1.

Explain provisions relating to constitution, jurisdiction and procedure of the special court
and public prosecutor under the Maharashtra Control of Organized Crime act 1999
2. Elaborate on the provisions with reference to offences and penalties under Narcotic
Drugs and Psychotropic Substances Act 1985
3. Short Note
1. Appointment of Special Judges under the prevention of corruption Act 1988
2. Sanction for prosecution and Special Procedure under the prevention of Corruption
Act 1988
An Over View Of The Maharashtra Control Of
Organized Crime Act, 1999
Terrorist Have No Religion And Terrorism Has No Boundaries
Introduction The Primary Objective of an effective counter-terrorism is to safeguard
humans, strengthen democracy and upheld the Rule of Law. Terrorism has immensely
affected India. The Reasons for Terrorism in Indian may vary from religious to
geographical to caste and history.

The Supreme Court in Kartar Singh v/s State of Punjab has observed that the Country
has been in the firm grip of spiraling terrorist violence and is caught between deadly
pangs of disruptive Activities. The MCOCA was specifically enacted to deal with the
rising crime in Maharashtra and especially Mumbai due to underworld. This Article shall
give an overview of the Act.

What was the idea behind implementing the Maharashtra

Control of Organized Crime Act?
Organized crime is a category of transnational, national and local grouping of highly
centralized enterprises run by Criminals who tend to engage in illegal activity. Activities
that are planned and controlled by powerful enterprises on a large scale are called
organized crimes.

Syndicate and gangs practice organized crime as a profession. Unlawful activities like
terrorism, theft, prostitution, robbery, drug trafficking, human trafficking, forced labor
which are practiced collectively by group of people are called as organized crimes.

Organized crime is nowhere defined in Indian Penal Code. Due to lack any legislation on
organized crimes, and Mumbai being the economical capital of India it was a targeted
center for criminals to hoard money. So, need was felt by the State of Maharashtra to
enact a law dealing with organized crimes to curb the menace of syndicate and gangs.
Maharashtra is the first Indian state which implemented a consolidated law on organized
crimes.

What was Maharashtra Control of Organized Crime

Ordinance, 1999?
The 7th Schedule of Indian constitution empowers the State Government to make laws
in order to maintain public order and security of the state. Since, the menace of
organized crime in Maharashtra was increasing; an ordinance namely the Maharashtra
Control of Organized Crime Ordinance, 1999 was brought in by the Governor on 24th
February, 1999 since the Legislature was not in session.

It was necessary and expedient to replace the Ordinance by the Governor into an act by
the state legislature for effective implementation and adjudication of the offences
committed. The ordinance received President's assent on 23rd April 1999 (as per Article
254 of Indian Constitution) and it was published in the Official Gazette on 24th April
1999. The Act was deemed to be implemented from 24 February 1999 when the
ordinance was promulgated.

What is the jurisdiction of Maharashtra Control of Organized

Crime Act?
The Act initially applied to the whole state of Maharashtra and after the amendment in
2002, it extends to the National Capital Territory of Delhi.

What are the other states in India that have law on organized
crimes?
Uttar Pradesh, Karnataka, Haryana, Andhra Pradesh have special law in place dealing
with organized crimes.

What is organized crime?

As per Section 2(e) of the Act organized crime means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an organized crime syndicate or on
behalf of such syndicate, by use of violence or threat of violence or intimidation or
coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or
gaining undue economic or other advantage for himself or any person or promoting
insurgency;

To be precise the word 'organized' means the crime committed by a single person in a
planned way or with the help of other in an organized way. Organized crime syndicate
means a group of two or more persons who acting either as singly or collectively as a
syndicate of gangs indulge in organized crimes.

What is continuing unlawful activity mean?

As stated in the Act, continuing unlawful activity means an activity prohibited by law for
the time being in force, which is a cognizable offence punishable with imprisonment of
three years or more, undertaken either singly or jointly, as a member of an organized
crime syndicate or on behalf of such, syndicate in respect of which more than one
charge-sheets have been field before a competent Court in the preceding period of ten
years and that Court has taken cognizance of such offence. 'Continuing unlawful activity'
is a prerequisite condition to establish the offence of organized crime.

What is organized crime syndicate?

As defined in the Act, Organized crime syndicate means a group of two or more persons
who, acting either singly or collectively, as a syndicate of gang indulge in activities of
organized crime.

What is the punishment for the offender?

As per Section 3(1) of the Act, if a person commits the offence of organized crime and
that commission results into 'death of a person', such offender may be punished with a
death sentence or life imprisonment along with minimum fine of Rs.1 lakh. In any other
case the offender shall be punished for not less than five years and it may extend to life
imprisonment along with the fine of not less than Rs. 5 lakhs.

As per Section 20, when a person has been convicted under this Act, the Court along
with imprisonment and fine, may declare that of any movable or immovable property
belonged to the convict to be forfeited to the State Government.

