New Delhi: The Calcutta high court on Wednesday, June 22, passed an order in which it said that all seizing officers in cases where narcotic substances are recovered shall record the entire procedure on video from this point on – saying draconian provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act are sometimes misused.
It also said that the reasons for the authorities’ failure to record videos of the procedure must be specifically stated in the investigation record.
The judgment came while a bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay was hearing a case where severe lapses were recorded on the part of the investigating agency during the recovery of narcotic substances under the NDPS Act.
Some of the lapses the court mentioned were that the seizure list in the case did not include the names of all the accused who were alleged to have been arrested from the spot and that the presence of independent witnesses at the spot was doubtful since their statements before the magistrate did not support the seizure.
Notably, a drugs case against Aryan Khan, the son of Bollywood superstar Shah Rukh Khan, was dropped for insufficient evidence. While the younger Khan was arrested “for possession, consumption, sale/purchase of banned drugs and conspiracy and abetment”, his counsel had argued that no drugs were recovered from him.
Court’s observations
The idea of making such videography mandatory during such narcotic recovery procedures is not entirely novel. During the course of the hearing, the court highlighted existing rules and previous judgements in the matter.
The court noted that the Narcotics Control Bureau’s (NCB) ‘Field Officers’ Handbook’ directs search teams to carry video cameras when going out to search. However, the court also observed that this directive is seldom followed, according to a report by LiveLaw.
It also relied on recommendations put forth by a committee constituted by the Union home ministry (MHA) in 2017 which had described videography of narcotics crime scenes as a “desirable and acceptable best practice” and had even laid out directions for preparation, capacity building and the implementation of such a procedure.
The Calcutta high court went on to cite a judgment by the Supreme Court in the case of Shafhi Mohammad versus the state of Himachal Pradesh wherein the top court had observed that it is about time that videography be implemented in investigations and even cited the committee’s directions.
The bench observed that police officers are generally equipped with smart phones which would enable them to videograph recovery procedures, noting that the lack of technology or awareness is a “non-issue” and that this reliance on technology would instil fairness, impartiality and confidence in the investigative process.
Acknowledging the absolute authority vested in investigating officers in the NDPS Act vis-a-vis search, seizure and arrest, the court also noted that these powers are, on occasion, misused by the investigating agency.
Also read: NDPS Act: Should Vices Be Criminalised?
“While a strict law is necessary to control organised 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,” LiveLaw quoted the bench as saying.
“Most of the cases registered under the NDPS Act revolve around the recovery of narcotic substances from the accused. The heart and soul of the prosecution is the legitimacy of such recovery,” it continued.
“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 the winning over of such witnesses by resourceful accuseds,” it said further, according to LiveLaw.
Court order
In light of the above observations, the Calcutta high court ordered that in all cases involving the recovery of narcotic substances, particularly when dealing with more than a commercial quantity, the seizing officers shall make a video recording of the recovery procedure.
In case the officers are unable to do so for any reason beyond their control, the reasons must be recorded in the investigation records, such as the seizure list.
Further, the court said that a senior police official of or above the rank of additional superintendent of police must monitor the recovery of narcotic substances of the aforementioned quantity and ensure compliance with these directives. Non-compliance with the directives will result in departmental action being taken against the investigating officer.
The court also directed the director-general of police to issue directions for compliance with the order and said that the respective superintendents and police commissioners of various districts and commissionerates shall undertake programmes to spread awareness and build capacity vis-a-vis the aforementioned directions.
Also read: How Do We Make the Wheels of the Police and Criminal Justice System Run Faster?
Finally, the court directed all Union government agencies empowered under the NDPS Act to comply with the directions on videography of recovery proceedings and sought a response to its directive from the Union government and the NCB two weeks from the order, when the next hearing in the present case is set to take place.
Present case
In the case at hand, the court directed the police superintendent of the Murshidabad district to initiate proceedings or suspend the investigating officers.
The Murshidabad superintendent appeared before the court during the hearing and submitted a report to the court. The report noted that all officers have been informed, through an administrative order, to get the signatures of all those arrested at the time of the recovery of narcotics on the seizure list.
The report also noted that the investigating officer in the case, the seizing officer and the officer-in-charge of the concerned police station have all been suspended and are facing departmental proceedings.