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December 13, 2021

Kalyan Banerjee speaks on The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021

Kalyan Banerjee speaks on The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021



Thank you, Sir, for giving me a chance to speak on this Bill, The Narcotics Drugs and Psychotropic Substances (Amendment) Bill, 2021.


Sir, in a catena of judgments, the Supreme Court has said that in civil cases or criminal cases, except those related to tax statues, no provision can be given a retrospective effect. This is a settled principle of law. Despite that, the Bill has been brought. However, the future days will decide whether these types of provisions are ultra vires or not. Since they have the majority, they will get this passed through. But it is not final here. The final arbiter of interpretation of a statute of a Constitution is the Supreme Court, where this will be tested.


Sir, I am coming to different parts of the NDPS Act. When a person is arrested with contraband involving commercial quantity, according to the provision of section 37 of the NDPS Act, no court shall grant bail unless it is satisfied that there is reasonable grounds to believe that the person is not guilty of the offence. If this is the provision, coming to such a conclusion for a court of law before recording evidence is next to impossible. Offences relating to narcotics and drugs all over the world are considered to be among the more serious ones. It needs no debate debate to agree to the reasoning that by the introduction of drug addiction among the young generation, the future of a nation can be silently killed, without the need for nuclear weapons. But the issues involved with respect to this Bill are nonetheless important. Many a  time, persons are booked and arrested although a search of their person or place of residence yields no drugs or psychotropic substances. They are arrested merely on the basis of the alleged statement of the principal accused, from whose possession the drugs are seized. It would not be out of place to mention that law permits the police to record statements of the arrested accused while in police custody but does not permit it to use as evidence during trial. Section 37 of the Act is, per se, draconian, in view of the additional limitation it implies, over and above the limitations on granting bail as envisaged in the Code of Criminal Procedure of 1973. The biggest threat it mandates while dealing with an application of bail is indicated in section 37(1)(b)(ii) of the NDPS Act, so far as commercial quantity is concerned. The legislation mandates no person “shall be released on bail or on his own bond” if the public prosecutor opposes the application, unless “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail” This is impossible to prove without recording any evidence. Such a piece of legislation clearly casts doubt on its operation in as much as it practically wants cognisance of offences taken by the court of the first instance wherein an accused has been indicated to have committed an offence in the police report then in such circumstances. It would be virtually impossible for the state court to grant bail to the accused persons. Sir, such a rigorous pari materia of provisions was engrafted in the PMLA Act, and the Honourable Supreme Court of India, in the Nikesh Tarachand Shah vs Union Of India case of 2017, on similar provisions, held it is ultra vires and contravenes Article 14 and Article 21 of the Constitution of India. I just quoted that in 2018 (11) Supreme Court cases, page 1 at paragraphs 43 and 46. Similar type provisions have been declared ultra vires


The concept of presumption of culpable mental state as envisioned in section 35 of the NDPS Act is also draconian as a statutory presumption that requires the court to presume the presence of knowledge, intention or reason to believe. Under this section, the presumption is a  rebuttable one. The burden of proof is on the accused to prove that he did not have the requisite culpable mental state. The same is an anathema to the basic concept of criminal jurisprudence practised in the country. Sir, section 35 read with section 37 makes it extremely difficult for a person to be released on bail. Thereby the right to life, as envisaged in Article 21 of the Constitution of India, is taken away. If anyone gives a statement that he has bought from another person, the accused gives a statement, then that person whose he takes will be arrested and will not get bail. Not getting bail itself is violative of Article 21. 


What is the law? The law is that bail is normal, jail is the exception. The Supreme Court has said this even very recently, in the Arnab Goswami and Chidambaram cases. It was first said by Justice Krishna Iyer in 1977 or ‘78. This is the line of Justice Krishna Iyer. Therefore, a report of arrest and seizure, as envisaged in section 57 of NDPS Act, mandates that the full report of the particulars of the same has to be made over to the immediate superior officer. The said complaints have to be understood and read with section 51 of the NDPS Act and placed together with the same. 


Sir, we have seen that laws in our country are enough. So many laws are there, there is no problem with that. The question is regarding their application. I am not blaming any government; I am blaming the officials who are implementing and introducing them. We know that in so many cases, when no case can be made out to arrest someone, some ganja is kept in someone’s car or pockets and the person is arrested. Although no seizure is made, cases are made out. From where is the ganja coming, no one knows. Therefore, while addressing this Bill, I am requesting the Honourable Minister to revisit the provisions, sections 37(1)(b) and others, and see whether they can be amended or not, especially in view of the recent judgment of pari materia clause of the Nikesh Tarachand Shah vs Union Of India case, whose judgment was delivered by Justice Nariman. 


Sir, we hope this Act is not misused and abused by the machinery. That is the problem with this Act, nothing else. There is no reason to oppose the object of the Act. This Act is no doubt necessary, with certain modifications, to see to it that certain precautions have been taken to control the officials who have been empowered to prosecute, investigate, etc. 


Thank you, Sir, for giving me the chance to speak.