What is the punishment for attempting or abetting the crime?

As per Section 3(2) of the Act, Whoever conspires to commit an organized crime or any
offence preparatory to the organized crime or abets the crime shall be punished with
imprisonment for not less than five years but may extend to imprisonment for life along
with a fine of not less than Rs. 5 lakhs.

The same punishment can be imposed on anybody who harbors or conceals or attempts
to harbor or conceal (Section 3(3)). The same punishment is levied on an individual if it
is proven that he is the member of organized crime (Section 3(4)).

The term abet?

As per Section 2(a) of the Act, Abet includes:

i. the communication or association with any person with the actual knowledge or
having reason to believe that such person is engaged in assisting in any manner,
 an organized crime syndicate;
�
ii. the passing on or publication of, without any lawful authority, any information likely
to assist the organized crime syndicate and the passing on or publication of or
distribution of any document or matter obtained from the organized crime
syndicate; and of the documents so obtained from the organized crime.

What is the punishment for an individual who possess

property obtained from organized crime?
Section 3(5) states that If anybody holds property obtained from the commission of
organized crime or which has been acquired from the syndicate funds shall be
imprisoned for not less than 3 years which can extend upto life along with the fine of not
less than 2 lakh rupees.

Illustration based on Section 3

1. A, a driver, is hired by H, one of the members of the crime syndicate to drive the
family members of H to the market to and fro. A is aware that H is the member of crime
syndicate but he never drove him to the gang nor helped him in commission of any
offence. One day H asked A to drive him to a bank. Unaware of the intention of the gang
members, A drove H to the bank. H killed a builder in the bank. What crime has A
committed?

Ans. A has not committed any crime because he did not have the knowledge that H
would murder the builder. Even though he knew the nature of crime committed by the
syndicate, he was not involved in the murder of the builder, his involvement was not
there. Hence, A is not liable under this Act.

What does the term member mean?

The term Member is nowhere defined in the Act. Membership is a floating concept. The
fact that an individual is associated with a particular gang for more than 2 to 3 years is
enough to establish that the said individual is the member of the particular gang.

Membership appears to be a concept which has been deliberately left open to

interpretation and anybody who is associated with a gang will be involved in. Therefore,
if a person is not actually associated with the organized crime he will not be punished.
But if a person is found to be associated with the gang as a way of providing any aid to
the gang will be punished as a member if his association as a member of organized
syndicate is established.
What are Special Courts?
As per Section 5 and Section 6 of the Act, provides for the appointment of Special
Courts. The Government may with the notification in the official Gazette constitute one
or more Special Courts in concurrence with the Chief Justice of Bombay High Court. Any
offence committed under this Act is triable by the Court within whose jurisdiction it was
committed or as notified by the State Government in the Official Gazette.

The power to decide the jurisdiction of the Special Courts lies with the State government
and any dispute arising thereof would be decided by the State Government. The
decision of State government on the said matter would be final and binding. Any Session
Judge cannot try the cases under MCOCA, only the judge appointed by the State
government specifically appointed for the said purpose will try the cases.

Powers of the Special Courts

Section 7 states that the Special Court has the power to try the accused charged under
this Act or any other law under the Code of Criminal Procedure, 1973 or any other
offence thereof connected to the same trial. If found guilty, the Court may punish as per
the provisions of this Act or any other law as the case maybe.

What are the powers and procedure to be followed by the

Special Courts?
Section 9 states that a Special Court may take cognizance of an offence even without
the accused being committed into trial, upon receiving complain based on reliable facts
where the punishment for offence is not more than 3 years or fine or both. The
provisions in section 263 to Section 265 of the Code of Criminal Procedure, 1973 shall
apply to such trial. The Special Court, if otherwise mentioned in any law, has the power
to try the offence as that of the Sessions Court and shall try as if it were a Sessions
Court and the procedure to be followed in the trial will be as prescribed in the Code of
Criminal Procedure for the trial in Court of Sessions.

Section 10 states that Trial of any offence under the Special Court will have the
precedence against the accused in any other court not being the Special Court. Hence,
the trial of the accused in the Special Court would be prioritized over the case in any
other courts.

Appeals against judgment passed by Special Court?

Section 12 states any appeal relating to any sentence, judgment or order from the
Special Court lies with the High Court. An appeal has to be made within thirty days of
any sentence, judgment or order delivered. However, no appeal can be made for
Interlocutory order.

Whether the case can be transferred from Special Court to

Regular Court?
Section 11 states that after taking cognizance of the offence, if the Special Court is of
the opinion that it does not have the jurisdiction to the try the offence under the Code of
Criminal Procedure, then the court may transfer the case to any other court which has
jurisdiction to try the case.

