SOP DOS AND DONTS as cited by HC of JK in 2017

I
I
Government of Jammu and Kashmir
Home Department "
Civil Secretariat, Srinagar.
Subject.- Standard Operating Procedure(s) to be followed in NDPScases.
CIRCULARNo: 02. - Home of 2017
D ate d:)".r - 09-2017
The Narcotic Drugs and Psychotropic Substances Act, 1985, provide
for stringent provisions for offences related to drug abuse and trafficking.
Despite the fact that major offences under the aforesaid Act are non-bailable,
it has been observed that in several cases the drug offenders secure acquittal
on technical grounds. A large number of offenders in NDPS cases are
acquitted due to non-compliance of mandatory provisions and the prescribed
procedure. The acquittals in serious offences particularly in NDPScases create
a sense of insecurity in the society and undermine the faith of the common
man in the administration of criminal justice. As such, it is incumbent upon
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the Investigating Agencies/Prosecutors discharge their assigned duties in a
professional manner to achieve the desired objective of law.
2. In the above context, the Division Bench of the Hon'ble High Court
at Jammu in PIL No.OS/2013, titled (Court on its Own Motion vs. State
and Others) has been monitoring the progress of steps taken by the State to
ensure that in NDPS cases, the investigation is conducted in a proper and
professional manner by adhering to the mandatory provisions of the Act and
to minimise the acquittals in such cases. -
3. To accomplish the aforesaid purpose and to ensure conviction of
~ffenders in NDPS cases, all the enforcement agencies of the State are
, I expected to work in close coordination and adhere to the provisions of the
aforesaid Act during investigation of case, while ensuring vigorous follow up
during prosecution of such cases.
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4. In view of the above, it is enjoined upon all the officers, entrusted
with the investigation/prosecution in NDPS cases to strictly adhere to the
provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and
the procedures laid down in Standard Operating Procedures (SOP's)
formulated by the State Crime Branch. A copy of Standard Operating
Procedures (SOP's) is annexed herewith as Annexure-"I" to this Circular.
No: Home/OWP/14/2013
Encl: as above
Sd/-
(R. K. Goyal) IAS
Principal Secretary to Government,
Home Department.
Dated: ~ S .09. 2017
Copy to the :-
1. Director General of Police, J&K.
2. _, Inspector General of Police, Kashmir/Jammu.
3. Inspector General of Police, Crime Branch.
4. Secretary to Government, Department of Law, Justice and
Parliamentary Affairs.
5. OSD to the Hon'ble Minister for Law, Justice and
Parliamentary Affairs.
6. Director Prosecution, PHQ.
7. All SSP's/SP'sfor information and necessary action.
8. Private Secretary to Principal Secretary to Government, Home
department.
9. Circular file/Stock file
JL~
~ ~q')7
(Mushtaq Ahmad) KAS
Deputy Secretary to Government,
~ Home Department
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Standard Operating Procedures (SOP)
______________________________
for Investigation & Prosecution of Crimes
under The Narcotic Drugs and
Psychotropic Substances Act, 1985.
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C O N T E N T S
1. PREFACE…………………………………………………………. 1
2. INTRODUCTION ...................................................................... 3
3. COMMON CAUSES FOR FAILURE OF CASES………………. 8
4. PROCEDURE TO BE FOLLOWED (Do’s and Don’ts)………. 12
5. MANDATORY LEGAL PROVISIONS UNDER NDPS, Act…… 22
6. CHECKLIST………………………………………………………. 32
7. SPECIMENS:
1. ANNEXURE-A…………………………………………… 38
2. ANNEXURE-B…………………………………………… 39
3. ANNEXURE-C…………………………………………… 40
4. ANNEXURE-D…………………………………………… 41
5. ANNEXURE-E…………………………………………… 42
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INTRODUCTION
Despite seizure of 968 quintals of narcotic drugs and about
seven lakh intoxicants in the last 5/6 years, the problem has not
received due attention of Investigators and the Prosecutors. As a
result the number of acquittals in such cases greatly outnumbered
the convictions, as for every conviction there are about nine
acquittals.
As per NDPS Act, Sections 41 and 42 are attracted when
there is a prior information about the presence of contraband
article in any building, conveyance or enclosed place, whileas
section 43 applies when information as such is not about the
presence of a contraband article at any of such place but such
article is likely to be brought in any public place. Thus, it is clear that
provisions of Section 42 of NDPS Act would be only applicable
when search, seizure and arrest have to be effected without
warrant or authorization in any building, conveyance or enclosed
place. If such places are not be entered into and searched, the
provisions of Section 42 will not be applicable. The powers which
have been conferred are to enter, search, seize and arrest without
warrant or authorization. Under proviso to sub-section (1) of Section
42 of the NDPS Act, if such officer has reason to believe that a
search warrant for authorization cannot be obtained without
affording opportunity for the concealment of evidence of facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief. Where
"prior information" related to the commission of an offence as
provided under Chapter IV of the NDPS Act, there is time for
obtaining warrant or authorization, efforts should be made to
obtain such warrant and authorization from the Magistrate or the
Gazetted Officer. Such information should be recorded in writing
and a copy thereof sent to the superior immediate officer. Search
and seizure can be effected between sunrise and sunset even
without obtaining such warrant. Where search has to be effected
after sunset and before sunrise, the officer so competent has to
record his reason of belief and send a copy thereof to his
immediate superior and he can search the building, conveyance
or place.
Section 42 speaks of 'empowered officer' and such officer
when in possession of such information relating to commission of
offence under Chapter IV, either on his personal knowledge or
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information supplied by any one, must record 'information' in writing
and do the following things:-
(1) Enter into and search any such building, conveyance or
place;
(2) In case of resistance, break open any door and remove
any obstacle to such entry;
(3) Seize drug or substance and all materials; and
(4) Detain and search, and, if he thinks proper arrest any
person whom he has reasons to believe to have committed any
offence punishable under this Act.
Where such empowered officer has reason to believe that a
search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed space at any time between
sunset and sunrise after recoding the grounds of his belief. Where
an officer takes down any information in writing under sub-section
(1) or records grounds for his belief under the proviso thereto, he
shall within 72 hours send a copy thereof to his immediate official
superior. Provisions of Sections 41 and 42 are also mandatory. These
provisions make it obligatory that such officers mentioned therein
upon receiving information should reduce the same into writing
and record reasons for belief while carrying out arrest or seizure as
provided under the proviso of Section 41(2) of the Act. To that
extent they are held as mandatory. The provisions of NDPS Act, viz.
Section 41(2) proviso to Section 42(1) and Section 50 have to be
mandatorily complied with. If they are violated, it would vitiate the
trial. No such requirement as contemplated under sections 41 or 42
is applicable where such empowered officer is conducting search
and seizure in public places.
The object of mandatory provisions is to protect the accused
from false implication in the case as a legal right to the accused to
get his search either before Magistrate or Gazetted Officer. A
search before a Gazetted Officer or a Magistrate would impart
much more authenticity and credit worthiness to the proceedings.
The provisions of Section 50 of the NDPS Act protect the personal
liberty and freedom of an accused person. It serves dual purpose
and such search inspires confidence and evidence becomes more
reliable and trustworthy. The provisions of section 50 are mandatory
in nature and not purely procedural and breach thereof vitiates the
trial. After a person is arrested and before a search is conducted, it
is mandatory on the part of the officer to inform the accused that
he has a legal right to be searched before a Gazetted Officer or a
Magistrate. The accused will get the benefit, if there is a failure to
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comply with this provision. Section 50 applies only in cases of
search of the person. It does not extend to search of a vehicle or
container or bag or premises. Notice is mandatory in personal
search. When compliance of Section 50 is not made, such violation
is a serious one and prejudice is caused to the accused.
Sub-section(4) provides that where any person in or about
such place is reasonably suspected of concealing about his person
any article for which search should be made, such person may be
searched and if such person is a woman the search shall be made
by another woman with strict regard to decency. Hence, it can
safely be concluded that compliance of Section 50 is mandatory.
