NDPS Cases – Step-by-Step Proceedings and Investigation

Navigating NDPS Cases requires a clear understanding of every procedural step—from the initial detection to investigation and final prosecution. This condensed article simplifies the complex legal framework of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, outlining the mandatory documentation, compliance requirements, and key responsibilities of empowered officers at each stage.

Table of Contents

1. Offences Under the Act
2. Crux of the Various Judgments
3. Drug Law Enforcement Agencies
4. Detection of Cases – How?
5. Compliance by Empowered Officers
6. Detection on the Basis of Prior Information
7. Step 1 – Information Should Be Reduced Into Writing by Officer Empowered Under Section 41(2) or Section 42(1) of the Act, Who Has Actually Received the Information – Mandatory
8. Step 2 – Disposal of Information Report
9. Step 3 – Pre-Search

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Enforcement operations under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 against an individual or an entity are initiated in instances when there is sufficient information available to reasonably believe that a breach of narcotic drugs law enumerated in the Act has been committed or being committed by non-compliance or evasion of the prohibitory provisions of the Act, which resulted in commission or would result in commission of offence(s) punishable under the provisions of the Act.

1. Offences Under the Act

The offences under the Act being more serious in nature, stringent punishment has been provided under the Act and consequentially a higher degree of proof by prosecution is required to convict an accused. Mere detection of an offence by making seizure of contraband drugs or substances and arrest of the person(s) involved in the prohibitory activities do not establish the guilt of the person in trial before the court under the NDPS Act, 1985.

2. Crux of the Various Judgments

The crux of the various judgments of the Hon’ble Supreme Court of  India and High Courts with reference to secure legal punishment of a person, accused of an offence related to any narcotic drug or psychotropic substance or controlled substance falling under the ambit of the NDPS Act, 1985 are:

• The offences under the Act being more serious in nature higher degree of proof by prosecution is required to convict an accused.
• The standard of proof required to prove the guilt of the accused on prosecution is ‘beyond all reasonable doubt’.
• The procedural law including the mandatory provisions under the Act are required to be strictly and scrupulously adhered to by the officers empowered under the Act, while conducting or undertaking each and every enforcement operations under the Act namely search, seizure, arrest, investigation etc., so that no doubt is created on the guilt of the accused at the end of the judicial process.
• Proper documentation and contemporaneous records of each step strengthens the prosecution case.

3. Drug Law Enforcement Agencies

For ‘control of supply’ of narcotic drugs, psychotropic substances, controlled substances and ‘Suppression of Illicit Trafficking’ in narcotic drugs and psychotropic substances, the Act empowers various departments of the Central Government and the State Governments to exercise the powers under the Act and to act as Drug Law Enforcement Agencies (DLEA). The Act further empowers certain rank of officers of the departments empowered under the Act to exercise the powers of search, seizure, arrest, investigation, prosecution etc. No officer other than an officer empowered under the Act can exercise the enforcement powers provided in the Act.

4. Detection of Cases – How?

Detection of cases under the Act fall under three categories viz.

(I) on the basis of prior secret information;

or

(II) on the basis of prior personal knowledge;

or

(III) by chance/accidental detection of commission of an offence.

5. Compliance by Empowered Officers

The Empowered Officers are required to comply with the prescribed procedures of law in all the above categories of detection of commission of an offence under the Act. The settled procedures of law are required to be strictly adhered to by the officers from the stage of receiving of prior information on commission of an offence or from the stage of personal knowledge about the commission of an offence or from the stage of by chance/accidental detection of commission of an offence as the case may be, to the stage of filling of prosecution complaint/charge sheet before the competent Court.

6. Detection Based on Prior Information

Information – May be received from any person (public, officer/official of same organisation or other empowered organisation or non-empowered organisation) by any of the following officers/officials:

1. An authorised Gazetted Officer of any department empowered under section 41(2) of the Act; or
2. An authorised officer of any department empowered under section 42(1) of the Act; or
3. An officer/official of any empowered department who is not authorised either under section 41(2) or section 42(1) of the Act [Gazetted Officer in administration/establishment, sepoy, constable, peon etc.]; or
4. An officer/official of any department which is not empowered either under section 41(2) or section 42(1) of the Act [Income Tax, Enforcement Directorate, Forest department etc.].