What are the facts that Court has to take into account?
For the purpose of trial under this Act, the Court may take into consideration the fact that
on any previous occasion the accused was bound under Section 107 or Section 110 of
the Code of Criminal Procedure; detained under any law relating to punitive detention;
on previous occasion was prosecuted in Special Court under this Act.

When a person involved in the organized crime or acts in behalf or is in possession of

any movable or immovable property which he could not satisfactorily account for, the
Court may presume that such activity or such possession of property have been
acquired by illegal means. Where it is proved that the accused had kidnapped or
abducted that person, it shall be presumed that it was for ransom. This section is
contrary to the legal principle of innocent until proven guilty.

Who is a Public Prosecutor?

As per Section 8 of the Act, for every Special Court, State Government may appoint a
public prosecutor. For any advocate to be eligible to become Public Prosecutor or
Additional Public Prosecutor or Special Public Prosecutor is that he should be a
practicing advocate who has an experience of not less than ten years. Only the
prosecutor appointed by the State government has the authority to take up the matters
of MCOCA and not any other prosecutor.

Protection of Witnesses Section 19- There is also a provision for In Camera

proceedings if the Special Court so desires for keeping the identity and address of any
witness a secret. Name, address has to be kept secret during the trial and after the trial.
This section contains provision for protection of witness involved in the trial.
What is the procedure to be followed by the police while
investigating the offence of organized crime?
 Section 23 - Cognizance of, and investigation into, an offence:
No information of the commission of the offence under this Act would be recorded
by the police officer without the approval of the police officer not below the rank of
Deputy General of Police. The investigation of the offence shall be carried out by
an officer not below the rank of Deputy Superintendent of Police. The Special
Court can take cognizance of the offence only with the sanction of police officer
not below the rank of Additional Director General of Police.
�
 Section 13- Appointment of Competent Authority:
The State Government may appoint any officer of the Home Department, not
below the rank of Secretary to the Government to be the Competent Authority for
the purpose of authorizing interception of wire, electronic or oral communications.
�
 Section 14 - Authorization of interception of wire, electronic or oral communication:
The competent Authority after the written application received from the Supervising
officer of the investigation, who is not below the rank of Superintendent of Police
may order to approve the usage of interception of wire, electronic or oral
communications when such usage may provide evidence for the offence organized
crime. The application should contain all the details and information as mentioned
in the Act.

 Section 15 - Constitution of Review Committee for review of authorization of

orders:
This section has provision for the constitution of the Review Committee. Every
order passed by the Competent Authority shall be reviewed by the Review
Committee. The Committee will consist of 1 Chairman (ex officio) and 2 Members
(ex officio). The Chairman of the Committee will be the Chief Secretary to the
State. The two members will be Additional Chief Secretary or the senior most
Chief Secretary in Home Department and Principal Secretary or Secretary and
Remembrance of Legal Affairs.

The Review Committee within ten days of the receipt of the order should decide to
approve or reject the order passed by the Competent Authority. If the order is
rejected when the order authorizing interception of wire has been passed by the
Competent Authority, the interception if commenced shall be discontinued
forthwith and any information received so far will not be admissible as evidence.
  Section 16- Interception and disclosure of wire, electronic or oral communications
prohibited: If any police officer as otherwise mentioned in Section 14 intercepts or
endeavors to intercept may be punishable with imprisonment which may extend to
one year along with fine up to Rs. Fifty Thousand.
�
 What is Annual Report of Interceptions?
An Annual Report containing the details of:

i. The number of applications for the authorization of interceptions received by

the Competent Authority from the police department in which the
prosecutions have been launched.
ii. The applications which have been accepted and rejected.
iii. The number of interceptions carried out on emergency situations and the ex
post facto approvals or rejections granted in such matters shall be submitted
to the State Government.
iv. The State Government shall lay such report in both the Houses of
Legislature within three months of the completion of every calendar year.
The State Government may not include details of some matters which it
believes may pose threat to the Security of the State.

What is the procedure for recording the confession by the

police?
Even though there are provisions for recording confession in Code of Criminal
Procedure and Indian Evidence Act, this Act provides for recording confession by the
police. The statement recorded by police under this Act, not below the rank of
Superintendent of Police, is admissible in Court.

The police officer has to put in some questions which are not based on the merit of the
offence and give him some time to think if he still wants to make confession. The
individual is made aware that he need not confess, made aware of the consequence of
his confession after that he is removed from the custody of investigating officer and
taken to the police officer of higher rank to record the statement.

Any confession made by an individual in front of the police officer not below the rank of
Superintendent of Police in written form or any other form shall be admissible in the trial
of such a person or co-accused, abettor or conspirator. Provided that all three of them
are charged with the same offence as the accused.

Every confession recorded has to forthwith send to the Metropolitan Magistrate or Chief
Judicial Magistrate having the jurisdiction over the area where the confession has been
recorded. The person who made the confession should also be produced before the
Magistrate. The Magistrate shall then send the confession to the Special Court which
may take cognizance of the offence.

