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Report No. 155

Annexure II

Comments Received on the Questionnaire Issued by the Law Commission

The Law Commission had circulated a questionnaire (Annexure I) regarding certain amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985 to elicit opinion from various quarters. In the said questionnaire the Law Commission formulated sixteen Questions on various aspects of the subject.

The Questionnaire was sent to the Registrars of sixteen High Courts, Bar Associations,

Home Secretaries of twenty-five States and Union Territories, twenty-eight Police Officers and the Chairmen of five State Law Commissions. Responses were received only from seven Judges/Registrar of High Courts, three Advocates/Prosecutors and twenty seven Police Officers and other expert officers as under:-

Q.1. Six Judges, Registrars of various High Courts, two advocates, 21 Police Officers and one Academician have responded in the affirmative. However, the Deputy Legal Adviser, Ministry of Finance, Govt. of India is of the view that sub-clause (e) of section 4 of the NDPS Act serves the purpose. The Addl. Director-General of Police, (Crime), Punjab is in favour of retaining the existing provisions under clause (d) of sub-section (2) of section 4 of the Act. Zonal Director, NCB, Bombay, is of the view that section 4 takes care of the issue involved in Question 1.

However, he feel that there is a need to have a specific provision making it obligatory on the part of the State Government to take necessary steps for creating awareness in regard to the dangers of drug abuse among the targeted groups and also stressed the need for involving the Non-Government voluntary organisations. The Deputy Commissioner of Police, Narcotics & Crime Prevention, Delhi is of the view that section 4 of the Act does not require any amendment.

Q.2. About the suggestion for the amendment in the existing penal provisions providing minimum punishment, four Judges, two advocates and ten Police Officers have agreed with the suggestion. They have also suggested that the rigorous imprisonment for a term which shall not be less than five years but may extend up to ten years and fine not less than rupees fifty thousand may be provided. It is also suggested that the minimum sentence may be reduced to seven years and thereafter the sentence should run in proportion to the quantity seized up to twenty years.

However, D.G.P., Tripura has suggested that minimum punishment should vary having regard to the quantity of drug seized, the nature of offences and offenders etc. However, others have replied either in the negative or are satisfied with the existing penal provisions. Addl. D.G.P. (Narcotics Wing), Bhopal is of the view that sections 15 to 20 do not need any amendment but sections 21 to 25 should be amended to enhance the punishment to life imprisonment and confiscation of property for subsequent offences.

However, Addl. D.G.P., Crime, Punjab has suggested to reduce the amount of fine from rupees one lack to fifty thousand. One judge of the High Court, Bombay has suggested that discretion be given to court to award lesser punishment for special reasons to be recorded depending upon antecedents of accused, quantity of contraband etc. Two police officers have responded in the negative. According to an academician maximum punishment should be life imprisonment, but minimum sentence should be left to the court's discretion.

Q.3. A High Court Judge, Registrar of High Courts, an Advocate, Thirteen Police Officers and one academician have answered the question in negative whereas rest of the persons have agreed with the suggestion of imposing punishment proportionate to the quantum of seizure of the contraband.

Q. 4. Most of the responses are in the negative. But a Judge of the High Court, two Police Officers and one acdemician have responded in the affirmative. Further the Hon'ble Judge has observed that there are number of cases in which big bosses dealing in narcotic trading traffic have started using old men and women, widows, women having small children, crippled persons are children by exploiting their poverty and other weaknesses.

Such people do not get arrested or indicted. However, due to such practice being adopted by big bosses, handicaps are required to undergo severe sentences. The Court does not have the discretion to deal with such handicapped persons at the time of sentencing them. According to them this causes miscarriages of justice. They, therefore, suggested that the words "extending to" should be used so far as sentences is concerned.

Q. 5. Twenty police officers and one Academicians have responded the question in negative. According to the Registrar High Court of Madras, the benefit has to be given to all because it is difficult to prove that the drug was not intended foR personal consumption. As per the Director-General of Police, Jammu & Kashmir the provisions of the section 27 of the Act is only applicable to those persons who are in illegal possession of small quantity of the drugs i.e. personal consumption and small quantity of the drugs have been notified by the Govt. of India from time to time.

However, according to one Advocate, this section is meaningless and liable to be struck down because for personal consumption licence is being issued. A Judge of the High Court has responded in the affirmative. Further the Addl. Special Public Prosecutor, High Court, Madras, is of the view that let section 27 remain as it stands now. It is for the person who claims the benefit thereof to prove that he was having it for his personal consumption.

