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Glimpse of NDPS Act 1985

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Glimpse of NDPS Act 1985

Introduction

The legislative regulation over narcotic drugs was earlier being exercised under The opium Act 1852, The opium Act 1878 and the Hazardous Drugs Act 1930. Owing to the passage of time and changes in the field of illegal drug trafficking and substance addiction at national and international level, the provisions of these enactments were found to be insufficient.

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

Purpose behind this Act

The punishment under the previous acts was not deterrent enough to meet the challenges of well-organized smuggling gangs. The 1930 Dangerous Drugs Act allows for up to 3 years imprisonment with or without fine and 4 years imprisonment with or without fine for recurring offences.

However, no mandatory penalty was imposed in the past existing rules, as a result of which drug dealers have been let off by nominal punishment. Over the last few years, the nation has been increasingly faced with the issue of drug transit traffic coming mainly from some of our neighboring countries and heading mainly to Western countries.

Past Existing Central laws did not provide for investing the officers of a variety of major Central Compliance agencies, such as Drugs, Customs, Central Excise, etc., with the power to investigate offenses under the said rules.

Since the aforementioned three Core Acts were passed, a large body of narcotics-controlled international law has evolved through numerous international treaties and protocols. The Government of India has been a party to entail treaties and conventions that include numerous commitments that are not protected or only partly covered by the preceding acts.

In view of all the above limitations, need of comprehensive legislation for the regulation of narcotic drugs and psychotropic substances was felt and demanded that penalties for trafficking in particular should be significantly increased, confiscation of properties originating from or used in illegal drug and psychotropic drug trafficking should be ensured, stringent provisions should be made for effective regulation of psychotropic substances and provisions should be made for the enforcement of international conventions on narcotic drugs and psychotropic substances.

As a consequence, the bill was passed in the parliament and therefore the Narcotic Drugs and Psychotropic Substances Act 1985 was enforced.

A comprehensive legislation was necessary to reform and update previous laws relating to narcotic drugs. Accordingly, the parliament adopted the Narcotic Drugs and Psychotropic Substances Bill. It was passed in Lok Sabha on 23rd august 1985 and was enacted on 14th November 1985. The act has been amended 3 times till now in 1988, 2001 and 2014.

The term ‘narcotic’ in the legal sense is quite different from that used in the medical context which denotes a sleep inducing agent. 

Legally, a narcotic drug could be an opiate (a true narcotic), cannabis (a non-narcotic) or cocaine (the very antithesis of a narcotic, since it is a stimulant).

The term ‘psychotropic substance’ denotes mind-altering drugs such as  Lysergic Acid Diethylamide (LSD), Phencyclidine, Amphetamines, Barbiturates, Methaqualone, and designer drugs (MDMA, DMT, etc.). 

Classification of Drugs. 

Cannabis 

Section 2 of the NDPS ACT, explains cannabis (hemp) and is defined as: 

Charas – a separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant, which also includes the concentrated preparation and resin known as hashish oil or liquid hashish; 

Ganja – the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and 

any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom; for example – Bhang. 

‘Cannabis plant’ 

means any plant of the genus Cannabis.

Narcotic Drugs

means coca leaf, cannabis (hemp), opium poppy straw and including all manufactured drugs;

Manufactured Drugs 

Means all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature, or to a decision, if any, under any International Convention, by notification in the Official Gazette declare to be manufactured drug;

‘Coca’

‘Coca derivative’ means

Crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of coca, Ecgonine and all the derivatives of ecgonine from which it can be recovered. Cocaine, that is, methyl ester of benzoyl-ecgonine and its salts. All preparations contained more than 0.1 percent of cocaine.

‘Coca Leaf’

means:

The leaf of the coca plant except for a leaf from which all ecgonine, cocaine  and any other ecgonine alkaloids have been removed.

Any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine. 

‘Coca Plant’

means the plant of any species of the genus Erythroxylon.

‘Opium’ 

means:

The coagulated juice of the opium poppy, or simply, Any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any  preparation  containing  not  more than 0.2 per cent of morphine.