While making a search and seizure, independent witnesses
should be roped in but in absence of any public witness the
statement of police officials are required to be scrutinized with due
care and caution in order to see whether the offence is brought
home against the accused beyond reasonable doubts. As per
section 51 of the NDPS Act, the provisions of the Code of Criminal
Procedure shall apply in so far as they are not inconsistent with the
provisions of this Act to all warrants issued and arrests, searches and
seizures made under this Act. Hence, provisions of Section 100 and
165 Cr.PC. are applicable. The provisions under section 100 and 165
Cr.PC. are procedural in nature and breach thereof does not
render the evidence so collected as illegal or inadmissible at the
trial but this evidence would be examined by the court with due
care and caution.
The concept of a reasonable and fair trial would be one in
which the accused as well as the victim or the aggrieved person
gets justice. Various reasons have been cited above for these
acquittals under NDPS Act but some focus is required on faulty
investigation. Many of the cases fail on account of faulty
investigation. If we identify the reasons for defective investigation,
we will find that it starts right from the stage of filing of FIR to
maintenance of case diary, search and seizure of
articles/contrabands and documents. It is the duty of the
investigating agencies to investigate fairly and thoroughly and
collect all evidence whether for or against the accused. Protection
of society being the paramount consideration, the laws procedures
and police practice must be such as to ensure the guilty are
apprehended and punished with utmost dispatch and in the
process, the innocent are not harassed. Keeping in mind the grave
consequences which are likely to follow on proof of possession of
illicit articles/contrabands under the NDPS Act, namely, the shifting
of the onus to the accused and severe punishment to which he
becomes liable, the legislature has enacted and provided certain
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safeguards in various provisions of the Act including Section 42 and
50 of the Act. A constitutional bench of Hon'ble Apex Court of India
has held that while conducting search and seizure in addition to
the safeguards provided under the Code of Criminal Procedure,
the safeguards provided under the Act are also required to be
followed. The harsh provisions of the Act cast a duty upon the
prosecution to strictly follow the procedure and compliance of the
safeguards. If the search is not carried out strictly in accordance
with the safeguards indicated or in violation of procedural
prescription, anything recovered suffers from illegality. The courts
have held that no reliance can be placed on the evidence when
there is failure to comply with provisions relating to search and
seizure. In some cases investigation was conducted by some police
officer who made recovery, seized the contraband and arrested
the accused which was held to be invalid by the courts.
Investigation should be conducted by some other independent
officer. It is the duty of investigating officer to take necessary
precaution after sealing the article to entrust his seal to the
respective person (independent witness) so as to avoid the chance
of tampering the seal.
The Supreme Court has in various cases held that cases
where faulty investigation is evident, it is required that they be dealt
with utmost sensitivity. In such cases, the broader probabilities are
required to be examined and the courts are not to get swayed by
minor contradictions or insignificant discrepancies which are not of
substantial character. The evidence is required to be appreciated
having regard to the background of the entire case and not in
isolation. The ground realities are to be kept in view. Thus, it must be
kept in view that every defective investigation need not necessarily
result in the acquittal. In defective investigation, the only
requirement is of extra caution by courts while evaluating
evidence. It would not be just to acquit the accused solely as a
result of defective investigation. Therefore, a pro-active approach
of the court can be useful to meet the ends of justice where the
investigating officer has deliberately rendered the investigation
defective.
Besides above major reasons, there are some other reasons
for acquittal in NDPS case: such as delays in trial. There are a large
number of people awaiting trial in jails. The long time gap between
the occurrence of a crime and the trial, usually casts doubts on the
accuracy of the evidence. Often evidence becomes questionable,
leading to acquittal on the grounds of insufficient evidence.
Witnesses turn hostile during trial adding to high rate of acquittals.
The situation needs remedial measures at once so that rule of law
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and effectiveness of the criminal justice delivery system are not only
maintained but improved.
Despite the fact that around 275-300 cases are registered
every year under the Act, the rate of acquittals is a matter of great
concern as it elucidates the gap between the investigation and the
law. As per the statics of the last five years, the J&K Police has
seized 968 quintals of narcotic drugs, which include 47792 Kg opium
derivates, 2820 Kg Cannibis, 1075 Kg Charas, 133 Kg Heroin/Brown
Sugar, 43.4 Kg Ganja, 5 Kg opium etc. and about 7 lakh intoxicants.
As per the records maintained by the SCRB, during the period
ranging from 2008 to 2013, about 225 cases have ended up in
conviction whereas 867 have been acquitted.
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COMMON REASONS FOR FAILURE OF CASES
 The person, who recovers the contraband from the
accused, lodges the FIR and investigates the same.
 Separate occurrences/incidents are clubbed in one FIR
and investigated.
 Civil witnesses are not associated during the course of
investigation despite their availability on the spot.
Army/PMF personnel are not cited as witness during a
joint surprise check.
 Weight balance is often taken from the open market
either from some fruit vendor or shopkeeper but
weighing of the contraband is not proved at the stage
of trial. The person from whom such weighing
machine/balance was taken is invariably not examined
as a witness.
 Contraband in a huge quantity is stated to be seized
and sealed on the spot by the I.O. However, during the
course of trial the seizure is proved to be of lesser
quantity and not in consonance with the seizure memo.
 Places, from where the recoveries/seizures are made/
effected are not proved because of contradictions by
the witnesses in their deposition during the course of trial.
 Recovery and seizure from the accused is not proved
because of contradictions in the statement of witnesses,
their hostility etc. during the course of trial.
 Weight of samples taken and sent to FSL for chemical
analysis are often disputed as bigger quantity of
samples, taken by the I.O in the presence of a
Magistrate and sent to FSL turns out to of lesser quantity
when weighed by the FSL expert thereby raising a
suspicion.
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 Personal search of the accused is not proved as the
Gazetted Officers conducting the search are neither
cited as witness nor examined during the course of trial.
 Cases solely based on the confession of the accused
before the officer conducting the search/seizure in the
absence of other incriminating evidence collected by
the police.
 Witnesses are not properly examined. Material witnesses
are not examined u/s 164-A Cr.PC.
 Different packs of contraband are recovered and seized
but samples are taken from only few.
 No entries are made in the Malkhana register about the
seizures, samples taken for re-sealing etc. in order to
prove the safe custody of the seized contraband.
 Samples are usually sent late to the Forensic Labs and
their retention under safe custody is not proved through
the entries made in the Malkhana register during the
course of trial. No explanation is given for delay in
sending the samples.
 Impression seal affixed on the seized
contraband/samples is kept on spurdnama (custody) of
some police personnel/Munshi of the concerned Police
Station and not with an independent witness which
creates suspicion and gives rise to the chances of
tampering of the samples.
 Tampering of seals of samples by the person in whose
custody the sample seals are kept.
 Re-sealing of samples is not proved as the Magistrate
who conducts the resealing is neither examined nor
cited as a witness.
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 Large numbers of samples are got re-sealed through the
Magistrate but only few are sent to or received by the
FSL.
 Seal impression of the seal used for packaging the
samples is not sent to FSL for comparison.
 Police Officials who are deputed alongwith the samples
of the seized contraband to FSL and the Malkhana
Incharge from whom such samples are taken are not
examined nor cited as witnesses.
 Samples are sent to different laboratories however, fate
of all the samples is not shared with the court.
 While formulating definite opinions, sometimes the FSL
experts forward the samples to some other experts in
order to detect the percentage of narcotic contraband.
However, such reports are neither presented nor shared
with the courts by the prosecution.
 When accused is arrested at a later stage on the basis of
clues/identification provided by some witnesses, no ID
parade is conducted before a Magistrate to pin point
the actual accused.
 FSL reports/oral depositions of the FSL expert’s often
prove the seized contrabands by their common names
but the scientific species to which such contraband
belong as mentioned in the Schedule of NDPS Act, are
neither specified in the report/ nor stated through
depositions during the course of trial.
 Mandatory provisions, as laid down in Chapter V of the
Act, particularly Sec. 42, 43, 50, 52-A, 55 and 57 are not
complied with. There is an intentional and deliberate
breach of Sec 55 by the Investigating Officer (s).
 In majority of cases police witnesses including SHO, I.O,
FSL expert, Complainant and Ex-Magistrate are not
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examined by the prosecution which results in the failure
of the case.