7. Step 1 – Information Should Be Reduced Into Writing by Officer Empowered Under Section 41(2) or Section 42(1) of the Act, Who Has Actually Received the Information – Mandatory

The process of gathering or collection or receiving of secret specific information relating to commission of an offence under the Act involves, different situations depending on when and by whom the information is gathered or collected or received. The Act provides procedures of recording/reducing the information into writing in different situations, which are mandatory in nature. These situations are:

1. Any person (informant), may give information, to a Gazetted Officer empowered under section 41(2) of the Act in writing. The person (informant), may or may not disclose his/her identity on the written information. However, his/her(informant), left thumb impression/right thumb impression with date and time should be obtained on written information and signed by the said officer mentioning therein the date and time of receipt of the said written information ;

Or

The said officer empowered under section 41(2) of the Act, should himself reduce the information into writing, under his signature and designation, mentioning therein the date and time of recording the said information and should not pass on the information received by him to his subordinate officer/subordinate staff for reducing it into writing.¹

2. Any person (informant), may give information, to an officer empowered under section 42(1) of the Act in writing. The person (informant), may or may not disclose his/her identity on the written information. However, his/her (informant), left thumb impression/right thumb impression with date and time should be obtained on written information and signed by the said officer mentioning therein the date and time of receipt of the said written information;

Or

The said officer empowered under section 42(1) of the Act, should himself reduce^{2 + 3 + 4} the information into writing under his signature and designation, mentioning therein the date and time of recording the said information.

Meaning thereby, the empowered officers are not to pass on the routine information as ‘’secret information’’. Furthermore, information received as a part of follow up action, which are in fact forming part of a single transaction, should not be passed on as ‘’secret information’’.

3. Any person (informant), may give information, to an officer empowered under section 41(2) or section 42(1) of the Act, over phone. Such information should be immediately reduced into writing by the said officer who has received the information over phone.

4. Any person (informant), may give information, orally to an officer/official, who is not empowered under the Act. The Act, does not provide recording of information by any officer/official, who is not empowered under the Act. In such cases, the said non-empowered officer/official should, pass on the information by following manner:

Either

(i) Bring the person (informant), before an officer empowered under section 41(2) or section 42(1) of the Act without any delay. The empowered officer, thereafter, may take the information in writing from the person (informant). The person (informant), may or may not disclose his/her identity on the written information. However, his/her(informant), left thumb impression/right thumb impression, with date and time should be obtained on the written information and signed by the said empowered officer, mentioning therein the date and time of receipt of written information;

Or

The said empowered officer, should himself reduce the information into writing under his signature and designation, mentioning therein the date and time of recording the information.

Or

(ii) The non empowered officer/official, may himself, orally or in writing pass⁵⁺⁶ on the said information immediately received by him, to an officer empowered under section 41(2) or section 42(1) of the Act.

The empowered officer, thereafter, should himself reduce the information conveyed to him by the non-empowered officer/official into writing, under his signature and designation, mentioning therein the date and time of recording the information. The empowered officer, should also make a record of name and designation of the non-empowered officer/official through whom the information has been received by him.

Or

(iii) The person (informant), may give information in writing to the non-empowered officer/official. In such case, the non-empowered officer/official, should immediately bring the information to the knowledge of an officer empowered under section 41(2) or section 42(1) of the Act. The empowered officer, on receipt of such information in writing, should forthwith sign on the written information, mentioning therein his designation, time and date of receipt of information in writing. The empowered officer, should also make a record of name and designation of the non empowered officer/official through whom the information in writing has been received by him.

5. An officer/official of any department of the Central Government or State Government not empowered under the Act (e.g. Income Tax, Enforcement Directorate, State Forest Department, District Ayurvedic Officer, State Public Works Department etc.) may in his official capacity provide information to the department, empowered under the Act. In such cases, the empowered officer of the said empowered department should himself record/reduce the information into writing, mentioning therein the name of the officer/official from whom the information has been received, his designation and department, the time and date of receipt of the information.