This is indeed a very generous provision to take care of addicts sympathetically. According to the Inspector-General of Police, Chandigarh and the Addl. D.G. Crime, Punjab, the benefit of section 27 should be given only for personal consumption are not otherwise. However, a Judge of the High Court Bench, Indore is of the view of that the section 27(2) needs to be deleted. One Police officer has opined that no benefit should be given to all persons found in possession of small quantity irrespective of the fact whether the same was intended for personal consumption. Two Judges and one Police Officer have replied in affirmative.

Q. 6. Special Courts under section 36 of the NDPS Act have not yet been created in Orissa, Sri B. Pande feels that there is no need for such courts at present in view of the small number of cases.

The Registry of Madras High Court and two Advocates have responded saying that under the said Act, no special courts have been set up in Tamil Nadu. However, additional powers have been conferred on the essential commodities special courts.

In J&K every Sessions Judge is invested with the power to try cases under the NDPS Act, 1985. However, no separate courts of Special Judges have been created.

Likewise, the Principal Sessions Judge of each District is invested with the power of court of Special Judge in Kerala.

In Madhya Pradesh, in an order dated 14-11-94 passed in Misc. Cri. case No. 2901/94 by High Court Bench, Indore, the proposed attention of State Government was drawn and now to constitute nine special courts has been finalised.

The State Government of Goa and Tripura has created NDPS court and has appointed special Judge for the same.

The Chandigarh Administration has taken up the matter with High Court for creation of separate courts but the High Court of Punjab and Haryana has refused to create special courts on the ground that number of cases are less.

In the State of Nagaland, separate courts of special judges have not been created. However, the Sessions Courts have been declared as Special Courts for the purpose.

In Sikkim, D.G.P. has responded in the affirmative to the Question asked by the Law Commission.

Special Judges have been appointed for conducting trials of cases under section 36 of NDPS Act in the Union Territory of Pondicherry.

In Karnataka, the State Government has not yet created separate courts under the Act.

In Manipur, the State Government has established one court of Special judge for trial of cases under the NDPS Act. However, D.G.P. is of the view that at least one Addl. Spl. Court should be established for speedy disposal of existing number of pending cases under the Act.

In the State of Maharashtra, special courts have been constituted.

The State of Rajasthan has created separate courts for trial in Rajasthan.

In Uttar Pradesh and Bihar, no special courts under section 36 of the Act have been constituted.

Courts of the Addl. Sessions Judge have been designated as special courts for trial of such cases in the State of Gujarat.

The State Government of Assam has not yet created separate courts of special judges for trial of cases under section 36 of the Act.

Special courts have already been established in Delhi.

Q. 7. Most of the responses are in affirmative. One advocate is of the view that the Special Courts are failure attempt to dispose of the cases. Superintendent, CE, Panaji, Superintendent, CE, North Goa have responded in the negative.

Q. 8. Most of the Judges, Police officers and Advocates have responded in affirmative, Additional Special Public Prosecutor, High Court Madras and Addl. D.G.P. (Crime), Punjab are of the view that section 47 of NDPS Act starts with "every officer of the Government," which naturally includes even the Forest and Revenue officials. Hence, there is no need to have a separate section 47A.

Q. 9. Most of the Judges/Officers/Advocates have agreed with the proposal of the Law Commission. However, the proposal did not find the approval of two judges of the High Court. They are of the view that the said provisions take care of the interest of the accused.

A Public Prosecutor, High Court, Madras, Shri P.N. Prakash has referred to a number of judgments of the Supreme Court and High Courts viz. AIR 1956 SC 411; 1994 (6) SCC 569 All; Mustafa v. State of Kerala, 1995 (1) Crimes 77; Amarjit Singh v. Delhi Admn.; Punjab v. Jasbir Singh, 1996 (1) SCC 288; State of Punjab v. Balbir Singh, 1995 3 SCC 610; Saiyad Mohd. v. State of Gujarat, 1995 Cr LJ 2662; Raghubir Singh v. State of Haryana, 1996 (1) Crimes 55 SC etc. He is of the view that section 50 should read "when any officer, other than such officer of gazetted rank mentioned in section 41(2) on prior information is about to."

