NDPS probes often entrusted to incompetent officers: Jammu and Kashmir High Court

The High Court of Jammu and Kashmir and Ladakh recently expressed concern that incompetent officers are often being entrusted with investigating cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), despite the serious nature of such cases [UT of J&K V/s Farman Ali and Ors]..A Bench of Justices Sanjeev Kumar and Mohd Yousuf Wani observed that crimes involving the illegal traffic of drugs are on the rise and have led to serious drug addiction issues among the public, particularly adolescents and students. "Every day we hear about the seizure of Narcotic Drugs and Psychotropic Substances especially from the youth. It is shocking that most factual and genuine cases in relation to offences under NDPS Act end in acquittals mainly on account of casual, cavalier, unfair, faulty and non-scientific investigations. The mandatory provisions under NDPS Act are being taken casual and observed in breach. Casual, unfair and non-scientific investigations in NDPS cases is uncalled for," the Court added.It emphasised that agencies such as the Central Excise authorities, Narcotics agencies, Customs, Revenue Intelligence authorities and the Police are expected to rise to the occasion and investigate narcotic cases with utmost responsibility and fairness.Despite this, the investigation of such cases is often entrusted to incompetent officers who handle such cases in a casual manner, the Court lamented."It is equally surprising that investigations in NDPS cases are most often being entrusted to incompetent officers.".Shocking that genuine NDPS cases end in acquittals on account of casual, cavalier, unfair, faulty and non-scientific investigations.Jammu and Kashmir High Court.The Court proceeded to urge the Central government and the governments in States/ Union Territories to ensure that experienced and competent officers lead investigations in NDPS cases. The Court noted that the NDPS Act as well as the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) already call for senior officers to lead such investigations. According to provisions under these laws, a case under the NDPS Act cannot be investigated by a police officer below the rank of a Sub Inspector.The Bench also noted that the High Court has already issued a series of directions in a suo motu case to ensure that NDPS investigations are handled properly and professionally. The Court called for the authorities to follow these directions. "A casual approach of the Investigating agencies in the matter of the investigation in NDPS cases creates a sense of insecurity and undermines the faith of the common man in the administration of the criminal justice," the Bench added.It, however, made an appreciative note of the fact that the Jammu and Kashmir government had issued a circular in 2017 to prescribe Standard Operating Procedure(s) to be followed in NDPS cases."We expect that same shall be pressed into service," the Court said. .The Court made the observation while upholding the acquittal of two persons who were accused of illegally carrying 10,000 painkiller capsules (spasmo proxyvon tablets). The police claimed that the two accused persons had smuggled the capsules from Punjab so that they could be illegally sold to youth in Kathua. However, in 2015, a trial court held the case to be one with "no evidence", prompting the Jammu and Kashmir government to file an appeal before the High Court.Last month, the High Court upheld the trial court's decision to acquit the accused on finding serious contradictions and lapses in the investigation and prosecution of the case. The fatal contradictions and errors noticed in the case started right from the police's claims about when the two accused were caught, to how the alleged contraband was seized and sampled. Notably, the Court noted that the contraband was taken to the magistrate by the police in separate packets, instead of taking them as a whole.Further, the magistrate testified that when the recovered contraband samples were brought to him, he merely fixed his seal on the packets presented to him without even opening them to verify the contents.Among other grounds, the Court also noted that the accused were not informed of the grounds for their arrest in a timely manner. The Court concluded that the investigation was conducted in a casual and cavalier manner, by violating mandatory provisions of the NDPS Act..The Court acknowledged that in NDPS cases, the prosecution is usually given an additional advantage by placing the burden of proving innocence on the accused, instead of following the usual rule of "innocent until proven guilty" by the prosecution."However, this advantage would not apply if the prosecution has no prima facie case to begin with, the Court highlighted. "The initial burden is always on the prosecution to establish a prima facie case against the accused, only where after burden will shift to the accused," it said. Since the prosecution was unable to show any prima facie case against the two accused, the High Court proceeded to uphold the acquittal of the accused men and dismissed the government's appeal..Additional Advocate General (AAG) Ravinder Gupta appeared for the Jammu and Kashmir government.Advocate Arun Dev Singh appeared for the respondents (accused)..[Read Judgment]