Untold laws around weed and drugs in India

Why should you read this?

 “Your friend just purchased a packet of weed from a peddler. On the way back to his place, two beat constables suddenly pop out of nowhere and nab your friend. They confront your friend about the weed and frisk him. Your friend complies and the packet is found in the back pocket of his jeans. We know the rest of the drill. They extort some money and let him go…”

Section 50 has been equitably framed for successful suppression of the mischief while keeping intact the constitutional rights of a person suspected of a crime.

The post also focuses on punishment under Section 27 and the immunity available under Section 64A. Emphasis has been laid on Section 41 and 42 as well to elaborate the difference between the two provisions.

Call it clickbait or label it unethical if you please, but the point of this blog post is to explain some important provisions of Narcotics, Drugs and Psychotropic Substances Act, 1985 i.e. Section 27, 50 and 64A.

Table of Contents

1. Why do we need to understand Section 50?
2. Rule of Substantial Compliance
3. Who can issue a warrant for search, seizure, and arrest? – Section 41
4. The rank of officers who can search, seize and arrest without a warrant – Section 41
5. When can the above officer search, seize and arrest without a warrant – Section 42
6. What happens if the above officer w/o warrant has valid reasons and has complied duly with all the provisions of Section 42?
7. What happens to officers of law and enforcement who go out of their powers mentioned under Section 41, 42 and 43?
8. What happens to people who consume substances prohibited under the NDPS? And how to get away with that?

Why do we need to understand Section 50?

Your friend just purchased a packet of weed from a peddler. On the way back to his place, two beat constables suddenly pop out of nowhere and nab your friend. They confront your friend about the weed and frisk him. Your friend complies and the packet is found in the back pocket of his jeans. We know the rest of the drill. They extort some money and let him go.

This is how it generally goes. The type of drug and the quantity of the drug do not matter here. It can be five kilos of hashish or it can be a small packet of weed. What matters is that your client had a right which was violated. He cannot be frisked like that by just about anyone for the search of any drug. I’m not making this up. This is what Section 50 of the NDPS stipulates. Only certain Officers of higher ranks can frisk you w/o any notice under Section 50, then everything about the drug will matter.

Section 50 of Narcotics, Drugs and Psychotropic Substances Act, 1985 is a procedural safeguard which lays down the conditions for the search of “persons” conducted vide Section 41, Section 42 and Section 43 of the NDPS, 1985. This Section applies to searches conducted by duly authorized officers under Section 42. Section 50 has been enshrined into the NDPS Act, 1985 as a safeguard for innocent persons against false cases where law enforcement agencies plant false and malicious cases on subjects.

You can scroll down to the end of the post to read the provisions of law which will be referred to throughout this post.

Rule of Substantial Compliance

The rule of “Substantial Compliance” was enunciated in Vijaysinh Chandubha Jadeja v State of Gujarat, (2011) 1 SCC 609.

The rule says that Section 50 is mandatory in nature and an officer empowered to conduct the search on person has to mandatorily inform the suspect of his legal right as provided under Section 50(1) that he has the right to be searched in front of a gazette officer or a magistrate. The power to make a decision whether the person wants to be searched before a Magistrate or a Gazetted Officer lies in the hands of the suspected person himself. A woman can only be searched by a female officer in any case.

In fact, the empowered officer is supposed to serve a notice in writing to the person sought to be searched that under Section 50 he has such and such rights as mentioned in the above paragraph. Thereafter, when a person chooses to exercise his right, the empowered officer makes necessary arrangements to take the person to a Magistrate or a Gazetted Officer without unnecessary delay.

As a general practice, the person who is sought to be searched is offered the opportunity to search the empowered officer and any other officer who is to accompany the person in the vehicle which will be taking him to the Magistrate or Gazetted Officer. The person who is sought to be searched is also offered the opportunity to search the aforementioned vehicle. All of this is done to make sure that the purpose of the statutory compliance of Section 50 is achieved, in simpler words, it is done to make sure that the law enforcement agency does not plant any false evidence. All of this has to be done in the presence of two witnesses from the public to make sure that the empowered officer has not fabricated any make-belief.

The empowered officer (who has been authorized to search under the Sec 41 and 42) has to inform the person to be searched about his rights as available to him under Section 50. If this notifying is not done, the whole recovery becomes illegal and the conviction gets vitiated.

In a nutshell, no conviction can be done when the search is conducted without informing the legal right provided under Section 50(1).

