall make the commission of the offences establishd in accordance with paragraph I of this article _ liable to sanctions and take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation.

(b) The parties may provide, in addition to conviction or punishment, for an offence estabiished in accordance with paragraph I of this articie, that the offender sha11 undergo measures such as treatment, education, aftercare, rehabilitation or sociai reintegration.

(c) Notwithstanding the preceding subparagraph, in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment measures such as education, rehabiiitation or sociai reintegration, as weii as, when the offender is a drug abuser, treatment and aftercare.

(d) The parties may provide, either as an a1ternative_ to conviction or punishment, of an offence estab1ished in accordance with paragraph 2 of this artic1e, measures for the treatment, education, after care, rehabilitation or social reintegration of the offender.

5. The parties shaii ensure that their courts and other competent authorities having jurisdiction can take into account factua1 circumstances which make the commission of the offences, estabiished in accordance with paragraph I of this articie particuiariy serious, such as;

‘VJ

(a)

(b) (C)

(d)

(e)

(f)

(h) The invo1vement of the offence of an organized criminal group to which the offender beiongs;

The involvement of the offender in other internationai organised criminai activities;

The invoivement of the offenders in other i11ega1 activities faci1itated by commission of the offence:

The use of vioience or arms by the offender;

The fact that the offender ho1ds a pubiic office and that the offence is connected with the office in question; The Victimization or use of minors;

The fact that the offence is committed in a pena1 institution or in an educationa1 institution or socia1 service faci1ity or in their immediate vicinity or in other piaces to which schoo1 children and students resort for educationai, sports and socia1 activities;

Prior conviction, particu1arTy for simi1ar offences, whether foreign or domestic, to the extent permitted under the domestic 1aw of a party.

The Parties sha11 endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement; rnensurr,-s in l”(_’.’3[)f’:Cl, of those offences and with due regard to the need to deter the commission of such offences.

7. The Parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph I of this article and the circumstances enumerated in paragraph 5 of this article — when considering the eventuality of early release or parole of persons convicted of such offences.

8. Each Party shall, where appropriate, establish under its domestic law long statute of limitations period in which to commence proceedings for any offence established in accordance with paragraph I of this article, and a longer period where the alleged offondor has evaded the admin’utratioh of justice.

9. Each Party shall take appropriate measures, consistent with its legal system, to ensure that a person charged, with or convicted of an offence estabiished in accordance with paragraph I of this article, who is found within its territory, is present at the necessary criminai proceedings.

10. For the purpose of co–operation among the Parties under this Convention, inciuding, in particuiar co–operation under articies 5, 6, 7 and 9, offences established in accordance with this article sha11 not be considered as fiscai offences or as po1itica1 po1itica11y offences or regarded as motivated, without prejudice to the constitutionai iimitations and the fundamental domestic 1aw of the Parties.

11. Nothing contained in this artic1e sha11 affect the princip1e that the description of the offences to which it refers and of 1ega1 defencesz thereto is received to the domestic 1aw of a Party and that such offences sha11 be prosecuted and punished in conformity with that 1aw.

3.7 Contro11ed de1ivery.

Articie 11 of the Convention against I11icit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 provides for use of ‘Contro11ed de1ivery’, if permitted by domestic iegai system. Articie 11 is reproduced beiow for the sake of convenience:–

“1. If permitted by the basic principies of their respective domestic Wegai systems, the Parties shaii L.) take the necessary measures, within their possibiiities, to a11ow for the appropriate use of controiied delivery at the internationa1 1eve1, on the basis of agreements or arrangements mutua11y consented to, with a view to identifying persons invoived in offences estabiished in accordance with articie 3, paragraph 1, and to takaing 1ega1 action against them.

2. Decisions to use controiied de1ivery sha11 be made on a case-by-case basis and man, when necessary, take into consideration financiai arrangements and understandings with respect to the exercise of jurisdiction by the Parties concerned.

3. I11icit consignments whose’ contro11ed deiivery is agreed to may, with the consent of the Parties concerned, be intercepted and a11owed to continue with the narcotic drugs or psychotropic substances intact or removed or repiaced in whoie or in part.”‘ Therefore, it is imperative to give effect to this provision of the Convention, to which India is a party, by bringing out suitabie amendment by incorporating a new section 50A in the Act to trace the onward movement of the consignment and to apprehend, arrest and prosecute the persons inciuding the uitimate persons taking deiivery of the consignment.

Since 1990 when this Convention came into effect a large number of countries have ratified the Convention. Many States have legislated new laws or have amended the existing ones and introduced regulations to implement money laundering counter-measures. Some countries have gone a step further and adopted the recommendations made by the Financial Action Task Force (FATF) which was established by the heads of state or government of the ‘Group of Seven’ major industrialised countries and the President of CEO.’ Notwithstanding the foregoing efforts and measurres, money laundering continues unabated in most parts of the world, though the cost of money laundering has considerably gone up in some parts of the world on account of effective counter–measures by some states.5 §;§ Suitable legislative amendments.

The study of the Directive Principles of State policy enshrined in the Constitution of India and the International Conventions has been done with the object to incorporate necessary amendment in the law dealing with control and regulations of Narcotic Drugs and ‘Psychotropic Substances in India because the directive principles of State Policy enshrined in the Constitution of India must guide the Government to frame suitable law in consonance with Article 47 of the Constitution of India and International Conventions, to which India is a Party, and its provisions should duly find place at the time of amendment of the domestic law especially in view of the provisions ofsection 4(2}(b) of the Narcotic Drugs and Psychotropic Substances «.1 Act. 1985, which provides as under:–

4. Central (Government to take measures for preventing and combating abuse of and iiiicit traffic in narcotic drugs, etc. (1) Subject to the provisions of this Act, the Centre) Government shaii take ai) such measures as it deems necessary or expedient for the purpoee of preventing and combating abuse of narcotic drugs and psychotropic substances and the iiiicit traffic therein.

(2) In particuiar and without prejudice to the generaiity of the provisions of sub–section (1), take the measures which the Centre) Government may under that sub~section inciude measures with respect to n11 or nny of the foilowinq mnttern, nnmely:

(a) Co–ordination of actions by various officers, State Governments and other authorities

(i) Under this Act, or

(ii) Under any other law For the time being in force in connection with the enforcement of the provisions of this Act;

(b) Obiigetions under the International Conventions FOOT NOTES CHAPTER-III S.V.Joga Rao, “Drug Addiction Pena] Po1icy” 34 JILI (1992) P.277-278.

Ibid Ibid D.I.G. Sa1eem Tariq Lone, “Assets Forefeitures as an effetive strategy against Drug Trafficking”, Paper presented in the Third Asia Money Laundering Symposium, 12-14, December, 1995.

Ibid CHAPTER IV NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT: A REVIEW 4.1 The Context. The iaw relating to narcotic drugs was being administered in India by three Centrai Acts, nameiy;

(a) Opium Act, 1857, (b) Opium Act, 1878 and (c) Dangerous Drugs Act, 1930, besides the State Legisiation, which provided for punishment for the offences but not commensurating with the increasing menace of drug addiction. It was feit that drug addiction and iiiicit trafficking in drugs have taken such an aiarming proportion that it had not oniy affected the heaith of the individual citizen but had shaken the entire Nation. Noticing this menace the Indian Pariiament reaiised the gravity of the situation and the need for stringent provisions for the controi and reguiation operations reiating to narcotic drugs and psychotropic substances. Accordingiy, the NDPS Actwas enacted by repealing the eariier Acts thereby prescribing punishment of rigorous imprisonment for a term which shaii not be iess than ten years and a fine which shaii not be iess than one iakh rupees in respect of most of the offences. As per the preambie of the NDPS Act the aim of the Act is (a) to consoiidate and amend the iaw reiating to narcotic drugs;

(b) to make stringent provisions for the controi and reguiation of operations reiating to narcotic drugs and psychotropic substances; and for matters connected therewith.

The NDPS Act was enacted as the pena1ties under the previous Acts were not sufficientiy deterrent to meet the chaiienge of we11 organised gangs of smugg1ers. For exampie, Dangerous Drugs Act, 1930 provided for maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine with respect to the subsequent offences and no minimum punishment was prescribed as a resuit of which drug traffickers have been very often iet off by the courts with nomina1 punishment. with the passage of time, a vast body of internationa1 1aw on narcotic drugs and psychotropic substances has emerged through various international treaties and protoco1 to which India was a party which entaiied severai obiigations, which were not either fu11y or part1y covered by the NDPS Act. Therefore, it was feit that the Act of 1985 required further amendment to make it more stringent to curb the menace of drug abuse and drug trafficking. Accordingiy, the NDPS (Amendment) Act (No.2 of 1989) was passed and the sa1ient features thereof are as under:

(a) Insertion of new section 31A providing for death penalty on second conviction in respect of specified offences invo1ving specified quantities of certain drugs.

‘,1

(b)

(c)

(d)

(e)

(f) No sentence awarded under this Act, (other than section 27) shouid be suspended remitted or commuted.

Offences punishabie under the Act sha11 be tried by a Court of Sessions until a Speciai Court is constituted under the new section 36A.

Insertion of new section 36A providing for constitution of speciai courts.

Insertion of new section 37 which rep1aced the o1d section 37 of the principai Act providing that every offence punishabie under the Act sha11 be cognizabie and non–bai1ab1e.

Empowering officers authorised under section 42 of the Principai Act to order attachment/ destruction of i11icit crop.

Insertion of new section 52A to provide for disposai of seized Narcotic Drugs and Psychotropic Substances.

.. .

.31

(h) (J) Insertion of new section 53A to provide that a statement made and signed by a person before any officer authorised under section 53 for the investigation of offences sha11 be reievant for the purpose of providing an offence under the Act.

An officer on whom any duty has been imposed under the Act or any person who has been given the custody of any addict or any other person charged with an offence under the Act, and who wi1fu11y aids in or connives at the contravention of any provision of the Act sha11 be punishab1e with the same punishment as that awardabie to drug trafficking offenders.

Immunity from prosecution to an addict volunteering for treatment for de-addiction or de–toxification once in his 1ife time. The immunity may be withdrawn if the addict does not undergo the compiete treatment for the purpose.

Addition of new chapter to cover a11 aspects reiating to forfeiture of property derived from, or used in, i11icit traffic. This Chapter inter aiia, prohibits hoiding of illegally acquired property which has been defined as property acquired from illicit traffic in Narcotic Drugs or Psychotropic Substances. It also provides for identifying, seizure or freezing of illegally acquired property. It further provides for setting up of Offices of Competent Authority to deal with all aspects relating to forfeiture; to appoint officers as Administrators for the management of properties seized or forfeited and an Appellate Tribunal for such properties.

(l) Insertion of new section 74A to empower the Central Government to give directions to State Governments for implementing the provisions of the Act.

4.2 Punishments for offences under the Act.

The NDPS Act provides stringent punishment for the offences. The punishments for the offences under the NDPS Act as amended by Act No.2 of 1989 are detailed in Annexure III.

4.3 The Magnitude of the problems of illicit trafficking. In spite of the provisions for deterrent punishment including death penalty provided under section 31A of the NDPS Act, the menace of illicit trafficking and use of \”.%Q0747 narcotic drugs and psychotropic substances is on the increase. Every day we Tearn from the media that huge quantities of heroine, charas, opium or some other narcotic drug or psychotropic substances have been caught in one or the other part of India. Drug addiction has become one of the curses of our times, a menace which threatens pubiic hea1th and resuits in the disso1ution of human persona1ity, promoting conditions for various forms of human degradation whose consequences spread to crime and 1aw1essness. The expiosive esca1ation of the i11icit use of narcotic drugs and psychotropic substances, which account for more deaths than the most dead1y diseases, has become a 1etha1 phenomenon everywhere today, and India is not an exception. The impact of this tragic deve1opment has not been fu11y met by the existing 1aw with the result that the rich and the poor a1ike, inc1uding students of both sexes, are fa11ing a prey in the hands of the powerfui organised smugg1ers of these drugs and substances who amass wea1th in no time. This is main1y due to the fact that there are .sti11 some inherent infirmities in the procedura1 1aw which require immediate amendments for making the Act more effective to tack1e the probiems of drug addiction and drug trafficking in India.

.,J 4.4 The latest trends in narcotic cases detected.