What are other modified application of provisions made to the

Act?
Every offence under this Act is a cognizable offence. Section 167 of Code of Criminal
Procedure may apply to the offences committed under this Act and are subject to
modifications. The 'fifteen days' and 'sixty days' wherever they occur will be construed
as thirty days and ninety days respectively.

The following proviso will be inserted after the provision as mentioned in the Code of
Criminal Procedure:
Provided further that if it is not possible to complete the investigation within the said
period of ninety days, the Special Court shall extend the said period up to one hundred
and eighty days, on the report of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the accused beyond the said
period of ninety days.

Section 438 of Code of Criminal Procedure will not apply to any case involving the arrest
of any person for the offence committed under this Act. The accused while in custody
cannot be released on bail or bond unless the Public Prosecutor has been given an
opportunity to oppose the application and when the Public Prosecutor opposes the
application but the Court is satisfied that there are reasonable grounds to believe he
may have not committed the offence and that he is not likely to commit an offence while
on bail. The Accused shall be entitled to apply for bail only on completion of the
investigation.

What is the presumption of offences committed under Section

3?
This section is similar to section 17 of the Act. When any unlawful arms or other
materials are recovered from the possession of the accused and that there are reasons
to believe that such arms and material were used in the offence or if the fingerprints of
the accused were found in the sight of offence or any material related to the commission
of the offence, unless contrary is proved, the Special Court will presume the offence to
have been committed by the accused. If anyone abets or facilitates the offence or
provides any financial assistance for the same, unless contrary is proved, the Special
Court shall presume that the offence is committed by such person.
What is the punishment for the public servants failing to
discharge their duties?
If a public servant renders any help in the commission of the offence whether before or
after the offence is committed or abstains from taking any legal action which he is
empowered to or intentionally avoids to carry out the directions of the Court or any
Superior Officer shall be punished with the imprisonment which may extend to three
years along with a fine.

What is the protection provided to the State Government and

public servants for the acts done in good faith?
No suit, prosecution or any legal proceeding will be initiated against the State
Government or any officer of the State Government for the acts done in good faith in
pursuance of the Act or through any rule or order issued under the Act.

Does High Court have the powers to make rules?

The High Court, may by notification in the Official Gazette make rules to alter or modify
the provisions of this Act relating to Special Courts.

What are the powers of State government for making the

rules?
The State Government may make rules for carrying out the purpose of this Act. Every
rule which is made under this Act shall be laid down before each House of the
Legislature, if both Houses agree with the modification, such modification will come into
effect and shall be notified in the Official Gazette. If both Houses disagree to the new
rule made, such modification will not come into effect.

Case laws:
1.State vs Satya Parkash (Cri.M.C 2138/2010)
Facts: The respondent started his criminal activity a while back in the year 1998
and in the earlier period of his criminal life, several cases of snatching and robbery
were registered against him. On 30.04.2008, respondent along with three other
associates were apprehended by the UP police and one country made pistol, two
live cartridges, 100 Grams heroine and looted property were recovered from his
possession and his associates.
 It is further alleged that in furtherance of his activities, the respondent along with
his associates committed heinous crimes in the area of UP with intention to gain
pecuniary benefits and on these allegations the aforesaid FIRs under the
provisions of MCOC Act was registered as the respondent was being financed by
some unknown sources.

Judgment by the Sessions Court: The MCOC Act provides for modified application
for certain provisions of the Cr. P. C. It neither modifies Section 300 Cr. P. C. nor
makes it inapplicable to trial against MCOC Act. The settled law that the provisions
of MCOC Act are to be strictly construed. Thus, Section 300 Cr. P. C. cannot be
violated in the absence of any expression provision in MCOC Act.

1. The Trial Court has granted bail on following grounds:

a. That the sanction dated 16.01.2009 was given only on the basis of six cases; out of which
three cases are under Section 25 Arms Act registered in the various police stations in the
territory of Delhi and remaining three cases are registered in the State of UP on other
provisions of rovisions of IPC read with Arms Act etc.
�
b. In most of the cases shown in the charge-sheet either the respondent is acquitted or
convicted or is being tried separately.
�
c. No proof of pecuniary benefit, pecuniary gain or pecuniary advantages or any unlawful
advantages are brought on record by the prosecution due to the direct effect of the cases
allegedly registered against the respondent.

Judgment by Delhi High Court: The order by the Sessions Court was challenged in the High
Court by the prosecution. The High Court took into the account the observations made by the
Sessions Court stated that it cannot be said that respondent has no reasonable or probable
defense, he is not likely to commit any offence, in case he may be released on bail. Giving any
opinion on the facts of the case at this stage would prejudice the trial as the matter is still in its
infancy.

However, it is well settled that once bail is granted the same should not be cancelled in a
mechanical manner, without considering whether any supervening circumstances have rendered
it no longer conducive to a fair trial, to allow the accused, to retain his freedom by enjoying the
concession of bail during trial. The order granting of bail by trial court was upheld by Delhi High
Court.