‘Opium derivative’ 

means:

Medicinal opium, that is, opium which has undergone  the processes necessary to adapt for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf  by  the  central government, whether in powdered form or granulated or otherwise or mixed with neutral materials.

Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked.

‘Opium poppy’ 

means:

The plant of the species Papaver somniferum L.

The plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which  the  Central  Government  may, by notification in the official gazette, declare to be opium poppy for the purposes of this Act.

‘Poppy straw’ 

means: 

all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from.

Salient features of the Act

 It is applicable to the whole of India, to all the Indians outside India and to all persons on ships and aircrafts registered in India.

An addict means a person is highly dependent on any narcotic drug or psychotropic substances.

cannabis (hemp) means ganja, that is cannabis plant flowering or fruiting tops without seeds and leaves when not accompanied by the tops, under whatever name they may be known or designated.

Even though in certain sections of the Act the term Central Government Factories is mentioned, it has not been defined in the Act until now. It is proposed to define Central Government Factories within the definition of Government Company under the Companies Act, so as to allow the Central Government the flexibility to restructure Government Opium.

The central government under the act is authorized to take necessary steps to prevent and counter substance addiction and illegal trafficking.

According to the act, The Central government is also authorized to constitute an advisory committee called 

 

Section 15 to 20 of the act deals with penalties for the offences under the act.

 

Punishment is given for any breach of provision in relation to poppy straw, coca plant, coca leaves, prepared opium, opium poppy, cannabis plant and cannabis, manufactured drugs, psychotropic substances etc.

 

Punishment is also given for illegal import into India or export from India, for violation of orders made under the act, for illegal possession of narcotic drugs or psychotropic substances in small quantities and so on.

 

Offences under this act shall be cognizable means clearly identifiable and non bailable means serious offences.

Author: Mohit Mathur

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

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What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

According to Section 2 of NDPS Act:

‘Commercial quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official gazette.

‘Small quantity’, in relation to Narcotic Drugs and Psychotropic Substances, means  any  quantity lesser than the quantity specified by the central government by notification in the Official Gazette.

Intermediate Quantity: that although the terminology “Intermediate Quantity”, is nowhere defined in the Act in definition part, but the terminology used is “lesser than commercial quantity but greater than small quantity”, when it comes to stipulating the punishment for the offences. 

Offences  under commercial quantities are non-bailable  U/S 37 NDPS Act 1985. However,  if  the court finds that the accused is not guilty of offence or is not likely to indulge in sale/  purchase of narcotic drugs, bail can be granted.

The punishment for many offences  under Sections 15–23 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, Intermediate Quantity, i.e. quantity more than small and lesser than commercial quantity. 

The punishment prescribed for different quantities is as follows:

Where the contravention involves small quantities, with  rigorous  imprisonment  for  a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Where the contravention involves quantity lesser than commercial quantity but greater than small quantity,  with rigorous imprisonment for a term which may extend to ten  years and with fine which may extend to Rs. 1,00,000.

Where the contravention involves commercial quantity,  with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years  and shall also be liable to fine which shall not be less than Rs. 1,00,000 but which may extend to Rs. 2,00,000s.

Section 27 of NDPS Act: Punishment for Consumption of Any Narcotic Drug or Psychotropic Substance. 

Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,- 

Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the central government by notification in  the  Official  Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 20,000; or with both.

Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Brief legislative history

Vidhi Centre for Legal Policy issued a report entitled: ‘From Addict to Convict’: Working of the NDPS Act in Punjab’. The Report, which is based on a review of 13,350 cases from Courts trying NDPS cases in Punjab from 2013 to 2015, concludes that the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) has not deterred drug use or drug trafficking and is in need of reform.

Possession for personal use v/s small quantity

The Report examines the law in relation to ‘small quantity’ and possession of drugs for personal use without appreciating the legislative history of section 27 of the NDPS Act.