A summary of seizure of Narcotic Drugs, Psychotropic Substances and Controiied Substances (Acetic Anhydride) reported during the month of August, 1996 (Provisionai), the preceding month and that of the corresponding period of the previous year is as under:

QUANTITY IN KG/LTRS. ‘if;

DESCRIPTION AUGUST,96 DURING THE DURING PRECEDING CORRESPONDING MONTH PERIOD LAST (JULY,96) YEAR (AUGUST, 95) HEROIN 113.151 54.025 54.945 OPIUM 23.915 55.510 55.173 CHARAS/HASHISH 235.207 40.453 535.495 COCAINE — — —

MORPHINE — —- —

GANJA 431.525 531.550 5240.105 . . . .

M… 44′ -. ……«.n.

‘J METHAQUALONE/ — — —

MANDRAX ACETIC ANHYDRIDE 140 LTRS — 140 LTS Source: Govt. of India, Narcotics Controi Bureau, Drug Situation Report, August, 1996.

The tab1e at Annexure IV shows the quantity of various drugs seized in kiiograms with number of cases during the years 1992, 1993, 1994, 1995 and 1996.

4.5 Infirmities in the Narcotic Drugs and Psychotropic ‘ Substances Act.

From the above discussion it is clear that the enactment of the NDPS Act has not yielded the desired resuits to curb the menace of drug trafficking and drug addiction in India. The reasons are the inherent weaknesses in the enforcement of NDPS Act which required to be tack1ed by proper amendment to the Act. The weaknesses and the remedies therefor are detaiied as under:-

(a) Lack of social sanction against such offences.

There is Tack of pub1ic opinion and public awareness qua the impact of such offences on the society and nobody bothers to bring the matter to light unless somebody in the family is affected’ by the problem of drug addiction. Therefore, the need is to create social awareness through education and publicity qua the dangers of drug abuse and conducting of training programme and seminars more frequently by publishing the reports in newspapers and even the dangers of drug abuse may be incorporated in education curricula of Senior Secondary School and colleges to create awareness amongst the students. Further, in order to meet the situation, it is desirable that sub–section (2)(d) of section 4 of the NDPS Act may be substituted as under:-

“(d) identification, treatment, education, aftercare, rehabilitation, social re–integration of addicts, creation of social awareness qua dangers of drug abuse through education, publicity, training programmes and seminars with wide publicity to the deliberations and the reports thereof in the media.”

(b) wild growth of coca plant, opium poppy and cannabis plants.

while the unnoticed wild growth of cannabis or coca plant or opium poppy is not the offence under the Act, unlicensed cultivation thereof is an offence. This leads to cultivation of these plants on the government land[forest land on the pretext of wild growth by unscrupulous drug traffickers. Therefore, it is required that wild growth of such plants should be reported by the forest department regarding growth on forest land and by revenue officers regarding growth on the government land, on information, and take stern steps regarding systematic destruction of growth in a phased manner. Accordingly, a new section 47A be inserted in the NDPS Act on the following lines:– “47A. Duty of the Forest officer and Revenue officer to take action – Every Forest officer and Revenue officer shall give immediate information of the wild growth of coca plant, opium poppy or cannabis plant on the forest land or government land within his jurisdiction, as the case may be, when it may come or brought to his knowledge at any stage, to the 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 who, upon receipt of such information, may pass such appropriate order including order to destroy the plants as he thinks fit, and .,J

— A” Ace.’ every such forest officer or revenue officer who knowingly neglects to give such information, shall be liable to punishment”.

(c) The inherent infirmities in procedural laws.

Chapter V of the NDPS Act provides for procedure to conduct search and seizure. As a deterrent punishment is provided, the Legislature has made the procedure more strict. Some of the High Courts have held that the procedure laid down in Chapter V is mandatory, while others have held the same to be directory. However, the controversy has finally been resolved by the Supreme Court in State of Punjab V Balbir Singh’ by holding some provisions to be mandatory and others to be directory. Thus, the amendment is required to be made in the procedural law incorporated in Chapter V keeping in view the land mark judgment of the Apex Court in Balbir Singh’a case to make the law more effective.

(d) Change of Investigating Officers during the investigation of case.

It has been seen that many times the investigation of narcotic cases is carried out by more than one Investigating Officers with the result that the proper investigation is not there and some l£\ClHlH€) ciwiogni “in th(2 irivrist;i<]nt.iori i)@lH¥f itiiiq tine accused on technical grounds thereby making the stringent provision of the Act redundant. Therefore, it is required that investigation of the case under the Act should be conducted and completed by one Investigating officer, as far as possible, and a new section 67A be inserted in the NDPS Act on the following lines —

“67A. Completion of the investigation by an empowered officer– Every empowered officer who is making investigation of a case under the provisions of this Act or who takes any step under Chapter V thereof shall be incharge of the investigation till it is completed, unless there are compelling reasons to be recorded requiring a change and it shall be his duty to take such step under tine lziw for” SIHBBLJY iriver;ti<3al,iori arm] ssuknnit the case to the competent court without any unnecessary delay.”

(e) Non establishment of Special Courts for speedy trial under Narcotic Drugs and Psychotropic Substances Act.

Section 36 of the NDPS Act provides for establishment of Special Courts for the trial of the cases under the Act. Under this Act, the Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the official gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. A Special Court shall consist of a single judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.

Although the aforesaid section inserted by the Amendment Act No.2 of 1989 came into force with effect from 29th May, 1989 vide notification No.2/89 dated 29.5.1989, issued by the Government of India, yet even after the lapse of about eight years, most of the State Governments have not consituted the Special Courts thereby making the provision redundant. The Central Government should, therefore, take up the matter with the State Governments so that these Special Courts under the Act are constituted for the speedy trial of the offences under the NDPS Act in each and every State without any delay. It .,.1 must be remembered by every State Government that the administration of criminal justice is the primary duty of every State Government and the constitution of the Special Courts envisaged in the Acts passed by the Parliament should not be held up due to financial constraints. The State Government cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. Therefore, mandatory provisions should be incorporated for the creation of appropriate number of special courts in every State of the country without any delay. Accordingly, after sub-section (1) of Section 36 of the NDPS Act, the following proviso shall be inserted, namely-

“Provided that at least one special court shall be constituted by the Government as soon as the number of pending cases under the Act exceeds one hundred and fifty.”

(f) The sentencing structure in the Act.

In the NDPS Act, the minimum punishment of 10 years rigorous imprisonment and fine of rupees one lakh is prescribed for most of the offenders without taking into consideration whether the recovered .,J contraband is of iess quantity or commerciai quantity; except in case of recovery of sma11 quantity from any person for persona1 consumption under section 27 of the NDPS Act. The Department of Revenue in its recommendations on the amendment of the Act has suggested rationa1ization of the sentencing for offences committed under the Act and for effective implementation of the Act, particu1ar1y in cases of possession of smail quantities. It is a we11 recognised principie that punishing is an art which invoives the baiancing of severai factors 1ike gravity of the offence and other circumstances. It is aiso accepted by the jurists that the provisions of the Indian Penai Code, 1860 have fair1y stood the test of the time in the matter of awarding punishment. The Law Commission is of the view that on the same Tines the provisions in the NDPS Act prescribing sentences require a fresh 100k on the basis of sentencing methods refiected in the Indian Penal Code and other amendments. It is need1ess to mention that a Ienient sentence does not a1ways meet the needs of justice, but at the same time the courts a1so are generaiiy reluctant to award always a severe sentence irrespective of the gravity. Likewisesection 27 providing punishment in respect of the persons found in possession of sma11 quantities under the circumstances stated therein need to be amended by inserting a new, sub–section (3) therein on the foiiowing iinesz “(3) Where a person who is shown to have been in possession of a sma11 quantity of narcotic drug or psychotropic substance fai1s to prove that it was intended for the persona1 consumption of such person and not for sa1e or distribution, such person sha11, notwithstanding anything contained in this Chapter, be punishab1e-

(a) where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacety1–morphine or any other narcotic drug or any psychotropic substance as may be specified in this behaif by the Centrai Government, by notification in the officia1 gazsette, with imprisonment for a term which may extend to two years or with fine or with both; and

(b) where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term which may} extend to one year or with fine or with both.”

9) (9) Estab1ishment of centres as provided under section 71 of the Act.

Although provision has been inserted in the Act for the estab1ishment of centres for identification, treatment and rehabi1itation of addicts, but it has been observed that some of the State Governments have not established adequate number of such centres with the resuit that the addicts are running after drug traffickers for getting the drugs require and the purpose of this provision for de-addiction and rehabiiitation has been frustrated. Thus there is need for the Government to see that the object underiying the section is achieved by uti1ising the services of ‘ Non-governmenta1 organisations and if necessary by estab1ishing a wing in Government hospita1s.

Conc1usion.

In view of the above discussion, it is imperative that the changes suggested by the Commission be impiemented by carrying out suitabie amendments in the NDPS Act to make it more effective to check the evii of drug trafficking and drug addiction.

‘,J AIR 1991 SC 558.

68 :-

FOOTNOTES CHAPTER IV CHAPTER V MANDATORY AND DIRECTORY PROVISIONS : DUTIES OF EMPOWERED OFFICERS 5.1 There are generally five stages in the investigation and trial of a case, under the NDPS Act.

(a) information

(b) Investigation

(c) search, seizure and arrest

(d) submission of final report to the court and

(e) trial of the case in the Court.

In these the possession and search are of vital importance. As stringent punishments have been provided for the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 with minimum punishment of rigorous imprisonment for ten years and fine of rupees one lakh for most of the offences, the Parliament, in its wisdom, has imposed corresponding strict special procedure to be adopted at the time of search, seizure and arrest of the culprits in Chapter V of the Act. It is not out of place to mention here that the experience has shown that the Act has not yielded the desired results and a large number of cases instituted for various offences under the Act have ended in acquittal not on merits but on technical grounds of non-compliance of mandatory provisions of sections 42 and 50 of the Act and in some cases on the prejudice caused to the accused for non-compliance of the directory provisions of sections 52, 55 and 57 of the Act and the like.

The investigating officer must understand before starting the investigation of a case under the Act that the investigation is not an end but means to find out the truth. A good investigating officer must know right steps to be taken for conducting the search and seizure in strict conformity of the relevant provision. To avoid acquittal on technical grounds of non–compliance of mandatory or directory provisions, he should not only strictly comply with mandatory provisions of sections 42 and 50 of the Act but also the directory provisions incorporated in sections 52,55,57 and the like in the Code of Criminal Procedure as far as applicable; Moreover, he must ensure that the link evidence of the sample, being analysed by the chemical examiner, should be complete including taking of the sample and property to the S.H.O. and sealing by S.H.O. with his seal, deposit of the same intact in the malkhana and sending of the sample to chemical examiner etc. It is necessary to examine some of the judgments of the courts on various provisions of the Act.

In the first case (Durand Didier v. Chiof Secretary, Union Territory of Goa‘ which came up in the Supreme Court, the accused Durand Didier, a French national was apprehended by the police at Colva (Goa) and was found in possession of 1 grams of brown sugar (heroine), 45 grams of ganja oil and LT! 55 grams of opium. The counsel For the accused took up the plea that the investigating officer did not deliberately 44 ——….»~ fr join with him respectab1e inhabitants of the 1oca1ity. The Supreme Court rejected this p1ea by ho1ding that where the witnesses to search and seizure of contraband drugs from the accused at midnight were inhabitants of the 1oca1ity in which po1ice outpost was situate and nothing brought out in the cross–examination of these panch witnesses so as to discredit their testimony, the fact that the witnesses were not residing in the vicinity of piace of seizure is immateriai and the p1ea that there was vioiation of statutory safeguards re1ating to search and seizure was untenab1e. On the other p1ea of the counse1 for the accused that the accused was found in possession of sma11 quantity for personai consumption, it was held by the Apex Court that the substances seized from the possession of the accused cannot be he1d to be in sma11 quantity so as to bring him on1y within the mischief of section 27(a) of the Act in view of eXp1anation I to the section and the notification thereunder.