The Addl. D.G.P. (Crime) Punjab has suggested that the words "NonĀ¬Gazetted" should be inserted in sub-section (1) of section 50 because if the officer making search of a person is himself a Gazetted Officer, then he is not required to take the person to be searched before some other Gazetted Officer/Magistrate. The Director-General of Police, Bangalore and Commissioner, CE&C, Rajkot have responded in negative. A Judge of the High Court, Bombay, has suggested an amendment in the following lines:-

"Notwithstanding that the procedure laid down in chapter V of NDPS Act (sections 41 to 68) is not followed it is hereby declared and clarified that the trial is not vitiated. Such non-compliance of procedure shall be taken into consideration while appreciating the evidence of Investigating Officer. The said procedure is declared to be directory in nature for the guidance of Investigating Officer."

Q. 10. Twenty-six Judges, officers and advocates have agreed with the proposal by the Law Commission for re-drafting section 50 of the Act by incorporating suitable amendment. Further, a lawyer feels that if a privilege is given why should it be waived by writing. He observes that if the accused is apprehended, he may immediately be taken before the Magistrate and seizure should be before him only or at the time of remand. The Magistrate should satisfy whether the privilege was either complied with or duly waived.

A Judge of M.P. High Court, Indore Bench has suggested that if at all the amendment is to be brought in existence it should be provided in section 50 that the Gazetted Officer should not be the member of the raiding party. Another Judge after referring to Misc. Cri Case No. 2768/50 decided on 28-4-96 of Indore Bench, M.P. High Court finds no justification for making a special provision about Gazetted Officer or Magistrate.

He is of the view that if section 50 is retained in whatever form, it should be made directory instead of being mandatory and plea should be permissible on prejudice or on failure of justice in accordance with section 455 of the Code of Criminal Procedure. The Commissioner, CE & C, Rajkot has responded in the negative. Superintendent, CE, Panaji has suggested that the Gazetted Officer/ the Magistrate only be a witness to the search on the same point.

Q. 11. Most of the responses are affirmative. But some of them have expressed it in negative because according to them the discretionary power may be misused.

Q. 12. All persons except the Registry of Madras High Court have agreed with the proposal for the insertion of new section.

Q. 13. Twenty nine persons have replied in the affirmative. A Judge of the M.P. High Court has suggested that the incharge should be liable to action in case of default in submission of charge-sheet within the statutory period. Four of them feels that the suggestions are not practicable and if implemented, may lead to administrative difficulties. The Additional Special Public Prosecutor, High court Madras however added that it would affect the working of agencies like NCB/Customs/DRI because they are not police officers and they collect materials from all sources and submit it with a complaint.

They do not file charge sheet. Therefore, there is no need for statutory amendments. Addl. D. C. (Crime), Punjab, has not agreed to the suggestions contained in this question because the same according could be done by an executive/administrative order. The Superintendent, CE, North Goa, has responded in the negative.

Q. 14. The Registry and Addl. Spl. Public Prosecutor of Madras High Court and One Police Officer have replied in the affirmative. The State Government has created centers for the identification and treatment of addicts at the State capital and more would be created at other places depending upon the need and availability of finance.

The Director-General of Police, Jammu & Kashmir, has also replied in the affirmative.

The State of Kerala and Madhya Pradesh have also responded in the affirmative to the question.

The Supdt. of Police, ANC, Panaji, Goa has pointed out that the State Government has established centers for identification and treatment of addicts in the State of Goa.

The Inspector-General of Police, Union Territory, Chandigarh has informed that the State Government has not established adequate centres for the identification and treatment of addicts.

A Senior Supdt. of Police (Narcotics), Kohima, is of the view that there are very few centres in Nagaland which are not adequate at all.

No centre for identification and treatment of addicts has been established by the Union Territories of Pondicherry, Manipur and Sikkim.

The State of Maharashtra has established centre for detoxication and rehabilitation of addicts. N.G.O.'s are also doing commendable service in this field in Mumbai and in other parts of Maharashtra.

The State Government has established rehabilitation centre in Rajasthan. However, according to Commissioner, C & CE, Jaipur, number of such centres should be increased.

The number of centres for identification/dedication of addicts instituted by the State Governments (U.P. and Bihar) is negligible as per Zonal Director, NCD, Varanasi.

In Vadodara, there is a centre for identification and treatment of addicts in S.S.G. Hospital run by the Government of Gujarat.

Q. 15. Most of the persons who responded to our questionnaire have agreed with the suggestion of the Law Commission. However, a few of them are of the view that there is no need to establish such centre in some districts/State. They, therefore, fool that it should accordingly be left to the discretion of the State Government to establish centres according to the need.

