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A recently published data story on Drugs in early quarter of 2022 estimates that the global drug trafficking trade is worth a staggering $650 billion. Cannabis and Opioids are the most commonly used substances. Drugs such as, Cocaine, Amphetamine Type Stimulants, and Hallucinogens are used by a small proportion. Ganja and Charas top the list.
Despite the fact that the offences under this act are Non-Bailable the offenders are able to secure bail under technical reason., at times acquittal too under technical reasons. There are certain mandatory provisions prescribed in the procedure that often are not complied which becomes a ground to seek bail and acquittal too.
To establish more clarity lets understand the role of Section 41, 42, 43 and 50 which deal with
- Sec 41: Power to issue warrant and authorisation
- Sec 42: Power of entry, search, seizure and arrest without warrant
- Sec 43: Power of seizure and arrest in public place
- Sec 50: Conditions under which search of persons shall be conducted
A constitutional bench of Hon’ble Supreme court of India held that while conducting Search and Seizure in addition to the safeguards as in Cr.P.C., the safeguards mentioned in the NDPS Act, the above four sections should be followed. The very reason an acquittal can be granted if there is non-compliance with the procedures followed. Its mandatory that the procedure needs to be followed in strict accordance with the safeguards indicated. In some case the investigation was conducted by the same police officer who made recovery, seized the contraband and also arrested the accused, such was held invalid by the court. One such way to seek bail and acquittal is on the pretext of Faulty investigation and Procedural violation.
Other top three reasons where bail and acquittal can be argued in NDPS cases are
- Delay in Trials
- Insufficient Evidence
- Witness turning Hostile
There are large number of undertrials languishing in various jails across the country, the long gap between the occurrence of crime and production of evidence itself causes a doubt in the mind and the evidence is questionable. The key witness often turns hostile and this is another factor where an acquittal is granted. There are many technical and non-technical reasons that can be argued based on the case at hand, every case is unique, circumstance under which the charges are pressed against the accused are unique, type of drug, quantity, people associated etc… the variable are many so are the strategies. The best lawyers for NDPS cases will look at all possible variables do define the strategy for defence and assist the victim who is trapped as an accused prove non-guilty.
Some Quotable Citations related to Section 41, 42, 43 and 50 of NDPS Act
State of Punjab vs. Baldev Singh
The material difference between the provisions of Section 43 of the NDPS Act and Section 42 of the NDPS Act is that
Section 42 of the NDPS Act requires recording the reasons in writing with regard to the commission of an offence before conducting search and seizure.
Section 43 of the NDPS ACT does not contain any such provision and as such while acting under Section 43 of the NDPS Act, the empowered officer has the power of seizure of the article.
Dharminder Kumar versus State of Punjab
it was held that if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the NDPS Act would not be applicable.
Union of India through NCB Lucknow vs Md. Nawaz Khan
Court noted that the question regarding compliance or non-compliance of Section 42 of the NDPS Act is not strictly required to be gone into at the time of granting the Bail. The court held that in the instant case the vehicle was in ‘transit’ in a public place and search was conducted in presence of a Gazetted Officer. Hence, provisions of Section 43 of NDPS Act and not Section 42 of NDPS Act would get attracted.
Mandeep Kaur Versus State of Punjab
NDPS Act Not Applicable To Vehicle “In Transit”, Not Mandatory To Obtain Warrant Even If Search Conducted After Sunset
GURJEET SINGH v. STATE OF NCT OF DELHI
The Delhi High Court held that Violation Of Mandatory Provisions For Seizure Need Not Be Looked Into In Bail Proceedings Unless Glaring Irregularity Emerges
Acquittal of the accused was upheld for non-compliance with Section 50 of NDPS Act which provides for affording an option to be searched before a Magistrate or a Gazetted Officer. Some reference citations are
- Vijay Mohan Singh Vs. State of Karnataka
- ANWAR ALI vs. STATE OF HIMACHAL PRADESH
- Sambasivan & Ors Vs. State of Kerala
- Ramesh Babulal Doshi Vs. The State of Gujarat
Conclusion
It is to be observed that the Defence counsel of the accused who is pressed with charges of Drug trafficking or is accused of any other sections as defined in the NDPS act, the very first strategy will be to look at technical grounds and seek an acquittal before building other strategies to fight the case.
There are few many more defence strategies we will discuss in the next blog series of NDPS. You may wish to refer previous blogs on How to Get Bail in NDPS Case, the strategy related to Conscious Possession in NDPS Case the strategy with respect to the Commercial and Small quantity and the Possibility of sentencing based on Quantity of the Contraband
Feel free to write to us at mail@lawyersonia.com or call +91 9845944896 if you wish to consult or discuss your matter. “Sonia and Partners” is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the Best Lawyers in Bangalore practicing in the area of Criminal defence serving Citizens of India, Overseas Indians, NRIs and Global International Clients.