5.3 Interpretation qua the bai1 provisions under the NDPS Act On the question of grant of bai1 to the persons accused of the commission of the offences under the Act, in Narcotic Controi Bureau v. Kishan Lai and others,2 the Supreme Court 1aid down the fo11owing propositions of 1aw:–

Section 37 of the Narcotic Drugs and Psychotropic Siih::Liui(uwa A(iL, iflzifi (zis ninnrulnri) fliJ1Yi.C wi Ll: r non–obstante ciause stating that notwithstanding anything contained in the Code of Criminai Procedure, 1973, no person accused of an offence prescribed therein shaii be reieased on baii unless the conditions contained therein are satisfied. The NUPS Act is a special enactment and was enacted with a view to make stringent provisions for the controi and reguiation of operations reiating to narcotic drugs and psychotropic substances, That being the underiying object and particuiariy when the provisions of section 37 of NDPS Act are in negative terms iimiting the scope of the appiicabiiity of the provisions of Cr.P.C regarding baii, it can not be said that High Court’s powers to grant baii under section 439 Cr.P.C. are not subject to the limitations mentioned under Section 37 of the NDPS Act”

In Rajnikant Jivanlai Lntejligghce Officer, Narcotic Cont§o1wBureau,fiNew De1hi,3, the accused, arrested for offences punishabie under sections 21,23 and 29 of the Narcotic Drugs and Psychotropic P,a,t,e__1c ,a,ri<:.w_,,@cnocther,c3, /I3 Substances Act, i9R5 were enlarged on bail by the magistrate xlll f’:i i liir (1 () f 1.ilI1 i>i t)f\(‘wLll i.i ()ll i;(i ;ir’rir:(>iii; t.Iiri riiiri l l:iii VI i1.ii iii 90 days under proviso to section 167(2) Cr.P.C. The High Court cancelled the bail order. While upholding the order of the High Court, the Supreme Court observed: “An order For release on bail under proviso (a) to 8. 107(?) may appropriately be termed as an_order:on–default. Indeed, it is a release on bail on the default of the prosecution in filing charge–sheet within the prescribed period. The right to bail, under 5.167(2) proviso (al thereto, is absolute. It is legislative command and not court’s discretion. If tilt” iiix/iaszt. i{](li; ill(] (1§]()il(Z y |’ri i la; l.r) F i icé <:ii:ir c;<s~~r;rir~rel, tiref rir r:

the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In I rii:!., i,il(l in:1gi ifli.r’i\i.f) iizisi ll(J ;ic:v¢r~r t.c» r r-in:iriiJ :1 [)¢}Y 7.1)!) t;¢- yriiirl the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.

The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge~sheet is Filed, the bail granteted under proviso (a) to “..167(2) could be cancelled.”

5.4 On the question of discharge of the accused, the Supreme Court in State of Himachal Pradesh v. Pirthi Chand and another‘ has laid down the following principles:

“The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected i.e. Panchnama etc. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground thatSection 50 or other provisions have not been complied with. At the trial an opportunity would be ‘ available to the prosecution to prove that the search was conducted in accordance with law. Even if search-

is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the learned Sessions Judge was not justified in discharging the accused, after filing of the charge–sheet holding that mandatory requirements of Section 50 had not been complied with”.

-. ‘2.av-aw-” A In some of the responses received and also during discussions in the workshops it was pointed out that a plain reading of the above judgment, particularly para 3 regarding the applicability of section 50 would create a doubt whether the Supreme Court laid down that the provisions of section 50 would also apply to search of a place. It may be mentioned that it was a case of search of a place and not of a person. Therefore, the provisions of section 50 do not apply. The section itself makes it clear that the provisions contained therein would apply only to search of a person. The reference to section 50 here and there in the judgment was in the context of the discharge of the accused by the sessions court at a preliminary stage. We, however, feel that the Supreme Court may clarify the position by demarcating the parameters between “search of a place” and “search of a person” in the context of applicability of section 50 to the effect that it applies only to “search of a person” and not to the “search of a place”, so as to make the law clear, particularly for the guidance of the lower COUl”‘lLS .

5.5 In State of Punjab v. Balbir Singh5 , the Supreme Court while examining the steps to be taken by the investigating officer went into the question as to which provisions are mandatory and which are directory and concluded thus —

“(1) If a police’ officer without any prior information as contemplated under the provisions of LJ E33, , dram.

the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, .he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2–A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. when such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.

L11 Likewise only empowered officer or- duly authorised officers as enumerated in Sections 41(2)and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-8) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.’ (2-C) Undersection 42(1) the empowered officer if has a prior information given by any person, that-.should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

.,..I To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. if there is total non–compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CR.P.C. fails to strictly comply with the provisions of Sections 100 and 165 CR.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.

(4-8) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CR.P.C. namely Sections 100 and 165CR.P.C. and if there is no strict compliance with the provisions of CR.P.C. then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

The provisions of Sections 52 and 57 ‘\ as c_, which deal with the steps to be taken by the officers after maxing arrest or seizure under Sections 41 to by themselves not mandatory. If there is J?-

ix

9) W {D ( (D non–compZiance or if th re are lapses like delay etc. Q) ame h s to be examined to see whether any Cl”

(D I’ (§ (D (H prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.”

It may be pointed out at this stage that Kerala High Court in V.Mohd. Bashir v. State5 has misread the judgment ofi the Supreme Court in holding that the search made under Section 43 in respect of Section 50 is not attracted. 5.6 we have considered the proposal of the Department of Revenue that if the empowered officer, while searching a person is of the view that taking the person to the nearest gazetted officer/magistrate would result in the delay in search or would give opportunity to the person to disassociate him from the contraband, the search can be conducted before two or more independent and respectful persons of the locality or of the adjoining locality. We are, howexer, 3? the view that to safeguard the interest of the innocent oersons, particularly when there is a minimum mandatory bunisnment under the Act, such amendment is not desirable.

The above discussion makes it clear that the empowered officers have important duties to perform under the provisions of the Act, particularly wnen section 42 and section 50 are held mandatory. Even in respect of the provisions held directory they cannot slacken, although mandatory provisions of section 42 and section 50 are most important and must be complied with by the empowered officers. The responses to the questionnaire, and the views expressed in workshops also suggest that for carrying out search effectively in a practical and meaningful manner some changes in section 50 are necessary. We are of the view that the amendment ofsection 50 is necessary.

The nature of non–compliance of section 50 leading to many acquittals has to be examined carefully from the point of view of bringing about suitable amendments. Section 50 lays down that any duly authorised officer who is about to search any person, if he so requires, take him without unnecessary delay to the nearest Gazetted Officer of any ,of the departments mentioned in section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he_can produce him before such Gazetted Officer or the Magistrate and thereafter the search should be conducted. It is held that it is a valuable right given to such a perscn and that though the section does not say so in clear terms yet the person must be told about his right and fai7tre to do so results in non–comp iance of section 50.

;., -»w whether such person was informed or not would always be a question of fact depending upon the oral assertions and counter :i:;::«~rl’.ion:-1 mnde by the accuzmd and the 1A=,rmrc-hing officer and the non–compliance has led to many acquittals.

The other types of non–compliance resulting in acquittals as noticed by the courts are of highly technical nature. In some cases, the accused were acquitted on the grounds that the notice given by the investigating officer only mentioned the word “magistrate” and in some cases only the word “gazetted officer” yet in other cases words “mngistrntn or gnretted police officer”. In such cases, the accused were acquitted by holding that the notice was not complete and in consonance with the provisions of Section 50 of the Act. Although taking of such technical view by the courts may be a debatable issue but to check such lapses, on the part of the empowered officers, resulting in such acquittal, the Commission feels it necessary to suggest suitable amendments inSection 50 of the Act to clear all the misgivings of the scope of Section 50. Also keeping in view the difficulties expressed in the replies to the questionnaire and the discussions held in the workshops regnrding the possibilities of throwing of the contrnhnnd by the person or the planting of the same while in transit to the nearest Magistrate or Gazetted Officer, We are of the view that nmendmontm in section 50 of the NUPS Act may he on the following lines:–

83 :~

(a) in sub–section (1), after the words ‘he sha11’ nnd hnforn tho words ‘if such pornon’, the fnllouinq words shaii be inserted, name1y– “inform such person that he has a right to be searched in the presence of a gazetted officer or the magistrate referred to in section 41; and”

(b) in sub–section (1), for the words “or to the nearest magistrate”, the fo11owing words sha11 be substituted, name1y–

“or to the nearest magistrate referred to in section 41 of the Act, as the empowered officer may deem fit.”

This wou1d amount to substantia1 compiiance.

FOOT NOTES CHAPTER V AIR 1989 SC 1966.

AIR 1991 SC 558.

AIR 1990 SC 71.

1996(1) Sca1e 48.

1994(1) Crimes 753.

1991(2) Crimes 686.

DJ I C0 I CHAPTER – VI CONCLUSIONS AND RECOMMENDATIONS 6.1 INFIRMITIES IN NDPS ACT.

The drug traffickers are fighting gueriiia war against humanity and, therefore, deterrent punishment has been provided under the HDPS Act (as amended by Amendment Act No.2 of 1989). The Act has provided for death penaity for specified offences by the previous convict and for forfeiture of property derived from, or use in iiiicit trafficking. However, even these provisions have not yieided fruitful results in curbing and controiiing i11icit trafficking and use of narcotic drugs. some of the infirmicies found in the impiementation of NDPS Act may be summarised be1ow:-

(a) Lack of sociai awareness against offences of iiiicit trafficking and i11icit use of narcotic drugs and psychotropic substances;

(b) The severe punishment for sma11 quantity under section 27 of the Act if it is not for persona? consumption;

gc) Non estapiishment of Speciai Courts for triai of the offences under the NDPS Act by some States in spite of specific directions in (d? wiid growth of cannabis piant, coca piant or opium poppy and chances of cultivation of such plants in the guise of wild growth by unscrupulous smugglers;

The inherent problems in the implementation ll’ of section 50 of the NDPS Act to make the search effective and meaningful; investigating

-, Frequent changes in officers Non establishment of the centres for (H identification, treatment, education and after care of the addicts by the Government.

6.2 RECOMMENDATIONS.

community against illicit trafficking and use of drugs and proceedi and othe deal ef traffick landmark in Stat valuable further U After discussing the concern of the world narcotic psychotropic substances as borne out from the ngs of the International conventions, the procedural r weaknesses of the present law on the subject to fectively to overcome the menace of drug abuse and it; therein and after taking into consideration the gtdgments of the Supreme Court of India, especially e of Punjab v Balbir Singh and after consicering the estion, we feel that the NDPS Act requires …~-

a*e”dments to make it more effective.

-5…;

__….. ._’_, We hereby recommend the foilowing amendments in the Narcotic Drugs andPsychotropic Substances Act, 1985 name3y:–

6.2.1 AMENDMENT IN SECTION 4 OF THE ACT In clause (2; of section 4 of the NDPS Act, sub–cTause (d) be substituted as fo1Tows:– “(c) identification, treatment, education, aftercare, renabiiitation, sociai re–integration of addicts, creation of sc:ia1 awareness qua dangers of drug pub1icity, training abuse through education, programmes and seminars with wide pubiicity to the deiiberations and the reports thereof in the media.’ [Chp.IV, Para 4.5(a)] 6.2.2 AMENDMENT IN SECTION 27 OF THE ACT In Section 27, tfie foiiowing new sub–section 3 be inserted to provide ‘or a Tesser punishment for smail quantities if not prove: to oe for persona? consumoticn:–

“(SE Where a per:on who is shown to have been in I smaii quantity of narcotic crug or In possession of tance faiis to proxe that it was U) psycnotrspi: sub intended for the personai consumption C? such cerson an: not ?or saie or cistribution, such person snai1, L;m.,.

I (U L\’> I notwithstanding anything contained in this Chapter, be ;unishabTe–

(a; where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, o’acety7–morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Centra1 Government, by notification in the otficial gazsette, with imprisonment ‘or a term which may extend to two years or with fine or with (b’ Where the narcotic drug or psychotrocic substance possessed or consumed is other than those specified in or under ciause (a), with imprisonment for a term which may extend to one year or with fine or with both.

“‘ [Chp.IV, Para 4.5(f)] 6.2.3 AMENDMENT IN SECTION 36 OF THE ACT After CTause (1) of Section 36 of the Principe? Act, the fo17c«ing proviso shali be inserted, name1y–

“Prcvided that at 1east.one specie] court shall be constituted by the Government as soon as the number of cencing cases under the Act exceeds cne huncred [Ch:.:¥, Pena 4.5ge’;

INSERTION OF NEW SECTION 47-A IN THE ACT After Section 47 of the NDPS Act, the following srall be inserted, namely-

“A?– Duty of the Forest officer and Revenue officer to take action — Every Forest officer and Revenue officer shall give immediate information cf the wil: grcwth of coca plant, opium poppy or cannabis plan: on the forest land or government lanc within his jurisdiction, as the case may be, when it may come or brought to his knowledge at any stage, to the Metropolitan Magistrate, Judicial Magistrate of the First Class or any Magistrate specially empowered in this behalf by the State Government or any officer of rank empowered under section $2 who, upon receipt or such information, may pass such appropriate order including order to destroy the plants as he thinks fit, and every such forest off’cer or revenue officer who knowingly neglects to giwe sucn information, shall be liable to ptn’shmen:

(Chp.IV, Para 4.5(b)) _ , F’) ‘J0 AMENDMENT LN SECTION 5QmQEMTHE.ACT In section 50 of the NDPS Act,

(a) in sub-section (1), after the words ‘he shaii’ and before the words ‘if such person’, the foiiowing words shaii be inserted, name1y~ “inform such person that he has a right to be searched in the presence of a gazetted officer or the magistrate referred to in S()(Ii) i<>|i 4 1 ; :iri(1′

(b) in sub–section (1), for the words “or to the nearest magistrate”, the fo11owing words shaii be substituted, name1y–

“or to the nearest magistrate referred to in section 41 of the Act, as the empowered officer may deem fit.”

