CONFISCATION AND PROSECUTION UNDER NDPS ACT: LAW AND CASE LAWS
Author: Vani Parashar, V year of B.B.A.,LL.B.(Hons.) from Amity Law School, Noida
To begin with, let's understand what the NDPS 1985 act is all about. It is in dominant legislation with regard to which the state regulates and controls the key functioning and effectiveness of narcotics drugs and psychotropic substances. It consists of a rigorous structure for punishing offences that comes under the circle of narcotic drugs and psychotropic substances that can extend up to imprisonment and even forfeiture of property. Under the act, one of the most principal provisions is the right which is given to a person who is suspected of possessing, consuming or production of narcotic drugs or any psychotropic substance, to be confiscated under section 50 of the act.
As per section 50, it states that a composite confiscation will include bag, vehicle, receptacle of the accused and even his body.
What does section 50 lay out?
It brings forth the conditions under which search of persons shall be performed as per the act. As per section 42, an officer who has been authorized to undertake search of any person prescribed under the provision of section 41, 42 and 43, that too without any delay, has to report to the nearest gazette officer or Magistrate of the concerned departments mentioned under section 42. As per the provisions mentioned under section 50(1), Acceptance of such summons, the officer may obstruct such person until and unless such person could be taken before the concerned authorities.
Now it is in the hands of the concerned authorities to discharge if there is no equitable ground found and if they find anything in relation, they can pass an order directing the search to be initiated. On the conclusion of the search proceedings, the officer is required to record all the certain and applicable reasons for his assessments and state reasons for the same. The officer is required to send a copy of it to the immediate superior within 72 hours.
In relation to this application, there is a landmark case which talks about the same attributes. In State of Punjab versus Baldev Singh[i] the apex court of India stated that the authority to be searched before a gazette officer or a magistrate comes under an exceptionally beneficial and relevant right which has been granted by the Parliament in accordance with an accused having performed actions leading to consequences that may come under the act.
In another case of state of Himachal Pradesh versus Pawan Kumar the court held that as per the reference of section 50 of the act, with regard to the same no application can be held liable when the forbidden product which was recovered from the bag of the accused. Not only this but it was stated that the act does not include warranty or any justification with appliance to the word person occurring in the same person and situation occurring in the situation so as to consider any bag or article or any type of product being owned by the accused.
Categories of case under this provision
Category I consists of cases where possession is confirmed from the body of the person or from the attire worn by the person which in consideration does not pose any disturbance. As per the provision of Section 50 the initial process is directly attracted as a body search of the accused tangled.
Correspondingly, Category II includes the cases where the accused has a physical contact of a bag/box/packet containing illegal product by sitting on it, which similarly have not really posed any difficulty or disturbance.
from the above categories certain issues came into observations (in the nature of obiter) made in cases considered under Category III i.e. cases when the recovery of the contraband is made from an object possessed by the accused removing the condition of having it in his immediate physical contact or control such as a vehicle/bag.
The declaration by the Apex Court in some of the above judgments qua cases where there is an inseparable bond between the accused and his bag that have initiated to fall under the Category IV i.e. where the recovery is made from a bag/receptacle which is in physical possession and contact of the accused.
Category V i.e. cases is a mixture of elements of Categories III and IV and a complete analysis and search where they witnessed conflicting judgments given by the courts. This conflict came into consideration primarily because of two reasons. Firstly, it was not contented that since a body search was involved in these cases where at foremost Section 50 of the Act should be applied. Secondly, cases having conflicting ideas and views were not considered or applied in some of the other arguments and decisions.
Under this case, 5 kg 890 grams of opium was recovered from a scooter, and was seized from the persons who were riding the scooter. The riders were arrested but surprisingly acquitted by the learned Sessions Judge on the ground that the compulsory statutory need of Section 50 of the Act had not been complied with. Then this judgment was upheld by the Madhya Pradesh High Court (Gwalior Bench), resulting in the matter adding it to the pile of Supreme Court cases.
The Supreme Court observed and stated that “it is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefore in terms of Section 41, 42 and 50 of the NDPS Act should be complied with.”
Special consideration was placed by the Supreme Court on its past decision exhibited by an honorable Bench in State of Punjab v. Baldev Singh, which held that where attributes of Section 50 were initiated, compliance was compulsory. The Apex Courtset aside the judgment of the High Court and directed the appellant to set free.
Questioning the presence of law arose before the Constitution Bench of the Supreme Court in this case directing towards whether the compliance of conditions of Section 50 of the Act are mandatory or come under the ambit of directory. DK Jain, as a member of the jury stated that the commitment of the authorized officer under sub-section (1) of Section 50 of the Act is mandatory and always requires strict compliance.
In the above case, Opium weighing 9 kg 600 grams was redeemed from the bag of the respondents, which was also searched along with the search of the accused. Before commencing the process of search, a joint notice under Section 50 of the Act was presented upon them and this stated that they were approved by their legal right to get themselves searched in the presence of a Gazette officer or a Magistrate. In that whole process, the second respondent had consented in writing to be searched by the raiding team and easily gave his signatures on the other hand the first respondent had refused to give his signature on the body of the notice and did not give his independent consent to be searched.
The Supreme Court went on to hold that “a joint communication of the right available under Section 50 (1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed...”
Section 50 of the narcotic drugs and psychotropic substance act, 1985 can be witnessed as a line drawn which helps in differentiating the concept of acquittal and conviction. Confiscation covering the section 50 of the act stating the conditions under which a person can be searched on certain prescribed grounds. This also contained an attribute which stated that any female who comes under the sphere of alleged accused should be searched only by a female officer. In the above article landmark judgments were given by the court where section 50 of the act was taken into consideration and certain judgments were passed which gave a whole new scope to the act as well as the section.
[i]https://www.casemine.com/judgement/in/5609ad2fe4b0149711410bc1 [ii] https://www.casemine.com/judgement/in/5609ae33e4b0149711413287 [iii]https://indiankanoon.org/doc/1145861/ [iv]https://indiankanoon.org/doc/155481249/