Chapter VI PROCEDURE

(1) A Magistrate of the first class or any Magistrate of the second class specially empowered by the Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, as for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence. (2) Any officer not below the rank of a gazetted officer of the departments of drug control, excise & narcotics, police or any other department of the Government as he is empowered in this behalf by general or special order of the Government if he has reason to believe from personal knowledge or information given by any person and taken down on writing that any person has committed an offence punishable under this Act or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or place authorize any officer subordinate to him but superior in rank to a peon, helper or a constable to arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorized the arrest or search or the officer who is so authorized under sub-section (2) shall have all the powers of an officer acting under Section 21.

(1) Any such officer (being an officer superior in rank to a peon, helper or constable) of the departments of drugs control, excise, police or any other department of the Government as is empowered in this behalf by general or special order of the Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize any drug or substance or any other article and any animal or conveyance which he has reason to believe to be liable for confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording, any opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Any officer of any of the departments mentioned in Section 21 may - (a) seize in any public place or in transit, any controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; (b) detain and search any person whom he has, reason to believe to have committed an offence punishable under this Act, and if such person has any controlled substance in his possession and such possession appear to him to be unlawful, arrest him and any other person in his company. Explanation: For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.

Any officer authorized under Section 21, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any controlled substance in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time stop such animal or conveyance and - (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon.

(1) When any officer duly authorized under Section 21 is about to search any person under the provisions of Section 20, Section 21 or Section 22, he shall, if possible, take such person to the nearest gazetted officer of any of the departments mentioned in Section 21 or to the nearest Magistrate. (2) When an officer duly authorized under Section 19 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (3) After a search is conducted under sub-section (2), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. (3) No female shall be searched by anyone except female.

Any officer arresting a person under Section 20, Section 21, or Section 22 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested or article seized under warrant issued under sub-section (1) of Section 20 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of Section 20, Section 21 or Section 22 shall be forwarded without unnecessary delay to - (a) the officer-in-charge of the nearest police station; (b) the officer empowered under Section 28. (4) The authority or officer to whom any person or article is forwarded under subsection (2) or sub-section (3) shall, take such measures as may be necessary for the disposal according to the existing laws in force.

The Government may, having regard to the nature of any drug or controlled substances, their vulnerability to theft, substitutions, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, may specify, as soon as may be after their seizure, be disposed by such officer and in such manner as the Government may, from time to time, determine after following the procedure hereinafter specified. (2) When any controlled substance have been seized and forwarded to the officer-incharge of the nearest police station or to the officer concerned under Section 28, the officer referred to in sub-section (1) shall prepare an inventory of such substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the controlled substances or the packing in which they are packed, the name of the manufacturer and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the controlled substance in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; (c) allowing to draw samples of such drugs and substances by the Drugs Inspector for analysis of the samples in a designated and approved testing laboratory. (3) Where an application is made under sub-section (2) the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of controlled substances, the list of samples drawn or the analytical reports thereof under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

The Government may, by notification published in the Official Gazette, invest any officer not below the rank of Inspector of the department of drugs control appointed under Section 21 of Drugs and Cosmetic Act, 1940, and officer not below the rank of Sub Inspector of Excise & Narcotics Department with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him.

All officers of the several departments mentioned in Section 21 shall, upon notice given or request made, be legally bound to assist each other in carrying out the provisions of this Act.

Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours of the arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.

(1) Any person empowered under Section 21 or Section 22, who - (a) without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place; (b) vexatiously or unnecessarily seizes the property of any person on the pretence of seizing or searching for any controlled substance or other article liable to be confiscated under this Act, or of seizing any document or other article liable to be seized under Section 21 or Section 22; or (c) vexatiously or unnecessarily detains, searches or arrests any person, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees, or with both. (2) Any person willfully or maliciously giving false information and so causing an arrest or search being made under this Act shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees, or with both.

(1) Any officer, on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall, unless he has obtained the written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment which may extend to six months or with fine not less than rupees five thousand or with both. (2) Any officer on whom any duty has been imposed by or under this Act or any person who has been given the custody of any addict or any other person who has been charged with an offence under this Act, and who willfully aids in, or connives at, the contravention of any provisions of this Act or any rule or order made there under, shall be punishable with rigorous imprisonment for a term which shall not be less than one year but which may extend to two years, and shall also be liable to fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees. (4) No court shall take cognizance of any offence under sub-section (1) or subsection (2) of this section, except on a complaint in writing made with the previous sanction of the Government.

Whenever any offence punishable under this Act in respect of controlled substances, articles, documents, etc. or animal or conveyance used in carrying controlled substances, shall be liable to confiscation.

Any goods used for concealing any controlled substance which is liable to confiscation under this Act shall also be liable to confiscation.

Whenever any controlled substance is sold by a person having knowledge or reason to believe that such substance is liable to confiscation under this Act, the sale proceeds thereof shall also be liable to confiscation.

(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under Section 33 or Section 34 or Section 35 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under Section 33 or Section 34 or Section 35, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim.

Any addict who is charged with an offence punishable under Section 9(b), voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution accredited as Treatment and Rehabilitation Centre by the Government and undergoes such treatment shall not be liable to prosecution under Section 9 (b): Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

Any officer referred to in Section 21 who is authorized in this behalf by the Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act - (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made there under; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.

No officer acting in exercise of powers vested to him under any provision of this Act or any rule or order made there under shall be compelled to say when, where and how he got any information as to the commission of any offence.