Dinesh Bhondulal Baisware vs State Of Maharashtra

(CRIMINAL APPLICATION (BA) No.424 OF 2016)
Facts of the Case: The accused along with four other accused persons, being a member of an
organized crime syndicate, was a part of the group, which took active part in carrying out a
dangerous assault upon the complainant Amol Mehar on 29.5.2015. Amol Mehar, however,
managed to escape, though he suffered grievous injuries to his person. On the basis of
complaint, offences punishable under Sections 307, 143, 144, 147, 148, 294 and 427 read with
Section 149 of the Indian Penal Code and also Sections 3,4,25 and 27 of the Indian Arms Act
were initially registered.

Charge sheets were already filed against said crime syndicate headed by Gijrya Lonare. As the
applicant was a part of the syndicate, permission was granted by the competent authority for
proceeding against all the members of the organized crime syndicate including the applicant
under the provisions of the Maharashtra Control of Organized Crime Act, 1999 (in short, MCOC
Act). Accordingly, offence punishable under Section 3(4) of the MCOC Act was additionally
registered against the applicant and other members of the crime syndicate. The accused applied
for bail in the court of High Court as the sessions court rejected his application.

Judgment by the High Court: The Court observed that this is not a case wherein it could be
prima facie said that the applicant did not play any role in the assault that was made upon the
complainant on 28.5.2015. It is seen from the statements of the witnesses that the applicant was
carrying a sword in his hand, when he got down from Maruti Omni and that he ran after one of
the witnesses carrying sword in the hand. Then, there is also a prima facie material showing that
at least two charge-sheets were filed against the crime syndicate headed by the main accused
Virendra alias Gijrya Lonare.

This would make it clear to us that at least two of the parameters prescribed under Section 21(4)
of the MCOC Act, i.e. existence of prima facie evidence showing involvement of the applicant in
the offence registered under Section 3 of the MCOC Act and two charge-sheets having been
filed are met in this case. This is because, as stated earlier, charge-sheets have been filed
against two co-accused, who have been alleged to be members of the crime syndicate, with one
of them alleged to be the leader.

The Court observed that this is not a case wherein it could be prima facie said that this applicant
did not play any role in the assault that was made upon the complainant. But, there is yet
another criterion, criterion of possibility of commission of offence under the MCOC Act, which
must be shown to be satisfied by the prosecution so as to disentitle the applicant from the relief
sought by him. Although, for being a member of the organized crime syndicate, it is not
necessary that the accused must be convicted in the charge-sheets previously filed, as held in
the case of Anil Murlidhar Deshmukh, presence of nexus between those offences and activities
of crime syndicate, however, would be relevant for determining whether the accused is likely to
indulge in commission of the crime under the MCOC Act.

The charge-sheets that were previously filed against the present applicant were characterized
by individuality and it is seen from the crime chart appended to the present charge-sheet that in
those charge-sheets, no other person or none of the co-accused of the applicant was made
accused person. Therefore, it would have to be said that so far as the present applicant is
concerned, there is no record or no material available on record giving rise to a possibility of the
applicant indulging in an offence under the MCOC Act in a reasonable manner. Thus, the criteria
necessary for denying relief of bail to the applicant in such a case is absent in this case and,
therefore, the applicant would be entitled to be released on bail.
Elaborate on the provisions with reference to offences and penalties under
Narcotic Drugs and Psychotropic Substances Act 1985
Offences and punishments under the Narcotic Drugs and Psychotropic Substances
Act, 1985

Introduction
The Narcotic Drugs and Psychotropic Substances Act, 1985 is a central
legislation to regulate production, consumption and transportation of such
harmful substances as specified under the Act. It was enacted with the view
to direct the population away from the illicit substances that are capable of
hampering the physical well-being of an individual.

It extends to the whole of India, along with areas outside India to all citizens
beyond the territorial jurisdiction of the country or individuals on ships or
aircrafts registered in India. The legislation has provided exhaustive
definitions of all the important terms under the scope of the Act. It has laid
emphasis on the Central Government’s authority over the provisions of the
Act and how much powers they possess to enforce the legislation.

Offences and punishments under the Act

Chapter IV, that is from Section 15 to 40, provides for various offences and
punishments under the Act. It has identified certain activities that are against
the acceptable social norms which have been included in the category of
offences in the Act. These activities are forbidden by law due to the effect it
causes to the physical health of an individual. These substances have the
potential to damage the mental abilities of an individual as well. Even if it
relieves the person of any suffering for a short while, its side effects are on
the display in the long run.