The NDPS Act, as it stood in 1985, prescribed a minimum punishment of rigorous imprisonment for 10 years along with a fine of Rs 1 lakh for most offences with the exception of offences involving ganja and the cultivation of the cannabis plant, which attracted punishment upto 5 years imprisonment and fine of upto Rs 50,000.

The other exception was contained in section 27, which prescribed punishment of a maximum term of 6 months/1 year imprisonment (depending on the drug) or fine or both for consumption or illegal possession of any narcotic drug or psychotropic substance in ‘small quantity’, if the drug was proved to have been intended for personal consumption and not for sale or distribution. ‘Small quantity’ meant “such quantity as may be specified by the Central Government by notification in the Official Gazette.” The onus of proving that the drug was intended for personal consumption and not for sale or distribution lay on the accused person.

After the amendment in 1989, the Central Government issued fresh Notifications specifying the ‘small quantity’ of 220 narcotic drugs and psychotropic substances for the purposes of imposing lesser penalty under section 27 of the NDPS Act. The Report contains the recommendations of the Committee constituted by the Ministry of Health and Family Welfare for this purpose.

Though beneficent, section 27 was not used  

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantities. Despite the possibility of imposing a lesser sentence under section 27 of the NDPS Act, persons caught with small quantities of drugs were still sentenced to 10 years imprisonment and hefty fines, as most of the time; the accused  the person was unable to prove that the drug was meant for personal consumption and not for sale.

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantity. For instance in Raju v State of Kerala, the Appellant was found with possession of 100 mg heroin worth Rs. 25. The Appellant’s plea that the drug was for personal use was rejected by the lower Courts on the ground that he showed no symptoms of withdrawal while he was in custody and not using heroin. The Supreme Court expressed doubt whether such a small quantity of heroin could have been intended for sale to make profit. Ultimately, the Court invoked section 27 of the NDPS Act and modified the punishment from 10 years imprisonment to 1 year on the basis that the heroin was meant for personal use, even though the same was not ‘proved’.

Another reason why drug users did not invoke the plea of personal use under section 27 of the NDPS Act was that it would amount to an admission of being in possession of drugs and risk certain conviction.

The requirement of ‘admitting’ to illicit drug-possession and ‘proving’ personal use made section 27 of the NDPS Act inaccessible. As a result, a large number of persons including those who use drugs languished in jail without the possibility of bail and/or lenient sentences.

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities.

Object and import of the 2001 Amendments – far reaching

The NDPS (Amendment) Act of 2001 was a watershed moment, as Parliament, in a rare occasion, acknowledged the harmful consequences of harsh provisions of the NDPS Act and sought to correct course by introducing graded penalties, on the basis of whether the offence involved drugs in ‘small’, ‘intermediate’ or ‘commercial quantity’.

Though the proposed changes were criticized in Parliament for being ‘soft on drug offenders’, Shri Yashwant Sinha, the then Finance Minister who introduced the Amendment Bill, remained firm and saw through its adoption by the House.

The Report however, faults the 2001 Amendment by stating that that it resulted in treating “anyone caught with drugs, whether for self-use or for sale, as a criminal.” This criticism is misplaced.

The NDPS Act has always criminalized consumption and possession of drugs for personal use. Drug users did not become criminals as a result of the NDPS (Amendment) Act, 2001.

Doing away with ‘personal use’, extended protection of the law. The Legislature’s decision to do away with the requirement of proving possession for personal use for imposing lesser punishment and adopting the uniform criteria of ‘small quantity’ offences must be seen in the context of non-application of section 27, discussed above.

The 2001 Amendments were far-reaching in that they extended lenient sentencing  (imprisonment upto 6 months and/or fine of Rs 10,000) and diversion (under sections 39 and 64A) to ‘anyone’ caught with a small amount of drugs, irrespective of whether the drug was meant personal use or sale. This also helped drug users who may be involved in sale or supply of small quantities to peers.

