How can non-compliance with procedure affect an NDPS case like leading to acquittal?

Introduction

Drug consumption and the taking of drugs are prohibited under the Narcotic Drugs and Psychotropic Substances Act (NDPS). Although its seriousness and the non-bailable nature of most crimes under it, procedural non-compliance often allows for bail or even its cancellation. This is because the law imposes strict procedural safeguards, giving proper due process and avoiding misuse of power.

A 2022 data story valued the global drug trade at $650 billion, with cocaine and heroin being the most used substances. The less commonly used drugs include cocaine, amphetamine-type stimulants, and hallucinogens. In India, ganja is the most common type of drug, followed by charas. Despite the strict NDPS Act, criminals often get away with their mistakes.

The Importance of Procedure Under the NDPS Act

The NDPS Act prescribes mandatory provisions under Sections 41, 42, 43, and 50, which are crucial to ensuring fair investigations and trials. These provisions focus on:

• Section 41: Powers to issue warrants and authorizations.

• Section 42: Powers for entry, search, seizure, and arrest without a warrant, requiring written reasons for action.

• Section 43: Unauthorized arrests and seizures in public places.

• Section 50: Safeguards for personal searches, including the option to be searched in the presence of a magistrate or a gazetted officer.

The Hon’ble Supreme Court has emphasized that compliance with these sections is mandatory, along with the safeguards under the Code of Criminal Procedure (Cr.P.C.). Non-compliance can render the entire investigation invalid, providing grounds for bail or acquittal.

Examples of procedural violations

Procedure violations invalidate the investigation itself. For instance, if the same officer who conducted the recovery, seizure, and arrest also handled the investigation, courts consider this invalid. Such procedural breaches compromise the integrity of the process and can be argued as a violation of fair trial rights.

Other common procedural lapses include:

1. Failure to Record Written Reasons (Section 42): If reasons for search and seizure are not documented in writing as mandated, it violates procedural safeguards.

2. Ignoring Section 50’s Safeguards: If an accused is not informed of their right to be searched in the presence of a magistrate or gazetted officer, the search is unlawful.

3. Improper Authorizations or Warrant Issuance (Section 41): Conducting searches without valid authorization undermines the case.

Key Factors Leading to Acquittal

Non-compliance with the procedure is a common defence strategy in NDPS cases. Here are the top reasons bail or acquittal can be secured:

1. Faulty Investigations and Procedural Violations: Courts dismiss cases where investigations deviate from prescribed procedures.

2. Delay in Trials: Long delays create doubts about evidence reliability, benefiting the accused.

3. Insufficient Evidence: Weak or missing evidence is often due to procedural lapses during seizure or documentation.

4. Hostile Witnesses: Witnesses who become hostile weaken the prosecution’s case, often resulting from poor evidence handling or procedural gaps.

Citations and Judicial Observations

Several landmark rulings demonstrate how procedural lapses lead to acquittals:

1. State of Punjab vs. Baldev Singh: The Supreme Court distinguished Sections 42 and 43, emphasizing the necessity of written reasons under Section 42 for searches, which is not required under Section 43 for public places.

2. Dharminder Kumar vs. State of Punjab: The court clarified that Section 42 does not apply to public places or transit scenarios.

3. Union of India vs. Md. Nawaz Khan: The court upheld compliance with Section 43, as the search occurred in transit at a public place.

4. Gurjeet Singh vs. State of NCT of Delhi: The Delhi High Court ruled that procedural lapses in seizure should not be considered during bail unless glaring irregularities exist.

Failure to adhere to procedural safeguards, such as Section 50’s personal search requirements, has also led to acquittals. For example,

• In Vijay Mohan Singh vs. the State of Karnataka, non-compliance with Section 50 led to acquittal.

• The acquittals in Anwar Ali v. State of Himachal Pradesh and Sambasivan & Ors v. State of Kerala were based on procedural violations.

Challenges in NDPS Cases

Procedural non-compliance, coupled with other challenges, exacerbates issues in NDPS cases. For example, India’s overcrowded jails often house undertrial prisoners for extended periods of time. Delayed trials, coupled with questionable evidence, raise doubts about case fairness. Furthermore, varying circumstances—such as drug type, quantity, and the individuals involved—necessitate customized legal strategies.

Conclusion

Violating procedural safeguards under the NDPS Act can greatly affect a case's result, often leading to bail or release. NDPS lawyers focus heavily on such mistakes to build a defence. This shows how critical it is to follow Sections 41, 42, 43, and 50 carefully. By ensuring strict compliance, the justice system can strike the right balance between punishing drug crimes and protecting individual rights.