Poppy straw
Section 15 of the Act provides for the act of production, possession,
transportation, selling, purchasing or any other involvement that shall lead to
an offence under the provisions of this Section. The punishments have been
decided on the basis of the quantity of poppy straw involved in the whole
transaction.
Small quantity of poppy straw may lead up to one year of rigorous
imprisonment, or with fine, extending up to ten thousand rupees, or both. A
quantity which is greater than the small quantity but fewer than the
commercial quantity shall invite rigorous imprisonment up to ten years and a
fine up to one lakh rupees. In case of a transaction involving a commercial
quantity of poppy straw, the punishment includes rigorous imprisonment for
a term not less than ten years and extendable up to twenty years along with
a fine, not less than one lakh rupees but can be up to two lakh rupees.

Coca plant and leaves

Section 16 of the Act provides for the provisions in contravention of the rules
made under the Act regarding the cultivation, production, possession, selling,
purchasing, transportation and any other activity with respect to the violation
of the provisions this Act. The punishment for the offence under the Section
includes rigorous imprisonment up to a term of ten years along with a fine
extending up to one lakh rupees.

Prepared opium
Section 17 of the Act provides for the provisions dealing with activities in
violation of the Act with respect to prepared opium. This Section bars the
process of manufacturing, possession, selling, purchasing, transportation or
usage of prepared opium. It has been identified as a substance with the
capacity to harm an individual, physically or mentally with its ingredients.
The punishments for either of the restricted activities carried out by an
individual are similar to that of poppy straw, listed under Section 15.

Opium poppy and opium

Section 18 of the Act provides for the process of manufacturing, purchasing,
production, possession, transportation or selling of opium poppy and opium
as an act being in contravention of the provisions under this Act. The
punishments for the violation under this Section is similar as to the
punishments provided under Section 15 or 17.

Embezzlement of opium
Section 19 of the Act provides for an act identified as embezzlement of
opium, which is in violation of the provisions under the Act and hence, an
offence characterized under Chapter IV. Any person who embezzles, himself
or involved in the activity, or otherwise illegally disposes off the opium shall
be held liable under this Section. The punishment for this offence includes
rigorous imprisonment of a term not less than ten years with an extension of
up to twenty years along with a fine, not being less than one lakh rupees but
can be increased up to two lakh rupees.

Cannabis plant and cannabis

Section 20 of the Act provides for the offence relating to the process of
cultivation, production, manufacturing, possession, selling, purchasing or
transportation of cannabis plant and cannabis. In case a person is caught
cultivating cannabis, he/she stands punishable with rigorous imprisonment of
a term extending up to ten years along with a fine which can be up to one
lakh rupees. For any other act other than cultivation, the punishments are
divided on the intensity/quantity of the object. The three punishments
included in all the other Sections are followed in this Section as well.

Manufactured drugs and preparations

Section 21 of the Act provides for an offence of manufacturing, possession,
selling, purchasing, transportation, or usage of any manufactured drug or its
preparation as an act in contravention of the provisions under the Act. The
punishments under this Section is similar to the three-tier punishment
system listed under other Sections of this Act.

Psychotropic substances
Section 22 of the Act provides for any act or rule in relation to the process of
manufacturing, transportation, selling, purchasing, possession or usage of
psychotropic drugs may lead to an offence according to this Section. The
punishments under this Section is again similar to the three punishments
system followed for other offences under the Act.
Transhipment of narcotic drugs and psychotropic
substances
Section 23 of the Act provides for import to India or export from India of any
illegal drug specified under the Act. The transhipment of narcotic drugs and
psychotropic substances are restricted under the legal parlance under the
scope of this Act. The punishments for the offence includes the similar three-
tier punishment system followed everywhere under the Act.

External dealings
Section 24 of the Act provides for the act of external dealings in narcotic
drugs and psychotropic substances outside India to other individuals residing
in a territory which is beyond the boundaries of India. It is an offence under
this Section. The punishment for this offence includes rigorous imprisonment
of a term not less than ten years, extending up to twenty years along with a
fine, not less than one lakh rupees and can be increased to two lakh rupees.

Allowing premises for the commission of an offence

Section 25 of the Act provides for a situation wherein an individual allows his
premises to be used for the commission of any offence stated under the Act.
The person must knowingly allow the offender for this Section to apply.

Acts by a licensee or his servants

Section 26 of the Act provides for acts by a licensee or his servants in
furtherance to them being in contravention with the provisions of the Act. If
a person, with licence or an agent/servant employed by him:

1. omits, without any reasonable cause, to maintain accounts; or

2. fails to produce without any reasonable cause such licence, permit or
authorisation on demand; or
3. keeps accounts or makes statements which are false or he knows it to
be false; and
 4. wilfully or knowingly does any act in violation of the conditions of the
licence. The punishment for the offence includes imprisonment for a
term up to three years or with fine, or both.

