NARCOTIC DRUGS AND PSYCHOTROPICSUBSTANCES (NDPS)
The term ‘narcotic’ in the legal sense is quite different from that used in the medical contextwhich denotes a sleep inducing agent. Legally, a narcotic drug could be an opiate (a truenarcotic), cannabis (a non-narcotic) or cocaine (the very antithesis of a narcotic, since it is astimulant). The term ‘psychotropic substance’ denotes mind-altering drugs such as LysergicAcid Diethylamide (LSD), Phencyclidine, Amphetamines, Barbiturates, Methaqualone, anddesigner drugs (MDMA, DMT, etc.).
CLASSIFICATION OF DRUGS
Narcotics
Depressants
Amphetamine
Hallucinogens
The mandatory guidelines, which should be followed by the Investigating Officers, are as under: -
ïSearch of the person/accused should be conducted by the officer authorized under Section 42 of the NDPS Act. An Officer duly authorized should not below the rank of Assistant Sub Inspector (Regular). Investigation officer who is an adhoc ASI is not competent to exercise the power and performs the duties specified in Section 42 and 67 of the Act.
• If empowered officer or an authorized officer has any prior information/secret information given by any person, which should necessarily be taken down in writing and should forthwith send a copy thereof to his immediate superior official .
• If there is a secret information, it is mandatory that the empowered officer will immediately sent a “ruqa” to the police Station for registering of FIR
.• If the officer takes down any information in writing or records his belief, he will within 72 hours, send copy of the same to his superior officials.
• In case of a chance recovery of any Narcotic Drugs orPsychotropic Substance, the police official who is not empowered, should informthe empowered officer, who should thereafter proceedin accordance with the provisions of NDPS Act. Even an empowered officer will inform the other empowered officers from stage of recovery onwards and will call the other empowered officer to carry out the further investigation in accordance with the other provisions of the NDPS Act.
• For the fair and impartial investigation, it is necessary that informant/ complainant and investigator must not be the same person.
• Section 50 of the NDPS Act, castes duty on empoweredofficer to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate. A mere enquiry by the said officer as to whether the suspect would like to be searched in presence of the Magistrate or the Gazetted Officer, can be said to be due compliance within the Mandate of Section 50, as the suspect may or may not choose to exercise the right given to him under the said provision. It is mandatory for empowered officer to inform the person concerned/ accused of his right to be taken to the nearest Gazetted Officer or nearest Magistrate for conducting the search under the NDPS Act.
• The empowered officer can not put any additional condition while informing the right to accused like apart from (empowered officer) e.g. the accused can be searched by Gazetted Officer or Magistrate. No third option can be given by the empowered officer.
• Each empowered officer will keep a listof all Gazetted Officers of District with their mobile number, who can be associated. The list of empanelled Gazetted Officers will be updated quarterly in every year by Sr. Superintendent of Police of District.
• Where the personal search of the accused is conducted by the empowered officer/ investigating officer acting on the prior information, then the compliance of Section 50 of NDPS Act is mandatory. Section 50 only applies in case of the personal search of the person.
• If there are more than one accused, each accused must be individually informed that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. A joint communication of the right available under Section 50 (1) of the NDPS Act to the accused person is not permissible under Section 50. The communication has to be clear, unambiguous and individual.
• Empowered officer or an authorized officer, who is about to search any person under provision of Sections 41, 42 and Section 43, shall, if such person so require, take such person, without unnecessarily delay to nearest Gazetted Officer or to the nearest Magistrate.
• The Gazetted Officer or Magistrate before whom anysuch person is brought shall also comply with the provision of Section 50 of the NDPS Act by apprising the person of his/her right.
• While enforcing the mandate of Sec 50 of the NDPS Act, an option in writing, duly read over and explained in the language the person about to be searched understands, shall be provided and such search shall be carried out by the gazetted officers of the civil department, Magistrate or gazetted officer of the Police, already empanelled for the purpose and available on spot. The signatures shall be obtained from the accused on the option memo together with the signatures of witnesses and kept in the CD file as evidence.
• No female shall be searched by any one excepting afemale officer and such lady police officer will never be given up in trial Court as unnecessary witness.
• The process of drawing of sample has to be in the presence and under the supervision of Magistrate and the entire exercise be got certified by him. The application for sampling and certification ought to be made without undue delay.
• In case of bulk recovery, the seized drug/narcotic substance in the package/container should be well mixed to make it homogenous so that the sample drawn is representative of the seized substance
.• Upon the seizure, the same has to be forwarded to theofficer incharge of the nearest police station who will prepare an inventory and make an application to the Magistrate for the purpose of: (a) Certifying the correctness of the inventory (b) Certifying photographs of such drugs or substance taken before the Magistrate as trueand (c) to draw representative sample in the presence of the Magistrate and certifying the correctness of the list of sample so drawn.
• A detailed report in this regard shall be shared, without any fail, with the superior officers, at the earliest possible time, preferably within a period of 72 hours, as required under section 42 of NDPS Act.
• All seizures shall be kept in the malkhana of the police station concerned with specific entries in the malkhana register under the charge of SHO/Munshi and send to FSL without delay in case the samples, owing to some extreme exigency, are not sent to FSL within the prescribed time as per the mandate of Sec. 55 of NDPS Act. Statements as witnesses of SHO/Munshi/Malkhana Incharge shall be reduced in writing to maintain the chain of evidence.
• All such seized/sealed packets of contrabands shall be placed before the Magistrate to follow Section 52-A of NDPS Act.
• Whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours of such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official as per the mandatory requirement of Sec. 57 of NDPS Act.
• All articles, things, conveyance etc. used in the transportation ofnarcotics be also seized with a proper inventory prepared on the spot, as these things/items are liable to be confiscated under Sec. 60 & 61 of the Act as per the procedure laid down in Sec. 63.
• Further a direction be given to the Investigating Officers to maintain separate register to keep record of pending FSL reports to complete the investigation on time and file FSL report along with report under Section 173 (2) Cr.P.C. within the time prescribed as per NDPS Act.
• In case of faulty investigations, deviation of the prescribed laws, burking of crime or illicit practices adopted by the investigating cell/team or its supervisory officer or during the prosecution of the cases at the time of trial, effective departmental actions shall be immediately initiated against the erring officers/officials found responsible for the lapses and stringent & exemplary punishments shall be awarded in each case as per Act.
