Videography Mandatory In NDPS Cases: Calcutta HC

The Calcutta High Court, composed of Justices Joymalya Bagchi and Ananya Bandyopadhyay, recently issued an order mandating that officers seizing narcotics must ensure that the entire seizure procedure is videotaped, as the NDPS's draconian provisions are occasionally abused. (Kalu Sk. v. State)

The order also stipulated that if officers do not record the procedure on video, they must provide an explanation in the investigation file.

The court was hearing a case in which the investigating agency committed grave errors during the recovery of controlled substances pursuant to the NDPS Act.

Several cases, including the current one involving the recovery of narcotic substances under the N.D.P.S. Act, have exhibited disturbing characteristics. To begin with, the seizure list lacked the signatures of all the alleged suspects who were arrested close to the site of the recovery.

Second, the presence of independent witnesses at the time of the seizure appeared dubious, as these witnesses did not support the seizure in their statements to the magistrate pursuant to Section 164 of the Code of Criminal Procedure.

This court was compelled to issue directives to the Superintendent of Police of the Murshidabad Police District to take action in the matter, including the initiation of disciplinary proceedings/suspension of police officers involved in the investigation of the case.

The court stated, "The observations made in Shafhi Mohammad, as well as the guidelines in the Narcotics Control Bureau's Field Officers' Handbook, support our position regarding the NDPS Act's mandatory videotaping of recovery proceedings. Seizing officers now commonly have access to equipment such as smartphones and other electronic devices that enable videography due to the significant advancements in technology. A lack of technology or awareness is therefore irrelevant."

The Court also acknowledged that the NDPS Act gives investigating officers broad search, seizure, and arrest powers, and that the Court's ability to grant bail is limited by Section 37's stringent restrictions, especially in cases involving commercial quantities.

The Court stated, "While a strict law is necessary to control organised crime such as drug trafficking and to protect youth from the dangers of drug abuse, its draconian provisions are sometimes abused by investigating agencies, resulting in false accusations and prolonged unjustified detention of individuals."

The majority of N.D.P.S. Act cases involve the recovery of controlled substances from the accused. The prosecution centres on the legality of this recovery. In such cases, the prosecution primarily relies on the testimony of official witnesses, particularly seizing officers, to prove the lawful recovery of contraband. In the majority of cases like this, independent witnesses are either not called or turn hostile. There could be a variety of reasons for this, ranging from false accusations to astute defendants manipulating witnesses.

In order to ensure that the "unvarnished truth" is presented to it during adjudication, the Court has issued the following directives:

In all instances involving the recovery of narcotic substances, particularly those in excess of commercial quantities, seizing officers must record the entire procedure on video unless they are unable to do so for reasons beyond their control.

In the investigation records, particularly contemporaneous documents such as the seizure/inventory list, the reasons for failing to videotape the recovery proceeding must be recorded in detail.

A Superior Police Officer with no less than the rank of Additional Superintendent of Police shall monitor the recovery of narcotic substances in excess of commercial quantities within their territorial jurisdiction and ensure compliance with statutory provisions regarding search and seizure, including compliance with Directives I and (ii) relating to videography of recovery and/or recording of adequate reasons for deviation from such procedure.

Noncompliance with directives I and (ii) regarding videography of recovery and/or failure to record just reasons for noncompliance in contemporaneous documents would subject the seizing officer to departmental proceedings.

The Director General of the Police shall issue the necessary directives to ensure compliance with the above directives.

The Superintendent of Police/Commissioner of Police in each district/commissionerate shall conduct training programmes to raise awareness and capacity among officers regarding statutory requirements in the matter of narcotic substance search and seizure under the NDPS Act, as well as compliance with the directives pertaining to videograph of recovery, including collection, preservation, and production of such electronic evidence in court.

The Court reaffirmed that all Central agencies authorised by the NDPS Act to search for and seize narcotics are subject to the aforementioned requirement of documenting recovery procedures.

"Accordingly, it is proposed that directives Nos. I(i) shall apply to all seizing officers of Central agencies authorised to search for and seize narcotics under the NDPS Act," the Court stated. "Directives (ii) apply to the head of the department of the concerned Central agency, while Directives (iii) apply to all superior officers of said agency who are not below the rank prescribed for the head of the department."

D.D:26-06-2022

Kalu Sk. versus. State