Note   In all the above situations, the veracity, authenticity and reliability of the information, should be adjudged by the empowered officer before initiating any action on such information. Detailed discussion on information follows in Chapter 12 of Part III Additional procedure for the purpose of Reward to the Informer and Government Servant has been dealt in STEP 23.

8. Step 2 – Disposal of Information Report

1. When any information is recorded/reduced into writing by a gazetted officer empowered under section 41(2) of the Act, the said officer shall make an entry of the said information report in official record/register before he proceeds himself for further action or immediately after taking necessary action pursuant to the said information, mentioning therein the time and date of entry in the official record/register. Contemporaneous records.

2. When any information is recorded/reduced into writing by a gazetted officer empowered under section 41(2) of the Act and there is reasonable time for taking action on the basis of said information or reasonable time to issue search/arrest authorisation, the said officer shall make an entry of the said information report and issue of search/arrest authorization in official record/register mentioning therein the time and date of entry of the information report and issue of search/arrest authorisation in the official record/register. Contemporaneous records.

3. When any information is recorded/reduced into writing by an officer empowered under section 42(1) of the Act and there is reasonable time for taking action on the basis of said information or reasonable time to obtain search/seizure/arrest warrant or authorisation from the Magistrate empowered under section 41(1) of the Act or gazetted officer empowered under section 41(2) of the Act, the said officer empowered under section 42(1) of the Act shall place the information report before the concerned Magistrate or gazetted officer, who on reason to believe about the authenticity of the said information shall issue the warrant or authorisation, as applicable. In such case the placing of information report before the concerned Magistrate or Gazetted officer is Mandatory.

Further, the said officer empowered under section 42(1) of the Act shall also make an entry of the said information report in official record/register before proceeding for obtaining the warrant or authorisation, mentioning therein the time and date of entry in the official record/register. In case of issue of search/seizure/arrest authorisation, appropriate entry shall also be made simultaneously in proper record/register. Contemporaneous records.

4. When an officer empowered under section 42(1) of the Act enter or search any building, conveyance or enclosed place without a search/arrest warrant or authorisation between sunrise and sunset on the basis of an information received and recorded/reduced by him, he shall within seventy-two hours send a copy of the said information to his immediate official superior. Mandatory

The concerned officer empowered under section 42(1) of the Act shall also make proper record of despatch of a copy of the said information to immediate official superior. Contemporaneous records.

5. When an officer empowered under section 42(1) of the Act enter or search any building, conveyance or enclosed place without a search/arrest warrant or authorisation between sunset and sunrise on the basis of an information received and recorded/reduced by him, he shall within seventy-two hours send a copy of the said information along with a copy of recorded grounds of his belief why the search warrant or authorisation could not be obtained before the entry/search of the building or conveyance or enclosed place to his immediate official superior. Mandatory.

The concerned officer empowered under section 42(1) of the Act shall also make proper record of despatch of copies of the said information and recorded grounds to immediate official superior. Contemporaneous records.

6. When an officer empowered under section 42(1) of the Act search, seize, detain or arrest in public place on the basis of an information received by him, he shall record/reduce the information in writing and place/send the said information to immediate official superior at the earliest. Mandatory.

Parallel record thereof may also be prepared and maintained. Contemporaneous records.

7. In case of entry, search, seizure and arrest under section 44 of the Act on the basis of information on offences relating to coca plant, opium poppy or cannabis plant, appropriate procedures depending on applicability of provisions of section 41, 42 or 43 as discussed above shall be followed which may be Mandatory as discussed above or may be required to create Contemporaneous records as the case may be.

