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Draconian Provisions Of NDPS Act Misused: Calcutta High Court Orders Mandatory Videography Of Recovery Procedure

Aaratrika Bhaumik
23 Jun 2022 12:43 PM GMT
‘Contraband Ganja Of Small Quantity, Cannot Put Embargo Of Sec 37 Of The NDPS Act’: Gujarat HC
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In a significant judgment, the Calcutta High Court on Wednesday directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records.

A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smartphones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instil fairness, impartiality and confidence in the investigative process.

The Bench further observed that although the Field Officers' Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search, however, unfortunately, even in cases conducted by NCB such directives are not followed.

Reliance was also placed on the recommendations of a Committee constituted by the Ministry of Home Affairs in 2017 wherein it had been suggested that videography of crime scene is "desirable and acceptable best practice". The Committee had also issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis.

Furthermore, the Court also referred to the Supreme Court judgement in Shafhi Mohammad v. State of Himachal Pradesh wherein the Apex Court had held that time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable "best practice" as suggested by the aforementioned Committee to strengthen the rule of law. The Supreme Court had also approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein, it was noted further.

"The observations made in Shafhi Mohammad as well as the guidelines in the Field Officers' Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non- issue", the Court underscored.

The Court further acknowledged that the NDPS Act vests plenary powers of search, seizure and arrest on investigating officers and that even the power of the Court to grant bail is circumscribed by strict restrictions under Section 37 particularly in cases involving commercial quantity.

Highlighting the importance of a legitimate recovery procedure, the Court averred,

"While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. Prosecution in such cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. In most cases as in the present case, independent witnesses are either not examined or turn hostile. There may be myriad reasons for that ranging from false implication to winning over of such witnesses by resourceful accuseds."

Thus, the Court issued the following directives to ensure that the 'unvarnished truth' is placed before the Court during adjudication,

(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;

(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;

(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;

(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non- compliance would attract departmental proceeding so far as the seizing officer is concerned;

(v)Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;

(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.

The Court further underscored that all Central agencies empowered under the NDPS Act to search and seize narcotic substances must comply with the aforesaid requirement of videography of recovery proceedings. Response to such a directive was also sought from the Union of India and the NCB on the next date of hearing which is slated to take place after 2 weeks.

The Registrar General was instructed to communicate a copy of this order to the Union of India including NCB as well as on the Assistant Solicitor Generals of this Court and Director General of Police, West Bengal for necessary compliance.

"Accordingly, it is proposed directive Nos. (i), (ii) and (iv) shall apply to all seizing officers of the Central agencies empowered to search and seize narcotics under NDPS Act. Directive Nos. (v) and (vi) shall apply to the head of the department of the Central agency concerned while Directive Nos. (iii) and (iv) shall apply to all superior officers of the said agency not below the rank as prescribed by the head of the department", the Court ordered further.

Background

The directions were issued while adjudicating upon a case wherein severe lapses on the part of the investigating agency had been recorded during recovery of narcotic substance under the NDPS Act.

In the instant case, the Court had noted that the seizure list did not contain signatures of all the accused persons who were alleged to have been arrested from the spot where the recovery was made and that presence of independent witnesses at the time of seizure appeared to be doubtful, as the concerned witnesses in their statements before the Magistrate under Section 164 of the CrPC did not support the seizure.

Thus, noting such discrepancies in the present and other similar cases, the Court had directed the Superintendent of Police of Murshidabad Police District to take steps to initiate disciplinary proceedings/suspension of police officers connected with the investigation of the case.

On Wednesday, the Superintendent of Police of Murshidabad Police District appeared in person before the Court and submitted a report apprising the Court that an administrative order has been issued directing all seizing officers to record signatures of accused persons who are apprehended at the time of recovery of narcotic substance in the seizure list. Furthermore, the report stipulated that the seizing officer, investigating officer of the present case as well as Officer-in-charge of the Police Station concerned has been placed under suspension and that departmental proceedings have been initiated against them.

Case Title: In the matter of : Kalu Sk. @ Kuran v. State

Case Citation: 2022 LiveLaw (Cal) 255

Click Here To Read/Download Order


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