Problem is that quantity alone determines penalty

 The real drawback of the NDPS Amendment Act, 2001 is that quantity was made the sole determinant for the severity of penal measures imposed under the law including   restrictions on bail, pre-trial detention and sentencing. Other factors such as the role and involvement of the accused in the crime – whether he is a mere carrier or controls the illicit trade are rendered irrelevant.  The Report fails to examine this aspect completely.

Bail under NDPS act when small, intermediate and commercial quantities are involved

Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 

Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Therefore, even in commercial quantity if the courts are satisfied of the reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Punishment for Offences

The NDPS Act views drug offences very seriously and penalties are stiff. The quantum of sentence and fine varies with the offence. For many offences, the penalty depends on the quantity of drug involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Small and Commercial quantities are notified for each drug.

Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence attract the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases death penalty. Since the penalties under this Act are very stiff, several procedural safeguards have been provided in the Act. Some immunities are also available under the Act. 

The penalties for various offences under the NDPS Act are as follows.

OFFENCES

PENALTIES

SECTIONS OF THE ACT.
Cultivation of opium, cannabis or coca plants without licenseRigorous imprisonment-up to 10 years + fine up to Rs.1 lakhOpium –  18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmerRigorous imprisonment -10 to 20 years + fine Rs. 1 to 2 lakhs (regardless of the quantity)19
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substancesSmall quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantities but less than commercial quantities – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 LakhsPrepared opium-17 Opium – 18 Cannabis – 20 Manufactured drugs or their preparations-21 Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substancesSame as above23
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside IndiaRigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)24
Knowingly allowing one’s premises to be used for committing an offenceSame as for the offence25
Violations pertaining to controlled substances (precursors)Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs25A
Financing traffic and harboring offendersRigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs27A
Attempts, abetment and criminal conspiracySame as for the offenceAttempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offenceHalf the punishment for the offence30
Repeat offenceOne and half times the punishment for the offence. Death penalty in some cases.31 Death – 31A
Consumption of drugsCocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution27 Immunity – 64A
Punishment for violations not elsewhere specifiedImprisonment up to six months or fine or both32

 

SMALL AND COMMERCIAL QUANTITIES

For several offences under the NDPS Act, the punishment depends on whether the quantity of drug involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified.

 

The quantities for some common drugs are as follows

DrugSmall QuantityCommercial Quantity
Amphetamine2 grams50 grams
Buprenorphine1gram20 grams
Charas/HashishCharas/Hashish1 kg
Cocaine2 grams100 grams
Codeine10 grams1 kg
Diazepam20 grams500 grams
Ganja1 kg20 kg
Heroin5 grams250 grams
MDMA0.5 gram10 grams
Methamphetamine2 grams50 grams
Methaqualone20 grams500grams
Morphine5 grams250 grams
Poppy straw1 kg50 kg

 

 

Private vehicle not a ‘public place’ : SC

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Private vehicle not a ‘public place’ : SC

Introduction

Law is not an exact science. Its shades change depending on the context, differ from statute to statute. Background circumstances, and the expediency of the situation often influence the application of law.Two recent judgments on the issue whether a private car is a public place are examples. While the Delhi High Court held last week that a private car amounts to a public place in order to hold that wearing of a face mask is compulsory even when travelling alone, the Supreme Court held in an NDPS case yesterday that a private vehicle is not a public place.

Is Your Private Vehicle A 'Public Place?' Law Has Different Answers

Delhi High Court Ruling 

In the Saurabh Sharma and others v Sub Divisional Magistrate (East) and others the Delhi High Court held that wearing of face mask is compulsory even while driving alone in a personal car. A single bench of Justice Prathiba M Singh held that a private vehicle will amount to a public place in the context of COVID-19 pandemic regulation. Referring to precedents, the Court said that the meaning of the term ‘public place’ changes from context to context.

The word ‘public place’, has to be interpreted in this case in the context of the COVID pandemic. To determine what constitutes a `public place’ the manner in which the Coronavirus can spread is the crucial part”.

The Court also said that there is a possibility of the droplets released by a person while driving alone in a car infecting others who may enter the vehicle hours later. A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a public place and wearing of a mask there would be compulsory.