 No witness including the police witnesses are examined
during the course of trial or lesser number of witnesses
are examined or deferred witnesses are not produced
by the prosecution or the Police witnesses often don’t
support the story of the prosecution.
 Reader to the I.O or some other supporting staff who
prepared the FIR, seizure memos and final report are not
cited as witness nor examined.
 Case property is not produced in the court for the
purpose of identification by the prosecution.
 Seal used for sealing/re-sealing is not located/ proved at
the stage of trial.
 No sincere efforts are made by the prosecution to
examine the material witnesses including the I.O which
has a direct bearing on the case.
 Investigating Officers often fail to explain the
contradiction which emerges out from the facts of the
case and the testimony of witnesses during the course of
trial.
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PROCEDURE TO BE FOLLOWED (Do’s and Don’ts)
 The need of the hour is to build a team of dedicated officers
in the field of narcotics law enforcement who are well trained
and equipped with updated knowledge and allied skills to
effectively combat this menace. To achieve this objective,
training programmes need to be conducted at all levels in
order to enhance and hone the specialized skills required to
improve performance and effectiveness of the personnel
involved in drug law enforcement which shall ensure greater
understanding of drug law enforcement and help in evolving
uniform practices for effective counter measures. It will also
enhance quality of cooperation amongst the investigating
teams and various drug law enforcement agencies and bring
about synergy in anti-drug measures. Therefore, all officer, of
and upto, the rank of Sub-Inspector be specially trained in a
phased manner to deal with the provisions of NDPS Act and
placed/ posted at the newly created specialized cells/teams
in each police station/District Hqrs.
 The training should include participation of all stakeholders i.e.
State Police Custom, Central & State Excise, Forest
Department, PMFs, RPF, CBI, IB, DRI, Courier Agencies, State
Drug Controllers etc in each training programme which will
ensure interaction among different agencies during training
programmes and increase the quality and speed of interagency
cooperation.
 The training must include the topics relating to drug law
administration & enforcement including NDPS Act & Rules,
Financial investigation, PITNDPS, Money Laundering,
Composite seizures and other linkages, Modus Operandi,
National Drug Scenario, important case studies, important
court judgments, identification and spot testing of narcotic
drugs, concealment methods, rummaging of vessels/ships in
the sea for drugs and applicability of customs & other Acts
including Computer Based Training Modules etc. and must be
conducted at specialized places like National Academy of
Customs Excise & Narcotics (NACEN), CBI Academy, National
Institute of Criminology & Forensic Science, BSF, SSB, National
and State Police Academies, Judicial Academies etc.
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 Training courses be organised in such a way that atleast 400
officers undergo basic course and 200 officers undergo
refresher courses annually. A 2-3 day module on the subject
be incorporated in the basic training of Dy. SPs and Sub-
Inspectors.
 Investigation of cases under NDPS be henceforth conducted
by a specialized cell/team of officers specifically trained to
deal with cases under the NDPS Act with an officer not below
the rank of Sub-Inspector as its head under the close
supervision of a gazetted officer, who shall monitor the
progress of investigation on day to day basis and issue written
guidelines to the team.
 A panel of gazetted officers from the civil departments of the
area, whose services shall be utilised on rotational basis, an
FSL expert related with the subject, an Ex-Magistrate having
jurisdiction in the area, a gazetted officer of Police, NCB
expert, an expert from the deptt. of Weight & Measures and a
crime photographer shall be kept prepared in a ready state
through an administrative order, which shall, on receiving an
information reach the spot immediately and carry out the
legal formalities, as are required under the provisions of the
NDPS, Act.
 The specialized investigation cell/team shall be equipped with
the specialized investigation kit, to be procured by the
Govt./PHQ and kept at the disposal of all the police districts,
which shall include the material relating to packaging of
contrabands, sealing sticks, impression seal, weighing scale
and preliminary test kits containing re-agents etc. These kits
shall be mandatorily carried by these teams to the spots, as
and when information is received and put to maximum use as
per requirements in a most professional manner.
 A checklist of all the steps to be taken on the spot and during
the course of investigation, which is included with the
recommendations, shall be kept ready in the specialized
investigation kit and all the steps shall be tick marked on
completion by the I.O before finalization of the investigation.
The checklist, if used properly shall minimise the scope of
deviation from the prescribed procedure and shall ensure
quality investigation.
 All sort of informations received regarding commission of
offences under the NDPS Act, search & seizure conducted
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together with the grounds of belief explained under the
proviso thereof, shall be mandatorily reduced into writing in
the daily diaries of the police stations and a detailed report in
this regard shall be shared, without any fail, with the superior
officers, at the earliest possible time, preferably within a period
of 72 hours, as required under section 42 of NDPS Act.
 A memo containing details of all the proceedings conducted
on the spot shall also be prepared under the signatures of all
the persons /witnesses present on the spot.
 Under no circumstances, the person/officer/official who
conducted the search/seizure on the spot or who lodged the
complaint, shall carry out the investigation or remain
associated with the investigation team.
 At the time of recovery of contraband, an inventory of such
contrabands shall be made in detail relating to their
description, quality, quantity, mode of packing, marks,
number of other such identifying particulars, country or origin
etc. and the entire consignment shall be seized. Minimum of
two samples from each packet including a control sample
with quantity of each representative sample drawn shall be 5
gms in case of all Narcotic Drugs and Psychotropic
Substances, except ganja & charas where the quantity to be
drawn shall be 24 gms. In case of Controlled Substances, if the
same are in powder or liquid state, each sample size shall be 5
gm/5 ml and if it is a tablet/capsule form then each sample
size shall contain at least a strip of 10 tablets/capsules. All
these samples shall be packed and sealed in separate
packets/boxes through FSL expert present on the spot under
the seal of the Magistrate present on the spot, by making use
of the seal kept in the specialized investigation kit for the
purpose. Remaining contraband shall also be seized in
separate packet (s) under the seal kept for the purpose and
necessary seizure memos shall be prepared on the spot with
specific entries related to time and place. Photography and
Videography of the place of occurrence/recovery and
process of such seizures shall also be done in order to maintain
transparency.
 All entries regarding recoveries and seizures made on the spot
be incorporated in the daily diaries/CD files, at the earliest
with the resume of such recoveries/seizures in the CD files. All
such samples taken on the spot for scientific examination shall
be, as far as practicable, preferably within 24 hours, sent,
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through a special messenger, to the concerned Forensic
Science Laboratory for chemical examination and reports.
Statement of the special messenger deputed for the purpose
shall be recorded u/s 161 Cr.PC and kept in the CD file to
maintain the chain of evidence.
 Reports of all contrabands seized shall be forwarded within 48
hours of such seizure to Director General, Narcotics Control
Bureau, Ministry of Home Affairs, Govt. of India on the
prescribed FORM-F.
 All seizures shall be kept in the malkhana of the police station
concerned with specific entries in the malkhana register under
the charge of SHO/Munshi to prove the safe custody of the
seized contraband, including the samples, in case the
samples, owing to some extreme exigency, are not sent to FSL
within the prescribed time as per the mandate of Sec. 55 of
NDPS Act. Statements as witnesses of SHO/Munshi/Malkhana
Incharge shall be reduced in writing to maintain the chain of
evidence.
 In case, owing to some administrative exigency, if the
Magistrate is not present on the spot, all the contraband
seized and sealed on the spot in the presence of the
independent civil witnesses, shall as far as practical, be taken
before the nearest Magistrate at the earliest possible time,
preferably within a period of 24 hours for taking out the
samples for scientific examination. Chain of custody of the
seized contraband shall be preserved through reports in Daily
Diary and malkhana registers.
 All such seized/sealed packets of contrabands shall be
placed before the Magistrate concerned who shall break
open the seals affixed by the police, check the contents of
the seizure to his satisfaction and knowledge and then take
out the required samples, as per the prescribed specifications,
duly measured/weighed and pack the same in separate
packs under his own seals, as mandated under Sec. 52-A
NDPS Act. These packs shall be immediately transmitted to FSL
through some special messenger with the authority letter of
the Magistrate, who shall be kept as a witness and his
statement recorded u/s 161 Cr.PC and kept in CD file to
maintain continuity of evidence. The Magistrate shall also be
a witness to taking of samples, checking of the contraband
and issuing the authority letter/authorization for FSL expert.