(Chp.V, Para 5.6) 6.25 INSERTION OF NEW SECTION TO GIVE EFFECT TO ARTICLE 11 OF THE CONVENTION AGAINST ILLICIT TRAFFICKING IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, 1988 REGARDING “CONTROLLED OELIVERY”.

In or: r to give effect to the aforesaid provisions K1) contained in Lrticle if of the aforesaid Convention, the U) NDPS Act :e uitably amended by incorporating a new section thereunder to trace the onward movement oi the consignment and to apprehend, arrest, prosecute the persons including the ultimate persons taking delivery of the consignment. (Chp.III, Para 3.7) 6.2.7 INSERTION OF NEW SECTION 67 A IN THE ACT After Section 67 of the NDPS Act, the following new section shall be inserted, namely- “6?A. Completion of the investigation by an empowered officer- Every empowered officer who is making investigation of a case under the provisions of this Act or who takes any step under Chapter V thereof shall be incharge of the investigation till it is ccnpleted, unless there are compelling circumstances requiring a change an: it shall be his cf dut} o taae sucn step under the law for speedy inxest’gat*3n and submit the case to the competent court nithcut any unnecessary delay.”

(Chp.I\, Para 4.5(d)) ST j\;««4flL«¢’i;/”‘ 6.2.8 EFFECTIVE IMPLEMENTATION OF SECTION 71 Cr?” ‘a”}’vF 1″=”‘*”

ACT.

we feel that there is a need for the G0v=*~’©Hi see that the object underlying the section be ach’~~ utfl1is1ng the services of Non–governmenta1 OFgflHT$fifiimw¢ if necessary by estabTish1ng a wing in Government h<ruv?~’ [Chp.IV, Para A.*(¢?f we recommend accordingly.

/’ ac/(N »c (xv 6″ “‘ LLO D3 ( JUSTICE K.JAYACHANDRA REDDY ) CHAI RMAN 1/) I –

«/ I L.:/ 1 M’; V, ///CQ@kK(,LdcQfl\;«K\”j / (JUS. R.L.GUPTA)” (CH.G.KRISHNAMURTHY) (PROF. AL1Ci »a«~= MEMBER MEMBEa,,-<‘- H’ “1?

‘ < _, ‘,)’)¢£g7 q, ~(,,I,1 ( R.L.~ MEENA ) MEMBER–SECRETARY ANNEXURE S ANNEXURE-I D.O.NO.6(3)(35)/96-LC(LS) DR.S.C.SRIVASTAVA GOVERNMENT OF INDIA JOINT SECRETARY & MINISTRY OF LAW & JUSTICE LAW OFFICER DEPARTMENT OF LEGAL AFFAIRS LAW COMMISSION SHASTRI BHAVAN NEW DELHI-110 O01.

Dated 5.7.1996 Sir, This is to encroach upon your vaiuabie time for the cause of nationai importance.

The Law Commission has undertaken a study on the examination of the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) in the Tight of the judgment of the High Court and particuTarTy the Tandmark judgment of the Supreme Court in the State of Punjab vs. Baibir Singh AIR 1994 SC 1872 with the emphasis on the changes brought about in section 50 of the Act. It is fe1t there is a need to review the reievant provisions of the Act. Accordingiy the Commission seeks to elicit your considered opinion on the questionnaire prepared by the Commission relating to 4 certain proposed amendment to the said Act.

I would, therefore, request you to kindly spare some of your precious time in giving your valued opinion on the issues at your earliest convenience preferably by 14th August, 1996.

Looking forward to your co–operation.

with regards, Yours sincerely, Sdf ( S.C.Srivastava ) ._J Encl: As above.

LAW COMMISSION OF INDIA Shastri Bhavan, New De1hi–11O O01.

Questionnaire on amendment to the Narcotic Drugs and Psychotropic Substances Act, 1985 t’ ( Act No.61 of 1985 ) CHAPTER-II Section 4 of the Act.

specific Q.i Do you agree that there is need to make provision for creation of sociai awareness qua dangers of drug abuse through education and pub1icity and conducting of<training programmes and seminars?

CHAPTER-IV

-: Section 15 of 25 of the Act.

Q.2 Whether the existing penai provisions providing minimum punishment require any amendment? If so, to what extent?

.,J P”,.<‘-

Whether the sentence to be awarded under the Act, shouid be according to quantum of seizure of the contraband?

Whether there is need to deiete the provision of minimum sentence provided in sections 15 to 25of the Act?

Section 27 of the Act.

Q.5 Do you suggest that the benefit of section 27 sha11 given to a11 the persons found in possession of sma11 quantity irrespective of the fact whether the same was intended for personal consumption or not?

Section 36 of the Act.

Whether the State Government has not created separate courts of Specia1 Judges for tria1 of cases under section 36 of the Act in your State?

Do you agree that for speedy disposa1 of cases under the Act, the provision should be inserted in the section, for setting up of adequate number of independent courts of Speciai Judges for the triai of cases under the Act in every State?

CHAPTER-V Section 47--A whether you think it necessary that the duty should be cast upon the forest and revenue officers to report the wiid growth of cannobis and opium plants on forest and other government 1and and to take steps for its destruction, as the State Government may direct?

Section 50 Do you subscribe to the view that section 50 of the Act requires amendment?

Do you agree that in view of the 1andmark judgment in State of Punjab Vs. Baibir Singh, AIR 1994 SC 1872 section 50 of the Act shou1d be redrafted as under by incorporating suitable amendment:-

“50- Conditions under which search of persons sha11 be conducted:–

(1) when any officer du1y authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall (inform such person that he has a right to ,,J be searched in the presence of a gazetted officer or the magistrate referred to in section 41, and ) if such person so requires, take such person without unnecessary deiay to the nearest Gazetted officer of any of the departments (or the nearest magistrate referred to in section 41 of the Act, as the empowered officer may deem fit).

Provided that the Central Government may specify the form of notice to be given to such person, informing him that he has a right to be searched in the presence of a gazetted officer or magistrate, for the purpose of this sub–section.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1); (or if the empowered officer, for reasons to be recorded in writing, deems it necessary to summon the gazetted ‘officer or the magistrate referred above to the spot, he may requisition the services of such gazetted officer or the magistrate, and it sha11 be the duty of such gazetted officer or the magistrate, as the case may be to the spot without de)ay).

(3) The Gazetted officer or the Magistrate before whom any such person is brought (or whose services have been requisitioned) shaii, if he sees no reasonab1e ground for search, forthwith discharge the person, but otherwise shaii direct that search be made.

(3A) The search shaii then be made in the Secti Q.12 presence of the gazetted officer or the fiagistrate, as the case may be, who may associate two independent witnesses, if available, and shall take two samples and after sealing the samp es and the recovered articles, keep the seal intact with nim; and hand over the samples, recovered artic’es and the sample of the seal used to the empowered office (4) No female shall be searche: 3/ anyone excepting a female.”

Whether the empowered officer should be given discretion that in case he is of the o:inion, for reasons to be recorded in writing, that ‘t is not D7 practicable to take the person to be seartned to the nearest magistrate or the gazetted office”; or the services of such magistrate or the gazette officer cannot be requisitioned, the empowered officer may conduct search himself in the presence of two independent witnesses?

on 50–A Do you suggest that new section should be inserted for the use of controlled delivery system by certain onward movement of the officers, to trace the consignment under supervision and to soorenend. arrest and prosecute all the offenders, in: sding the persons taking delivery of the consignment of liilclt drugs or substances at the destination?

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Section 67--A Q.13 Do you agree with the suggestion that the empowered officer, who commences the investigation of a case under the provisions of this Act, shaii ce incharge of the case tiii investigation is compietec as far as possibie?

CHAPTER-VI Section 71 Q.14 Whether the state government has not estabiiehed adequate centres for the identification and treatment of addicts in your state?

Q.15 Do you agree that it shou1d be made mandatory by suitabie amendment in the Act that atleast one centre for the identification and treatment of ac:ict shou1d be estab1ished in every district in the country?

GENERAL Any other suggestion Q.16 Do you suggest any other amendment in the Act? If so, give your vaiuabie suggestions.

3-My Annexure–II Comments received on the Questionnaire issued by the Law Commission The Law Commission had circulated a questionnaire (Annexure 1) regarding certain amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985 to elicit opinion from various quarters. In the said questionnaire the Law Commission formulated sixteen Questions on various aspects of the subject.

The Questionnaire was sent to the Registrars of sixteen High Courts, Bar Associations, Home Secretaries of twenty five States and Union Territories, twenty eight Police Officers and the Chairmen of five State Law Commissions. Responses were received only from seven Judges/ Registrar of High Court, three Advocates/ Prosecutors and twenty seven Police Officers and other expert officers as under —

Q.No.1 Six Judges, Registrars of various High Courts, two advocates, 21 Police Officers and one Acacdemician have responded in the affirmative. However, the Deputy Legal Adviser, Ministry of Finance, Govt. of .-

India is of the view that sub–clause(e) of Section 4 or the N.D.P.S.Act serves the purpose. The Addl.Director General of Police, (Crime), Punjab is in favour of retaining the existing provisions under clause (d) of

–: lO2 :-

sub–section (2) of Section 4 of the Act. Zonal Director, NCB, Bombay, is of the view that Section 4 takes care of the issue involved in Question 1. However, he feel that there is a need to have a specific provision making it obligatory on the part of the State Government to take necessary steps for creating awareness in regard to the dangers of drug abuse among the targetted groups and also stressed the need for involving the Non–Government voluntary organisations. The Deputy Commissioner of Police Narcotics & Crime Prevention, Delhi is of the view that section 4of the Act does not require any amendment.

Q.No.2 About the suggestion for the amendment in the existing penal provisions providing minimum punishment, four Judges, two advocates and ten Police Officers have agreed with the suggestion. They have also suggested that the rigorous imprisonment for a term which shall not be less than five years but may extend up to ten years and fine not less than rupess fifty thousand may be provided. It is also suggested that the minimum sentence may be reduced to seven years and thereafter the sentence should run in proportion to the quantity seized up to twenty years. However, D.G.P. Tripura has suggested that minimum punishment should vary having regard to the quantity of drug seized, the nature of offences and offenders etc. However, others have replied either in the negative or are satisfied with the existing penal provisions. Addl. D.G.P. (Narcotics wing), Bhopal is of the view that sections 15 to 20 do not need any amendment but section 21 to25 should be amended to enhance the punishment to life imprisonment and confiscation of property for subsequent offences. However, A::l.D.G.P., Crime, Punjab has suggested to reduce the amcc’: of fine from rupees one lack to fifty thousand. Cne jucge of the High Court, Bombay has suggested that discreticr be given to court to award lesser punishment for special reasons to be recorded depending upon antecedents of accused, quantity of contraband etc….. Two police off’cers have responded in the negative. According to an a:ademician maximum punishment should be life impriscrfent, but minimum sentence should be left to the court’s c’scretion.

Q.No.3 A High Court Judge, Registrar of Hign Courts, an Advocate, Thirteen Police Officers and one academician have answered the question in negative whereas rest of the persons have agreed with the suggestion of imposing punishment proportionate to the quantum of seizuce of the contraband.

Q.No.4 Most of the responses are in the cegataive. But a Judge of the High Court, two Police Officers and one academician have responded in the affirmative. Further the Hon’ble Judge has observed that there are number of cases in which big bosses dealing in narcotic trading traffic have started using old men and women, widows, women having small children, crippled persons an: children by exploiting their poverty and other weaknesses Such people do not get arrested or indicted. Hcweuer, due to such practice being adopted by big bosses. han:’:aps are required to undergo severe sentences. The Court does not ,1

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have the discretion to deai with such handicapped persons at the time of sentencing them. According to them this causes “iscarriage of justice. They, therefore, suggests: tnat the norcs e/tercing to” shouid be used so far as sentence is corcerrec.

