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NDPS has been reduced to a lion without a teeth

Supreme Court have passed an important verdict while explaining the NDPS Act and interpreting section 53 and 67 of the same.

Section 53 states that  (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

In it’s 2:1 verdict, Supreme Court made it clear that the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act. With this, any statement made before the officers of NDPS will no more be admissible before the court.

Section 67 of the NDPS Act says that any officer authorised by the Central Government or a State Government may, during the course of any enquiry may

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

Now because of to the interpretation, any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. It further made it impossible for the officers of NDPS to prove the statements made by the accused to them before the court of law which is not only bad in eye of law but is dangerous to a level that NDPS Act will become weak due to this.

The opinion coined by the Supreme Court is backed by the logic that power granted to police under CRPC and to the officers in NDPS are of similar nature and that they should be treated equally. However, the dissenting opinion of Justice Banerjee pointed out the difference between them. According to Justice Banerjee, a statement made before police is not admissible before the court mostly because it is not required to be signed by the accused. But in NDPS, person making statement is necessarily required to accept and put their respective signatures.

Granting the status of police to the officers of NDPS will have long-term consequences and it’ll be even more difficult for the agency to take the cases to any logical ending since any statement given before them under section 67 will not be treated as confessional statement anymore.

This verdict will have direct affect on various ongoing cases including the case of Sushant Singh Rajput where over dozen of people are nabbed by the agency under NDPS and have given various statements which will have no affect before the court anymore. Justice Banerjee remarked that,

“When a statutory provision is clear and there is no ambiguity, this Court cannot alter that provision by its interpretation. To do so, would be to legislate, which this Court is not competent to do”.

In contrary, the majority verdict stated that, “If we were to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India”.

NDPS is a special act and has been introduced for special purpose. Article 14 provides equality to everyone before the court of law, while Article 20(3) protects someone to be witness in his own case. Article 21 further guarantees right to life and liberty. These rights can’t be curbed due to them being fundamental rights. However, it must be understood that NDPS was introduced with an overriding affect so to prohibit a person to produce/manufacture/cultivate/ possess/ sale, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. Various states including Himachal Pradesh, Maharashtra, Goa and Punjab are facing drug problems and almost all Universities and colleges today are having easy drugs at their respective campuses throughout India which shows that there is so much more to be done in this field so to protect the future of the nation.

With this new interpretation, the very essence of the act will be reduced and will effect the ongoing cases as well. It won’t be wrong to say that the interpretation will reduce the power of NDPS as a lion without any tooth. Hopefully, Central Government will seek a review of the same by clarifying their stand as well as putting out the reason of bringing the act in the first place.

Author: Adv. Shashank Shekhar Jha
Legal Editor, GoaChronicle.com

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