Arrest Search and Seizure Law in Ndps

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Last Updated on September 9, 2018 by Legalseva.net

  1. INTRODUCTION-

Drugs or substance abuse is in rise in many countries. A lot of money is spent not only nationally but also internationally to prevent drug use, treating addicts and fighting drug-related crimes. As drugs threaten many societies, their effects can also be combated successfully by the approach of police manpower and enforcing the law to prevent sale, consumption or trafficking of drugs.The major drug laws of India are the Narcotic Drugs and Psychotropic Substances Act (1985) and the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act (1985).

Also Read- HOW TO FILE A POLICE COMPLAINT

 

  1. APPLICATION AND EXTENT OF THE ACT-

Under the NDPS Act, it is illegal for a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance.

The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.

Also Read- ANTICIPATORY BAIL BASICS

 

  1. AGENCY TO CONTROL DRUG TRAFFICKING-

The Narcotics Control Bureau (NCB) IS THE CHIEF LAW ENFORCEMENT AND INTELLIGENCE AGENCY OF India responsible for fighting drug trafficking and the abuse of illegal substances. The head quarter is at Delhi.

It was created on 17th March 1986 to enable the full implementation of the Narcotic Drugs and Psychotropic Substances Act (1985) and fight its violation through the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act (1988).

Also Read- APPREHENSION OF ARREST: GET AN ANTICIPATORY BAIL.

 

  1. PUNISHMENT-

Anyone who contravenes the NDPS Act will face punishment based on the quantity of the banned substances.

Where the contravention involves small quantity (<1kg):

With rigorous imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 10,000 or with both.

Where the contravention involves quantity lesser than a commercial quantity but greater than small quantity:

With rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to Rs. 1 lakh.

Where the contravention involves commercial quantity:

With rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs. 1 lakh but which may extend to Rs. 2 lakh.

Also Read- QUASHING OF CRIMINAL CASE & FIR

 

  1. AUTHORITIES AND OFFICERS:

 

  1. CENTRAL GOVERNMENT TO TAKE MEASURE FOR PREVENTING AND COMBATING ABUSE OF NARCOTIC DRUGS AND ILLICIT TRAFFIC:
  • Co-ordination of action by various officers, state government and other authorities under this act, or under any other law for the enforcement of the provision of this act.
  • Obligations under the International Conventions.
  • Assistance to concerned authorities for prevention and suppression of illicit traffic in NDPS.
  • Treatment, education, aftercare, rehabilitation and social re-interaction of addicts.

 

  1. OFFICERS OF CENTRAL GOVERNMENT:

They appoint Narcotic Commissioner and other officers.

  1. Supervision of cultivation of opium poppy
  2. Production of opium

 

  1. NDPS CONSULTATIVE COMMITTEE:

This committee consists of chairman and other members not exceeding 20. Committee shall advice the central government on the matters relating to the administration of this Act.

 

  1. PROHIBITION, CONTROL & REGULATION:

 

  1. Prohibition of certain operation as per sec 8:

No person shall:

  • Cultivate any coca plant or gather any portion of coca plant; or
  • Cultivate the opinion poppy or any cannabis plant; or
  • Cultivate the opium poppy or any cannabis plant; or
  • Produce, manufacture, possess, sale, purchase, transport, ware-house, use, consume, import inter state, export inter-state, import into India, export from India any narcotic drug or psychotropic substance except for medical and scientific purpose.

 

  1. POWER OF CENTRAL GOVERNMENT TO PERMIT, CONTROL AND REGULATE:
  • The cultivation or gathering of any portion of coca plant (only on account of the Central government), or the production, sale, purchase, transport, import inter-state, export inter-state, use or consumption of coca leaves.
  • The cultivation of the opium poppy (only on account of the central government).
  • The production and manufacture of opium and production of poppy straw;
  • The sale of opium and opium derivative from the Central Government factories for export from India or sale to state government or to manufacturing chemists.
  • The import into India and export from India transshipment of NDPS.
  • The manufacture, possession, transport, import interstate, export interstate, sale, purchase, consumption or use of psychotropic substance.

 

  1. CENTRAL GOVERNMENT CONTROL ON CERTAIN OPERATION:
  • Government shall fix the limit of licenses for cultivation.
  • The product cultivated by cultivator shall delivered to the authorized officer.
  • Government shall fix the price to be paid to the cultivator for the opium delivered.
  • The opium delivery by the cultivator, if found as a result of examination in the central govt. factory to be adulterate, may be confiscated by the officer authorized in this behalf.