Q.No.5 ‘wenty poiice officers and one Acacemicians have resccnd : tne cuestion in negative. According to the (D .4 of Madras, the benefit was to b (|’ Registrar Hign Cour becacse it is difficult to prc/e that th

0) «D given to drug was not intended for personai consumption. As per the Director Genera? of Poiice, Jammu & <ashimr the provisions of the section 27 of the Act is oniy appiicabie to those persons who are in iiiegai possession of smai’ Av quantity of the drugs i.e. personai consumption and smai’ quantity of the drugs have been notified by the Govt.of India from time to time. However, according to one Advocate, this Section is meaningiess and Tiabie to be struck ccwn because for personal consumption iicence is being issued. A qucge of the High Court has responded ir the affirmative. Further the Addi. Speciai Pubiic Prosecutor, –fcn Court, Madras, is of the view that iet section :7 re*a’n as it stands now. It is for the persor wno c1ai~s the benef’t thereof to prove that he was having it for “is :ersona1 consumption. This is irceed a very generous pr:\isiOh to take care – of addicts ocording to the Inspector Generai of 1-‘ s}mpathe’ica ;.

Poiice, Cnan an: the Add1.D.G. Crime, Punjab, the J (1 I (11 in u tic” 27 snouid be given cniy fsr persona’ (D F) benefit of S consumpt’:n as: not otnerwise. However. a Jucge of the High Court Bench, Indore is of the view that the section 27(2) needs to be deleted. One Police Officer has opined that no benefit should be given to all persons found in possession of small quantity irrespective of the fact whether the same was intended for personal consumption. Two Judges and one Police Officer have replied in affirmative.

Q.No.6 Special Courts under Section.36 of the NDPS Act have not yet been created in Orisa, Sri B.Pande feels that there is no need for such courts at present in view of the small number of cases.

The Registry of Madras High Court and two Advocates, have responded saying that under the said Act, no special courts have been set up in Tamil Nadu. However, additional powers have been conferred on the essential commodities special courts.

In J&K every Session Judge is invested with the power to try cases under the NDPS Act, 1985. However, no separate courts of Special Judges have been created.

Likewise the Principal Sessions Judge of each District is invested with the power of court of Special Judge in Kerala.

In Madhya Pradesh, in an order dated 14.11.94 passed in Misc.Cri. case No.2901/94 by High Court Bench, Indore, the proposed attention of State Government was drawn and now to constitute nine special courts has been finalised.

x (D m Government of Goa and Tripura W fl W USPS court at: has appointed special judge for T?e C?ar:’;arh Administration has :aKen up with H’;n Csurt tor creation of separate court High Court 😕 3unjab and Haryana has refuse specie’ court on the ground that number of case Ir the State of Nagaland, separate courts judges have opt been created. However, t Courts have peec ceclared as Special Court purpose.

Ir Sikxim D.G.P.

the Question asked by the Law Commission.

Special uucges have been appointed for trials of cases under section 36 of NDPS Act in Territory c’ ?oncicherry.

Government ha Ir KE”WEC3\3, the State courts under the Act.

III \ N M W create: sep the State Government has estab has creat the same W H of specie’ he Sessions s for th has responded in the affirmative to conducting the Unio”

A s not yet lished on er the NDP tleas: o C} CTSDOS court of Specie gudge for trial of cases upd Act. –:we\:r. 3 3.P. is of the view that 3 Acdl Sol Sour: should be established ‘or sbee of exietin: numser ct pending cases under the Act.

,–< W W :5.

4, Maharashtra, speci courts ha/e been i\’ In the State 0 constituted.

he State of Rajasthan has created separate courts courts under H) _2

-1 Uttar Dradesh and Eihar, no spec’ (I (D L) sectih 36 of the Act have been constitu Courts of the Add1.Sessions Judge have been designated as species courts for trial – such cases in U the State of Gujarat.

The State Government of Assam has not yet created separate courts of special judges for tria1 of cases under section 36 of the Act.

Special courts have a1ready been estab1isned in Deihi.

Q.No.7 Most of the responses are in affirmative. One acvocate is of tne view that the Speoiai Courts are fai1ure attempt to oispose of the cases. Superintendent, CE Panaji, Superintefident, CE, North Goa have responded in the negative.

Q.No.s Most of the Judges. Poiioe officers and Acxooates naxe responded in affirmative. Add’:ionai Specie? Public Prosecutor. High Court Vadras and Add1.D.G.P. \Crime\ Punjab are of the xiew that section 47 of NDPS Act starts with every officer of the Government.” which natura11y inc1udes even the Forest and Revenue officiais. Hence, there is no need to have a separate Section 47 A.

Q.No.9 Most of the Judges/Officers/Advocates have agreed with the proposai of the Law Commission. However, the proposa1 did not find the approva1 of two judges of the High Court. They are of the view that the said provisions take care of the interest of the accused. A Pubiic Prosecutor, High Court, Madras,Shri P.N.Prakash has referred to a number of judgements of the Supreme Court and High Courts viz. AIR 1956 SC 411, 1994 6 SCC 569 A11 Mustafa v. State of Kera1a, 1995 (1) Crimes 77. Amarjit Singh v. Delhi Admn, Punjab v. Jasbir Singh (1996 (1) SCC 288), State of Punjab v. Baibir Singh (1995, 3 SCC

610), Saiyad Mohd v. State of Gujarat (1995 Cr1.J. 2662, Raghubir Singh v. State of Haryana(1996(1) crimes page 55 SC) etc. He is of the view that Section 50 shou1d read “when any officer, other than such officer of gazetted rank mentioned in Sec.41(2) on prior information is about to….” The Add1.D.G.P. (Crime) Punjab has suggested that the words “Non–Gazetted” shouid be inserted in Sub–section (1) of Section 50 because if the officer making search of a person is himse1f a Gazetted Officer, then he is not required to take the person to be searched before some other Gazetted Officer/Magistrate. The Director Genera7 of Poiice, Bangaiore and Commissioner, CE&C, Rajkot haxe responded in negative. A Judge of the High Court, Bombay.

has suggested an amendment in the fo11owing 1ines —

–: 109 :~ “Notwithstanding that the procedure laid down in chapter V of NDPS Act (Section 41 to68) is not followed it is hereby declared and clarified that the trial is not vitiated. Such non~compliance of procedure shall be taken into consideration while appreciating the evidence of Investigating Officer. The said procedure is declared to be directory in nature for the guidance of Investigating Officer.”

Q.No.1O Twenty–six Judges, officers and advocates have agreed with the proposal by the Law Commission for re-drafting Section 50 of the Act by incorporating suitable amendment. Further, a lawyer feels that if a privilege is given why should it be waived by writing. He observes that if the accused is apprehended, he may immediately be taken before the Magistrate and seizure should be before him only or at the time of remand. The Magistrate should satisfy whether the privilege was either complied with or duly waived. A Judge of M.P. High Court, Indore Bench has suggested that if at all the amendment is to be brought in existence it should be provided inSection 50 that the Gazetted Officer should not be the member of the raiding party._ Another Judge after referring to Misc.Cri.case No. 2768/50 decided on 28.4.96 of Indore Bench, M.P.High Court finds no justification for making a special provision about Gazette: Officer or Magistrate. He is of the view that if section 50 is retained in whatever form, it should be made director; instead of being mandatory and plea should be permissible on prejudice or on failure of justice in

-: 110 :–

aocoroarce with Section 455 of the Code of Criminal Procedtre. The Commissioner, CE&C, Ra;mot ras responded in the regative. Superintendent, CE, Paraji ras suggested that tre Sazetted Officer/the Magistrate only oe a witness to the search on the same point.

O.No.i1 Most of the responses are affirmative. But some of them have expressed it in negative because accordf”: to them the discretionary power may be misused.

Q.No.i2 All persons except the Registry of Madras High Court have agreed with the proposal for the insertion of new section.

Q.No.13 Twenty nine persons have replied in the affirmative. A Judge of the M.P. High Court has suggested that the incharge should be l’able to action in case of defauflt in submission of charge–sheet within the statutory period. Four of them feels that the suggetions are not practicable and if implemented, may lead to administrative difficulties. The Aoditional Special Public Prosecutor, High court Madras however added that it

1|) .-h would fect the working of agencies like N.C.B./Customs/DRI because they are not police officers and they collect materials from all sources and submit it with a complaint. They do not fi’e charge sheet. Therefore. there is no need for statutory amendments. Adol.D.3. (Crime) Pun;ab, has not agreed to the SJ§§€SC’C”$ contained in t”lS question tecause the same ‘,1 according icouid be done by an executive/administrative order. The Superintendent, CE, North Goa, has responded in the negative.

Q.No.14 The Registry and Addi. Spi. Pubiic Prosecutor of Madras High Court and One Poiice Officer have repiied in the affirmative. The State Government has created centres for the identifiction and treatment of addicts at the State capitai and more wouid be created at other pieces depending upon the need and avaiTabiTity of finance.

The Director–Genera1 of Poiice; J & K, has also repiied in the affirmative.

The State of Keraia and Madhya Pradesh have aiso responded in the affirmative to the question.

The Supdt. of Poiice, ANC, Panjai, Goa has pointed out that the State Government has estabiished centers for identification and treatment of addicts in the State of Goa.

The Inspector–Genera1 of Poiice, Union Territory, Chandigarh has informed that the State Government has not estabiished adequate centres for the identification and treatment of addicts.

\-

A Senior Supdt. of Po1ice (Narcotics)Kohima, is of the view that there are very few centres in Nagaiand which are not adequate at aT1.

No centre for identification and treatment of addicts has been established by the Union Territories of Pondicherry, Manipur and Sikkim.

‘The State of Maharashtra-has estab1ished centre for detoxication and rehabi1itation of addicts. N.G.O.’s are aTso doing commendab1e service in this fieTd in Mumbai and in other parts of Maharashtra.

The State Government has estab1ished rehabiiitation centre in Rajasthan. However, according to Commissioner, C&CE, Jaipur, number of such centres shou1d be increased.

The number of centres for identification/dediction of addicts instituted by the State Governments (U.P. and Bihar) is neg1igib1e as per Zona1 Director, NCD, Varanasi, In Vudodara, there is a centre for identification and treatment of addicts in S.S.G. Hospita1 run by the Government of Gujarat.

Q.No.15 Most ofithe persons who responded to our questionnaire have agreed with the suggestion of the La Commission. However, a few of them are of the view that there is no need to estab1ish such centre in some di:.t.rict;Ls/Stul’.us. They, t’,her’eforo, feel luhnti. it :’:hon1d K-

4,.” 4:, accordingly be left to the discretion of the State Government to establish centres according to the need. I Q.Ng;1§ The following suggestions were made by various Judges, Advocates, Police Officials and Academicians:

(1) The application of Section 167 of the Code of Criminal Procedure be excluded.

(2) Express provision be made for taking second sample.

(3) Section 32A be amended in the light of gygn ChgQ_ v. State of Rajasthan, 1993 Cr.L.J. 442.

(4) The Assistant Commissioner should be the Authorising Officer so far State is concerned. The Deputy Commissionerof Police should be the immediate superior officer.

(5)’Gazetted Officer’ of the other Government department viz. School Head Master etc. may also be brought within the purview of section 41 of the NDPS Act.

(6) By making necessary amendment in the Act a duty should be cast on .the State Government/Central Government for the purpose of giving training the n…«,~ v…» 5-

-2114:-

officers of C.B.N., Central Excise Department and Police for detection of crimes and investigation in accordance with the provisions of NDPS Act.

(7) A duty should be cast on State Government/Central Government to open rehabilitation centres in each district of the State by appointing medical officers, psychiatrists and social welfare officers.

(8) Section 37 of the Act be amended on the lines of the proviso to section 437 of the Code of Criminal Procedure for releasing an infirm or sick person or a child,juvenile and a woman.

(9) The word conveyance” may be deleted from section 42 since section 43 and section 49 will take care of it.

(10) The words”Government offices” may be included in the explanation to section 43 of the Act.

(11) Section 36A (1) (b) and (c) of the Act requires to be redrafted so as to clearly State as to who should exercise the power of remand if detention is considered necessary.

(12) Section 29 (2) 1imits the operations of section 29 (1). If the exp1anation in section 29 (2) is made an inc1usive one then it wi11 take care of not on1y conspiracy/abetment in India but aiso bring operators who are abroad within its told.

(13) Chapter V A deaiing with forfeiture of property should be amended so as to prevent drug traffickers from transferring away the wea1th amassed due to i11icit trafficking in Narcotic Drug and Psychotropic substances.

(14) Section 37 be amended to contain sufficient guide1ines on which the pubiic prosecutor may not oppose the app1ication for re1ease on bai1.

(15) Section 36D (2) be amended to permit and provide transfer of pending cases to specia1 courts despite taking of cognizance niso in view of the decision in (1993) 2 SCC 16 and and misc. Cri. Case No.2901/94 decided by M.P. High Court, Indore Bench.