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 The seals used by the I.O, SHO and the Magistrate shall be
kept under custody (spurdnama) of some independent
witness, who shall produce the said seal and appraise the
court accordingly at the time of trial. This process shall further
ensure transparency and minimise the presumptive chances
of tampering with the seals affixed on the seized
contrabands/ samples thereof.
 In case of chance recovery and its subsequent seizure owing
to the reasonable belief that such person may part with the
contraband lying in his personal possession, such seizures
together with the reasons of belief shall be reduced in writing
by the person making such recovery/seizure and his
statement to this effect shall be reduced in writing by the I.O.
As far as practicable, such recovery/seizure shall be
immediately brought into the notice of the Incharge Police
Station through all possible mediums of communication viz.
Docket, mobile call, SMS, telephone call or through some
special messenger. All such means of information shall be
specifically detailed in writing, as evidence, to maintain
sanctity of evidence.
 In case where a reasonable suspicion arises that some person
is having a contraband in his possession, the officer/official
present on the spot shall, as far as practicable, withhold such
search and try to preserve the spot/accused till the team of
officers specially empowered to deal with such
circumstances, as prescribed under Sec. 50 of the NDPS Act
arrives and carry out such search strictly in accordance with
the mandate of ibid section.
 While enforcing the mandate of Sec. 50 of the NDPS Act, an
option in writing, duly readover and explained in the
language the person about to be searched understands, shall
be provided and such search shall be carried out by the
gazetted officers of the civil department, Magistrate or
gazetted officer of the Police, already empanelled for the
purpose and available on spot. The signatures shall be
obtained from the accused on the option memo together
with the signatures of witnesses and kept in the CD file as
evidence. As there is no legal provision for attestation of the
option memo or seizure memo or mere reference of such
gazetted officers in the CD file as evidence, therefore, all such
officers present on the spot and conducting the personal
search shall sign as witnesses to option memo/seizure memo.
The searching officer shall get himself searched through some
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other officer in presence of the accused before conducting
the search of the accused and details of such searches and
seizures shall be reduced in writing in the same manner as the
said search/seizure has been conducted.
 In case, if some person is suspected to be in possession of a
contraband but the officer present on the spot believes that
there is every possibility that till such time the team of officers
specially empowered to effect search/seizure arrives on the
spot, the accused may part with the possession of the
contraband, he shall in reference to Sub-section 5 & 6 of Sec
50 conduct the search/seizure on the spot immediately and
record the proceedings in totality together with the reasons of
his belief and transmit the same to the investigating team
together with the records of proceedings, seizures and his own
statement.
 As far as practical the respectables/civilians of the area, who
are present on the spot of occurrence or recovery, be
associated with the investigation and kept as material
witnesses in order to ensure transparency and sanctity of the
investigation. In case of non-association or reluctance on the
part of such civilians present on the spot, their detailed
particulars be recorded in the CD file together with the
reasons for their reluctance/non-association with the
investigation as witnesses, so that the court can be appraised
accordingly at the time of trial.
 All persons arrested and seizures made u/s 41, 42, 43 & 44 of
NDPS Act shall be forwarded, without unnecessary delay to
the I/C Police Station as required under Sec. 52 NDPS. All
persons arrested shall be kept in police lockups/judicial
lockups under proper remands/lawful custody with their
regular medical checkups and every effort shall be made to
complete the investigation and file the chargesheet on merits
within the prescribed time frame.
 Whenever any person makes any arrest or seizure under this
Act, he shall, within 48 hours of such arrest or seizure, make a
full report of all the particulars of such arrest or seizure to his
immediate superior official as per the mandatory requirement
of Sec. 57 of NDPS Act.
 While investigating such type of cases every endeavour shall
be made by the Specialized Investigation cells/teams to
investigate all the related aspects of the crime keeping all the
P a g e | 18
possible options open by the use of latest scientific
technologies in order to bring the guilt of the accused to fore.
Recovery of the contraband is fine but not sufficient in view of
the present day crime scenario, as such, the chain of the drug
exchanging hands, its origin and destination, links with the
terrorist activities etc. is also required to be probed in an
effective manner.
 All articles, things, conveyance etc. used in the transportation
of narcotics be also seized with a proper inventory prepared
on the spot, as these things/items are liable to be confiscated
under Sec. 60 & 61 of the Act as per the procedure laid down
in Sec. 63.
 All samples sent to FSL shall, as far as practicable within a short
span of time and on priority, be analysed and examined
scientifically by the FSL experts and a report in this regard,
specifying all the contents with their parameters including the
species, as prescribed in the schedule appended to NDPS
Act, be provide to the concerned investigating agency for
finalization of the investigation on merits.
 The Govt. may make all suitable arrangements to post/induct
a good number of reputed scientific experts in the FSL
concerning the field in order to ensure effective and timely
disposal of cases under examination with the FSL and
maintain credibility and minimise delays.
 The services of the legal experts of the Police
Department/NCB, who are otherwise not connected with the
prosecution of the case at the time of trial, shall be utilized at
regular intervals during the course of investigation to minimize
the legal tangles and ensure compliance of the mandatory
provisions of the Act.
 Keeping in view the large number of cases under the NDPS
Act, the Govt. may empower/designate Special Fast Track
Courts in all districts of the state for conducting exclusive trials
of these cases in order to having an effective mechanism to
deal with such type of cases and achieve desired results as
there are still a considerable good number of cases under trial
in various courts.
 PPs/APPs appointed by the Govt. to conduct the trial of such
type of cases have proved ineffective to a larger extent
P a g e | 19
because of their nature of engagement and
unaccountability, as such, the services of Police Prosecutors
of the designation of Dy. Directors/ Chief Prosecuting Officers
can be utilized for conducting the prosecution of these cases
in these Special Fast Track Courts to have effective and
accountable prosecution for which the Govt./PHQ may
designate/post these prosecutors to conduct the prosecution
at the earliest in view of the fact that there are still a
considerable number of cases under trial in various courts of
the State.
 The Govt./PHQ may also provide the necessary infrastructure/
manpower including provisions of official/ residential
accommodation for these designated prosecutors enabling
them to discharge their duties more effectively.
 All District SPs, Dy.SPs and the Specialized Investigation
cells/teams shall be duty bound to ensure production of
prosecution witnesses in the court of law during the course of
trial of these cases. Besides the incharge of the Specialized
Investigation cells/teams being the chief I.O shall act as the
pairvi officer in order to ensure effective prosecution by
keeping track of the trial. In the event of transfer of the I.O,
the replacement officer shall be immediately nominated as
pairvi officer so that cases do not fail for want of effective
liaising, tracking and follow up.
 For an effective execution of process during the trial of cases,
“Witness Monitoring Cells” be created at Zonal/District levels
which shall work in close coordination with each other and
the prosecutor of the concerned court. These cells shall work
under the overall supervision of the Zonal IGPs/District SPs and
any laxity on the part of these cells shall be dealt with
departmentally under the relevant rules.
 The seized contrabands kept under safe custody in
malkhanas of the police stations or the courts shall be, without
any inordinate delay, produced/presented before the court
conducting the trial of the case, for the purpose of
trial/identification through the related witnesses in order to
prevent failure of the case for want of production of the
seized contraband. The concerned prosecutor shall monitor
the production of seized contrabands through the pairvi
officer on the given dates.
P a g e | 20
 The Special Fast Track Courts shall decide all cases under
NDPS within a period of 6 months from the date of filing of
challan subject to grant of extension by the Hon’ble High
Court in appropriate cases of exceptional nature inviting
indulgence of the court. A calendar of trial in respect of each
case shall be fixed and matters pertaining to bail should be
decided within one week’s time from filing of such
application.
 After the culmination of the trial, in case of conviction, all the
seized contrabands shall be destroyed/disposed of, under the
orders of the Concerned Court after the appeal time is over,
in the manner prescribed by the court and it shall be the duty
of the concerned prosecutor to obtain all such orders from
the court and ensure disposal of the contraband in order to
prevent its recycling. Statement on monthly basis regarding
the destruction/disposal of the seized contraband pertaining
to the cases shall be shared with the PHQ through Zonal IGPs,
where a proper data shall be maintained.