Consumption of narcotic drugs or psychotropic

substances
Section 27 of the Act provides for the act of consuming any narcotic drugs or
psychotropic substances which is an offence for the purpose of the Act. Any
person consuming substances such as morphine, cocaine, diacetyl-morphine
and any other drug later specified as one by the central government under a
notification shall lead to rigorous imprisonment for a term extending up to
one year or fine up to twenty thousand rupees, or both.

Any narcotic drug or a psychotropic substance, other than those included in

the list, shall lead to imprisonment up to six months or fine up to ten
thousand rupees, or both.

Financing illicit trafficking and harbouring offenders

Section 27A of the Act provides for the offence of financing illicit trafficking
and harbouring offenders in contravention of the provisions of the Act. Any
person, financing or harbouring, directly or indirectly, any illicit acts of
trafficking, may arise criminal liability against himself. The punishment for
the offence shall be imprisonment of not less than ten years but extending
up to twenty years and a fine of not less than one lakh rupees which can be
increased up to two lakh rupees.

An overview of key offences and punishments

The quantum of punishment under the NDPS Act is based on the quantity of
drugs found which may be classified into 3 categories: small, less than
commercial and commercial. As a result, the punishment may be as low as
rigorous imprisonment for one year if the drugs found are in small quantity
and as high as 20 years imprisonment for a large quantity of drugs. The
amount of small and commercial quantity is specified by the Central
Government. The quantity for some common drugs is as follows:
A. Amphetamine: small quantity – 2 grams, commercial quantity – 50
grams.
B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.
C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.
D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.
E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.
F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.
G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg.

Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or
cannabis plants as well as the production, manufacture, distribution including
warehousing, transport, purchasing and selling of prohibited drugs and
psychotropic substances. It also prohibits their financing as well as
consumption and harboring offenders guilty under the Act.

As per Sec. 19, any farmer who cultivates opium in accordance with a license
but embezzles it shall be punished with rigorous imprisonment for a term
ranging between 10 and 20 years and shall also be liable to pay a fine
ranging between Rs. 1 and 2 lakh rupees. The production, manufacture,
possession, sale, purchase, transport, import and export among states or use
of narcotic drugs and psychotropic substances such as poppy straw, prepared
opium, opium poppy, cannabis, etc shall result in:

a. In case of small quantity, rigorous imprisonment up to one year with/

without fine up to Rs. 10,000;
b. In case the quantity is between small and commercial, rigorous
imprisonment up to 10 years and fine up to Rs. 1 lakh; and
c. In cases involving commercial quantity, rigorous imprisonment between
10-20 years and fine ranging between Rs. 1 and 2 lakh rupees.

However, if the contravention pertains to ganja, the punishment would be

significantly less i.e. rigorous imprisonment for a term which may extend up
to 5 years and fine up to Rs. 50,000. In all the aforementioned cases, the
court can increase the fine by recording the reasons for the same in the
judgment.

As per Sec. 23, any person who engages in illegal import/ export/
transshipment of narcotic drugs/psychotropic substances shall have to face
punishment ranging between rigorous imprisonment for 1 to 20 years and
fine ranging between Rs. 10,000 and Rs. 2 lakh based on the quantity of the
prohibited substance.

Sec. 24 clearly states that any person who engages in external dealings in
contravention of the Act shall be punished with rigorous imprisonment
ranging between 10-20 years and fine ranging between 1-2 lakh rupees. Any
person who knowingly allows his premises to be used for the commission of
any offence under the Act shall be punished with rigorous imprisonment
ranging between 10-20 years and fine ranging between 1 and 2 lakh rupees.
Any person financing illicit traffic or harboring an offender shall also face the
same punishment.

In case a person consumes a narcotic drug or psychotropic substance; the

punishment would vary depending on the substance consumed. If the
substance consumed is cocaine, morphine or diacetyl-morphine, then the
punishment would be rigorous imprisonment up to 1 year with or without
fine up to Rs. 20,000. If the accused consumes any other substance, he
would have to face rigorous imprisonment up to six months with or without
fine up to Rs. 10,000.

The court is empowered to send any person who is imprisoned for

consumption of drugs to an appropriate medical centre for seeking necessary
treatment. Agencies seizing the drugs are required to destroy them suitably
in the prescribed manner. In addition, if the accused is found to have any
illegal property, it shall be forfeited to the central government. The proceeds
from the sale of such illegally acquired properties shall be pooled into the
National Fund for Control of Drug Abuse in order to facilitate the treatment of
drug addicts and to promote initiatives for drug control.

Conclusion
The Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with
the objective of controlling and regulating the transportation, usage and/or
consumption of these illicit substances. The purpose for which the Act was
enacted has been achieved in its implementation process. The central
government along with the respective state governments have been
successful in introducing rules in relation to the Act to increase its positive
effect on the society. The offenders identified under the Act have also been
provided with a chance of fair trial while following the principles of natural
justice. The right to appeal has also been provided against the decision of the
Tribunals.
Short Note
Appointment of Special Judges under the prevention of corruption Act 1988
The Central and the State Government is empowered to appoint Special Judges by placing a
Notification in the Official Gazette, to try the following offences: Any offence punishable under this
Act. Any conspiracy to commit or any attempt to commit or any abetment of any of the offences
specified under the Act.
Procedure and powers of special Judge is set forth in Section 5. A special Judge may
pass upon any person convicted by him any sentence authorised by law for the
punishment of the offence of which such person is convicted.

