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NDPS (The Narcotic Drugs and Psychotropic Substances Act, 1985) is one of the most stringent laws in India and it prescribes very stiff penalties including monetary penalty, rigorous/life imprisonment and in some cases death penalty. It all depends on the quantities and types of narcotic drugs and psychotropic substances involved in the case. One should know his or her rights under the law:-
- Personal/physical search: Under Section 50, any person has right to be searched before a Gazetted Office or a Magistrate. This right has to be informed by the officer. But it also depends on the possibility of siphoning off of the drugs and apprehension of the offficer. In that situation, the accused may be searched under Section 100 of Cr. P.C.
- Search of female: A female can be physically searched by female officer only.
- If the search has been carried out under Section 100 of Cr. P.C., the officer has to record the reasons for doing so and also he will send in writing to the superior office within 72 hours.
- Searches can be made on the authorization in writing by the Gazetted officers of the empowered departments, under Section 41. But searches can also be made without warrant or an authorization but in that case, the officer has to inform in writing to his superior within 72 hours.
- Arrests: The officer arresting a person shall inform him grounds of his arrest under Section 52. In case of arrest by on a warrant issued by a magistrate, the arrested person and article seized shall be forwarded to the magistrate asap. The officer shall make a full report to his immediate superior within 48 hours under Section 57.
Precautions/Presumptions under NDPS:
There are certain provisions in NDPS, knowledge of which can be helpful to the accused :
A) Presumption of culpable mental state (mens rea) : Culpable mental state includes intention motive, knowledge of a fact and belief in or reason to belief, a fact. Under the common law, the prosecution has to prove the existence of mens rea (guilty mind) and to show that the defendant has committed a crime. But under Section 35, the court shall presume the mens rea. It is much more difficult for the accused to prove the innocence.
B) Offences are cognizable : Every offence under NDPS is cognizable offence under Section 37. It means the offence can be taken note of by the authorized officer on suo moto basis.
C) Offences are non-bailable: It is much more difficult to obtain bail in case of commercial quantity and other specific offences. The court may consider the nature of accusation, severity of punishment, apprehension of tempering with evidences/witnesses etc. Even interim bail is difficult to get.
D) Relevance of statements made and signed during course of any inquiry or proceeding can be used against the accused giving the statements in some circumstances under Section 53A.
E) Presumption of possession of illicit articles: In trials, it will be presumed that accused has committed offence for the possession of illicit articles under Section 54.
F) Presumption as to documents: Under Section 66, the court shall presume the signature of any documents seized, admit the seized documents as in evidence and examine any any person acqainted for the truth of contents of documents.
G) Power to call for information: Under Section 67, the authorized officer has the power to call for information, require any person to produce or deliver any documents and examine any person.
Hope the above will give some hope to the accused and also help him/her in devising strategies for winning the case.
Adv. (CA) Abhinarayan Mishra; Partner, SAM Law Associates LLP
Charge sheet is the report of the police on completion of investigation of an offence. Section 173 of Cr.P.C. states the appropriate laws on charge sheet. Once investigation is completed, the police office shall forward the charge sheet to the Magistrate as soon as possible. In case of serious offences like rape, the investigation has to be completed within 2 months.
A charge sheet has specific format of details as prescribed by the State Government, which include the following:\
(a) name of parties; (b) nature of information; (c) acquaintenaces of the circumstances;(d) commission of offence and by whom;(e) arrest of accused;(f) whether accused released on bond ;(g) whether forwarded in custody under Section 170 ;(h) medical examination report of woman victim;
In case of Section 170 matter, the police officer shall forward alongwith the chargesheet to the Magistrate, (a) all documents or relevant extracts;(b)statements of witnesses.
Where all the necessary documents are not filed with the final report, the plea of prejudice should be raised by the accused at first opportunity.
Copies of all documents can be given to the accused by the police officer as per his convenience. However, the police officer can indicate to the Magistrate that the parts of the documents may not given to the accused on grounds of irrelevancy, public interest or in interest of justice.
Police has statutory right to conduct further investigation and there is no requirement of obtaining permission for further investigation. This is permissible even after filing of final report. But no fresh investigation or reinvestigation is allowed.
Magistrate does not have power as to the choice of investigating agency for further investigation.
Further, there is no requirement that the accused is to be heard before the order of further investigation.
Magistrate can add or delete sections of IPC only at the stage of charge framing and not at the stage of cognizance of offence.
The above provisions have to be followed by all the police including CBI.
The preparation of charge-sheet is foundation of trial/ criminal case. Any mistake or collusion of the police will have adverse consequences .
Adv(CA) Abhinarayan Mishra, Partner, SAM Law Associates LLP
+9910744992; firstname.lastname@example.org; www.samlaw.in
While reading today's newspaper, I came across the expression "letter rogatory". A natural curiosity arose and questions came to mind. What is it, who issues it and to whom, impact and value of the evidence gathered etc?
Letter rogatory is basically a letter of request. It is the process through which criminal courts in two countries seek information, statements and documents from each other. So, only criminal courts can issue letters rogatory. It is a mechanism through which the investigation agencies in one country seek evidences from investigation agencies in the other country, through system of criminal courts. For example, CBI can seek the help of special criminal court in India for getting the any information/evidences from USA and vice versa.
The letter rogatory is issued by courts on reciprocal basis in friendly courntries.
Section 166A and Section 166B of Code of Criminal Procedure, 1973 deal with letter rogatory. The salient feature of these Sections are as follows:-
- It is issued on the request of investigation officer/authority by the criminal court.
- The request is made to examine orally the person acquainted with the facts and circumstances of the case and to record the statements and to require such person to produce any document/thing.
- Such request is formally sent through the criminal court through the central government in India
- The competent authority in other country will do the diligence and forward all those facts, statements and documents to the court issuing letter of request.
- Every statement/document/thing shall be deemed as evidence in course of investigation in the court receiving it.
- In case any such letter of request is received from foreign country, the central government may forward the letter to the Chief Metropolitan/Judicial Magistrate and also to any police officer for further action.
- All evidence so collected will be forwarded to the Central Government, which may take action as deemed fit by it.
Now my curiosity and questions got satisfied and so wrote the above.
Adv(CA) Abhinarayan Mishra, email@example.com;www.samlaw.in