 Cases which end up in acquittal shall be appealed against
without any unnecessary loss of time. In case of delay or laxity
on the part of the concerned prosecutor, strict
administrative/departmental action shall be initiated by the
concerned supervisory officers/units.
 Similarly, in case of faulty investigations, deviation of the
prescribed laws, burking of crime or illicit practices adopted
by the investigating cell/team or its supervisory officer or
during the pairvi of the cases at the time of trial, effective
departmental actions shall be immediately initiated against
the erring officers/officials found responsible for the lapses and
stringent & exemplary punishments shall be awarded in each
case.
 Cases in which strictures have already been passed by
different courts, the District SPs shall submit the action taken
reports (ATRs) on all the actions taken/enquiries conducted
and punishments imposed on the erring officials involved in
the defective/perfunctory investigation of the cases which
ended in acquittal since the last five years, to the PHQ
through their respective Zonal IGPs, who shall monitor the
process and ensure that these reports are furnished by each
District, without fail.
P a g e | 21
 Govt. should take effective measures through wide publicity
in print and electronic media to make the general public
aware of the menace of drugs, the strict laws and the
procedures relating to drug trafficking to dissuade the
potential criminals.
 All the District SPs in close coordination with the NCB units
stationed in the state of J&K and the State Crime Branch shall
take all possible steps in curbing the menace of drugs, its
production and transportation besides effective measures
shall be made to destroy the illegal/unmanned/wild
vegetation/plantation of bhang, poppy etc. having potential
to be converted as a narcotic drug within the meaning of
NDPS Act.
 Effective steps shall also be taken to process the cases for
preventive detentions of habitual offenders under the
provisions of Prevention of Illicit Traffic in Narcotic Drugs &
Psychotropic Substances Act, 1988.
******
P a g e | 22
MANDATORY LEGAL PROVISIONS UNDER
CHAPTER-V NDPS, Act 1985).
Section 41. Power to issue warrant and authorisation;
(1) A Metropolitan Magistrate or a Magistrate of the first
class or any Magistrate of the second class specially
empowered by the State Government in this behalf, may
issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence punishable
under this Act, or for the search, whether by day or by night,
of any building, conveyance or place in which he has reason
to believe any narcotic drug or psychotropic substance or
controlled substance in respect of which an offence
punishable under this Act has been committed or any
document or other article which may furnish evidence of the
commission of such offence or any illegally acquired property
or any document or other article which may furnish evidence
of holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this Act is
kept or concealed.
(2) Any such officer of gazetted rank of the
departments of central excise narcotics, customs, revenue
intelligence or any other department of the Central
Government including the para-military forces or the armed
forces as is empowered in this behalf by general or special
order by the Central Government, or any such officer of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this
behalf by general or special order of the State Government if
he has reason to believe from personal knowledge or
information given by any person and taken in writing that any
person has committed an offence punishable under this Act
or that any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence under
this Act has been committed or any document or other
article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document
or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing
or forfeiture under Chapter VA of this Act is kept or concealed
in any building, conveyance or place, may authorise any
officer subordinate to him but superior in rank to a peon,
sepoy or a constable to arrest such a person or search a
building, conveyance or place whether by day or by night or
P a g e | 23
himself arrest such a person or search a building,
conveyance or place.
(3) The officer to whom a warrant under sub-section (1)
is addressed and the officer who authorised the arrest or
search or the officer who is so authorised under sub-section
(2) shall have all the powers of an officer acting under section
42.
Section 42. Power of entry, search, seizure and arrest without
warrant or authorisation;
(1) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including paramilitary
forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any
such officer (being an officer superior in rank to a peon, sepoy
or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is
empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal
knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of which an
offence punishable under this Act has been committed or
any document or other article which may furnish evidence of
the commission of such offence or any illegally acquired
property or any document or other article which may furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of
this Act is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset,—
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to be
liable to confiscation under this Act and any document or
other article which he has reason to believe may furnish
evidence of the commission of any offence punishable under
this Act or furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
P a g e | 24
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act: Provided
that if such officer has reason to believe that a search warrant
or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for
the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time
between sunset and sunrise after recording the grounds of his
belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records ground for his belief
under the proviso thereto, he shall within seventy-two hours
send a copy thereof to his immediate official superior.
Section 43. Power of seizure and arrest in public place;
Any officer of any of the departments mentioned in
section 42 may— 43
(a) seize in any public place or in transit, any narcotic
drug or psychotropic substance or controlled substance in
respect of which he has reason to believe an offence
punishable under this Act has been committed, and, along
with such drug or substance, any animal or conveyance or
article liable to confiscation under this Act, any document or
other article which he has reason to believe may furnish
evidence of the commission of an offence punishable under
this Act or any document or other article which may furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of
this Act;
(b) detain and search any person whom he has reason
to believe to have committed an offence punishable under
this Act, and if such person has any narcotic drug or
psychotropic substance or controlled substance in his
possession and such possession appears to him to be
unlawful, arrest him and any other person in his company.
Explanation.—For the purposes of this section, the
expression “public place” includes any public conveyance,
hotel, shop, or other place intended for use by, or accessible
to, the public’.
Section 44. Power of entry, search, seizure and arrest in
offences relating to coca plant, opium, poppy and cannabis
plant;
P a g e | 25
The provisions of sections 41, 42 and 43 shall so far as
may be, apply in relation to the offences punishable under
Chapter IV and relating to coca plant, the opium poppy or
cannabis plant and for this purpose references in those
sections to narcotic drugs, or psychotropic substance 1[or
controlled substance], shall be construed as including
references to coca plant, the opium poppy and cannabis
plant.
Section 45. Procedure where seizure of goods liable to
confiscation not practicable;
Where it is not practicable to seize any goods (including
standing crop) which .are liable to confiscation under this Act,
any officer duly authorised under section 42 may serve on the
owner or person in possession of the goods, an order that he
shall not remove, part with or otherwise deal with the goods
except with the previous permission of such officer.
Section 46. Duty of land holder to give information of illegal
cultivation;
Every holder of land shall give immediate information to
any officer of the police or of any of the departments
mentioned in section 42 of all the opium poppy, cannabis
plant or coca plant which may be illegally cultivated within
his land and every such holder of land who knowingly
neglects to give such information, shall be, liable to
punishment.
Section 47. Duty of certain officers to give information of illegal
cultivation;
Every officer of the government and every panch,
sarpanch and other village officer of whatever description
shall give immediate information to any officer of the police
or of any of the departments mentioned in section 42 when it
may come to his knowledge that any land has been illegally
cultivated with the opium poppy, cannabis plant or coca
plant, and every such officer of the Government, panch,
sarpanch and other village officer who neglects to give such
information shall be liable to punishment.
Section 48. Power of attachment of crop illegally cultivated;
P a g e | 26
Any Metropolitan Magistrate, Judicial Magistrate of the
first class or any Magistrate specially empowered in this behalf
by the State Government 2[or any officer of a gazetted rank
empowered under section 42] may order attachment of any
opium poppy, cannabis plant or coca plant which he has
reason to believe to have been illegally cultivated and while
doing so may pass such order (including an order to destroy
the crop) as he thinks fit.
Section 49. Power to stop and search conveyance
Any officer authorised under section 42, may, if he has
reason to suspect that any animal or conveyance is, or is
about to be, used for the transport of any narcotic drug or
psychotropic substance 3[or controlled substance], in respect
of which he suspects that any provision of this Act has been,
or is being, or is about to be, contravened at any time, stop
such animal or conveyance, or, in the case of an aircraft,
compel it to land and—
(a) rummage and search the conveyance or part
thereof;
(b) examine and search any goods on the animal or in
the conveyance;
(c) if it becomes necessary to stop the animal or the
conveyance, he may use all lawful means for stopping it, and
where such means fail, the animal or the conveyance may
be fired upon.
Section 50. Conditions under which search of persons shall be
conducted;
(1) When any officer duly authorised under section 42 is
about to search any person under the provisions of section 41,
section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer or
the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting
a female.
