The NDPS Act has been enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. The act prohibits the production, manufacturing, cultivation, possession, sale, transportation, purchasing and consumption of any Narcotic Drugs and Psychotropic Substances.

However, during the passage of time and the development in the field of illicit drugs traffic and drug abuse, many deficiencies in the existing laws have come to notice, in particular with provisions regarding Bail (sec.37) and as to the admissibility of the confession made by the Accused (sec.67).

Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail under Sec. 439 CrPC:

A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause stating that, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on Bail unless the conditions contained therein were satisfied. Both the grounds must be satisfied before granting Bail i.e.

1. The Public Prosecutor must be given an opportunity to oppose the application for such release, and
2. Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Criminal Procedure Code is not applicable where any different procedure has been prescribed by any law. Since the Act prescribes a separate provision for Bail, the general provisions of Bail under the CrPC will not be applicable. The Act has been enacted with a view to make stringent provisions for the control and regulation of the operations relating to NDPS.

That being the underlying object of the Act, Sec. 37 of the Act, in negative terms limits the scope of the applicability of the provisions of the CrPC regarding bail and it cannot be held that the High Court's power to grant Bail under Sec. 439 of the CrPC are not subject to limitations mentioned under Sec. 37 of the Act. The Non-obstante clause with which the section begins is to be given its due meaning and it clearly intends to restrict the powers to grant bail.

However, sub-section (3) of Sec. 36-A of the Act does not effect the special powers of the High Court regarding Bail under Sec. 439 of the Code of Criminal Procedure. For the offences punishable under Sec. 37 of the Act, discretionary power given to the Court to order to release of a person is more rigorous and is to be used very cautiously, unlike order to release a person on bail by exercising the power under Sec. 439 of the CrPC.

Release under NDPS Act is based on conditions mentioned in Sec. 37 of the Act apart from other factors, including the paramount consideration like in case of release whether the accused will flee from justice or will he make an attempt to tamper with the prosecution evidence. The discretionary power conferred under Sec. 439 of CrPC is subject to the limitations imposed under Sec. 37 of the NDPS Act.

Considerations for granting bail under NDPS Act:

Before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.

Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Grant of Bail is a rule and its rejection is an exception.

Grounds for Cancellation of Bail:

What has been stated in Sec. 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.

The important grounds for cancellation of Bail are:

1. Where the accused misuses his liberty by indulging in similar criminal activity,
2. Interferes with the course of investigation,
3. Attempts to tamper with evidence or witnesses,
4. Likelihood of fleeing, etc.

Non-compliance with mandatory provisions regarding Sec 42 & 50 of the Act:

The provisions of Sec. 42 and 50 are mandatory in nature and contravention of the said sections will not only vitiate the entire proceedings but will also entitle the accused for Bail and in certain cases for acquittal as well.

The provisions of Sec. 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. Compliance of Sec.42 is mandatory and there cannot be an escape from its strict compliance.

Sec. 50 of the Act provides for condition under which search of a person is to be conducted. Failure to do so, would constitute violation of the imperative requirement of law, ultimately resulting in acquittal of the accused.In terms of Sec. 50 of the NDPS act, a duty has been cast upon the authorized officer, who is acting on the prior information for making search of a person, to inform the same person about the right available under Sec. 50(1) of the act i.e. the person is required to be taken to the Gazetted Officer or the nearest Magistrate for making such search.

Failure to inform the concerned person about the existence of such right to be searched before the Gazetted officer or Magistrate would naturally prejudice to the accused and hence, any conviction and sentence on the basis of recovery of contraband articles from the possession of the person concerned during the search conducted upon, the person cannot be sustained due to clear violation of the provisions of Sec. 50 of the Act. It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right and to be searched before a Gazetted Officer or a Magistrate.

