What makes the Narcotics Control Bureau tough as nails

For 39 years after Independence, India didn’t feel the need to have a central law, let alone a dedicated agency, to oversee and prevent drug use. This changed in 1985, when, under pressure from the United States to enact stricter anti-drug laws, India introduced the Narcotics Drugs and Psychotropics Substances Act, 1985.

The act, which came into effect on November 14, 1985, and which constitutes the statutory framework for drug law enforcement in India, made an express provision for constituting a central authority for the purpose of exercising the powers and functions of the central government when it came to preventing drug trafficking, abuse, and control. In the presence of this provision, the Centre constituted the Narcotics Control Bureau (NCB) on March 17, 1986.

The bureau is the physical embodiment of the central government’s will to tackle drug abuse. In India, the responsibility of drug abuse control, a central function, is carried out through a number of ministries, departments and organisations. It is primarily due to India’s vast size and the federal nature of our polity that multiple agencies, both at the Centre and in the states, have been empowered to enforce the provisions of the NDPS Act. These include, among others, the Ministry of Finance, Department of Revenue, which has the nodal co-ordination role as administrator of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

So, what makes the NCB so special?

For starters, the NCB is the apex coordinating agency for all drug-related matters. It is also the nodal agency on matters of drug law enforcement in India. The bureau also functions as an enforcement agency through its various zones and sub-zones, which collect and analyse data related to seizures of narcotic drugs and psychotropic substance, as well as study trends, modus operandi, collect and disseminate intelligence, and work in close cooperation with the customs, state police and other law enforcement agencies.

Also watch: NCB’s track record with high-profile cases

India is party to a number of international treaties that aim to combat drug abuse. These include the united Nation’s Single Convention on Narcotic Drugs, 1961, the 1971 Convention Against Psychotropic Substances, and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. While India’s obligations under these conventions are implemented domestically through appropriate provisions in the NDPS Act, the multiple agencies that are empowered to use the NDPS, need to have someone to play the role of coordinator. This coordinating role has been assigned to the NCB.

What makes the NCB so all-powerful, much like other central investigating agencies such as the ED and CBI, is its ability to enforce the various international treaties that India has signed on drug law enforcement. “Policing is a state subject in India,” said Bombay-based advocate Ajay Kumar. “But the constitution provides a legislative superpower to federal agencies when it comes to implementing international treaties. This is why the NDPS Act—which creates the NCB—mentions that this is being done pursuant to an international convention.”

Kumar says that the creation of the NCB is justified by the fact that India is a signatory to the UN’s Single Convention on Narcotic Drugs. “The treaty calls for NCB officers to take special measures to tackle the illegal trafficking of drugs as well as combat drug abuse,” he said. In addition to being a signatory to all the three International Conventions on Narcotic Drugs and Psychotropic Substances, India has also signed Bilateral Agreements/MoUs exclusively on drug related matters with 14 countries, as well as Bilateral Agreements on criminal matters and related matters—wherein drugs related matters are also included—with nine countries.

The enforcement of these international treaties, fortified by India’s signature on them and further strengthened by the NDPS Act, is where the NCB draws its power from.

However, are NCB officials deemed as police officers? Technically, no, since law and order is primarily enshrined in the constitution as a state subject. But the creation of central investigating agencies like the NCB, ED, CBI, and others, has, over the years, led to the birth of a sort of central police, apart from the paramilitary.

There are some provisions under which officers invested with powers under Section 53 of the NDPS Act, like NCB officials, are deemed as police officers. In 2013, a bench composing justices RF Nariman, Navin Sinha and a dissenting Indira Banerjee, delivered a landmark NDPS judgment in the case of Tofan Singh vs State of Tamil Nadu wherein it ruled that such officers, who are invested with powers under Section 53 of the NDPS Act, are police officers, but only within the meaning of Section 25 of the Indian Evidence Act. This means that confessional statements made to NCB officials cannot be taken into account while convicting an accused under the NDPS Act.