Case Laws 1. The Hon’ble Supreme Court in its judgment dated 16.8.2018 in the case of Mohan Lal v. The State of Punjab in Criminal Appeal No. 1880 of 2011, reported as 2018 (8) TMI 963- Supreme Court (other Citation – 2018-TIOL-381-SC- NDPS) held that, a fair investigation, is the very foundation of fair trial, which necessarily postulates that the officer who has submitted the ‘information report’ must not be the investigating officer in the same case. 2. Further, the Larger Bench of the Supreme Court in Varinder Kumar v. State of Himachal Pradesh CRIMINAL APPEAL Nos. 2450-2451 of 2010 decided on 11.2.2019 reported as 2019 (2) TMI 548-Supreme Court held that the law laid down in Mohan Lal (supra) shall be applicable prospectively, meaning thereby, all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by individual facts of the case. Doubting the correctness of the decision of the Hon’ble Supreme Court in the case of Mohan Lal v. State of Punjab reported as 2018-TIOL-381-SC- NDPS (other citation 2018 (8) TMI 963-Supreme Court) taking the view that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal, initially by order dated 17.1.2019 the matter was referred to a larger Bench consisting of three Judges and the three Judge Bench vide order dated 12.9.2019 has referred to a larger Bench of five Judges. Accordingly, the Constitution Bench of the Hon’ble Supreme Court on 31.8.2020 in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), reported as 2020-TIOL-144-SC-NDPS-CB, overruled the judgment rendered in the case of Mohan Lal v. State of Punjab reported as 2018-TIOL-381-SC- NDPS (other citation 2018(8) TMI 963-Supreme Court) and went on to hold that in a case where the informant himself is the investigator, a person accused of an offence under the Act, would not be entitled to an automatic acquittal. The question of bias or prejudice pleaded before the trial court and upwards would entirely depend upon the facts and circumstances of each case. The Hon’ble Supreme Court further held that the Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the Act. To take a contrary view would tantamount to amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible. Meaning thereby, the Court cannot import words into the statute.

9. Step 3 – Pre-Search

(i) Besides search warrant or authorisation, the search team is required to be equipped with other items which are essential during the course of search and seizure of contrabands at the spot viz. Office Seal, Field Drug Detection/Identification Kit, weighing balance, marking cloth, needle, thread, packaging materials, etc. It is desirable that an office seal is specially earmarked for the purpose of sealing in NDPS cases. An Office Order be issued to this effect and the Office Order should contain the facsimile of the seal. The said office seal shall be kept in safe custody of a responsible officer, for which an Office Order should be issued and the said Office Order should have inter alia the name of the officer and the link officer. Such Office Orders issued should be periodically reviewed and should invariably made part of the complaint/charge sheet. The time and date of issue and return of the seal shall be recorded in a register [Seal Movement Register] which shall also be kept in safe custody of the said officer who has been authorised to keep the office seal in safe custody. Similarly, the time and date of issue and return of the Field Drug Detection/Identification Kit, marking cloth, search light/torch, tool kit, needle, thread sealing materials packaging materials, electronic weighing balance for weighment, etc. to be used for the purpose of identification of presence of narcotic drug or psychotropic substance or controlled substance in the contraband recovered during search proceeding and weighment of the recovered/seized contraband(s) etc., shall also be recorded in a register [Equipment Movement Register]. Such movement maintained in the Equipment Movement Register shall be appropriately projected in the complaint/charge-sheet.

In addition to the above, the Equipment Movement Register should also be used to record the movement of laptop and the mobile printer (both duly purchased and recorded in the Dead Stock Accounts), when they are taken out for an operation. Contemporaneous records.

Need of an Interpreter

(ii) In case of search of premises/conveyance/person etc. involving a foreigner/a person who may not understand/read/write any language other than his own language, which is not known to officers/witnesses an interpreter should be arranged before initiation of search and the search-seizure proceedings should be conducted in presence of the interpreter besides witnesses who shall interpret the communication i.e. verbal as well as written between the officer and the said foreigner/person during the entire proceedings of search, seizure and documentation. This fact should also be recorded in documents prepared/generated during the search-seizure proceedings.

---

1. See BAIL No. – 10163 of 2019 decided on 24.07.2020 by the Lucknow Bench of the Hon’ble Allahabad High Court in the case of Vinay Kumar Mishra v. Union of India through Zonal Director, NCB, Lucknow.