Private Vehicle did not become a “public place” under NDPS Act

On April 16, the Supreme Court held that a private vehicle is not a public place as per Section 43 of the Narcotic Drugs and Psychedelic Substances Act in the case Boota Singh v State of Haryana.

In this case, recovery was made from the accused while they were in a jeep at a public place. The high court held that the case of the accused would be covered by Section 43 of NDPS Act and not by Section 42. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation while Section 43 with power of seizure and arrest in public place.

Before the Apex Court, the accused contended that the vehicle in question was a private vehicle belonging to the accused and was not a public conveyance, though parked on a public road and therefore the case would not come under Section 43 but would be governed by the provisions of Section 42 NDPS Act. Since Section 42 having not been complied with at all, they were entitled to acquittal, they contended.

The Explanation to Section 43 stated: For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

The Supreme Court held that since the explanation only referred to “public conveyance” and not to private vehicles, the jeep involved in the case was not a “public place” coming under Section 43. Hence, the officers had to follow the procedure under Section 42 NDPS with respect to the recovery. The same having not been followed in this case so, the accused were acquitted.

The bench comprising of Justices UU Lalit and KM Joseph held that “The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression public place as explained in Section 43 of the NDPS Act.” 

Difference between Section 42 & 43 of NDPS Act

Section 42Section 43
Section 42 

1. Power of entry, search, seizure and arrest without warrant or authorisation.

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

 

2.Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Section 43

Power of seizure and arrest in public place.Any officer of any of the departments mentioned in section 42 may

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

 

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public

 

Drinking alcohol inside private car amounts to drinking in public place

In 2019, the Supreme Court held that consuming liquor in a private vehicle in a public place will attract the offence under the Bihar Excise Act, which prohibits alcohol. In this case Satvinder Singh Saluja v State of Bihar, the appellant were charge-sheeted under Section 53(a) of the Bihar Excise (Amendment) Act 2016 on the ground that they were found drunk inside a private vehicle. For seeking the quashing of the chargesheet, the appellant argued that Section 53(a), which punishes drinking in a public place, is not applicable as a private car is not a public place.

The SC rejected the first argument on the basis of statutory definitions of ‘public place’ under the Bihar Excise (Amendment) Act 2016 and Bihar Prohibition and Excise Act 2016. As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public have access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.

According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place.

It observed that the public can have access to a private vehicle in a road. The Court noted that ‘ access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.

As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public has access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.

According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place. It observed that the public can have access to a private vehicle on a road. The Court noted that ‘access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.” “When a private vehicle is passing through a public road it cannot be accepted that the public has no access. It is true that the public may not have access to a private vehicle as a matter of right but definitely the public have the opportunity to approach the private vehicle while it is on the public road. Hence, we are not able to accept the submission that vehicle in which appellants are travelling is not covered by definition of public place’ as defined in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, said the judgment authored by Justice Bhushan.

The bench further added that the omission of public conveyance in the definition of Section 2(17A) brought by the Bihar Excise (Amendment) Act, 2016 also indicates that the difference between public conveyance and private conveyance was done away in the statutory amendment. We, thus, cannot accept the submission of the learned counsel for the appellant that private conveyance will be excluded from the definition of public place’ as contained in Section 2(17A)”. The apex court also took into account the fact that the definition of public place’ under Section 2(53) of the Bihar Prohibition and Excise Act 2016 specifically included means of transport, both public and private.

The Kerala High Court has also held that drinking inside a private car at a public place will amount to an offence(Rajendran Pilai and others v State of Kerala This is because after the 2010 amendment to the Kerala Abkari Act, private vehicles parked in any public place were also treated as public places for the purpose of Section 15C of the Act, which prohibits drinking in public places.

Conclusion

Thus it can be concluded that the private vehicle is not a public place under the NDPS Act, but as far as other laws are concerned and the Covid Guidelines are concerned, it can be said that a private vehicle is a public place. Depending on the context, differ from statute to statute. Background circumstances, various deferred judgements have been given by the courts.