Now, you may wonder what if the person denies to be searched in the presence of Magistrate or a Gazetted Officer?

Well, in that case, the person sought to be searched is searched in the presence of two public witnesses and arrested for offenses or offenses under Chapter 4 of the NDPS Act, 1985.

Who can issue a warrant for search, seizure, and arrest? – Section 41

1. A Metropolitan Magistrate; or a
2. Magistrate of the first class; or
3. 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 offense punishable under Chapter IV, 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 in respect of which an offense punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offense is kept or conceale

The rank of officers who can search, seize and arrest without a warrant – Section 41

Section 41, stipulates –

1. the powers of the magistrates to issue warrants; and
2. the powers of certain officers of gazetted ranks from certain law enforcement departments of the State and the Center.

NOTE: Do not let anyone else apart from the below officers frisk you for any alleged offense under the NDPS.

1. Any such officer of the gazetted rank of the departments of
   1. central excise,
   2. Narcotics,
   3. Customs,
   4. revenue intelligence,
   5. any other department of the Central Government,
   6. the Border Security Force as is empowered in this behalf by general or special order by the Central Government.
2. Any officer of
   1. revenue department,
   2. drugs control department,
   3. excise department,
   4. Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government,
3. Any officer superior in rank to a peon, sepoy, or a constable authorized in writing by an officer mentioned in the above lists. Therefore, officers of the rank of a peon, sepoy, or a constable can never search, seize or arrest.

When can the above officer search, seize and arrest without a warrant? – Section 42

Section 42 stipulates the powers and duties of the officers mentioned in the Section 41.

The aforementioned officer is empowered to the powers of search, seizure, and arrest only if he has reason to believe

1. from personal knowledge; or
2. information given by any person and taken in writing

that any person has committed an offense punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offense punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offense has been kept or concealed in any building, conveyance or place.

And in case, it is from personal knowledge that the officer has come to arrest you then:

1. he can only search, seize and arrest between sunrise and sunset; and [Section 42(1)]
2. If wants to search, seize and arrest between sunset and sunrise because he has reason to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender, he may only enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief; and [provisio to Section 42(1)]
3. Where the officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. [Section 42(2)].

What happens if the above officer w/o warrant has valid reasons and has complied duly with all the provisions of Section 42?

Please read Section 50(5) to understand the answer to the above question –

“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, 1973”.

What happens to officers of law and enforcement who go out of their powers mentioned under Section 41, 42 and 43?

When an officer who vexatiously searches, seizes or arrests a person for an alleged offense under Chapter 4 of the Act, is liable for imprisonment up to 6 months along with fine as per the Section 58 of the Act.

What happens to people who consume substances prohibited under the NDPS? And how to get away with that?

Did you seriously think that I’ll let you go after telling only how to defeat the corrupt officials? No, not at all. We all know why some of you are here. You want to get high without the legal consequences. Right? Well, it is a bummer that there are consequences for each and every action.

If you are found with small quantities of drugs for personal use, then the burden of proof lies on you to prove that it is not meant for sale but is only meant for personal use. The punishment will be somewhere between six months to one year depending on the type of drug, only after YOU prove that it was for your personal use. Go read Section 27.

But don’t forget to read Section 64A to understand how you can avoid the penalty given under Section 27. Section 64A stipulates that persons who are charged (pay attention to the word “charged” i.e. already charged) for an offense punishable under Section 27 voluntarily seeks medical from a government recognized or maintained hospital then he shall be provided immunity from Section 27. There you go, this is how you can get those charges against your junkie client dropped.

BTW small quantities are defined by the Government via notifications in the Official Gazette. Here is a link – http://www.cbn.nic.in/html/qtynotif.PDF. Find Entry 55 to discover that 1000gm of Weed is considered a small quantity. Bizzare! Isn’t it? Especially after, Entry 23 reads that 100gm of Charas/Hash is to be considered as a small quantity.

Also, your landlord and even your parents or friends can kick you out because Section 25 exists.

Anyway, why do you have to worry? This is a guide to protect your clients, right? You don’t do drugs. Do you?

DISCLAIMER: Neither Lawbriefcase nor does the author of this blog post endorse or promote drugs, narcotics or any other psychotropic substances prohibited by the Narcotics, Drugs and Psychotropic Substances. This blog post does not intend to teach anything unethical or illegal to the readers. Do not take this blog post as legal advice. This post is merely an attempt to sensitize the readers about the NDPS Act, 1985.