In Punjab, it was reported that“A slow-to-react police will focus on drugs, modernisation” (The Tribune, December 25, 2009). With some innovative action plan, the war against drugs has been accorded a top priority for the police force.
The objective of ridding society of the engulfing menace of drug abuse is indeed commendable. However, giving a free hand to the police to achieve this objective does not auger well. It is full of dangers. It may instantly imperil human rights in the guise of meeting the menace, and, thereby, making the remedy worse than the disease itself.
This, in fact, was the polite admonition judicially tendered by the Constitution Bench of the Supreme Court to the Investigating Agency of the state in the case of State of Punjab v. Baldev Singh (1999):
“In every case the end result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.”
In a free democratic society, the right to justice through fair trial is perhaps the most critical component of human rights jurisprudence. A conviction resulting from an unfair trial is, therefore, contrary to the very concept of justice. This is what is envisaged by Parliament in the Narcotic Drugs and Psychotropic Substances Act of 1985.
Acutely aware of the damage caused to the social order by illicit traffic of narcotics and psychotropic substances, the legislature makes under this Act stringent provisions for their strict control and regulation. The violation of these provisions and the rules made there under entails differential punishment.
The punishment includes, for instance, rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to Rs 10,000 or both in case a person is found to possess, say, a small quantity of charas or ganja; rigorous imprisonment for a term which may extend to 10 years and fine extending to Rs 1 lakh in case the quantity of the said substance is more than a small quantity, but less than commercial quantity; and if a person is caught possessing the same substance of commercial quantity, then imposition of punishment shall be of rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to a fine which shall not be less than Rs 1 lakh but which may extend to Rs 2 lakh.
The illicit possession of narcotics is to be located only through the designated officer superior in rank, who is specially empowered to detain and search, and, if he thinks proper, to arrest any person whom he has reason to believe have committed an offence, with or without warrant, depending upon the situational context, by following the prescribed procedure as laid down in Chapter V of the Act of 1985.
The conditions under which search of suspected persons shall be conducted have been specifically provided in the provisions of Section 50 of the said Act. Any defiance of these conditions may result in the violation of human rights of the person intended to be searched, and, thereby sullying the entire system of administration of justice. The right to fair trial is, unarguably, the foundation of protection of all human rights.
Most recently, a two-judge bench of the Supreme Court in Sarju v. State of Uttar Pradesh (2009), while noticing the transgression of procedural conditions laid down in Section 50 of the said Act, has reiterated:
“An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial would render the trial unfair.”
In our view, it needs to be emphasised that the conditions laid down in Section 50 are not simply the matters of procedure for regulating the conduct of proceedings under the Act. Jurisprudentially, since those conditions have been incorporated into the very provisions of the Act itself, they enjoy the status of substantive law, yielding human rights.
The human rights envisaged by the procedural conditions in Section 50 of the Act, as expounded by the apex court, include: (a) a person before he is searched for the recovery of illicit narcotics by the duly authorised officer has the right to be informed by the latter that he may be searched only in the presence of the Gazetted Officer or Magistrate;
(b) if the person to be searched so requires after being duly informed, he has the right to be taken without unnecessary delay to the nearest Gazetted Officer of any of the identified departments or to the nearest Magistrate;
(c) he has the right to be discharged forthwith if the Gazetted Officer or the Magistrate before whom he is brought sees no reasonable ground for search;
(d) a female has the right to be searched only by a female; and
(e) the right of a person to be searched in the presence of a Gazetted Officer or a Magistrate can be passed over if the duly authorised officer 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 said person parting with possession of any narcotic drug or psychotropic substance, then he may proceed to search the person under the relevant provisions of the Code of Criminal Procedure.
However, even in this emergent situation, the person so searched is not without protection against the whims of the authorised person: after the search is conducted the officer is required to record the reasons for such belief which necessitated such search, and within 72 hours send a copy thereof to his immediate official superior.
Any failure to inform the person to be searched of his right as emanating from the provisions of Section 50 of the Act may render the recovery of the contraband suspect and the conviction and sentence to the accused bad and unsustainable in law.
This is what the apex court has reminded the state recently in the Sarju case. Lest the war against the abuse of narcotics prove futile, the state would do well to bear in mind the singular directive of the Supreme Court: ”the investigating agency must follow the procedure scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that laxity on the part of the investigating agency is curbed.”
The procedural safeguards, inhering human rights, are indeed the integral part of the core objective to be achieved through the enactment of the Narcotic Drugs and Psychotropic Substances Act.
The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh
Source: The Tribune, Chandigarh, India.
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