Draconian Provisions Of NDPS Act Misused: Calcutta High Court Orders Mandatory Videography Of Recovery Procedure

In a significant judgment, the Calcutta High Court on Wednesday directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records. A Bench comprising Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smartphones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instil fairness, impartiality and confidence in the investigative process.The Bench further observed that although the Field Officers' Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search, however, unfortunately, even in cases conducted by NCB such directives are not followed. Reliance was also placed on the recommendations of a Committee constituted by the Ministry of Home Affairs in 2017 wherein it had been suggested that videography of crime scene is "desirable and acceptable best practice". The Committee had also issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis.Furthermore, the Court also referred to the Supreme Court judgement in Shafhi Mohammad v. State of Himachal Pradesh wherein the Apex Court had held that time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable "best practice" as suggested by the aforementioned Committee to strengthen the rule of law. The Supreme Court had also approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein, it was noted further. "The observations made in Shafhi Mohammad as well as the guidelines in the Field Officers' Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non- issue", the Court underscored. The Court further acknowledged that the NDPS Act vests plenary powers of search, seizure and arrest on investigating officers and that even the power of the Court to grant bail is circumscribed by strict restrictions under Section 37 particularly in cases involving commercial quantity.Highlighting the importance of a legitimate recovery procedure, the Court averred, "While a strict law is necessary to control organized 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. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. 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 winning over of such witnesses by resourceful accuseds."Thus, the Court issued the following directives to ensure that the 'unvarnished truth' is placed before the Court during adjudication, (i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non- compliance would attract departmental proceeding so far as the seizing officer is concerned;(v)Director General of Police shall issue necessary directions for due...

Draconian Provisions Of NDPS Act Misused: Calcutta High Court Orders Mandatory Videography Of Recovery Procedure

Aaratrika Bhaumik

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