NDPS Act is a complete code
The Narcotic Drugs & Psychotropic Substances Act (NDPS Act) is a complete code of legal provisions, to control and regulate operation of Narcotic Drugs & Psychotropic Substances in India.
The Act has been formulated by consolidating the then existing Opium Act, 1878 and The Dangerous Drugs Act, 1930. It applies to all persons in India and outside, and on ships and aircrafts registered in India.
Narcotic drugs & other substances
Narcotic Drugs means Cocoa leaf, Cannabis, Opium Poppy straw and includes all manufactured goods and the Psychotropic substance means any substance included in the Schedule of such substance notified by the government of India.
Issue of warrant for arrest, search, or seizure
A Metropolitan Magistrate, or a Magistrate of the first class, or any Magistrate of the second class specially empowered by the State Government, can issue a warrant for the arrest of any person who has believed to have committed an offence under the NDPS Act, or for the search, whether by day or by night, in any building, conveyance or place, or for the seizure, freezing or forfeiture of any document or other article as evidence, under Section 41(1) of the Act.
Empowered officer can authorise arrest or search
Any officer of gazetted rank empowered by the Central Government, or the State Government by general or special order, can authorise any subordinate officer under him above the rank of a peon or constable to arrest a person or search a building, conveyance or place during day or night.
The empowered officer can authorise only when he has reason to believe (not just reason to suspect) from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the NDPS Act, under Section 41(2) of the Act.
The empowered officer can also arrest an offender or make a search under the Act.
Enter, search, & seize from any enclosed place
Any officer duly empowered by the Central Government or any officer empowered by the State Government, who has personal knowledge or information given by any person and taken down in writing about committing any offence relating to NDPS Act, has power to enter and search any such building, conveyance, or place; in case of resistance, break open any door and remove any obstacle to such entry, under Section 42 of this Act.
He can seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Act.
He has the power to detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Section 42 of this Act.
The officer must have prior information and he must record it in writing. He must send a copy of this to his superior officer within 72 hours as well, under Section 42(2) of the Act.
Seizure & arrest from public place
Any officer of the Central or State government duly empowered under Section 42 has power to seize from public place any article or document or illegally acquired property to be furnished as evidence and detain or search any person committed an offence under Section 43 of the Act.
Any public conveyance, hotel, shop, or other place intended for use by or accessible to the public, come under the definition of public place. But the space in a private vehicle, remaining in a public place, is not public space.
Arrest or seizure must be reported to superior
Whenever any officer makes any arrest or seizure he shall make a full report of the arrest or seizure to his immediate superior officer within 48 hours, under Section 57 of the NDPS Act.
Procedure of Searching a person
The Section 50 of the NDPS Act prescribes how to conduct search of a person. Some inbuilt safeguards as to the search of a person, are provided under the Section.
The Section provides that when any officer, duly authorised under Section 42, is about to search any person, under Section 41, 42 or 43, he shall inform the person that he has a right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the departments mentioned in Section 42 of the Act.
If the person so desires, the officer shall take the person without unnecessary delay to the nearest Magistrate or the Gazetted Officer, for search of the person.
Any police officer in the Gazetted Officer rank is a qualified and competent Gazetted Officer for search of a person under section 50 of the NDPS Act. But the Gazetted Officer forming part of the detecting or investigating team is not a competent officer for the purpose [ Nithin v State of Kerala: 2023 (2) KLD 137].
If not possible proceed to search on recoding reasons
On the other hand, if it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any substance or article or document, he may be searched by the Officer by following the procedure specified under Section 100 of the Code of Criminal Procedure, 1973, as per Section 50 (5) of the Act.
Immediately after the search, the officer shall record the reasons for such belief which necessitated such search, and within 72 hours send a copy thereof to his immediate superior.
Inform the arrested person the reasons
Any officer arresting a person under Sections 41, 42, 43 or 44 is duty bound to inform the person arrested of the grounds for such arrest, under Section 52 of the NDPS Act.
Chance recovery of such substances
If a police officer while doing his duties come up with recovery of any material under NDPS Act by chance, without any prior information, he need not follow the provisions of NDPS Act for search or seizure but he has to proceed under Section 100 & 165 of the CrPC.
Send arrested persons and articles to Police
Every person arrested and article seized under warrant issued under the Section 41(1) shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued, under the Section 52 (2) of the Act.
Every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the Officer in charge of the nearest Police Station, or the officer empowered under section 53, as per Section 52 (3) of the Act.
The Officer in charge of the police station is bound to keep all articles seized within his local area when handed over to him and allow the officer to affix his seal to such articles to take samples from those articles. The police officer shall also seal the samples, under Section 55 of the Act.
Thereafter, the investigation into the offence is to be conducted by the Officer in charge of a Police Station.
Provisions of CrPC not inconsistent will apply
The provisions of the CrPC shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the act, as per Section 51 of the NDPS Act
Authorised officer can search but SHO must investigate
Therefore, the powers for search, seizure, arrest etc coming under Section 52 are vested with the officers duly authorised under Sections 41, 42, or 43, of the act.
But the power of investigation is vested with an Officer in charge of a Police Station.
Government can invest an officer with powers of SHO
The Central Government, in consultation with the State Government, can invest any officer, of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers, with the powers of an Officer in charge of a Police Station for investigation, under Section 53 of the Act.
The State Government, can also invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an Officer in charge of a Police Station for the investigation of offences, under Section 53 (3) of the Act.
Therefore, other persons authorised by the Central Government or the State Government can be the Officer in charge of a Police Station for investigation of the offences.
Action in vexatious cases
If any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, it becomes a cognisable offence under Section 58 of the Act.
Such an offence is to be investigated by the Officer in charge of a Police Station” other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 of the Act.
Further reading