P a g e | 27
(5) When an officer duly authorised under section 42
has reason to believe that it is not possible to take the person
to be searched to the nearest Gazetted Officer or Magistrate
without the possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or document, he
may, instead of taking such person to the nearest Gazetted
Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal
Procedure.
(6) After a search is conducted under sub-section (5),
the officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send
a copy thereof to his immediate official superior.
Section 52. Disposal of persons arrested and articles seized;
(1) Any officer arresting a person under section 41,
section 42, section 43 or section 44 shall, as soon as may be,
inform him of the grounds for such arrest.
(2) Every person arrested and article seized under
warrant issued under sub-section (1) of section 41 shall be
forwarded without unnecessary delay to the Magistrate by
whom the warrant was issued.
(3) Every person arrested and article seized under subsection
(2) of section 41, section 42, section 43 or section 44
shall be forwarded without unnecessary delay to—
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or
article is forwarded under sub-section (2) or sub-section (3)
shall, with all convenient despatch, take such measures as
may be necessary for the disposal according to law of such
person or article.
Section 52A. Disposal of seized narcotic drugs and
psychotropic substances;
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution, constraints
of proper storage space or any other relevant considerations,
by notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of narcotic
drugs or class of psychotropic substances which shall, as soon
as may be after their seizure, be disposed of by such officer
and in such manner as that Government may, from time to
P a g e | 28
time, determine after following the procedure hereinafter
specified.
(2) Where any narcotic drug or psychotropic substance
has been seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered under
section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such narcotic drugs or psychotropic
substances containing such details relating to their
description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of the narcotic
drugs or psychotropic substances or the packing in which
they are packed, country of origin and other particulars as
the officer referred to in sub-section (1) may consider relevant
to the identity of the narcotic drugs or psychotropic
substances in any proceedings under this Act and make an
application, to any Magistrate for the purpose of—
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs or substances and certifying such
photographs as true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such Magistrate and
certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2)
the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs of
narcotic drugs or psychotropic substances and any list of
samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence.
Section 53. Power to invest officers of certain departments with
powers of an officer-Incharge of a police station;
(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 2[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.
P a g e | 29
(2) The State Government may, by notification
published in the Official Gazette, invest any officer of the
department of drugs control, revenue or excise 1[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.
Section 53A. Relevancy of statements under certain
circumstances;
(1) A statement made and signed by a person before
any officer empowered under section 53 for the investigation
of offences, during the course of any inquiry or proceedings
by such officer, shall be relevant for the purpose of proving, in
any prosecution for an offence under this Act, the truth of the
facts which it contains,—
(a) when the person who made the statement is dead
or cannot be found, or is incapable of giving evidence, or is
kept out of the way by the adverse party, or whose presence
cannot be obtained without an amount of delay or expense
which, under the circumstances of the case, the court
considers unreasonable; or
(b) when the person who made the statement is
examined as a witness in the case before the court and the
court is of the opinion that, having regard to the
circumstances of the case, the statement should be admitted
in evidence in the interest of justice.
(2) The provisions of sub-section (1) shall, so far as may
be, apply in relation to any proceedings under this Act or the
rules or orders made thereunder, other than a proceeding
before a court, as they apply in relation to a proceeding
before a court.
Section 54. Presumption from possession of illicit articles;
In trials under this Act, it may be presumed, unless and
until the contrary .is proved, that the accused has committed
an offence under this Act in respect of—
(a) any narcotic drug or psychotropic substance or
controlled substance;
(b) any opium poppy, cannabis plant or coca plant
growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of
utensils specially adopted for the manufacture of any
narcotic drug or psychotropic substance or controlled
substance; or
P a g e | 30
(d) any materials which have undergone any process
towards the manufacture or a narcotic drug or psychotropic
substance or controlled substance, or any residue left of the
materials from which any narcotic drug or psychotropic
substance or controlled substance has been manufactured,
for the possession of which he fails to account satisfactorily.
Section 55. Police to take charge of articles seized and
delivered;
An officer-in-charge of a police station shall take
charge of and keep in safe custody, pending the orders of
the Magistrate, all articles seized under this Act within the
local area of that police station and which may be delivered
to him, and shall allow any officer who may accompany such
articles to the police station or who may be deputed for the
purpose, to affix his seal to such articles or to take samples of
and from them and all samples so taken shall also be sealed
with a seal of the officer-in-charge of the police station.
Section 56. Obligation of officers to assist each other;
All officers of the several departments mentioned in
section 42 shall, upon notice given or request made, be
legally bound to assist each other in carrying out the
provisions of this Act.
Section 57. Report of arrest and seizure;
Whenever any person makes any arrest or seizure under
this Act, he shall, with in forty-eight hours next after such arrest
or seizure, make a full report of all the particulars of such arrest
or seizure to his immediate superior official.
Section 58. Punishment for vexatious entry, search, seizure or
arrest;
(1) Any person empowered under section 42 or section
43 or section 44, who—. 58
(a) without reasonable ground of suspicion enters or
searches, or causes to be entered or searched, any building,
conveyance or place;
(b) vexatiously and unnecessarily seizes the property of
any person on the pretence of seizing or searching for any
narcotic drug or psychotropic substance or other article liable
to be confiscated under this Act, or of seizing any document
P a g e | 31
or other article liable to be seized under section 42, section 43
or section 44; or
(c) vexatiously and unnecessarily detains, searches or
arrests any person, shall be punishable with imprisonment for a
term which may extend to six months or with fine which may
extend to one thousand rupees, or with both.
(2) Any person wilfully and maliciously giving false
information and so causing an arrest or a search being made
under this Act shall be punishable with imprisonment for a
term which may extend to two years or with fine or with both.
Section 59. Failure of officer in duty or his connivance at the
contravention of the provisions of this Act;
(1) Any officer, on whom any duty has been imposed
by or under this Act and who ceases or refuses to perform or
withdraws himself from the duties of his office shall, unless he
has obtained the express written permission of his official
superior or has other lawful excuse for so doing, be punishable
with imprisonment for a term which may extend to one year
or with fine or with both.
(2) Any officer on whom any duty has been imposed
by or under this Act or any person who has been given the
custody of—
(a) any addict; or
(b) any other person who has been charged with an
offence under this Act, and who wilfully aids in, or connives at,
the contravention of any provision of this Act or any rule or
order made thereunder, shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years
but which may extend to twenty years, and shall also be
liable to fine which shall not be less than one lakh rupees but
which may extend to two lakh rupees.
Explanation.—For the purposes of this sub-section, the
expression “officer” includes any person employed in a
hospital or institution maintained or recognised by the
Government or a local authority under section 64A for
providing de-addiction treatment.
(3) No court shall take cognizance of any offence
under sub-section (1) or sub-section (2) except on a
complaint in writing made with the previous sanction of the
Central Government, or as the case may be, the State
Government.
******
P a g e | 32
INVESTIGATORS CHECK LIST
In order to ensure that nothing material has been
overlooked by the investigating officers/ prosecutors during
the course of investigation/ trial which ultimately has a direct
bearing on the fate of the case, a checklist shall be kept
ready and tick marked appropriately during the course of
investigation/trial.
DURING INVESTIGATION
1. Was the information recorded by him?
{Sec 41 (1)}
2. Was the personal belief and the ground for conducting
search in the absence of authorization recorded in
writing by him?
{Sec 42 (1)}
3. Was a copy of the said document as at 1 or 2, as
applicable, sent to his official superior within 72
hours?
{Sec 42 (2)}
4. Was the copy of search authorization shown and
signatures of two independent witnesses and the
owner/occupier available in the premises at the time of
search obtained/procured thereon?
5. Did the search team offer their own personal search by
the owner/occupier of the premises before beginning
the search of the premises?
6. Was a written notice under section 50 of the NDPS Act
served on the occupants of the premises or on the
person who is intercepted at a public place and was
the response to such a notice recorded in writing
thereon?
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7. Was a lady officer present in the search team to ensure
that a female is searched by a female?
{Sec 50 (4)}
8. Was the reason to believe that the person about to
be searched will part with the possession of drugs and
other incriminating articles as such cannot be taken to
such officer, recorded in writing?
{Sec 50 (5)}
9. Was the copy of the document, as at 8, sent to his
immediate superior within 72 hours?
