Provisions of NDPS Act: Legal Issues
& Practical Problems
-- Subrata Biswas
Additional Excise Commissioner,
Govt of WB
&
Former Zonal Director, NCB, MHA,
GOI
NDPS Act: Its rigorous Checks
& Balances-1
A
draconian law; but with a purpose
 Mandatory
presumptions by Judiciary
(Secs 35 & 54- Madan Lal v. State of HP
2003 SCC (Cri) 1664; Piara v. State of
Punjab Cri LJ 501, p506; Kashmir Singh
v. State of Punjab 2006 (2) RCR (Crl) 477)
2
NDPS Act: Its rigorous Checks
& Balances-2
 Curbs
on Bail: Twin Conditions u/s 37(1)(b)
and additional binding u/s 37(2) [Union of
India v. Thamisharasi 1995(4) SCC 190; State
of West Bengal v. Anwar 2000 Cri LJ 2189
p2198 (Cal)]
Rigorous
penal structure
3
NDPS Act: Its rigorous Checks
& Balances-3
 Stringent checks
on executive authority
 Sanctity of enclosed space: Documentation of
information [Sec 42(1)]
 Sending of such info to immediate superior [Sec
42(2)] State of Punjab v. Balbir Singh 1994 (3)
SCC 299; Thulaseedasan v. State of Kerala 2002
Cri LJ 2522 p2523 (Ker)
 Within 72 hours? Post or Ante…?
 Search by GO-no requirement of Sec 42 [Union
of India v. Satrohan 2008(8) SCC 313]
NDPS Act: Search u/s 43
 Rigours
of Sec 42 not enjoined for
operations in public space/transit [Sayar
Puri v. State of Rajasthan 1998 Cri LJ
4589 (SC)]
Patrick Le Galès
5
NDPS Act: Issues in Sec 50
 ‘Person’
doesn’t include premises [State of
Punjab v. Baldev Singh 1999(6) SCC 172] or
baggage [State of Rajasthan v. Shanti AIR
2010 SC 43]
 Search of premises/baggage followed by search
of ‘person’ would attract Sec 50
 Illegality in method/initiation of search not to
render collected evidence inadmissible
[Dr.Pratap Singh v. Director of Enforcement
AIR 1985 SC 989]
6
NDPS Act: Issues in Sec 50
 Suspect
to choose between search by raiding
officer and search in presence of nearest
empowered GO/Magistrate
 Suspect can’t choose exactly before whom
[Raghbir Singh v. State of Haryana (1996) 2
SCC 201]
 Search ordinarily to be conducted only by
authorised official [State of Punjab v. Balbir
Singh 1994 (3) SCC 299]
7
NDPS Act: Issues in Sec 50
 Suspect
to be given clear option—Written
or Otherwise [State of Rajasthan v. Ram
Chandra 2002 WLC (Raj) 471]
 One not to vouchsafe on behalf of another
[State of Rajasthan v. Paramanand & anr
(2014)5 SCC 345]
8
NDPS Act: Disposal of Alamats
(Union of India v. Mohanlal &
Anr SCI CrApl 612/2012)
Sec
52A
GSR
339(E) dated 10.05.2007
9
Commercial Quantity—What’s that?
 Quantities
of drugs/psychotropic substances
mentioned vide S.O. 1055(E) dated 19-102001.
 Ref: E Michael Raj vs IO, NCB [2008 AIR
SCW 7206]
 Qty Nfn: S.O.2941(E) dated 18-112009.[*Sec 77 of the Act]
Subrata Biswas. ZD, NCB
10
Rigours of NDPS Act—Issues involved in
granting of bails to the accused
•
Section 37 (1)(b)—Requirement of Twin
Conditions—37 (2): Additional
Conditions: Union of India vs
Thamisharasi [1995(4) SCC 190]
•
HC’s power u/s 439 of CrPC also covered.
Ref. Rafiq Mohd vs State of Punjab [1994
CLJ 3366 p-3372]
Subrata Biswas, ZD, NCB
•
•
Illegality in investigation not to render
investigation findings inadmissible—Ref.
State of Punjab vs Labh Singh 1996 CLJ
3996
“Reasonable grounds for believing” more
than “prima facie” grounds.
Subrata Biswas, ZD, NCB
12
Non therapeutic use of Prescription Drugs—
A greater challenge!

Subrata Biswas. ZD, NCB
Drug menace destroys
individuals, families
and the society at
large.
 Multiple actors are
involved at multiple
levels.
 Agencies need to join
hands and put up a
concerted fight.
13