Provisions of NDPS Act: Legal Issues & Practical Problems -- Subrata Biswas Additional Excise Commissioner, Govt of WB & Former Zonal Director, NCB,

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Presentation transcript:

Provisions of NDPS Act: Legal Issues & Practical Problems -- Subrata Biswas Additional Excise Commissioner, Govt of WB & Former Zonal Director, NCB, MHA, GOI

NDPS Act: Its rigorous Checks & Balances-1 A draconian law; but with a purpose Mandatory presumptions by Judiciary (Secs 35 & 54- Madan Lal v. State of HP 2003 SCC (Cri) 1664; Piara v. State of Punjab Cri LJ 501, p506; Kashmir Singh v. State of Punjab 2006 (2) RCR (Crl) 477)

NDPS Act: Its rigorous Checks & Balances-2 Curbs on Bail: Twin Conditions u/s 37(1)(b) and additional binding u/s 37(2) [Union of India v. Thamisharasi 1995(4) SCC 190; State of West Bengal v. Anwar 2000 Cri LJ 2189 p2198 (Cal)] Rigorous penal structure

NDPS Act: Its rigorous Checks & Balances-3 Stringent checks on executive authority Sanctity of enclosed space: Documentation of information [Sec 42(1)] Sending of such info to immediate superior [Sec 42(2)] State of Punjab v. Balbir Singh 1994 (3) SCC 299; Thulaseedasan v. State of Kerala 2002 Cri LJ 2522 p2523 (Ker) Within 72 hours? Post or Ante…? Search by GO-no requirement of Sec 42 [Union of India v. Satrohan 2008(8) SCC 313]

NDPS Act: Search u/s 43 Rigours of Sec 42 not enjoined for operations in public space/transit [Sayar Puri v. State of Rajasthan 1998 Cri LJ 4589 (SC)] Patrick Le Galès

NDPS Act: Issues in Sec 50 ‘Person’ doesn’t include premises [State of Punjab v. Baldev Singh 1999(6) SCC 172] or baggage [State of Rajasthan v. Shanti AIR 2010 SC 43] Search of premises/baggage followed by search of ‘person’ would attract Sec 50 Illegality in method/initiation of search not to render collected evidence inadmissible [Dr.Pratap Singh v. Director of Enforcement AIR 1985 SC 989]

NDPS Act: Issues in Sec 50 Suspect to choose between search by raiding officer and search in presence of nearest empowered GO/Magistrate Suspect can’t choose exactly before whom [Raghbir Singh v. State of Haryana (1996) 2 SCC 201] Search ordinarily to be conducted only by authorised official [State of Punjab v. Balbir Singh 1994 (3) SCC 299]

NDPS Act: Issues in Sec 50 Suspect to be given clear option—Written or Otherwise [State of Rajasthan v. Ram Chandra 2002 WLC (Raj) 471] One not to vouchsafe on behalf of another [State of Rajasthan v. Paramanand & anr (2014)5 SCC 345]

NDPS Act: Disposal of Alamats (Union of India v NDPS Act: Disposal of Alamats (Union of India v. Mohanlal & Anr SCI CrApl 612/2012) Sec 52A GSR 339(E) dated 10.05.2007

Commercial Quantity—What’s that? Quantities of drugs/psychotropic substances mentioned vide S.O. 1055(E) dated 19-10-2001. Ref: E Michael Raj vs IO, NCB [2008 AIR SCW 7206] Qty Nfn: S.O.2941(E) dated 18-11-2009.[*Sec 77 of the Act] Subrata Biswas. ZD, NCB

Rigours of NDPS Act—Issues involved in granting of bails to the accused Section 37 (1)(b)—Requirement of Twin Conditions—37 (2): Additional Conditions: Union of India vs Thamisharasi [1995(4) SCC 190] HC’s power u/s 439 of CrPC also covered. Ref. Rafiq Mohd vs State of Punjab [1994 CLJ 3366 p-3372] Subrata Biswas, ZD, NCB

“Reasonable grounds for believing” more than “prima facie” grounds. Illegality in investigation not to render investigation findings inadmissible—Ref. State of Punjab vs Labh Singh 1996 CLJ 3996 “Reasonable grounds for believing” more than “prima facie” grounds. Subrata Biswas, ZD, NCB

Non therapeutic use of Prescription Drugs—A greater challenge! Drug menace destroys individuals, families and the society at large. Multiple actors are involved at multiple levels. Agencies need to join hands and put up a concerted fight. Subrata Biswas. ZD, NCB