(16) Section 32 A be de1eted or amended/conferring discretion to court in appropriate cases in the face of judicia1 pronouncements for suspension of sentence.

(17) Po1icy of award merits to be mortaiised so as to avoid possibie registration of fake cases and introduce e1ement of more fairness.

.4 (18) Proper procedure be followed for sealing, sampling, deposit and despatch be provided for.

(19) Subsection (b) of section 36 A(1) may be deleted.

(20) There should be Uniformity in cash awarad to all the departments concerned with N.D.P.S.Act.

(21) Special training centres be opened to train Police personnels with regard to all the provisions of NDPS Act.

(22) More sniffer — Dogs be employed and more training centres for them be opened.

(23) Cash award be given not only in the name of Sniffer — dog on seizure of Narcotics but also to the police personnel accompanying the dog. (24) More incentives be given to informers.

(25) The definition of “illegally acquired property” [Sec.68–B(g)] be widened so as to include the provisions of ‘illegally acquired property’ defined under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.

~: 117 :-

(26) Proviso of sub–section (2) of section 68(c) shou)d be de1eted.

(27) The words “has been charged with any offence punishab1e under this Act, whether committed in India or outside after the words “chapter app1ies” in sub–section (1) of section 68--E shou1d be deleted.

(28) Se11ing of opium/poppy ganja etc. through authorised shops by the State Governments shou1d be stopped.

(29) The amount of reward shou1d be increased.

(30) The provisions of Sections 9, 41 & 42 of the Act be reviewed.

(31) Sections 68A vis–a–vis 68E, of the NDPS Act be reviewed doubt/ambiguity about the word “charged” be removed.

(32) Licencing of “Bhang Thekas” by the State Excise Department requires to be looked into.

(33) More harsh punishment for drug syndicates be awarded.

(34) Provisions related to forfeiture of proverty (¢h.V.A) need immediate amendment as section 68--A and Ccu”firH\ fi!L»F rn’e (x)ntr;HJiCTX7FY.

(35) New provisions be added to depute state officials to be utilised as witnesses in the NDPS Actcases by State enforcement agencies.

(36) Section 50(3) of proposed amendment (of the Questionnaire) should be deleted.

(37) Classification between soft drugs and hard drugs must be made and punishment should vary between them.

(38) No rewards for seizing drugs be given to the officers. It may be only in case of private parties who gave information that such reward be given.

(39) Simple possession of drugs should not be punishable unless he knowingly possesses the same.

LISI_QF THE PERSONS WHOmHRESPONDEQh”THE QUESTIONNAIB§j CONIRIBUTED _A_R_TI_CLES FQR THE NA.TIQ.N/<\L..S.EMI,NAR:

Judges/Registrarsmetc.

1. Justice J.G.Chitre, Judge, High Court, Madhya Pradesh, Bench, Indore.

2. Justice A.R.Tiwari, Judge, High Court Bench, Indore.

3. Registrar, High Court of Madras.

4. Shri M.N.Krishnan, Registrar, High Court of Kerala.

5. Justice (Smt.) P.D.Upasani, High Court of Bombay.

–: 119 :~ Justice (Smt.) R.G.Vaidyanatha, High Court of Bombay.

Shri J.N.Barowa1ia, Senior Sessions Judiciai Magistrate, Mandi District, Mandi Judge–cum~Chief (H.P).

Registrar, High Court of Shri Syed Basir Ud Din, Jammu & Kashmir.

Dr.G.Krishnamurthy, Advocate, High Court, Madras.

Shri Binu Kumar, Advocate, the President Bar Association, Trivandrum (Kera1a).

Shri P.N.Prakash — Add1.Specia1 Pubiic Prosecutor, Narcotics, Govt.oF India, High Court, Madras.

Shri K.T.S.Tu1si. Senior Advocate, Supreme Court, New Delhi. ‘ Poiicedofficers/other officers

1.

10.

11. $2.

Add1.D.G. of Poiice, C.I.D.Crime, Shri B.Pande —

Orissa, Cuttack.

Director Generai of Poiice, J&K Srinagar.

Shri M.C.Mehanathan — D.L.A., Ministry of Finance, Department of Revenue, N.C.B., New De1hi. Shri A.K.Singh — Police, ANC Panaji–Goa.

Superintendent of Shri S.K.Chaterjee — IPS, DGP Tripura Inspector Generai of Poiice, U.T. Chandigarh.

Ghri C.P.Giri, IPS » Sr.8updL. of Police (Narcotics), Nagaland, Kohima.

Shri Yatish Chandra * Add1.D.G.P.

(Narcotics Wing) Poiice Headquarters, Rhona]. —

Shri Ashok Joshi, IAS – Secretary to Govt.oF Madras.

Shri P.S.Bawa, IPS, ~ D.G.P., Sikkim. Add]. D.G.P., Crime, Punjab.

Director, Crime Records Bureau, Pondinhorry. Director Generai of Poiice, Bangaiore, Karnataka. I i)(‘ E5 ii i~i:1.i>i (iiiiityr :1 I r)!’ l’r) I ic.r), h4:iri i[)(Jf , I nniiiiail . Zonai Director, NCB, Bombay.

unmmiuniunni, fllafl, Dunn.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26. _.J.

-: 120 :~ Commissioner, CE&C, Vadodara Commissioner. C&CE, Jaipur.

Zonal Director, NCB, Varanasi. commissioner, CE&C, Rajkot.

Sp1.Superintendent of Poiice, CID, Assam, Gauhati.

Deputy Commissioner of Poiice, Narcotics & Crime Prevention, Delhi.

Superintendent of Customs (Legai) Goa. Superintendent,CE, Panaji.

Superintendent, CE, North Goa, Champara, Goa.

Commissioner, Customs & Centrai Excise, Chandigarh.

c 8; -1i;=.e::j._as.=3 Prof.Joga Rao, National Law Schooi of India University, Bangalore.

Prof. M.R.K.Pragad, Mahadevrao Co11ege of Law, Panaji, Goa.

~ lHl PUNlSHMFNTS PROVIDED FOR OFFENCES UNDER NDPC ACT, 1985

-: 1 2 1 : —

ANNEXURE-III (AS AMENDED BY ACT NO.2 OF 1989) S.Nos: [Description of Offenceszf ii’ l.’l Cultiiation, production, manufacture, possession. sale, purchase, transport- ation, concealment, use or consumption, import/export inter–state al Ponfli straw lSec.15l bl Coca plants and coca leaves(Sec.i6) cl Opium poppy, opium and prepared opium (Secs.il, 18, 19)

d) Cannabis other than ganjalSec.20l er Ganja (Sec.2ul fl Manufactured drugs and preparations (Section 2i)

9) All psychotropic substances (Sec.22l r~_> Punishment for illegal import into India, export from India, or transhipment of narcotic drugs and psychotropic substances (Sec.23l.

Punishment for external dealings in narcotic drugs and psychotropic ‘ substances in contravention of section 1? [Sec.24l

2.;

4. Funishment for allowing premises, enclosure, space, nlnce, animal or cuninianco. knowingly for commission of offence (Sec.25l

5. Punishment for production, manufacture.

\ “* possession, import/export inter state, sale, purchase , consumption, use, storage uisl-ihution, disposal or ncnuisitiun of nni cnuirullnu suhstnnco(Sec.?5Al ‘ Punishment ‘or certain acts by licensee or his soriininlSoc.?tl v..

R Minimum lmprisonment»’DD_Rrine (3) (4) 10 Years’ R.I. Rs.i 10 Years’ R.[. Rs.i 10 Years’ R.I. Rs.1 10 tears’ R.I. Rs.1 10 Years’ R.1. Rs.1 10 Years’ R.I. Rs.1 10 Years’ R.I. Rs.l 10 Years’ R.I. R5,:

10 Years’ R.1.

lakh lakh lakh lakh lakh lakh lalh lakh lath Maximum”, Imprisonment lb) 20 Years’ R.l.

20 Years’ R.1.

20 Years’ R.I.

20 Years’ R.I.

Upto 5 Years’ R.I.

20 Years’ R.I.

20 Years’ R.1.

20 Years’ R.l.

20 Years’ R.l.

20 Years’ P.I.

Upto i0 Years’ 9.1.

Upto 3 Years’ imprisonment ‘ lakhs Rs.2 lakhs Rs.2 lakhs Rs.2 latns Upto Rs.50,000.

Rs.2 lakns lahns

2) (h r\3 . lalns ‘Ps.2 laihs lalhs Upto 99.1 lain or with fine or with hoth _…

. ial

–: 122 :–

Punishment for illegal possession in small quantity for personal consumption of cocaine, morphine, dicotyl-morphine or any oihoi nniiotit dinn oi psychotinpit suostance as may be notified by Central Government (Sec.97l Punishment for illegal possession in small quantity for personal consumption of narcotic dings or psychotropic substances other than those specified in l(al(Sec.2l) Punishment for financing, directly or 10 Years’ R.I. indirectly, abetting or conspiring in the furtherance of an offence or harbouring persons engaged in the aforementioned activities tSec.27Al Punishment for attempts to commit any offence punishable under Chapter IV of the Act or cause such offence to be committed and in such attempt does any act towards the commission of the offencel Sec.28) Punishment for abetment and criminal conspiracy to commit, an offence punishable under Chapter IV of the Act, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy (Sec.29) Half the normal punishment Punishment for preparation to do anything or commission to do anything which constitutes an offence punishable under any of the provisions of sec.i5 to 25 (both inclusive) (Sec.30l Double the normal punishment Repeat offences lSec.3i) Punishment for subsequent conviction in respect of commission of, or attempt to commit, or abetment of. or criminal conspiracy to commit, an offence relating to, production, manufacture, possession, transportation_ import into India, or transhipment of narcotic drugs or psychotropic substances for specified quantities of certain narcotic drugs or psychotropic substances as mentioned in Sec.31AlSec.3lAl.

Rs.i lakh Upto 1 year imprisonment Upto 6 months’ imprisonment 20 Years’ R.I.

As provided for that particular offence.

As provided for that particular offence.

Half the normal punishment or with fine or with both or with fine or with both Rs.2 lakhs Double the normal punishment Death Penalty ~: 123 :-

Death penalty has been provided under the NDPS (Amendment) Act, 1988 for the first time in the history of India. Under section 31A cited, where a person has been convicted by a competent court of criminal jurisdiction outside India, he shall be dealt with as if he had been convicted by a court in India.

2. Besides, as per the provisions of Section 32A, notwithstanding anything contained in the Codeof Criminal Procedure, 1973 or any other law for the time being in force(but subject to the provisions of section 33), no sentence awarded under this Act (other than section 37) shall be suspended or remitted or commuted.

3. Section 36 provides for constitution of Special Courts for the speedy trial and punishment of offenders.

4. Section 37 stipulates that offences shall be cognizable and non bailable.

5. Under Section 59, dereliction of duty cast on an officer under this Act or wilful abetment/connivance shall be punishable with 10 Years” R.I./fine Rs.1 lakh extensible to 20 Years” R.I./fine of Rs.2 lakhs. (The term ‘officer’ includes for the purpose any person employed in a hospital/institution maintained/recognised by the Government/local authority).

6. Section 64A provides for immunity from prosecution to addicts volunteering for treatment.

AN’NEXURE- IV fN][é\TI]©IN[:\LL. RUG @w©R@EM@LMT s3mTu6Tu<c:s 1.36 @N E3M©E»3fl% <PR©wu6u©N,/Au.» Your A 1992 1993 > __V_1994 1995 l99E_

1. SEIZURES OF VARIOUS DRUGS IN KG WITH NO. OF CASES opmu SEIZURES 1913 I 3011 2256 1339 1333 CASES ‘ 1286 1679 w 1171 871 349 MORPHINI szxzzmzs 35 36 ‘ 51 __ 4 1 CASES A”__” 158 _>V1O5 m~145 _35 20 HEROIN SEIZURES 1153 -‘ 1088 _A 1011 1678 877 CASES 2779 3383 3331 3236 1245 .GANJA- ‘ SEIZURES 64341 98867 187896 121873 26531 CASES 5839., 5214 6827 5737 2309 HASHISH SEIZURES 6621 I 8238 6992 3629 4825 CASES ‘ 2516 2827 2672 2691 986 COCAINI ‘ V SEIZURES 0.420 2 1.58 40 0 I cnsas 4 -1 6 6 2 MBTHAQUILONI SEIZURES _ 7475 15004 45319 _ 20485 9 CASES 167 283 457 196 4 PEENOBA3BITAL SEIZURES 118020 TABS. _- _” 7::__:_ i_~:::r0Eiw_–T–“_m*h0m_–_-~ cases 2 ‘ ___- “I — —-_”_V_ _9____ :__ V o L.S.D SEIZURES 50 164 256 113 ‘ —- 1285 (Sq. Plporn) ‘ CASES -‘ 1 — ‘ 1 7 ACETIC ANHYDRIDE SEIZURES – 19758 47740 9282V__ 2892 (in lttl.) CASES – 22 40 26 6

2. PERSONS ARRESTED

a) No. of Persons Arrested 12650 _ 13723 15452 14673 5203 including Foreigners

b) No. of Foreigners 116 _114 136 _14§”m_____m 110 …_. . .—…-. _ . .__-_…__. . . – I 3. ACTION TAKEN AGAINST PERSONS INVOLVED IN DRUG TRAFFICKING A) No. of Persons prosecuted 7172 I 9964 9154 12919″ 5505

b) No. of Person: convicted 761 1488 1245 2156 1472

c).No. o£ Pazsona acquitted 1762 . 1633 3165 3914 2285

4. ACTION TAKEN UNDER PITNDPS(NDPS) ACT, 1988 No. of datnntion order: 97 116 156 111 45 L issued under PITNDPS Aat,19B8 No. detained so 92 _123__ 69 j V38 NCB, NEVV DELHIfig’.

