Narcotics (NDPS)

The Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) is a special criminal statute. It prohibits the production, manufacture, possession, sale, purchase, transport and use of narcotic drugs and psychotropic substances, except for medical or scientific purposes under the Act and its rules. Where it is silent, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) supplies the procedure, and it replaced the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The general stages of a criminal case, from FIR to appeal, are described on the page on criminal defence. What follows is what the NDPS Act changes in them.

Quantity decides the offence

The Act grades its punishments by the quantity of the substance. Each drug or substance has a small quantity and a commercial quantity fixed for it by a notification of the Central Government, and a quantity between the two is called an intermediate quantity. The punishment rises with each grade, and for a commercial quantity the Act prescribes a minimum term of rigorous imprisonment of ten years. The figures differ from one substance to the next and have been revised by notification, so the figure for a given substance is the one in the notification in force on the date of the seizure.

Where the substance is a mixture, the measure of quantity has been contested: whether the weight of the whole or only the pure drug counts. In Hira Singh v. Union of India (2020) a three-judge Bench of the Supreme Court held that the weight of the whole mixture, including the neutral substance, is taken for drugs seized in a mixture. Consumption of a small quantity is treated more leniently, and section 64A gives immunity from prosecution to an addict who volunteers for treatment at a recognised institution.

The bail bar in section 37

Section 37 makes every offence under the Act cognizable. For offences involving a commercial quantity, and for certain other offences, the court may not grant bail unless the Public Prosecutor has been heard and the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit an offence while on bail. The conditions apply together. In practice the application turns on the material in the case file: whether the quantity attributed to the accused is commercial, whether the search complied with the Act, and whether the evidence shows conscious possession. The Supreme Court has also held that very long pre-trial detention can weigh against a statutory bar in a case where trial is not within reach, so bail applications often set out the time already served and the stage of the trial. Bail is first sought from the Special Court and then from the High Court of Karnataka under section 483 of the BNSS (section 439 CrPC).

Search and seizure safeguards

The Act conditions the powers of the officers who enforce it. Section 41 deals with warrants and authorisations to arrest and search, and section 42 with entry, search, seizure and arrest without a warrant by an officer of the departments the Act names: grounds are recorded and a copy is sent to the officer's immediate superior within the period the section sets. Section 43 covers seizure and arrest in a public place.

Section 50 applies when an officer is about to search a person. The person has the right to be taken, if they so require, before a gazetted officer or a Magistrate, and must be told of that right. A Constitution Bench of the Supreme Court held in State of Punjab v. Baldev Singh (1999) that the right must be conveyed, and later decisions, among them Vijaysinh Chandubha Jadeja v. State of Gujarat (2011), held that the information to the person is mandatory. The section concerns the search of the body, and does not extend to a bag or vehicle in the usual case. When these provisions are not followed, the effect on the prosecution is decided on the facts, and the defence examines the recovery memo, the panchnama and the officers' deposition for each step.

Sampling, custody and forensic evidence

Seizure is not the end of the evidentiary chain. Section 52A provides for the inventory of seized drugs, the drawing of samples and the certification of both by a Magistrate, after which the certified inventory and samples are treated as primary evidence. In Union of India v. Mohanlal (2016) the Supreme Court held that sampling must take place before a Magistrate, and the courts examine delays and gaps in custody of the material between seizure, the malkhana (the police store), the forensic laboratory and the Special Court. A report of the chemical examiner on the nature and quantity of the sample is the usual proof of both.

Statements recorded by officers under section 67 are not admissible as confessions. In Tofan Singh v. State of Tamil Nadu (2020) the Supreme Court held that officers who investigate under the Act are police officers for the bar on confessions to police, now section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (section 25 of the Indian Evidence Act, 1872). The Act also raises presumptions of a culpable mental state (section 35) and from possession (section 54), which the accused must rebut once the prosecution proves the basic facts.

Special Courts and appeals

Sections 36 and 36A provide for Special Courts to try the offences under the Act, and section 36A adjusts the periods for investigation and for the default bail that arises in the general procedure. The State Government notifies the courts, and in Karnataka they are the Sessions Courts designated as Special Courts. Appeal from the Special Court lies to the High Court of Karnataka under section 36B, and from it to the Supreme Court of India. Offences under the Act may also be investigated by central agencies, including the Narcotics Control Bureau, the Directorate of Revenue Intelligence and Customs, and by the State police.

Related law

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 permits preventive detention of a person, on the order of the competent authority, and a detention order is challenged by a habeas corpus petition in the High Court and not by bail. Property derived from drug offences can also be frozen and forfeited under Chapter VA of the NDPS Act.

What the law does not allow

A conviction resting on a confession to an officer of the department. A grant of bail under section 37 without a hearing of the Public Prosecutor. A search of the person under section 50 without informing the person of the right to be taken before a gazetted officer or a Magistrate.