16. The following suggestions were made by various Judges, Advocates, Police Officials and Academicians:

(1) The application of section 167 of the Code of Criminal Procedure be excluded.

(2) Express provision be made for taking second sample.

(3) Section 32A be amended in the light of Gyan Chand v. State of Rajasthan, 1993 Cr LJ 442.

(4) The Assistant Commissioner should be the Authorising Officer so far State is concerned. The Deputy Commissioner of Police should be the immediate superior officer.

'Gazetted Officer' of the other Government department viz. School Head Master etc. may also be brought within the purview of section 41 of the NDPS Act.

(6) By making necessary amendment in the Act a duty should be cast on the State Government/Central Government for the purpose of giving training the officers of C.B.N., Central Excise Department and Police for detection of crimes and investigation in accordance with the provisions of NDPS Act.

(7) A duty should be cast on State Government/Central Government to open rehabilitation centres in each district of the State by appointing medical officers, psychiatrists and social welfare officers.

(8) Section 37 of the Act be amended on the lines of the proviso to section 437 of the Code of Criminal Procedure for releasing an infirm or sick person or a child, juvenile and a woman.

(9) The word "conveyance" may be deleted from section 42 since section 43 and section 49 will take care of it.

(10) The words "Government Offices" may be included in the explanation to section 43 of the Act.

(11) Sections 36A(1)(b) and (c) of the Act requires to be redrafted so as to clearly State as to who should exercise the power of remand if detention is considered necessary.

(12) Section 29(2) limits the operations of section 29(1). If the explanation in section 29(2) is made an inclusive one then it will take care of not only conspiracy/abetment in India but also bring operators who are abroad within its told.

(13) Chapter VA dealing with forfeiture of property should be amended so as to prevent drug traffickers from transferring away the wealth amassed due to illicit trafficking in Narcotic Drug and Psychotropic substances.

(14) Section 37 be amended to contain sufficient guidelines on which the public prosecutor may not oppose the application for release on bail.

(15) Section 36D(2) be amended to permit and provide transfer of pending cases to special courts despite taking of cognizance also in view of the decision in (1993) 2 SCC 16 and Misc. Cri. Case No. 2901/94 decided by M.P. High Court, Indore Bench.

(16) Section 32A be deleted or amended/conferring discretion to court in appropriate cases in the face of judicial pronouncements for suspension of sentence.

(17) Policy of award merits to be mortalised so as to avoid possible registration of fake cases and introduce element of more fairness.

(18) Proper procedure be followed for sealing, sampling, deposit and dispatch be provided for.

(19) Sub-section (b) of section 36A(1) may be deleted.

(20) There should be Uniformity in cash award to all the departments concerned with NDPS Act.

(21) Special training centres be opened to train Police personnels with regard to all the provisions of NDPS Act.

(22) More Sniffer-dogs be employed and more training centres for them be opened.

(23) Cash award be given not only in the name of Sniffer-dog on seizure of Narcotics but also to the police personnel accompanying the dog.

(24) More incentives be given to informers.

(25) The definition of "illegally acquired property" [section 68B(g)] be widened so as to include the provisions of 'illegally acquired property' defined under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.

(26) Proviso of sub-section (2) of section 68(c) should be deleted.

(27) The words has been charged with any offence punishable under this Act, whether committed in India or outside after the words "chapter applies" in sub-section (1) of section 68E should be deleted.

(28) Selling of opium/poppy ganja etc. through authorised shops by the State Governments should be stopped.

(29) The amount of reward should be increased.

(30) The provisions of sections 9, 41 & 42 of the Act be reviewed.

(31) Sections 68A vis-a-vis 68E, of the NDPS Act be reviewed doubt/ambiguity about the word "charged" be removed.

(32) Licencing of 'Shang Thekas" by the State Excise Department requires to be looked into.

(33) More harsh punishment for drug syndicates be awarded.

(34) Provisions related to forfeiture of poverty (Ch. VA) need immediate amendment as section 68A and section 68F are contradictory.

(35) New provisions be added to depute state officials to be utilised as witnesses in the NDPS Act cases by State enforcement agencies.

(36) Section 50(3) of proposed amendment (of the Questionnaire) should be deleted.

(37) Classification between soft drugs and hard drugs must be made and punishment should vary between them.

(38) No rewards for seizing drugs be given to the officers. It may be only in case of private parties who gave information that such reward be given.

(39) Simple possession of drugs should not be punishable unless he knowingly possesses the same.

Drugs and Psychotropic Substances Act, 1985 Back

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