A young man, Aditya, is deeply concerned about his friend, Sameer. Sameer was recently arrested by the police in the city of Anandnagar. During the arrest, he was found to be in possession of 2.3 kilograms of cannabis. Following the arrest, Sameer spent approximately 45 days in judicial custody before he was successfully granted bail. The authorities have now completed their investigation and filed a chargesheet in the appropriate court. The first hearing for the case is scheduled to take place in a few months, and Aditya is seeking legal guidance on how to best support his friend through this difficult time.

Advice in such cases

Navigating an arrest under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, can be daunting. The law is stringent, and the consequences can be severe. Here is some crucial advice:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Understand the Quantity: In this case, 2.3 kgs of cannabis falls under the “intermediate quantity” category (greater than small quantity but less than commercial quantity). The punishment for this is different from that for small or commercial quantities.
• Review the Chargesheet: The lawyer must meticulously review the chargesheet to identify any procedural lapses, contradictions, or weaknesses in the prosecution’s case. This is the foundation of the defense strategy.
• Adhere to Bail Conditions: It is absolutely critical that the accused strictly follows all conditions imposed by the court while granting bail. Any violation can lead to the cancellation of bail.
• Prepare the Defense: The defense could be built around several factors, such as challenging the “conscious possession” of the substance, questioning the credibility of the panch witnesses, or pointing out failures in following the prescribed legal procedure during search and seizure.

Applicable Sections of Law

The primary law governing this case is the NDPS Act, 1985. The relevant sections are:

• Section 8(c) of the NDPS Act, 1985: This section imposes a blanket prohibition on the production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, import, export, or transshipment of any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the Act.
• Section 20(b)(ii)(B) of the NDPS Act, 1985: This section specifies the punishment for contraventions related to cannabis. Since the quantity is 2.3 kgs, it falls under the intermediate category. The punishment for possessing an intermediate quantity of cannabis is rigorous imprisonment for a term which may extend to ten years, and a fine which may extend to one lakh rupees.
• Section 37 of the NDPS Act, 1985: This section deals with bail. While its stringent conditions (twin conditions for bail) are mandatory for commercial quantity cases, courts are generally very cautious even when dealing with intermediate quantities, making bail difficult to obtain.

If you are the complainant

In cases under the NDPS Act initiated by the police, the State (through the police department) is the complainant. If you are an informant or a witness who has provided information leading to the arrest, your role is different.

• Your identity as an informant is generally protected under the law.
• You may be required to testify as a prosecution witness during the trial. It is vital to state the facts truthfully and clearly.
• Cooperate fully with the investigating agency and the public prosecutor.
• Preserve any evidence you may have and provide it to the authorities.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

In the context of a drug possession case, the accused individual is the one facing the state’s prosecution and the severe penalties of the law. If you are the accused or a family member supporting them, you are a victim of the circumstances and the legal process.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Gather all relevant documents, including the FIR, seizure memo (panchnama), and any other notices or papers received from the police or court.
• Do not speak to the police or any investigating officer without your lawyer present.
• Do not attempt to influence witnesses or tamper with any evidence, as this will severely harm your case.
• Prepare for a potentially long and stressful legal battle. Maintain your composure and trust in your legal counsel.

How the police behave in such cases

The NDPS Act grants extensive powers to law enforcement agencies. Their conduct in such cases is typically very stringent.

• Police officers will act swiftly to seize the contraband and arrest the suspects.
• They are required to follow a strict procedure for search, seizure, and sealing of the substance, which must be documented in a panchnama in the presence of two independent witnesses.
• The investigation will focus on establishing “conscious possession” and may also try to uncover the source of the drugs and other individuals involved in the supply chain.
• The police will almost always strongly oppose any bail application filed by the accused in court, citing the seriousness of the offence.

FAQs people normally have

Here are some frequently asked questions in NDPS cases:

• What is the difference between small, intermediate, and commercial quantity for cannabis? For cannabis (ganja), a “small quantity” is up to 1 kg, and a “commercial quantity” is 20 kgs or more. Any amount between 1 kg and 20 kgs is considered an “intermediate quantity.” The punishment varies significantly for each category.
• What are the chances of acquittal? The outcome of the trial depends entirely on the evidence presented by the prosecution and the strength of the defense. If the defense lawyer can successfully prove that the police made significant procedural errors during the investigation or that the evidence is unreliable, the chances of acquittal increase.
• Can the accused get a lesser punishment? The judge has discretion in sentencing within the range prescribed by the law. Factors like the age of the accused, their past record, and the specific circumstances of the case can influence the length of the sentence if convicted.

What evidence is required?

The burden of proof is on the prosecution to prove its case beyond a reasonable doubt. Key evidence includes:

• The seized narcotic substance itself.
• The report from the Forensic Science Laboratory (FSL) confirming that the seized substance is indeed cannabis.
• The seizure memo or panchnama, which documents the process of search and seizure.
• The testimony of the police officers who were part of the raiding team.
• The testimony of the independent panch witnesses who were present during the seizure.
• Any other circumstantial evidence, such as call data records or statements of other co-accused.

How long will the investigation take?

In the situation described, the chargesheet has already been filed, which means the police investigation is complete. The more relevant question is about the duration of the trial. NDPS trials are known to be lengthy and complex. Depending on the workload of the specific court, the number of witnesses to be examined, and the complexity of the case, a trial can easily take several years to conclude, often ranging from 2 to 5 years or even longer.

Advocate Sudhir Rao, Supreme Court of India