Power To Appoint Special Judges:

The Central and the State Government is empowered to appoint Special Judges by placing a
Notification in the Official Gazette, to try the following offences:
· Any offence punishable under this Act.
· Any conspiracy to commit or any attempt to commit or any abetment of any of the
offences specified under the Act.
The qualification for the Special Judge is that he should be or should have been a Session
Judge or an Additional Session Judge or Assistant Session Judge under the Code of
Criminal Procedure, 1973

Section 5 in The Prevention of Corruption Act, 1988

Procedure and powers of special Judge.—
(1) A special Judge may take cognizance of offences without the accused being committed to
him for trial and, in trying the accused persons, shall follow the procedure prescribed by the
Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the
Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have
been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such
person on condition of his making a full and true disclosure of the whole circumstances
within his knowledge relating to the offence and to every other person concerned, whether
as principal or abettor, in the commission thereof and any pardon so tendered shall, for the
purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973
(2 of 1974), be deemed to have been tendered under section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this
Act, apply to the proceedings before a special Judge; and for purposes of the said
provisions, the Court of the special Judge shall be deemed to be a Court of Session and the
person conducting a prosecution before a special Judge shall be deemed to be a public
prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in sub-
section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973
(2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for
the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by
law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the
powers and functions exercisable by a District Judge under the Criminal Law Amendment
Ordinance, 1944 (Ord. 38 of 1944).
Power to appoint special Judges.—
(1) The Central Government or the State Government may, by notification in the Official Gazette,
appoint as many special Judges as may be necessary for such area or areas or for such case
or group of cases as may be specified in the notification to try the following offences,
namely:—
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences
specified in clause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is
or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions
Judge under the Code of Criminal Procedure, 1973 (2 of 1974).

The following are the powers of the Special Judge:

He may take cognizance of the offences without the accussed being commissioned to him
for trial. In trying the accussed persons, shall follow the procedure prescribed by the Cr.P.C.
for the trial of warrant cases by Magistrate. he may with a view to obtain the evidence of
any person supposed to have been directly or indirectly concered in or privy to an offence,
tender pardon to such person provided that he would make full and true disclosure of the
whole circumstances within his knowledge or in respect to any person related to the
offence.

Except as for S. 2(1), the provisions of Cr.P.C. shall apply to the proceedings before a
Special Judge. Hence, the court of the Special Judge shall be deemed to be a Court of
Session and the person conducting a prosecution before a Special Judge shall be deemed to
be a public prosecutor.
Sanction for prosecution and Special Procedure under the prevention of
Corruption Act 1988

Central Government Act

Section 19 in The Prevention of Corruption Act, 1988
19. Previous sanction necessary for prosecution.—
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant, except with the previous sanction,—
(a) in the case of a person who is employed in connection with the affairs of the Union and is
not removable from his office save by or with the sanction of the Central Government, of
that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not
removable from his office save by or with the sanction of the State Government, of that
Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by the Central Government or the State
Government or any other authority, such sanction shall be given by that Government or
authority which would have been competent to remove the public servant from his office at
the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
—
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-section (1), unless in the
opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or
irregularity in the sanction granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall
exercise the powers of revision in relation to any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or
irregularity in, such sanction has occasioned or resulted in a failure of justice the court
shall have regard to the fact whether the objection could and should have been raised at
any earlier stage in the proceedings. Explanation.—For the purposes of this section,—
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the
prosecution shall be at the instance of a specified authority or with the sanction of a
specified person or any requirement of a similar nature.

Sanction, when required under Section 19 Prevention of Corruption Act and when under
Sec. 197 of Code of Criminal procedure(Cr.P.C.): Central or a State Government is
necessary for the prosecution of a public servant not removable from his office save with
the permission of the Government1. No sanction is required under this section to prosecute
a public servant removable by an authority lower than the Government. Sanction is
required of the competent authority whether the public servant2 is removable by the
Government or by an authority lower than the Government3. Sanction is not required
under Section 19 of the P.C. Act, if the public servant is no longer in service at the time the
Court takes cognizance of the offence, but is required under Section 197 Cr.P.C. even
where the public servant is no longer in service at the time the Court takes cognizance of
the offence. Under Section 19 of the P.C. Act, sanction for prosecution is required for an
offence punishable under Sections 7, 10, 11, 13, 15 of the Act, while under Section 197(1)
Cr.P.C. sanction is required for an offence committed while acting or purporting to act in
the discharge of his official duty, and not otherwise.