2. Readers should note at this stage the usage of the word ‘’person’’ in section 41(2) and section 42(1). The word ‘’person’’ is used as an ‘’informant’’(i.e. who gives or passes on information) and it is in this context essential that the officer who receives the information should himself reduce the same in writing and should not pass on the information to the subordinate officers/staff on account of the fact that the advocate representing the accused could agitate the matter before the Trial Court in trial proceedings or for grant of bail before the Trial Court or in jurisdictional High Court.

3. In the case of Rafiq Ahmed Shaikh v. NCB 2020 (7) TMI 312 – Delhi High Court, the Courier Agency (Fedex) had detained the said packet and information in this regard had been provided to the NCB. This was passed on as ‘’secret information’’ by the I.O., NCB. The Hon’ble Delhi High Court in para 36 of its judgments has held as under:

‘’Thus, even though the parcel in question was booked on 24.02.2011, Fedex did not dispatch it to its destination but detained the same as it appears that the security staff had found that there was some suspicious substance in the said parcel. It is apparent that this information was provided to NCB and the security staff had also informed its concerned employees that an NCB team would come and take the said parcel. Clearly, the said parcel was not intercepted by NCB while it was on its way in the normal course, to its destination. The courier service provider (Fedex) had detained the said packet and information in this regard had been provided to NCB. Notwithstanding the same, no investigation as to the discovery and storage of the parcel in question was conducted. The security staff of Fedex who had detected the same were not examined by the officials of the NCB. Nor, any inquiries were conducted to ensure that the parcel remained untampered after it was detained. However, NCB built a case that the information received was secret and had sought to present the case as if the parcel was intercepted while on its way to its destination in the normal course. But for the independent witnesses – PW4 and PW5, who were also employees of Fedex – revealing the above in their cross examination, the fact that the parcel in question had been detained by Fedex would not have been disclosed.’’

4. MOKIBE MR LEPILE MOSES @ PATRICK UMECHUKWU v. Narcotics Control Bureau in CRL. A. 220/2016 & CRL. M. (BAIL) 1664/2017 & CRL. M. (BAIL) 7725/2020 decided by the Hon’ble High Court of Delhi on 22.2.2021 and reported as 2021(2)TMI 1047 DELHI HIGH COURT. In Para 63 of the judgment, it was held as under:

‘’63. Apart from the above, there is also an issue as to the receipt of secret information as noticed above. Clearly, there was no secret information that was received by PW4 and there is no evidence to such effect. Yet, secret information had been recorded on a slip and put up before the Superintendent, who accepted the same and issued the authorisation for the search’’.

5. See Hon’ble Bombay High Court’s judgment dated 22.05.2020 in Criminal Revision Application No. 83 of 2019 reported as [2020] 116 taxmann.com 729/273 Taxman 23 (Bom.) (other citation – 2020 (5) TMI 534-Bombay High Court) in the case of Anant Vardhan Pathak @ Anant Satish Pathak v. NCB, Mumbai. Anant Vardhan Pathak @ Anant Satish Pathak, the applicant in CRIMINAL REVISION APPLICATION NO. 83 OF 2019 before the Hon’ble Bombay High Court, aged 25 years at the material time, was the President of group companies controlled by Yash Birla. The officers of the Income Tax Department, conducted a search and seizure operation at Room No. 667 of Taj Palace Hotel, Mumbai on 7.1.2014 in connection with the affairs of the group companies controlled by Yash Birla. During the course of the said operation, Anant Vardhan Pathak @ Anant Satish Pathak, was found in the said room along with co-accused namely Dharmu Rathod. During the course of the said search and seizure operation, one of the co-accused was found in possession of eight small self-knotted transparent polythene pouches containing white powdery substance kept in white paper envelope. The officers of Income Tax Department collected the said article and kept it in a safe, which was available in the said room, in the presence of the public witnesses. The Senior Officers of the Income Tax Department thereafter informed the Zonal Director, Narcotics Control Bureau, Mumbai (‘NCB’) on 10.1.2014 about the said occurrence. The superior officers came, and directed the raiding party to await further instructions as regards the said substance and carry on income tax search proceedings. The contraband was kept in an empty electronic safe in the presence of public witnesses. It was locked. The safe was opened on 10.1.2014 when the NCB officer came to Room No. 667. It is pertinent to note that the panchnama of the income tax search drawn by the officers of the income tax department records that the said operation was commenced on 7th January 2014 and concluded on 10th January 2014 at 10:30 p.m. An annexure to the said panchnama recorded that during the said search operation, some substance which appeared to be drug was found and the officers of NCB were requested to examine the said matter by a communication dated 10.1.2014. The said letter dated 10.01.2014, in turn, records that in the course of rummaging the room No. 667 in Taj Palace Hotel, Mumbai wherein the accused No.1 was present, the raiding party came across some substance which appeared to be drug. Request was thus made to the Zonal Director of respondent No.1 to verify the substance and initiate action as may be found appropriate. Thus, the challenge to the tenability of the prosecution on the ground that the contraband substance was seized by the officers of the Income Tax Department, who were not empowered under the NDPS Act, did not merit acceptance in the Order dated 22.1.2019 passed by the Special Judge, NDPS, Greater Bombay, on an application for discharge in NDPS Complaint Case No.49 of 2014. Hence, Anant Vardhan Pathak @ Anant Satish Pathak moved a Criminal Revision Application NO. 83 of 2019 before the Hon’ble Bombay High Court.