Yin: ,,, 1992 1393 1994 1995 1996 W “5. DESTRUCTION OF NARCOTICS DRUG YIELDING PLANTS ay Poppy Plant 1:01 (in Aczns) 19 6′? 0.5 Potcntial ‘field {in Kg3_) 135 754 9 V 10

b) Cannabis Plant Area. (in Acres) 1219 – 2587 858 638 16 Potantinl Yield (Kg: ,} 1230209 3275561 1073334 6946117 9850

6. DESTRUCTION OF MANUFACTURING FACILITIES ‘5) Facilities detectedené qaaqtib/,9′ !i:I!5Q5d0d.rr.I9_s..e_I’2_€2’ in K1 TORI _ 1.010 ‘ 1 27 6 0 Iacilitinu detected 5 V 7 4 9 _ 3 a 0 3153152 __ — _ fi– _ – 0 0 Facilitins dntactad – – – 0 0 fl 3551.000 1710 5091 7335 o rac:i.J.1:-.1″ datactad 3 2 3 4 1 noamintz 0.750 0 – ‘ – 0 o Paciliticu detected 1 — — 0 0 lg No. ofpersons arrested 7 3 25 17 1 Jzilncriminafingaaterials seized in Kg. ‘ “LCETIC LNHIDRIDE – 21040 – O 0 Ac:-rn. mm-a1uuzI1.LIc ACID (1tr.) — – – 551 0 I-CETTL LLIC POWDER — ‘ — — 100 0 ACEYYL camams — . – — 0 0 AIQCIIIUI-I cm.os.:0:: — – 19.5 7 0 nn:-zzuz. zwnzx _ – — – o 0 14:3-:s2:uo1:. — – — 0 0 opium , 37.950 ‘__2.750 32 .10 0 oz-mu SOLUTION (ltrx.) ___ AV_~ _: v_A H-__ _____ — -0’ _ o sonrux cxnsourrsz — – — F0 0

7. DISPOSAL OF SEIZED NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES g1>n:u 254 449 33.3 5 15 _1_, .

2«£3RPS’INE 1 – – 0 0 EEROIN 807 240 463 404 22 amass. 5952 I 10599 12550 1809 45 1:155:53 1117 1115 2234 3709 99 coc:A:m: 2 — 0.95 o 0 rmraxqoamxz :14 17345 9449 10952 415 P ITAL – – – – O _:.:._S.:3 (Sq.Pa.pe::) ‘*7 W “i iv _ -H ‘ – t -I H V _ – O 5252:: AN’!-TYDRIDE: (lt:s._)&y_ __ A– __ — – — L 0 NCB, NEW” DELHI ru.’ 1992 . 1993 1994 1995 1996

8. FORFEITURE OF PROPERTY A) Vnlun of property 888337 — 1024400 309479 274479 Foxtoitod (Rm) ‘ lie. at Case: 5 – 1 3 1

b) Value of property 37026070 904044 85067571 210428345 456000 Frozen (Rn . )

9. AGENCY-WISE NUMBER OF SEIZURES ALL Izmn __ _12_751 _13_§1_s_______1_4s57 _ 12799 4928 NARCOTICS CONTROL sprigs as ‘ 116 90 39 35 nznzcrourz or xuzvrzxquzm – A 54 I “fa, V” I’ ‘H 29-.” 4″4_2_e:w’ W H 5 ____ _.______ _- __ ._.__1.____.___ __., INTELLIGENCE CUSTOM 4-. czuwnn. axcxsz S18 . H 474 #417 27: ‘ 76 c.=.:x’mu1. BUREAU or muzcorxcs 114 79 70 65 16 ORGANISATIONS _ __ __ _’ _ 3.5.2 __ 42 125 120 276 112 C.B_I – _ 12 6 1 o s’rxn: AGENCIES (TOTAL) 11984 4 12694 13865 12119 4671 POLICE — 12497 13526 11833 4649 31°15′ 4 __._3. ,__ ‘ __.__1_9″ __. 339 “E __,-?3 ______ ._ Jonrr onmrxou – — – – 13

10. AGENCY-WISE BREAK-UP OF QUANTITY SEIZED (IN KGS.) A. NARCOTICS CONTROL BUREAU OPIUH so 166 1.4 40 11 uoamum: — – — o 0 3:30:14 95 69 101 75 73 5124.71 359 3349 3223 462 52 nszusu 2 ‘ 347 261 27 29 COCAINE – 0.06 — o o M2′.’raAQun.om-: 1491 5776 676 1064 o pxznounxru 63590 Tabs. – – _ — 0 LSD . – – – — 0 ACETIQZ ANKYDRIDE (ltrs .) – – – 880 0 B. DIRECTORATE OF REVENUE INTELLIGENCE opxuu – __ 243 393 0.04 29 o HORPBINB 0.190 – — – o uznom 0.035 E’ 149′ __ __ 1s__ _( 243 A 103 mm __f;]ff’::,5,7o: 5-1;;,v;>_”-_”ff. Té2′;;[“””fT: 00” ansxrsx 74 — 1340 130 _v-35′<19 Wm’ new if “p; ;5:_:;; %1Tj>;;:j;%j<T:;; 1%;;§¥- :j j > m-.It~uQuAI.om: # – A_ ‘£732 12620 14099 0 PKENOBARBITAL — — – – o NCB, NEW’ DELHI

-5 127 ‘-

Your 1992 1993 1994 1995 1996 LSD – — — __ — O ACETIC nu-rrmunz 11:23.)- – 2000 – – 0 C. CUSTOM AND CENTRAL EXCISE 091014 53 111 26 51 75 mnpumn 2 – 30 2 0 11290124′ 33 114 152 207 112 010mm 12221 22145 22521 5754 799 1111531511 115 1359 1294 950 575 cocxnu-. 0.310 1 — 3 0 ‘ M21-amunnoma 1539 4140 11351 205 4 mmnoazuzarrxn 54430 Tabs — — -» 0 LSD – – — – o ACETIC ANHYDRIDE (ltrs.) – 3000 25275 79 2117

0. CENTRAL BUREAU OF NARCOTICS {C.B.N) opmu 533 127 453 155 115 uonpam: 2 2 h — – 0 m-mom 10 25 22 so 2 Gun _ 53 1527 155 52 0 31.93153 ‘W M; A 19 I 1 a – o cocuuz – ‘ –M’ g M Z’ — — ‘ ‘ML ‘FEW W’ M21-m.Quzu.om: – — – — 0 pnuounxrn. – — – – o LSD — – — — 0 ACETIC unmaxunzz (14-.29.) – – — – o E. BORDER secunmr FORCE (5.5./=.) opmu — 12 8 _ — 0 HORPEINI – 0.295 > 0 .5 __ — o_ _ 1:1-mom _ 29 77 _ ‘177–~fl’~ ‘5_5–3T ‘:27 ‘ __ awn V 291 1155 1455 2075 1573 msnxsu 373 313 513 491 115 cocnmz — – – –‘ 0 _d b£E’.l’EAQUA.LON’E – — — : 0

-: puuounrrn – — – – 0 LSD — — – — o ACETIC ANHYDRIDE (lt:s.) – ~ – 4715 140 E CENTRAL BUREAU OF INVESTIGATION {C.B.I) ._ opmu — ‘ W3: 2 – 0 uonpannz _ – – — – 0 nznom — 19 5 in” 0 ~_fi 019:1 _ ‘M M *~–_M”:’_2’ [‘ –“m ‘T ‘3 M M_ ‘3 y “W *5’ ‘m– ‘-zusnxsa – N 7» 5 1A3” __ 0 __4 COCXINE __~ ‘ i <7 ‘_ 4- __-i’_’_#.*__j»* /_____»_~~__E__\ HETHAQUALONE — — -‘ ~ 0 –fi VCR, NEW’ DICLIH

PNENOBARBITAL LSD aéihc Imjunnxum (lurk)?

_, _._§- T_A_T_§€O..L’9.E . 7V NORPHINE HEROIN GANJA HA HI ;__..§_._§5__. ____ ._ .

COCA;NE …_..

_~”EEE§9HE£9§E..# PHEflO§Afi§ITRL LED (§q.PApar) “WACETI(‘? A;N_}{YDR_IDE (1trn.) H. srAr_§ EXCISE ._..**<>’*¥’*.*Ai*??’_” T

-_£*.’£”;’3£*_’-___,__’-__,.

GANJA ILASHIXSH coc§1Nm_-

umrnnouggonx .?””§9§5§EIT§L LSD 2195″

.31- __ _4735 §eq1o V_5680 ifs’ H. 7 1919 . 1135 .39 2 1 530 H 1

– .1927-,°»_9_..__*.-__3_c2=.9§9___ ._ –… 24°79 .3571 – 2_<_>,.3__9 . .530 37 “O 2.99.62; LA 5}1_”_. ._ T as

— – 0 756 –

,j19§1éT% } 360,9 I V1:

In I “.

L4 I I I I ! N I c’ofo o m 1 L.) o jq Io o o v _T .hCE’!f¥_C n}_N__H_\fDRIDE (_1tra.) – Q – V W* “-1 “wk ‘W “M W _ _L,KMNI9PERAWON _”_9?F9fi-.._m__HT. .. ‘ ‘ ‘ ° >”‘fiORPHINE”V – — – – o unuoxn 172 .” EPFEF. _ [WV ‘ T ‘ _, ‘ ° _7n#sTuIs»C – – — – as _’_5_<>_C_3\_!T’¥<,*=__,-.:..,«-_} _ , _ , -_ . – ,-,’ _ _._ – __ , . 0 METHAQUALONE W w__ – ___ — ‘;; _;: 0_ ___ P”E”9§£§EIE§E,_M_m Han”- “H ‘ ‘ ‘ – ‘ – ° E59 M “,,W’_MN_m”____m_ ‘ _ ‘ _ , ‘f __ __’_ ‘ _ ._P ” .fiA&ETEé ;@;;onins (1trs.) — – – – 575

—–A PJ(fl£, P¢lC\A/ l)l£|.lll I99 2″

ANNFXURE V SUMMARY OF PROCEEDINGS OF WORKSHOP AT GOA A workshop on ‘Criminal Law & Nnrcoticn Drug Psychotropic substances’ was heid under the auspices of ON the Government of Goa and Law Commission of India 18 January, 1997 at Hotei Mandovi, Panji, Goa.

The foiiowing were present:

Shri P. Sundararajan, Add]. District Judge, Margno. .

Shri A.D.Sn1knr, Add}.

N .l7 .|’ .53 . , b4z1;)iis:z\.

Distric Judge & SJM Shri A.P. Cardoso, Advocate.

Shri 8.8. Faria, Pub1ic Prosecutor, Margao.

Smt. Shobha Dhumaskar, Pubiic Prosecutor, Mapusa.

Shri A.K.Singh, Supdt., of Po1ice (H.O.), Pnnnji, Gun.

Shri Uopnl M. Jndhnv, Policu Inupuctnr. Shri N.V. Mhamai, P.S.I.

Shri Ze11er C.De Souza., Adovcate. Goa.

Shri Narendra S.A.Sawaikar, Advocate, (High Court Bar Association ).

Shri M.P. Curvu1ho, Supdt. of Excise.

Prof. Dr. Cnrmo D’Souzn, M.S. Coiinqn, 5′(ll1(\’j i . v Prof. M.R.K. Prasad, Collage of Law, Pannji.