Procedural safeguards & immunities under the NDPS Act

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INTRODUCTION

The Narcotic Drugs and Psychotropic Substances Act, 1985 views drug offences very seriously and prescribes stiff penalties. The Act follows a graded system of punishment with the punishment varying with the quantum of punishment being dependent upon whether the offence pertains to small, commercial and intermediate quantities of narcotic drugs and psychotropic substances. For offences involving commercial quantities of drugs, a minimum penalty of ten years rigorous imprisonment is prescribed, which may extend to twenty years. Repeat offences attract one and half times the penalty and in a few cases even the death penalty. Alongside these stringent provisions, the Act has procedural safeguards as follows:

Personal search: Any person being searched has a right to be searched before a Gazetted Officer or a Magistrate (Section 50). The officer searching the person has to explain to the person that he has a right to be searched before a Gazetted Officer or a Magistrate and if the person wishes to be searched before a Gazetted Officer or a Magistrate he should be taken to the Gazetted Officer or the Magistrate and searched. However, if the officer has reason to believe that it is not possible to take him to a Gazetted officer or a magistrate without giving him a chance to part with the drug, controlled substance, etc., he can search him under Section 100 of the Cr. P. C. [Section 50(5) and 50 (6)].

Searches: As per Section 41 of the NDPS Act, Gazetted Officers of the empowered Departments can authorize searches. Such authorization has to be based on information taken down in writing. As per Section 42, searches can be made under certain circumstances without a warrant (from a magistrate) or an authorization (from a Gazetted Officer). In case of such searches, the officer has to send a copy of the information taken in writing or the grounds of his belief to his immediate official superior within 72 hours.

Arrests: The person who is arrested should be informed, as soon as may be, the grounds of his arrest [Section 52 (1)]. If the arrest or seizure is based on a warrant issued by a magistrate, the person or the seized article should be forwarded to that magistrate [Section 52(2)].

The officer who arrests a person has to make a full report to his official superior within 48 hours [section 57 ].

 

Dilution of safeguards under Sections 42 and 50 of the NDPS Act

The Report mentions section 42 (procedure for conducting search without a warrant) and section 50 (procedure for searching a person suspected of carrying drugs) of the NDPS Act in passing. This is surprising as these provisions lay down important safeguards for persons accused of drug offences. During the first ten years of the NDPS Act coming into force, Courts zealously enforced these protections by observing that:-

“It must be borne in mind that the severer the punishment, the greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.”

Compliance with these provisions was considered mandatory and a violation of the conditions contained therein was a ground for acquittal.

 

Immunities for Drug Offences.

Officers: Officers acting in discharge of their duties in good faith under the Act are immune from suits, prosecution and other legal proceedings (Section 69).

Addicts: Addicts charged with consumption of drugs (Section 27) or with offences involving small quantities will be immune from prosecution if they volunteer for de-addiction. This immunity may be withdrawn if the addict does not undergo complete treatment (Section 64A).

Offenders: Central or state governments can tender immunity to an offender in order to obtain his evidence in the case. This immunity is granted by the government and not by the court (Section 64).

Juvenile offenders: Juvenile offenders (below 18 years of age) will be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000.

Immunities to diplomats as applicable.

Conclusion

The importance of this Act in the present scenario is that nowadays we hear a lot about consumption of drugs and such other illicit substances. Even the Government took a brave step by banning all such drugs like HANS, KHAINI, etc. But people are still consuming such deadly substances as they are still available in the market. Another problem arising out of this issue is that even the school going children have started consuming such illicit substances with the help of many middlemen between them and the suppliers of such drugs. Such situations have to be handled by the concerned authorities and also by the parents so that they stop using such drugs. No actions can be adopted by the authorities if there is no public participation in such issues. People living in residential communities may arrange certain awareness programs and periodical inspections at the places where they feel there is a regular consumption of such products. People can also form various action committees for abolishing the explicit usage of such items from the society as such acts do not affect a person alone, but the society as a whole.

Author: Mohit Mathur

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi