Calcutta HC directs videography in cases of seizure related to narcotics

New Delhi: The Calcutta high court has recently passed an order that said that officers seizing narcotics have to ascertain that narcotic drugs entire seizure procedure should be videographed. Reasoning that draconian provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act are sometimes misused.

The order also said, if officers fail to record the procedure in video, they have state the reasons for failure in investigation record.

The judgment was delivered by a bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay while hearing a case where severe lapses were recorded on the part of the investigating agency during the recovery of narcotic substances under the NDPS Act.

The court noted some of the lapses that the seizure list in the case did not include the names of all the accused who were alleged to have been arrested from the spot and that the presence of independent witnesses at the spot was also doubtful since their statements before the magistrate did not support the seizure.

It is worthwhile to mention here that recently, a drug case against Aryan Khan, the son of Bollywood superstar Shah Rukh Khan, had to be dropped for not having sufficient evidence. Aryan was arrested “for possession, consumption, sale/purchase of banned drugs and conspiracy and abetment”, but his lawyer pleaded that no drugs were recovered from him.

Court observes

However, the idea of making such videography mandatory during such narcotic recovery procedures is not new concept. During the course of the hearing, the court highlighted existing rules and regulations with previous judgements as well.

The court noted that the Narcotics Control Bureau’s (NCB) ‘Field Officers’ Handbook’ directs search teams to carry video cameras when going out to search. However, the court also observed that this directive is seldom followed. At the same time, it also relied on recommendations put forth by a committee constituted by the Union home ministry (MHA) in 2017 which had described videography of narcotics crime scenes as a “desirable and acceptable best practice” and had even laid out directions for preparation, capacity building and the implementation of such a procedure.

The Calcutta high court also cited a judgment by the Supreme Court in the case of Shafhi Mohammad versus the state of Himachal Pradesh  in which apex court had observed that it is about time that videography be implemented in investigations and even cited the committee’s directions.

The bench also commented that police officers are generally equipped with smart phones which would enable them to videograph recovery procedures, noting that the lack of technology or awareness is a “non-issue” and that this reliance on technology would instil fairness, impartiality and confidence in the investigative process.

Accepting the absolute authority had by investigating officers in the NDPS Act vis-a-vis search, seizure and arrest, the court also noted that these powers are, on occasion, misused by the investigating agency.

“While a strict law is necessary to control organised 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,” LiveLaw, a judicial news website quoted the bench as saying.

“Most of the cases registered under the NDPS Act revolve around the recovery of narcotic substances from the accused. The heart and soul of the prosecution is the legitimacy of such recovery,” it continued.

“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 the winning over of such witnesses by resourceful accuseds,” the bench said further, according to LiveLaw.

Court order

In respect of the above observations, the Calcutta high court ordered that in all cases involving the recovery of narcotic substances, particularly when dealing with more than a commercial quantity, the seizing officers shall make a video recording of the recovery procedure.

Further, the court said that a senior police official of or above the rank of additional superintendent of police must monitor the recovery of narcotic substances of the aforementioned quantity and ensure compliance with these directives. Non-compliance with the directives will result in departmental action being taken against the investigating officer.

The court also directed the director-general of police to issue directions for compliance with the order and said that the respective superintendents and police commissioners of various districts and commissionerates shall undertake programmes to spread awareness and build capacity vis-a-vis the aforementioned directions.

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