 judge of Karnataka High Court came that day it was also first and today also it's first and as they say that if you have something common and his the way sessions are doing well on the previous one we expect that it will continue to remain one of the fastest moving sessions because the way he takes insights of a particular topic is always party and it gives the insights which anybody can understand in fact it is one of the rare webinars where normally I got messages to the effect that they had heard this miss webinars time and again with the ease with the cheesebook now the third seizure and arrest are important aspects under the NDPS Act though in other criminal jurisprudence also it plays its important aspects and section 41 42 43 and 50 also are the important aspects as such which one would like to understand and coming from a speaker who is not only known through his judgments but is erudite speaking of things and hammering the point at the say hitting the nail at the top of the head it's one of his art which is Michael Kunahan he was quite busy taking sessions with the Karnataka judicial academy we continue to persuade because we kept on receiving the messages that we should call this is going on and as they say before the Gandhi said the most peaceful way is the best way to persuade somebody and eventually he just is going to accept it and it's that is all in the lighter way and he has always that important flip to give the knowledge and today we are partners with Rukram and associates in this webinar I will ask Mr. Rukram give just a brief point and in the end we will have his conclusions from him over to you Rukram evening everybody because I think you have not left any single point for me to mention here and I wouldn't take much time because I don't want to come midway and people are said to listen to his lordship so once again on behalf of Beyond Law CLC and my personal behalf I extend a very warm welcome to his lordship over to your lordships yes so thank you Mr. Vikas and Mr. Thiru Vikram I think straight away getting to the subject we are going to discuss I think only four sections out of the total 83 sections contained in the NDPS Act and all these provisions are procedural in nature I think the general understanding within the advocates or with the judges I think that procedure is only a handmade of justice so even if there is any violation in the in complying with the requirements of the procedures I think that may not affect the substantial substantive rights of the parties unless of course the accused is prejudiced thereby or any miscarriage of justice is caused I think that is the general impression but when it comes to the NDPS Act I would say that better not we carry this impression I think as all of you may be knowing the scheme of the act see the unlike the traditional crimes say like murder theft assault etc NDPS Act deals with a special species of the offenses and that too of recent origin what we call it white collar crimes or the socio-economic crimes affecting the public at large and moreover these crimes are committed by organized gangs well equipped with all modern gadgets or modern technology I think the ingenious way they operate or the committees offenses it far surpasses the expertise or the acumen of our law enforcing agencies I think of late I think on the 29th itself you might have read in the newspaper that four foreign nationals were apprehended where they were involved in growing hydroganja in the villa where they were staying and that too for the new states using LED lights heaters and temperature regulators you can imagine how far and why in what sophisticated manner these offenses are committed and added to that if you see that even the law commission in its 155th report has observed that there is generally nexus between the politicians law enforcing agencies and the offenders indulging directly in such crimes I think it is all because of this the stringent provisions are devised under the act to contain this menace of drug trafficking and drug addicts I think the presumptions are cowed or enacted in the act special courts or the special machinery is constituted both for the purpose of investigation and for conducting the prosecution the special procedures are laid down and more than that wide powers are conferred on the investigating agencies even and the investigating agency can arrest on the spot without even complying with other ordinary procedures what we find in CRPC or any other criminal jurisprudence or the criminal procedure so that being the case that is certainly there is a likelihood of the powers being misused to the disadvantage of the accused and therefore the provisions what we are going to discuss now if you really see that these measures are prescribed under the act only to safeguard the interest of the accused it is to provide or provide a measure for the fair investigation and for fair trial which is a constitutionally recognized guaranteed right of an accused therefore when we discuss these four sections we should not we should approach this with the this perspective we should not go under the impression that these are the procedural matters we have got nothing to do with the trial of the accused if you understand the significance and the implications of these what you call these four provisions I would say their importance cannot be undermined at all now in order to understand what is the effect or the implication of these provisions I would just request all the viewers just to take note of the fact that the provisions relating to search seizure arrest are found in the criminal procedure code I think there are all of you may be aware section 41 deals with the powers of the police officer to arrest section I think I need not to dilate on that provision section 46 prescribes how the arrest has to be made section 51 says search of the arrested persons in chapter 7 we come across section 93 search warrant by the courts section 100 which is very relevant and which has got a bearing on the subject what we are going to discuss deals with how to conduct search of a closed