This requirement is mandatory and requires strict compliance. Though there is no requirement of law that notices under Sec. 50 of the Act has to be given in writing, but in cases where there is no public witness, in that event at least the notice ought to be in writing in order to lend credibility to the prosecution version. At least in those cases, where the entire prosecution case consists of only police witnesses, there must be notice under Sec. 50 of the NDPS Act, in writing.

The provisions of Sec. 42, 50 & 57 of the NDPS Act have been made with a purpose, for a putting check on the powers of the Investigating officers under Chp. IV of the NDPS Act. When there is non-compliance of these provisions, it must be held that at any rate the evidence of the Police Officer who failed to comply with the said provisions, cannot be relied upon implicitly to base the conviction.

Whether Confessional Statements made under Sec. 67 of the NDPS Act is admissible in a Court of Law:

One of the most vexed questions of law involved in the NDPS cases are, Whether the powers given to empowered officer u/s 67 NDPS Act are akin and in pari materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the empowered officer can record confession of the accused u/s 67 NDPS Act? Whether the confessional statement made by accused before officer empowered u/s 42 NDPS Act is admissible in evidence? If yes, whether it can be used against himself and co- accused? Whether empowered officers under NDPS Act are police officers?

A perusal of Sec. 67 shows that, no confession can be recorded u/s 67 since no such power has been invested with the empowered officer u/s 67 either explicitly or impliedly. The NDPS Act nowhere defines the word enquiry. The dictionary meaning of word enquiry is, an act of asking information, an official investigation.

But, the officer empowered u/s 42 NDPS Act has no power to investigate the offences under NDPS Act. Officers empowered u/s 42 are only authorised to enter and search the place, seize the NDPS and arrest the person believed to have committed the offence under NDPS Act. Such power of investigation of an offence can only be exercised by an officer-in-charge of a police station within whose local jurisdiction the offence is committed.

Section 53 of the NDPS Act empowers the Central or State Govt. to invest powers of an officer-in-charge of police station for investigation of offences under NDPS Act, by issuing a notification in Official Gazette. If such officer is not appointed by such govt., then, such powers of investigation has to be exercised by officer-in-charge of local police station.

Thus, the power u/s 67 is not akin to power u/s 161 CrPC as the power u/s 161 CrPC can be used during the course of investigation by officer-in-charge of police station, whereas, the power u/s 67 NDPS Act can be exercised only by the officer empowered u/s 42 NDPS Act with a view to achieve the object and purpose of Sec. 42 only, not otherwise. Thus, it implies that no confession u/s 67 can be recorded by an empowered officer u/s 42.

Now, the next conundrum is whether the confession recorded under NDPS Act by the officer-in-charge of police station or officer appointed u/s 53 is admissible in the eyes law? As far as the question of confession before officer-in-charge of police station is concerned, the section 25 of the Indian Evidence Act is very much clear on this aspect.

Section 25 of the Indian Evidence Act reads as:
25. Confession to police officer not to be proved. - No confession made to a police officer, shall be proved as against a person accused of any offence.

Meaning thereby, no confession made before officer-in-charge of police station investigating offence under NDPS Act is admissible and hence, cannot be relied upon as officer-in-charge of police station is a police officer. Thus, confession of an accused, under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government u/s 53 NDPS Act. However, the officer empowered to investigate u/s 53 are also police officers within the meaning of section 25 Evidence Act.

Thus, the confession recorded by an officer empowered to investigate u/s 53, can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of section 25 Evidence Act.

However, it is a settled law that officers of the N.C.B. are not Police Officers and the statement of the accused recorded by them is admissible in evidence. A statement under Sec, 67 of the Act, is admissible in evidence and can be considered by the Court as against the Accused.

It is also a settled law, that if the same is found to be made voluntarily, then the same can be made the sole basis of conviction of accused. Such a statement can only be disregarded, if it is shown that the same was caused by inducement, threat or promise, by a person in authority as envisaged under Sec. 24 of the Evidence Act.

Written By: Aditya Rai - Adv. Balasaheb Apte College Of Law, Mumbai
E-mail address: [email protected], Ph No: 8976404297