The NCB also has what it calls a Field Officer’s Handbook that guides its officials on the bureau’s protocol when it comes to making drug-related arrests, seizures, and forfeitures. The handbook states that the Drug Law Enforcement Officer (DLEO) should “fully utilise the presumptions in favour of the prosecution provided in the Act under Sections 35, 53A, 54 and 66 and also brief the Departmental Counsel to apply the provisions during arguments in the case.”

The handbook also makes it clear that any drug law enforcement officer, including NCB officials, enjoys certain power under the NDPS Act. “However, this power has to be exercised judiciously while holding the rule of law,” it states. “Ethics and integrity is not only a moral requirement, but also a legal necessity.”

The Field Officer’s Handbook specifically mentions that “it is customary for the DLEO to face accusations of applying force, unauthorised entry, misbehaviour, and molestation of women, false implication by planting goods or evidence, theft of valuables, etc. during search and interdiction operations,” which is why the officer should be “careful and conduct himself and the operations in such a way that entire process is as per law, transparent, well-documented and witnessed by independent respectable persons available in the area.”

Has NCB met its standards?

It is safe to say that the narcotics bureau’s recent raid aboard a cruise ship, which led to the arrest of Bollywood superstar Shahrukh Khan’s son Aryan and 19 others, does not really meet the standards the NCB has set for its own officers when it comes to gathering witnesses that are “independent and respectable” people. A recent report revealed how the agency has used the same panch witness, a man named Adil Fazal Usmani, in at least five other cases since last year, besides the drugs-on-cruise-ship case in which Aryan Khan was arrested.

Manish Bhanushali, another witness in the case, was later revealed to be a BJP worker from Gujarat, giving rise to the question as to how exactly is he “independent” or “available in the area.” Self-styled private detective Kiran Gosavi, now in the custody of Pune Police, was another witness in the raid. Gosavi has three cases of cheating registered against him across the state, and has been embroiled in controversy ever since his selfie with Aryan went viral after the latter’s arrest. A person claiming to be Gosavi’s bodyguard has also levelled allegations of extortion and bribery against Gosavi and NCB Zonal Director Sameer Wankhede, who was in-charge of the raid aboard the cruise ship.

On the flip side, NCB officials claim that they need to repeat witnesses since not too many people are keen on coming forward and putting their name down on paper as a witness in a drug raid.

“Users are treated differently than dealers under the NDPS,” explains Kumar. “The court is basically supposed to admonish you, like a slap on the wrist, if you are a drug user.” He says the NDPS law wasn’t designed to send drug users to jail, but instead to target hardened criminals involved in illegal trafficking. “What the NCB has been trying to do over the years is extend that interpretation by saying that if you buy drugs for somebody else, then it amounts to dealing. If you buy drugs and share it with a bunch of people, it is dealing. If you pay money to someone and buy drugs then it amounts to financing narcotics activities. These trick provisions are present in the law and are held to be constitutional. The only thing is that it was never the intention of the law for these strict provisions to apply to ordinary people.”

A lesser known fact about the NCB is that it is not controlled by the Home Ministry per se—but by the Department of Revenue (DOR)—which is in-charge of the administration of the NDPS Act. “The department makes a lot of revenue from fines collected by going after unlicensed drug producers and traffickers,” said Kumar. “Under NDPS, proceedings of crime are forfeited to the government, which is why it comes under DOR.” This means that if a dealer is “busted” by NCB officials or any other DLEOs, and cash is seized from his possession, the same goes to the government.

Also read: What Shah Rukh Khan can do to bring hope to India’s undertrials

The DOR also has a Reward Policy which covers the NDPS Act, Customs Act, and Central Excise Act. The present policy, under which reward is admissible to government servants and informers, has been amended from time to time. The amount of reward depends on the quantity of the drug seized. The heads of departments can sanction up to ₹5 lakh to informers and ₹10,000 each to government servants in a case. Rewards in excess of this limit are decided by a designated reward committee.

These powers and privileges vested in the NCB under the NDPS Act, along with the DOR acting as its nodal authority, makes it a powerful investigating agency under the Centre.