places what all requirements or preconditions to be followed by the police officers how he has to warm how what is the document he has to prepare to to instill the regularity or instill confidence in the procedure or in the arrest or this seizure that he has affected section 165 deals with the search by the police officers without warrant so therefore what we must understand is that there are enough provisions in the CRPC for affecting the search arrest or seizure and even if you see section 51 of the NDPS Act section 51 provisions of the code of criminal procedure 1973 to apply to warrant arrest searches and seizures so even the special procedures what we are going to study the act itself says the provisions of the code of criminal procedure shall apply in so far as they are not inconsistent with the provisions of this act to all warrants issued and arrest searches and seizures made under this act so the provisions of CRPC are made applicable even by the specific or express provision of the act itself and in this context if you see section 4 of CRPC even section 4 what it says all offenses under the IPC shall be investigated inquired tried or otherwise dealt with according to the provisions here in after content so for IPC offense the procedure prescribed is as per the CRPC then all offense under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions so CRPC basically is applicable not only to the IPC but also to the other laws but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offense so except to the extent that is provided in this special acts I think the provisions of CRPC are made applicable to all the offenses the investigation trial or the entire all the incidental matters connected there to so this matter we should remember because it has got a bearing on the discussions that we are going to have in other words the point that I want to tell you is that provisions of CRPs are applicable even to the searches seizure or an estimate under the provisions of the well in respect of the offenses under the provisions of NDPS Act except to the extent provided therein and what is that except to the extent provided in the special act and that exactly is what we are going to deal today and that is the provisions or a special procedure which is contemplated in section 41 42 43 and section 50 so we can locate the very provisions of the act so it is this the special procedure how it differs or differs from the general provisions and only to that extent we have to apply the these provisions to any investigation or to any search or arrest that is made by the investigating agencies I think if we go into this act of course these four provisions they on the appearance I can say they look very lengthy and what you call repetitive but I think we can explain you can understand these provisions or the gist of it itself we can immediately we can gather see section 41 deals with the power to issue warrant to deals with the issuance of warrant that is subsection 1 of section 41 deals with the issuance of warrant of course for the purpose of effecting the arrest search or seizure it only subsection 1 deals with the issuance of the warrant who can issue the warrant under this provision a special procedure has been contemplated is because of the nature of the offense it says a metropolitan magistrate or a magistrate of the first class or any magistrate of the second class specially empowered by the state government in this behalf may issue a warrant for the arrest so this subsection 1 of section 42 states that a warrant for the arrest or search of seizure could be issued only by the magistrate specially empowered not by any other ordinary magistrate specially empowered and second condition what he has to do to issue the warrant to in this he may issue the warrant so specially empowered magistrate to for arrest of any person he has reason to believe to have committed the offense so one precondition I said these provisions are engrafted as a safeguard to the accused to protect from the arbitrary use of powers by the investigating agents to say that he is been accorded with a fair investigation a fair trial and therefore one of the safeguard is that if a search or an arrest has to be made the warrant must be issued by the magistrate empowered and that magistrate should have reason to believe that an offense under the provisions of this act has been committed or any of the or any evidence is of relating to that offense has been concealed so that is the subsection 1 deals only with the issuance of the warrant by the magistrate subsection 2 deals with the authorization by the gazetted officers of the department see that because having regard to the I said the way in which the offenses are being committed a special procedure has to be made for to expedite the investigation without waiting for all these procedural asses so therefore subsection 2 says see a subsection 1 says the warrant can be issued by the special by the empowered magistrate subsection 2 and authorization can be issued by the gazetted officers of the department of the central government which are those departments central exercise narcotics customs revenue intelligence or any other department of the central government sir it should be gazetted officer officer including the paramilitary force or the armed forces is empowered in this behalf by general or special order so that gazetted officer also must be empowered by a special order or a general order or any such officer of the revenue drugs drugs control exercise police or any other department of the state government is empowered so and the gazetted officers of the central government of the following departments or the gazetted officers of the state department who are duly empowered by a special order so that is essential otherwise if that condition is not fulfilled the whole exercise will go far so that is the idea so then so he can authorize but on what condition what are they on what basis is important is by general or special order if he has reason to believe from personal knowledge or information given by any person taken down taken in