Top 10 Criminal Defenses for the alleged Accused arrested under the Narcotic Drugs and Psychotropic Substances Act (NDPS) of 1985

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An alleged accused arrested under the Narcotic Drugs and Psychotropic Substances Act (NDPS) of 1985 for illegally dealing in and/or posessing narcotics drugs or psychotropic substances has a plethora of criminal defenses. These criminal defenses are available to all the alleged accused persons and they have a legal right to defend themselves in the criminal trial.

Criminal Defenses available to the alleged Accused arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985

  1. Requisition before Search: Entry, search, seizure and arrest power conferred to the concerned officer under section 41, section 42 or section 43 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 can be exercised after giving a person to be searched an option under section 50(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 of being searched in the presence of the gazetted officer or the Magistrate. If such person chooses to be searched in the presence of the gazetted officer or the Magistrate, then the search will be carried out in the presence of the gazetted officer of customs or the Magistrate. In the case of State of Punjab v. Balbir Singh [SLP (Crl.) No. 1698/ 1990] the Hon’ble Supreme Court has held that under section 42(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 the concerned officer if already has information given by any person, then it shall be written down. But if he has reason to believe from personal knowledge that offence under Chapter IV has been committed or materials which may furnish evidence of the commission of such offence is concealed in any house, building etc., he may move to the spot to carry out search or arrest without a warrant between sunrise and sunset and section 42 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 does not mandate that he should record his reasons of such belief. But under the proviso to Section 42(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, if such officer has to carry out a search between sunset and sunrise, he shall record the grounds for such belief. To this extent the provisions are mandatory and contravention of same would vitiate the trial. In the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [Cri Appeal No. 943/ 2005], the Hon’ble Supreme Court has held that section 50 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985, in reality, provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a just, reasonable and fair procedure. There is no specific form prescribed or intended for conveying the information required to be given under section 50 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985. The sole purpose of said section is to provide safeguard and make sure the affected person is aware of its right and the concerned officer does not misuse his powers conferred under the said act. As there is no specific procedure provided under the said act that’s why the court has to see the substance and not the form of intimation. Whether requirement under section 50 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 have been fulfilled is a question of which answer depends upon the facts of each case and there is no straitjacket formula.
  2. Release of Conveyance: Where conveyance such as aircraft, vessels, vehicle etc. confiscated under section 60(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 and such conveyance is used to transport goods or passengers for hire and it was so used for illegal purpose without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of such person had taken all reasonable precautions against such abuse. In such case, conveyance would be released under section 60(3) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985.
  3. Search of Female: Section 50(4) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 make mandatory that a female shall only be searched by another female with strict regard to decency. The Hon’ble Supreme Court in the case of State of Punjab v. Baldev Singh [Cri. Appeal No. 396/ 1990] held that failure to comply with the requirement given under section 60(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 not only affect the credibility of the prosecution case but also violate the basic fundamental right under Article 21 of the Constitution of India, 1950 i.e. right of a female that she shall be treated with decency and proper dignity. Further, the apex court held that the Investigation officer shall enter the name of the female official, who carry out the search of another female, in the document prepared.
  4. Revocation of Detention Orders: The Central Government or the State Government are empowered under section 12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 to revoke the order of detention under the aforesaid act at any time.  In the case of Gurminder Singh @ Lalli v. Union of India and Others [Cri. W. No. 795/ 1997], the Hon’ble High Court of Delhi quashed the order of detention after observing that the Competent authority have no material basis for passing the order of detention. In the present case, the competent authority had passed an order of detention, while the accused was in the custody, to prevent the accused from committing a similar offence again but no reasonable ground for passing such order was placed before the Hon’ble High Court of Delhi.
  5. Temporary Release of the Detained Person: Section 13 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988 confers power to the Central Government and the State Government to temporary release, at any time, any detained person under said act. Such temporary release can be grant either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release. The Appropriate Government while granting release under Section 12(2) of the aforesaid Act to the detained person may require him to enter into a bond with sureties for the due compliance of the conditions put by the Advisory Board at the time of the order of detention.
  6. Fine in lieu of Forfeiture: When a source of such property has not been proved to the satisfaction of the competent authority, then under section 68-K of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 such authority shall give the option to the person affected for fine in lieu of forfeiture. Such a fine should be fine equal to one and one-fifth times the value of such part.
  7. Immunity for Offender: Section 64(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confers power to the Central Government or the State Government, after recording reason in writing, to grant immunity against prosecution under section 69 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 to any person, who has committed an offence under the said act, on the condition if such person is ready to furnish evidence against other traffickers. The Hon’ble Supreme Court in the case of Jasbir Singh v. Vipin Kumar Jaggi [Cri Appeal No. 826-27/ 2001]  has held that the definition of the word “immunity” in the context of Section 64 is “Freedom or exemption from penalty, burden, or duty.” Prosecution has been defined as “A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime.” Cobbling these two definitions together, the phrase “immunity from prosecution” in Section 64 would mean “freedom from punishment during a proceeding instituted and carried on by law”. There is thus nothing in Section 64 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 to circumscribe the power of the Central or State Government under Section 64 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 to a point of time before the commencement of the trial.
  8. Immunity for Drug Addicts: Section 64-A(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 confers power to grant immunity from prosecution when any person is charged under section 27 of the Narcotics Drugs and Psychotropic Substance Act (NDPS), 1985 or charged for a small quantity of narcotics drugs or psychotropics substance or controlled substance. But a person gets immunity under the section 64-A(1) of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985  only on the condition that such person will join treatment for de-toxification or de-addiction from a hospital or an institution.
  9. Application for Discharge: An Application for discharge of the accused under section 239 of the Code of Criminal Procedure, 1973 can be made to the trial court, then such trial court after examining and considering the report submitted before it under section 173 of the Code of Criminal Procedure, 1973 and hearing both the parties to the case, upon finding no reasonable grounds against the accused the trial court may discharge the accused. The Hon’ble Supreme Court in the case of Vikram Johar v. State of U.P. [Cri. Appeal No. 759/ 2018] discharged the appellant from the offence under sections 504 and 506 of the Indian Penal Code, 1860 after observing infirmities in the disposal of application of discharge under section 239 read with 245 of the Code of Criminal Procedure, 1973.
  10. Offence by Company: Under section 38 of the Narcotics Drugs and Psycgotropic Substances Act (NDPS), 1985 whenever any offence enlisted under chapter 4 of the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 is committed by company, then all the persons who are responsible to, or incharge to, company shall be deemed to be guilty of the offence. Unless any of the such person who is responsible to, or incharge to, company shows that such offence took without the knowledge or connivance of such person.

Thus, all the above criminal defenses and the dictums and/or judgments passed by different Courts clearly laws down the legal remedies available to the accused persons who have charged under the NDPS Act of 1985.

Authored By; Adv. Anant Sharma & Satwik Sharma

Credit: www.mylawyersadvice.com

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