The pivotal question which comes to the fore is whether the act of the Income Tax Officers of collecting and keeping the contraband in the safe custody on 7.1.2014 constitutes a seizure. The Hon’ble Bombay High Court, speaking through N. J. JAMADAR, J, passed a judgments dated 22.5.2020 covering all aspects of the submissions of the counsel for the applicant/petitioner.

After going through a catena of case laws including the State of Himachal Pradesh v. Sunil Kumar 2014 (4) SCC 780 wherein, in the context of compliance of the provisions contained in section 50 of the Act, the Supreme Court considered the question – whether the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of section 50 of the NDPS Act Placing reliance upon the earlier judgments in the case of State of Punjab v. Balbir Singh [1994] 70 ELT 481 (SC) and the Constitution Bench judgments in the case of State of Punjab v. Baldev Singh 1999(6) SCC 172, the Supreme Court held that the question posed in that case was no longer res integra and answered the same in the negative. In the process, the Supreme Court explained the concept of chance recovery. Paragraph 13 thereof reads as under:

“13 The expression “chance recovery” has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident unexpectedly. In Mohinder Kumar v. State 1998 8 SCC 655 this Court considered a chance recovery as one when a police officer “stumbles on” narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat 2004 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a “chance recovery”.”

Thereafter, the Hon’ble Bombay High Court, repelling the arguments put forth by the counsel for the applicant held that

”the response of the Income Tax officers in taking over and keeping the suspicious substance, in the circumstances, cannot be clothed with the character of ‘seizure’, in the juristic sense. On the one hand, the requisite intent to carry on search to find out contraband substance could not have been attributed to the officers of the Income Tax department. On the other hand, the officers also cannot be attributed with the competence and authority to draw a definitive inference, at that stage, that the substance found was indeed contraband. The justifiability of the communication dated 10th January 2014 is required to be considered through this prism.”

The Hon’ble High Court went on to further hold that

“’the question of the delay in communication with the authority of the respondent No.1, in the backdrop of the fact that the contraband was found on 7.1.2014 and the communication was addressed to the officers of NCB on 10.1.2014 and, thereafter, the said contraband substance was seized by the officers of the NCB may affect the credibility of the claim of the prosecution witnesses. However, that is a matter for trial.’’

6. See Ahmed Hassan Muhammed v. The Customs, in Bail Application No. 3076/2020 decided on 11.2.21 by the Hon’ble High Court of Delhi and reported as 2021 (2) TMI 830 – DELHI HIGH COURT, the FSSAI had opened one plastic package and out of the 10 plastic packages one package was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. The FSSAI is not an empowered department and the onus was on FSSAI to pass on the information to the Customs, which they failed to do so.