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Provisions of the NDPS Act Are Harsh, Hence, Procedural Safeguards Must Be Complied With: J&K HC

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Case Name: Intelligence Officer vs. Vijay Kumar [CRAA 37 of 2017]


The J&K High Court in a judgement on 1st April 2021 observed that the provisions of the  NDPS Act are harsh in nature, therefore the procedural safeguards must be scrupulously complied with.

Facts of the Case

In this case, the Intelligence Officer of NCB, Sanjeev Chandel, the complainant, received secret information regarding Vijay Kumar who would supply contraband charas to the smugglers of Punjab in Asia Hotel Chowk, Jammu. Acting on the information, the Superintendent of NCB prepared a team and laid Naka at the hotel. A person was arrested at around 10 AM in front of the hotel who identified himself as Vijay Kumar, the accused.  He was told of his right to be searched in front of the magistrate given under section 50 of the NCB Act. The Superintendent was also a gazetted officer and the accused given his consent in writing to be searched in front of the Superintendent. 

While searching the bag of the accused, a transparent bag carrying some greenish-brown material was found. That material on being tested by Drug-Testing kit was found to be positive for charas. The material was weighed to be 2kg, seized, samples drawn and sealed. After this, the statement of the accused was recorded, a personal search was done and then arrested. Later, the packing material, seized goods and samples were taken for safe custody. One of the samples was sent to CRCL new Delhi, which revealed that the sample contained charas. Thereafter the charge sheet was filed and the accused was presented in front of Principal Sessions Court, Jammu. There, the accused demanded trial. The Sessions Court acquitted the accused which was impugned in the appeal in High Court.

Pleadings before the Court

It was submitted by the learned counsel on behalf of the Appellant that Section 50 of the NDPS Act will not be invoked in the case of a “pocket” search, as in this case, where the contraband was discovered in the bag that the accused was carrying, but rather in the case of a “personal search.” 

It was submitted as the ground of appeal that the accused’s complaint, taken under Section 67 of the NDPS Act, has been disregarded. This argument might be used to prosecute its author since it was admissible in fact. As a result, the learned trial Judge’s impugned judgment was not tenable by statute, and the Respondent was liable to be found guilty of the charges against him. Also, the accused was acquitted by the trial Court because no samples were taken on the spot.

Court’s Observation

It was observed by the Court that the Respondent’s method for drawing samples, in this case, did not not comply with the procedure prescribed under Section 52A of the NDPS Act or the Standing Orders (supra), since the samples were taken at the NCB’s Jammu office rather than at the scene of the incident. It was further observed that the prosecution argument was further weakened by the non-examination of independent witnesses cited to the recovery and seizure, which in their opinion further weakened the prosecution case and a conclusion in favour of the accused, could be drawn as a result of the non-examination of independent witnesses. 

Court’s judgement

In this case, the High court of Jammu and Kashmir approved the trial Court’s decision and stated that the procedural safeguards contained in the act of 1985 should be applied as the provisions of this act are harsh in nature. 

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