Key Supreme Court decisions on NDPS Act in 2020
Narcotic Drugs and Psychotropic Substances

The Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) is the principal penal law in India on narcotic drugs[1] and psychotropic substances[2].

The seriousness of the NDPS Act for an accused or suspect is signified in part by the classification[3] of all offences thereunder as cognizable[4] and non-bailable. Furthermore, as a special Act, many provisions (and protections) otherwise available to an accused or person of interest under other laws, such as the Code of Criminal Procedure 1973 (CrPC), stand modified or excluded.

Supreme Court 2020

The Supreme Court of India has set significant precedent in 2020 against the relevant provisions of the NDPS Act, summarily discussed below, which underscores the significant risk and vulnerability an accused/suspect faces when prosecuted under the NDPS Act.

A. Tofan Singh

No evidentiary value of alleged confessions

By 2 to 1 majority, the Supreme Court in Tofan Singh[5] has held that officers invested with powers (of an officer-in-charge of a police station for the investigation of offences) under the NDPS Act[6] are “police officers” within the meaning of section 25 of the Indian Evidence Act 1872 (the Evidence Act).

Accordingly, any confessional statement (allegedly) made to such officers would be statutorily barred as evidence and cannot be taken into account to convict an accused under the NDPS Act.

The Court in majority further held that a statement recorded under the NDPS Act[7] during the course of any enquiry thereunder cannot be used as a confessional statement in trial for an offence under the Act.

B. Mukesh Singh

No automatic acquittal/bias if investigator/complainant same person

Under reference in Mukesh Singh[8], the Constitution Bench of the Supreme Court has overruled the precedent set by a Full Bench of the Court in Mohan Lal[9], wherein it was held that investigation under the NDPS Act conducted by a police officer who is also the complainant in the case, vitiated the trial of the accused and entitled an acquittal.

Further, the Court has imposed the burden of establishing bias on the accused by holding —

“11. ……………………………………….Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.”

Being accused of any crime is an extremely serious matter and navigating criminal proceedings an ordeal in itself. The NDPS Act further increases the risk of conviction from an evidentiary and procedural standpoint by modifying or excluding relevant statutory provisions of the CrPC and the Evidence Act.

Though Tofan Singh allows significant protection to an accused/suspect from self-incrimination, the procedural disadvantages discussed in Mukesh Singh may make Tofan Singh irrelevant and unwittingly protect mala fide prosecutions.

References

[1] “Narcotic drug”means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs

[2] “Psychotropic substance”means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule to the NDPS Act

[3] section 37 of NDPS Act

[4] “Cognizable offence” means an offence for which, and cognizable case means a case in which, a police officer may arrest without warrant

[5] Tofan Singh v. State of Tamil Nadu in Criminal Appeal №152 of 2013, decided by the Hon’ble Supreme Court of India on 29 October 2020

[6] section 53 of NDPS Act

[7] section 67 of NDPS Act

[8] Mukesh Singh v. State (Narcotic Branch of Delhi) in SLP (Criminal) Diary №39528 of 2018, decided by the Hon’ble Supreme Court of India on 31 October 2020

[9] Mohan Lal v. State of Punjab (2018) 17 SCC 627
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['Drugs', 'Law', 'India', 'Criminal Justice', 'Legal']