{Sec 50 (6)}
10. Were all the recovered substances tested on the spot
with drug detection kits etc. to verify the presence of
narcotics etc. and were the necessary documents
prepared in this regard?
11. Were all the recovered documents, articles or things
scrutinized/examined to determine their relevance to
the commission of offence under the Act?
12. Were all the recovered and relevant items liable to
seizure and confiscation entered carefully in an
inventory and documented in the seizure memo?
13. Were all the goods, documents, articles, things and
assets found relevant to the commission of offence and
subsequent investigations, recovered during search,
seized and the fact of seizure documented in the
memo?
14. Were two representative samples drawn from each
package or lot of the suspect seized substances on the
spot?
15. Was it ensured that the representative samples are of
specified weights?
16. Were all the packages including the representative
samples properly packed, marked and sealed?
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17. Was the seizure memo/site plan of place of recovery
prepared/drawn carefully on the spot and correctly
indicating the sequence of events including start and
end time of the search proceedings?
18. Was it ensured that the seizure memo of all the
recovered/ seized documents/ articles/ things bear
signatures of the person whose premises was searched
or from whom the recovery was made, two
independent witnesses, the I.O, and the lady officer
present on the spot for the search of a lady?
19. Was a notice to examine the owner/occupant and
recovery witnesses under Sec. 67 of the Act issued and
their statements recorded by the I.O?
20. Was a written arrest memo informing the grounds of
arrest prepared in respect of the person arrested?
21. Was the arrest made in the presence of a witness and
his signatures obtained on the arrest memo?
22. Was the fact of arrest intimated to one of the relative or
friend of the person who was arrested and the same
endorsed on the arrest memo?
23. Were the guidelines prescribed by the Hon’ble
Supreme Court of India in case titled Govt. of West
Bengal Vs. D.K Basu followed?
24. Was the personal search memo (fard jamatalashi)
prepared?
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25. Was the arrested person produced before a magistrate
within 24 hours of his arrest?
26. Was a report of seizure and arrest sent to the
immediate superior within 48 hours of seizure/arrest?
(Sec 57)
27. Were the seized goods and samples deposited in the
Malkhana at the earliest after seizure and entries made
in the Malkhana register accordingly and statement of
Malkhana Incharge recorded?
28. Were the samples forwarded/ sent to FSL for analysis
and report, within 72 hours of seizure?
29. Were proceedings under Sec. 68 F of the NDPS Act
relating to seizing/freezing all assets etc. initiated, order
issued and served in this regard upon the person
searched and proceedings shared with the
Jurisdictional Competent Authority (NCB) within 48
hours of such search/action?
30. Were all the leads/clues evaluated, analysed and
investigated subsequently to establish independent
corroborating evidence of the roles of the accused
persons, their links etc. in the crime?
31. Was the investigation file put up before superior officers
to inform them of the progress in the case on a regular
basis at least once in a week/fortnight for their
instructions and guidance?
32. Was the test report received from FSL in time? If not, is it
being followed up?
33. Was the investigation completed on time at least two
weeks before the time to file chargesheet?
P a g e | 36
34. Was the draft chargesheet evidence collected etc.
vetted through superior officer/legal officers before its
presentation?
35. Is the chargesheet complete in all respects and
includes all material facts & evidences collected during
investigation, details of all the witnesses and
accompanied with all the original documents at the
time of its presentation before the court?
36. Was an application made for pre-trial disposal of the
seized goods under Sec 52-A of NDPS Act?
37. Was the application for pre-trial disposal of the seized
goods disposed of by the magistrate? If yes, was the
process of disposal initiated and certificate to that
effect placed in CD file as evidence?
DURING TRIAL
1. Is the progress of trial satisfactory? If not, was the
concerned prosecutor consulted and steps taken to
ascertain the reasons and casus of delay?
2. Whether all the prosecution witnesses attended the trial
and were examined?
3. Whether the police witnesses/ public servants attended
the court and recorded their statements? If not
whether any intimation was sent to their immediate
superiors for information in order to secure his
attendance in the court?
4. Whether any departmental action initiated against
the erring officials/officers who failed to attend the trial
of the case despite notice?
P a g e | 37
5. Was a judgment of conviction or acquittal and
confiscation of goods u/s 60,61,62 and 63 of NDPS Act
passed in the case?
6. Whether the disposal proceedings of drugs and
other items, ordered by the court, initiated as per the
prescribed procedure?
7. Whether the judgment order analysed in case of
acquittal or in case of lighter punishments awarded in
cases and discussed with the concerned
prosecutors/legal experts of the department to file
appeals in the higher forums?
******
P a g e | 38
ANNEXURE-A
NAME OF ORGANIZATION OFFICE/UNIT
(Mention complete address/contact number)
(Authorization to search premises u/s 41(2) of the NDPS Act
1985)
To
(Mention name and designation
of the officer being authorized to
conduct search)
………………………….
………………………….
………………………….
Whereas from the information laid before me it transpires
that an offence in respect of Narcotic Drugs/Psychotropic
Substances/ Controlled Substances has been committed in
contravention of the provisions of the NDPS Act 1985 and that
there is reasonable belief that such substances and other
articles, things, documents which may provide evidence of the
contravention of the Act and of holding illegally acquired
property which are liable to seizure/forfeiture under Chapter
VA of the Act are kept and concealed in the premises/at
………………………………………………………………………………
………………………………………………………………………………
…… under the control and occupation of
Shri…………………………. S/o…………………………………………
Now therefore, by virtue of powers vested in under Section
41(2) of the NDPS Act, 1985, you are hereby authorized to
search the aforesaid premises by day or by night and seize
such substances, articles, things, documents and inform the
undersigned about the result of the search and action taken in
respect of substance, articles, things, documents recovered
therefrom.
Valid for…………….day.
(Signatures)
Date of Issue:.................. Name and designation of the
G.O
With his Office Seal
P a g e | 39
ANNEXURE-B
NAME OF ORGANIZATION OFFICE/UNIT
(Mention complete address/contact number)
( Notice u/s 50 of the NDPS Act 1985 )
To
………………………….
………………………….
………………………….
Subject: Notice under section 50 of the NDPS Act, 1985.
Sir,
Whereas there is reason to believe that Narcotic
Drugs/Psychotropic Substances/Controlled Substances and/or
documents, articles and things, documents which may provide
evidence of commission of an offence under the NDPS Act,
1985 are in your possession, therefore, your personal search is
to be conducted by the undersigned. If you so require, such
search will be conducted in presence of the nearest Gazetted
Officer or Magistrate.
Date:……………… (Signatures)
(Name and designation of the Officer)
Statement of ………………………………..(the person about
to be searched)
I have been informed and have understood the Notice of
Personal Search under Sec. 50 of the NDPS Act. I require/do
not require that my personal search may be conducted in
presence of the nearest Gazetted Officer or Magistrate.
(Signatures)
Issued on………………… Name of the person
Witnesses:
1.
2.
P a g e | 40
ANNEXURE-C
NAME OF ORGANIZATION OFFICE/UNIT
(Mention complete address/contact number)
( ARREST MEMO )
In view of the recovery and seizure of
………………………………………………………………………………
…………………………………………………………….from the
possession of Shri …………………………………… on
………………and also based on preliminary investigations
including statement of Shri
………………………………………………... dated ………………. u/s
67 of NDPS Act, 1985, it transpires that Shri
…………………………………………….age about ……….years S/o
Shri…………………………………..R/o…………………………..has
committed an offence punishable u/s
16/17/18/19/20/21/22/23/24/25/26/27/27A/28/29/30/31 (strike
out if not applicable to the case) read with Sec 8 of NDPS Act
1985.
Accordingly Shri ……………………………………S/o
……………… has been placed under arrest at about
……………..hrs on …………… He has been informed and
explained the grounds of his arrest.
Date:……………… (Signatures)
(Name and designation of the Officer)
I have been informed and explained the grounds of my
arrest. The fact of my arrest has been witnessed by Shri
……………………………S/o…………………………..R/o……………
…………………who is my friend/ relative.
Received copy of the arrest
Memo.