Shui , Surunh Nnvu1knr,AdvounLn, North Hon Hiutriut V 20,

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34. Sri workshop.

provisions of the Shri Devahahd Shetkar, Advocates Association.

Prof. J.G. Prabhudessai. G.R KARE Coiidcv.

Prof. K.V.Kunco1iehkar of Law, Margao.

Shri I.D.Shuk1a, Dy. Supdt. of Poiico Panaji, Goa.

Shri Rajendra Raut Dessai, P.S.T Shri Pandurang S.Ka1angutkar,P.8I. Shri D.S. Sawant, P.S.I.

Shri G.V.Dhume, Pubiic Prosecutor.

Shri Bhanudas Gaunkar, A.P.P.

Smt Edna Rodrigues, Pubiic Prosecutor. Shri Pramod S. Hede, Public Prosecutor. Shri V.N.S. Maikarnekar, Pubiic Prosecutor. Smt. Asha Arsekar, A.P.P., Margao.

da Costa,Asstt., Pubiic Prosecucos.

Shri J.C.

Shri Shekhar S. Parab, A.P.P., Panaji.

Smt. Teodoiihda S.Sardinha, Asstt. Pubiin Prosecutor.

Shri Subhas P.Dessai, A.P.P. Quepem. Shri Devidas Kerkar, Asstt. Pubiic Prosecu?oI.

Shri Shaiiesh Kaiangutkar, A.P.P., Panaji.

Shri Ladisiau M. Fernahdes, A.P.P. Vasco. The Chairman, Law Commission of India, Hnn’%1~ Justice K. Jayachandra Reddy, presided over tho He emphasised the need for amending vnr’oun Narcotics Drug and Psvchotromic Substances Act, 1985 in the context of the Questionnaire issued by the Law Commission. He to project their views.

invited the participants view that more Some participants were of the According to be brought under NDPS Act.

\ drugs should 1 them punishment alone will not be sufficient. There also be social awareness against the ill social should For the purpose effects of drug abuse.

should be activist involved. The Press and media can in this regard.

also play an effective role out that the Some other participants pointed quantities of various Narcotics fog small punishment provision and Jnder the NDPS Act drugs prescribet To overcome prescribed therefor are not satisfactory. the relevant provisions of the NDPS Act this anomaly, need to be amended.

them expressed the view that section A few of 1 ,, .. .. R.

. 27 or the NDPS Act dealing with the possession of .small quantity of drugs for personal consumption should be deleted.

I: was also suggested that special courts \ should :e set up to deal exclusive nith the cases

-: 132 :–

It was further suggested that there is a need to bring users of soft drugs, both reguiar and occasiona1, within the purview of the NDPS Act.

,1 I _l (0 Ln) I ANNE/URE– VI SUMMARY OF THE PEOCEEDINGS OF THE NATIONAL SEMINAR ON CRIMINAL JUSTICE HELD AT VIGYAN BHAVAN, NEW DELHI, CH 22-23 FEBRUARY, 1997 Towing persons attended the seminar.

Agarwai Anita – High Court, Bombay Agarwa1a E.C. — Advocate, Supreme Court. Agarwai Mahesh–Advocate, Supreme Court. Agarwai S.K. — Advocate Agarwai Sharda Ms. Addi. Dt.S.J, Deihi. Anand A.S.Dr.Justice, Judge, Supreme Court. Anand Pinki Ms. Advocate Delhi High Court.

Anand S.D. Joint Secretary,(Law) Haryana. Arunachalam T.S. Sr. Advocate, Supreme Court. Arya Aditya Dr. Dy. Commissioner of Poiice, De1hi. –

Bagga Reena, Advocate.

Ba1aji V., Advocate.

Bakshi P.M. Former Hember,Law Commission. Ba1chandran M., DIG, CBI.

Sanarjee D., Addi. DC, Inte11igence, Caicutta. Bhagat Achai, Sr. Consuitant, Appo11o HospitaI.

Bhatnagar A.P. Add}. D.G.P. Punjab. Bharadwaj Omendra, DEG, Rajasthan.

Biswas A.M. Member, Nationai Commission for SC &ST.

Chandra Bharat, Add}. DGP,Andhra Pradesh. Chandra Satish Dr. Add}. LO. Law Commission. Chaudhary musharraf Ms. Advocate.

Chawia S.C. Advocate.

Chopra R.C. Addl. ‘Dist. & Session Judge, Deihi.

Das B.S. Advocate, Cuttack.

Das Manoj K. Advocate.

Dave V.S. Justice, Setd. Chairman, State Law Commission, Rajasthar.

Chania R.P., Chie’ 3rosecutor. Directc”ate of irosecution. Delhi.

rnawaie Sujatna, Coctederation of Doctors Assn. l ) Dtkshit R.C., Add}. 3.G.P., Uttar Pradesn. Zuire V., D.I.G., Gnsiior.

Gambhir S.K.. Advocate, Deihi.

Eamohir Vivek. Advocate, Ceihi.

Ganguiy A.K. Justi e Garg Manish, Advoca-e, Delhi.

Gautam D.N., D.I.G., I.T.E.P.

Ghiidiyai Subodh, Journaiist.

Guiati B.L., Secretary (Law), Haryana. Gupta Aruneshwar, Advocate.

Gupta Arvind, Advocate.

Gupta A.K., Advocate.

Gupta Dipankar, Sr.Advocate.

Gupta K.L., A.D.G. Po1ice (Crime), Uttar Pradesh.

Gupta R.L. Justice, Member, Law Commission.

Gupta Naresh Kumar, Advocate.

Gupta Shekhar, Editor, Indian Express.

Jacob Aiice Mrs., Member, Law Commission. Jain R.C., New De1hi.

Jain R.K., Sr.Advocate, New Deihi.

Jha S.N. Justice., Judge, Patna High Court.

Kak Purnima Bhat Ms., Advocate, Supreme Court. Kapoor Suman, Advocate.

Katara Parmanand Pt., Advocate.

Kaw Sanjay, Journa1ist.

Khaiap Ramakant, Union Minister of State for Law & Justice.

Khurana Ruchi Ms., Trainee Advocate. Krishnamurthy Ch.G., Member, Law Commission.

Kumar Mukesh, Trainee Advocate.

Kumar Sushi], Sr.Advocate.

Kumar Swatanter Justice, Judge, P&H High Court. Kumaraswamy K., Add1.D.G.P.(Crimes), Tami1 Nadu.

Lalit Uday, Advocate.

Manchardi Ramesh, Chief Prosecutor, Directorate of Prosecution, Delhi.

Manohar Sujatha V.Justice, Judge, Supreme Court. ‘ Mansharamani G.G. Dr., Deihi.

Mathur S.P., B.P.R & D.

Mathew Anne, Advocate.

Meena M.D., I.G., Police, Surat. Meena R.L., Member–Secretary, Law Commission of India.

Nair Vipin, Advocate.

Narayan Nand Indra, Advocate.

Narayan Ranjana Mrs, Advocate. Nariman F.S., Sr.Advocate.

Niklesh R., Advocate.

Pahwa Vikas, Advocate.

Paii Anand, Advocate.

Paiii Rekha Ms, Advocate.

Pandher G.S., D.G., 3.P.R.$ D.

Pandian S.R. Justice Parthasarathy K., Law Secretar}. Pondicherry. Parekh P.H., Advocate.

Perreria Maxweii, Aod1.Commiss.

‘Cher of Poiice.

Pradhan B.R., Law Department, G:\:

of Sikkim.

Prasad P.S.V., Jt.Director, S.N.P,A_ Punchhi M.M. Justice, Judge, Supreme court 1; r PUF1 3.8., Direc c of Pubiic Prosecutions, Mumbai.

Rachhdya P.H., :,P_s_ Raina S.C. Dr, Project Director, B.P.? & D fahejay Devinder, A Chairperson, Law Dept, Kuruksnetra University.

Ram Mani, I.P.S.

Rama1ingam P.N., ACvocate_ Rao A.T.,Advocate.

Rad D.K. Prahiada, President, Institute of Company Secretaries of India.

Rao M. Jagannadha Justice, Chief Justice, Delhi High Court.

Rao M.V.Krishna, Director, A.P.Po1ice Academy. Rao P.P., Sr.Advocate.

Rao Suiaxan J.T., A.L.O., Law Commission. Rangam A.V., Advocate.

Ranganathan Buddy, Trainee Advocate.

Rath Sriiok N., Trainee Advocate.

Rathore S.P.S., D.G.P. (Crimes), Rajasthan. Reddy C.S.R., SSP., Chandigarh.

Reddy K.Jayachandra Justice, Chairman, Law Commission of India.

Reddy Sadashiva, Advocaten Reddy Usha Ms., Advocate.

Sainghar N.K., I.P.S.(Retd) Salve Harish, Sr.Advocate.

Sampath A.T.M., Advocate.

Sandhu H.S., S.P., C.B.I.

Sankrityayana K Dr., Member, Nationai Commission for Minorities.

Satish R., Advocate.

Seth Padma Ms., Member, Nationai Commission for women. ‘ Sharma Atui, Advocate.

Sharma M.K. Justice, Judge, Delhi High Court. Sharma Pawan Mrs, A.L.O., Law Commission. Sharma T.C., Advocate.

Sharma Vibhakar, D.I.G., Tiruneiveli, Tami] Nadu.

Sharma Vishnu, ADvocate.

Shroff M.N., Advocate.

Shinghal N.K. Reto. I.P.S.

Sibai Kapii, Sr.Advocate.

ingh J.P. Addi.Dis:. Judge, De’ni.

ngh Bhawani Jgstioe.

Si cc Singh Suitan, Advocate.

Srivastava G P Ao\ocate.

Srivastava S C. Jt.Secretary, La” Commission. Suoashini A.. Aovocate.

Sari A.K. AodT 3.6 J&k, Jammu.

Suri R.S., Advocate.

S}ed S.J. Legai Consuiteht, Vationai Commission ‘or woemo K.

Thakker Chnilal Justice, Judge, Gujarat High Court.

Thomas K.T. Just”

Sanjay Tripathi, l Supreme Court.

D Trivedi B.V Dr., A A L .O., Law Commission.

irector, B.P.P.&D.

Tulsi 2<.T.S., Sr. e Upadhaya A.K., A. ., aw Commission. Varshy Anup Kumar Dr. Venkatachalliah M.H. Justice, Chairman, National Human Rights Commission. Wadhwa D.P. Justice, Chief Justice, Patna High Court.

Yadav R.K., Addl.Dt.Judge.

Yadhav Ranbir, Advocate.

On 23rd February, 1997, one session was devoted to Narcotic Drugs & Psychotropic Substances Act. Hr.Justice K.T.Thomas, Judge, Supreme Court of India chaired the session. He observed that provisions ot sections 43 to 52 were sufficient.

He pointed out the Qualities which the public prosecutor should possess and emphasised the need for appointing competent persons ‘as public prosecutors.

He also referred to the UN Conventions on Drugs.

According to him the provisions of the NDPS Act are ceterrent and stringent. He, however, emphasised the need to plug the loopholes in regard to severe? otner orovis’:ns of the Act. He said that many people ace not e»en aware tnat their statements are to :e recorce: in the presence of a 3a:etted Otficer wr’1e zne la. orovzces tna: the :-atement must be *ecor:ed e ther belere the Magistrate or before the Eazetted (1

-4′

9) O ([1 LJ Mr. K.T.S. Tuisi, Senior Advocate referred to the probiems ieading to the collapse of the criminai justice system . He said that the search must be conducted before the Gazetted Officer or the Magistrate, as it is an important safeguard of the rights of the accused. However, he emphasised that the poiice agency has to be trusted. He further pointed out that iegisiation has to baiance the various situations. Mr.Tu1si gave various statistical data to show the effect of non–comp1iance of the provisions of the Act.

Mr.H.S.Sandhu, a senior poiice officer, highiighted the factors ieading to faiiure of investigation and prosecution. He aiso referred to the iaw prevaiiing in USA.

Mr.R.C.Dixit, a senior poiice officer aiso pointed out the various ioophoies in the NDPS Act.

Mr.Kapi1 Sibbai, Senior Advocate pointed out that under the provisions of NDPS Act, carrier of drugs is convicted. He questioned, whether it was fair? He further emphasised the various issues reiated to burden of proof and evidentiary value. In this connection, he referred to iaws in the United States of America.

Cannibis Plant J&K                                                            Drug Smuggle ( Below )

Norcoticsnarcotics-3_022814110133

Hashish In Shoes                                  Battery Dry Cells For Morphine ( Below )

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Cashew Fruit For Drugs ^

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