Also Read- POLICE NOT REGISTERING FIR, WHAT TO DO?

 

  1. ARREST, SEARCH AND SEIZURE LAW IN NDPS CASES-

 

  1. POWER TO ISSUE WARRANT AND AUTHORIZATION- SECTION 41
  1. Warrant can be issued by a Metropolitan Magistrate, Magistrate of first class, Magistrate of second class specially empowered by the State Government for arrest and seizure.
  2. Authorisation can be issued by officer of Gazetted rank of the department of Central Excise, Narcotics, Customs, Revenue Intelligence in other departments of Central Govt. including paramilitary forces/armed forces as is empowered by the central government.
  3. Officer of revenue, drug control, excise, police or any other department of state government empowered by the state governments.
  4. The authorization can be made to any officer subordinate to him but superior in rank to a peon, sepoy, constable for arrest and seizure

 

  1. POWER TO ENTRY, SEARCH, SEIZURE AND ARREST WITHOUT            WARRANT- SECTION 42
  1. Any officer of departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department oas described above are empowered to search and seizure.
  2. It should be between sunsrise and sunset.
  3. If search done in the night reason for not obtaining authorization should be recorde.
  4. Information and grounds of belief for such seizure and arrest to be sent within 72 hours to immediate superior officer.
  5. The S.C in State of Rajasthan vs. Jag Raj Singh, held section 42(1) and section 42(2) of Narcotic Drugs and Psychotropic Substances Act, vitiates the conviction under the said Act.

 

  1. CONDITIONS UNDER WHICH SEARCH OF PERSONS SHALL BE CONDUCTED: SECTION 50
  1. Search of a person to be conducted by officers authorized under section 42.
  2. If the person whose searched so requires, he should be taken to the nearest Magistrate.
  3. If its not possible, then search should be made under section 100 of Cr.P.C.
  4. Female person should be searched only by a female.

 

  1. REPORT OF ARREST AND SEIZURE- SECTION 57
  1. Report of arrest and seizure shall be made within 48 hours to the immediate superior officer.

Also Read- STAGES OF CRIMINAL TRIAL IN INDIA

 

  1. PROCEDURE FOR AREEST, SEARCH & SEIZURE-

 

  1. When an officer receives any information or evidence relating to illegally acquired properties out of drug trafficking, he must reduce it to writing.
  2. Immediate superior authority should be intimated.
  3. The arrest should be done after sunrise and before sunrise
  4. The team must consist of female officer if a house search of female is planned.
  5. Official stamp, brass seal for sealing seized articles, blank paper for recording statement, documents for making seizure list/panchnama, a copy of NDPS law, drug and precursor identification test kit, plastic bags, envelops, sealing materials are a mustto be carried during search.
  6. The search should be conduvted in presence of at least two independent and responsible witnesses of the locality.
  7. The officers of the search party should disclose their identity and purpose of search to owner/occupier before entering to search a premise.
  8. Labelling and sealing of goods must be done:

Heroine/cocaine- 5grams,

Poppystraw – 100 grams

Ganja/opium/charas-25 grams

  1. Signature of witness ans seizing officer to be obtained on sealed packets.
  2. After recording of voluntarily statement of accused admitting his or her guilt, he or she should be arrested under section 40, 41, 42 or 43 of the NDPS Act, 1985 as the case may be.
  3. Memo of arrest to be prepared and to be handed over to arrested person.
  4. The accused shall be produced before special court within 24 hours from the date and time of arrest.
  5. Form F to be prepared and sent immediately to the respective authorities.
  6. Court shall be informed about the progress of the investigation by a reman prayer putting objection to the bail prayer, if any, moved on behalf of the accused person.
  7. Complaint to be prepared after completion of the investigation and filed within the stipulated time limit without fail i.e. 60/90 days or 180 days as the case may be.
  8. In Jarnail Singh vs. State of Punjab AIR 2011 SC 964, The accused tried to run away on seeing the police petrol party. He was carrying a bag in his hand. On suspicion he was apprehended but nothing was found on personal search and was heald that section 50 was not attracted at all in this case.

 

Last Read- APPLY FOR BAIL BUT WHEN AND HOW?

 

This post is written by Kirtika Bakshi , a law student of Chaudhary Charan Singh University. For any subject specific advice, please dial 99888-17966 for LegalSeva.

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