(Signatures of the person arrested)
Signatures of Witness (s):
P a g e | 41
ANNEXURE-D
NAME OF ORGANIZATION OFFICE/UNIT
(Mention complete address/contact number)
(PERSONAL SEARCH MEMO)
( Jama Talashi )
Subsequent to the arrest of Shri
…………………………………… S/o ………………………. R/o
…………………………….., his ‘Jama Talashi’ was conducted in
the presence of two witnesses and the following items have
been recovered from his possession:
1.
2.
3.
4.
5.
Date:……………… (Signatures)
(Name and designation of the Officer)
Signatures of Witness (s):
1. 2.
Signature of the Arrestee…………………………………………….
Name & Address………………………………..
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ANNEXURE-E
FORM-F
(SEIZURE REPORT OF NARCOTIC DRUGS, PSYCHOTROPIC
SUBSTANCES, CONTROLLED SUBSTANCES)
(To be forwarded within 48 hours of the seizure to DG, NCB)
1. NAME OF SEIZING AGENCY:
2. DATE OF SEIZURE:
3. PLACE OF SEIZURE:
4. QUANTITY SEIZED:
KGs. GRAMS
MILIGRAMS
(i) OPIUM ………… …………
…………….
(ii) MORPHINE ………… …………
…………….
(iii) HEROIN ………… …………
…………….
(iv) GANJA ………… …………
…………….
(v) CHARAS
(HASHISH)………………………………………………..
(vi) COCAINE ………… …………
…………….
(vii) ECSTASY ………… …………
…………….
(viii) METHAQUALONE/MANDRAX…………………………………
…
(ix) CONTROLLED SUBSTANCES
(*)(PRECURSORS)………………..
(*)ACETIC ANHYDRIDE/N-ACETYL ANTHRANILIC
ACID/EPHEDRINE/PSEUDO EPHEDRINE & ANTHRANILIC
ACID
(x) PSYCHOTROPIC
SUBSTANCES…………………………………..
(xi) KETAMINE ……….. ………….
…………….
(xii) PHARACEUTICAL PREPARATIONS CONTAINING
NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES
……….. ………….
…………….
(xiii) AMPHETAMINE TYPE STIMULANTS (ATS)
………. …………….
…………….
(xiv) LSD ………. …………….
…………….
P a g e | 43
(xv) ANY OTHER
DRUG/CHEMICAL…………………………………..
5. PACKING/MARKING, IF ANY:
6. SECTION OF THE NDPS/OTHER ACTS (DRUGS & COSMETIC
ACT, CUSTOMS ACT, PMLA, STATE EXCISE ACT, ETC.) UNDER
WHICH OFFENCE IS COMMITTED:
7. ADDRESS OF THE PREMISES WHERE SEIZURE EFFECTED:
8. WHETHER SEIZED FROM A FACTORY/ILLICIT LABORATORY:
(IF SO, DETAILS THEREOF)
9. PRICE OF SEIZED DRUGS:
(a) AT THE PLACE OF ORIGIN/SOURCE:
(b) WHOLE SALE:
(c) RETAIL (STREET LEVEL)
10. IF SEIZED AT AIRPORT/RAILWAY STATION/BUS STAND ETC:
(i) FLIGHT/TRAIN/BUS ROUTE
(ii) ARRIVAL/DEPARTURE
(iii) ORIGIN/DESTINATION.
11. MODE OF TRANSPORT-AIR/ROAD/COURIER:
(i) REGISTRATION NO. OF THE VEHICLE:
(ii) MAKE: MODEL:
(iii) NAME & ADDRESS OF THE OWNER:
12. SUSPECTED SOURCE OF THE SEIZED DRUG/CONTROLLED
SUBSTANCES:
(COUNTRY/PLACE AND NAME/PERSON NAME):
13. SUSPECTED DESTINATION OF THE SEIZED DRUG/CONTROLLED
SUBSTANCES (COUNTRY/PLACE NAME/PERSON NAME):
14. MODUS OPERANDI/CONCEALMENT (SPECIFY THE DETAILS
OF MODUS OPERANDI NOTICED)
15. NEW METHOD OF DIVERSION OF PRECURSORS AND ILLICIT
MANUFACTURE:
16. PARTICULARS OF THE OFFENDERS/PERSON ARRESTED (FILL UP
SEPARATE SHEET IF PERSONS ARRESTED ARE MORE THAN
ONE):
(i) NAME:
(ii) ALIAS (IF ANY):
(iii) SEX (MALE/FEMALE):
(iv) PROFESSION-BUSINESS/STUDENT/LABOUR ETC.
(v) FATHER’S NAME:
(vi) AGE/DATE OF BIRTH:
(vii) ADULT OR MINOR (BELOW 18 YEARS)
(viii) NATIONALITY:
(ix) PASSPORT/IDENTITY CARD/PAN NO, ETC.:
(x) DATE & PLACE OF ISSUE:
(xi) ADDRESS (INDICATE THE POLICE STATION AND POST
OFFICE WITHIN WHICH THE PERSON HAS RESIDENCE: PO,
PS:
P a g e | 44
17. WHETHER TRAFFICKER/CARRIER/DRUG PEDDLER/DRUG
ADDICT:
18. PREVIOUS INVOLVEMENT IN DRUG TRAFFICKING OR OTHER
CRIMINAL CASES:
19. WHETHER MEMBER OR PART OF DRUG
SYNDICATE/CARTEL/GANG (IF SO, PROVIDE DETAILS):
20. WHETHER DETAINED UNDER THE PITNDPS ACT EARLIER. (IF
SO, FURNISH DETAILS)
21. PARTICULARS OF ACCOMPLICES NAMED BY THE
OFFENDER/ARRESTED PERSONS (FILL SEPARATE SHEET FOR
EACH ACCOMPLICE)
(i) NAME:
(ii) ALIAS (IF ANY):
(iii) SEX (MALE/FEMALE):
(iv) PROFESSION-BUSINESS/STUDENT/LABOUR ETC.
(v) FATHER’S NAME:
(vi) AGE/DATE OF BIRTH:
(vii) ADULT OR MINOR (BELOW 18 YEARS)
(viii) NATIONALITY:
(ix) PASSPORT/IDENTITY CARD/PAN NO, ETC.:
(x) DATE & PLACE OF ISSUE:
(xi) ADDRESS (INDICATE THE POLICE STATION AND POST
OFFICE WITHIN WHICH THE PERSON HAS RESIDENCE: PO,
PS:
22. BRIEF FACTS OF THE CASE (NARRATE THE EVENTS STARTING
FROM RECEIPT ON INTELLIGENCE (IF ANY) AND ANY FACTS
OF INTEREST FROM VERIFICATION ANGLE):
23. DETAILS OF PROPERTY SEIZED/FORFEITED:
24. NAME, DESIGNATION AND PART PLAYED BY THE OFFICERS IN
THE SEIZURE CASE:
25. ANY EMERGENCE/FORMATION OF NETWORK/GANGS &
INTERLINKAGE. (IF SO, PROVIDE DETAILS)
26. WHETHER JOPINT INTERROGATION DONE AND INPUT
SHARED WITH CONCERNED ENFORCEMENT AGENCIES (IF
SO, PROVIDE DETAILS)
27. SEND FOLLOW UP ACTION/INVESTIGATION REPORT IN
RESPECT OF THE FOLLOWING WITHIN 30 DAYS:
(i) PURITY PERCENTAGE OF SEIZED DRUGS:
(ii) ADULTERANTS/DILUTANTS:
(iii) RESULT OF FINANCIAL INVESTIGATIONS:
(iv) LINKAGE OF NARCO-TERRORISM AND MONEY
LAUNDERING:
(v) ACTION AGAINST MEMBERS OF GANG/SYNDICATES:
(vi) DETAILS OF ACTION INITIATED BY INCOME
TAX/ENFORCEMENT DIRECTODRATES OF REVENUE
INTELLIGENCE AND CUSTOMS:
(vii) INTERFACE WITH OTHER AGENCIES IN INDIA/ABROAD:
P a g e | 45
Dated:………………………..
(Signatures)
(Name and designation of the Officer)
(This report should be forwarded to the DG, NCB, West Block-I,
Wing No. V, R.K. Puram, New-Delhi-110066 within 48 hours of
the seizure. FAX No. 011-26185240).