Need of Intelligence for security forces

NEED OF INTELLIGENCE FOR SECURITY FORCES

Executing a field operation is an integral part of the charter of functions of a DLEO. Such an operation may be undertaken either on the basis of specific information or through intelligence gathered by or personal knowledge of officers. The operation can mean surveillance of persons, premises or search of an enclosed space (house, office, godown, etc) or interception of a conveyance or a person at a public place. The objective is to detect an offence by recovery of incriminating evidence including possession of offending goods (ND, PS or CS), articles and things, illegally acquired property, sale proceeds of drugs and incriminating documents, among others.

However, to ensure that he has not overlooked anything which might subsequently affect the success of his hard work, the DLEO needs to keep a checklist ready. Here’s what all he should check: Search, Field Testing and Seizure

1. Was the information recorded in writing by him?

(If he has received some information-Section 42 (1) of the NDPS Act)

2. Was his belief and the ground that search authorization cannot be obtained without affording opportunity for concealment of evidence or facility for escape of the offender, recorded in writing by him?

(If he is proceeding to search premises without search authorization between sunset to sunrise-

Provison to Section 42 (1) of the NDPS Act)

3. Was a copy of the said document as at 1 or 2, as applicable, sent to his official superior within 72 hours?

(Section 42(2) of the NDPS Act)

4. Was the copy of Search Authorization shown and signatures of two independent local witnesses and the owner/occupier available in the premises at the time of search procured thereon?

(In case, the search of premises is carried out on the strength of a Search Authorization)

5. Did the search team offer their own personal search by the owner/occupier of the premises before beginning the search of the premises?

6. Was a written notice under Section 50 of the NDPS Act served on the occupants of the premises or on the person who is intercepted at a public place? (This is a must if a person is given a body search and is not necessary if only the premises is searched or if the bag, brief case, etc. in the possession of the person is only searched) Was the response to such a notice recorded in writing thereon?

7. Was a lady officer present in the search team to ensure that a female is searched by a female?

(Section 50(4) of the NDPS Act)

8. Was the reason to believe that the person about to be searched will part possession of drugs and other incriminating articles hence could not be taken to such officers, recorded in writing?

(The person about to be searched for suspected possession of drugs and other incriminating articles can exercise his legal right to be searched before a Magistrate or a Gazetted Officer, as provided in Section 50 (1) of the NDPS Act. If the DLEO has a reason to believe that the suspect will part with possession of drugs and other incriminating articles, he may decide not to take him to such officers and, instead, search himself as provided in Section:-

50 (5) of the NDPS Act)

9. Was the copy of the document, as at 8, sent to his immediate superior within 72 hours?

(Section 50 (6) of the NDPS Act)

10. Were all recovered suspect substances field tested with Drug Detection Kits/Precursor Testing Kits and the matching colour results to show presence of ND, PS or CS and was it all documented?

11. Were all the recovered documents, articles or things scrutinised/examined to determine their relevance to the commission of offence and importance to the inquiries under the Act?

12. Were all recovered and relevant items liable to seizure and confiscation entered carefully in an inventory and documented in the Panchanama?

13. Were all the goods, documents, articles, things and assets found relevant to the commission of offence and subsequent investigations, recovered during search, seized and the fact of seizure documented in the Panchanama?

Drawal of Samples

14. Was a set of two representative samples drawn from each package or lot (if bunching was made into lots of 40 in case of Ganja & Hashish and

10, in case of other drugs) of the suspect seized substances on the spot?

15. Was it ensured that the representative samples are of specified weights?

(24 gms each in case of opium, Ganja and Charas and 5 gms each in case of all others)

16. Were all the packages including the representative samples properly packed, marked and sealed?

(For easy reference, the parent package or lot can be marked as P1 or L1 and the two sets of samples as SO1 and SD1 and so on. Samples should be kept in heat sealed plastic pouches which may be kept in paper envelopes before marking and sealing)

17. Was Test Memo prepared in triplicate on the spot and the facsimile imprint of the seal, used in sealing the sample envelops, affixed on the Test Memo?

18. Was the Panchanama/seizure memo/mahazar drawn carefully on the spot and correctly indicating the sequence of events including start and end time of the search proceedings?

19. Was it ensured that the Panchanama and all the recovered/seized documents/articles/things bears signatures of the person whose premises was searched or from whom the recovery was made, two independent witnesses, the DLEO and the lady officer if during the proceedings a lady was searched?

20. Was a notice to examine the owner/occupant and recovery witnesses under Section 67 of the NDPS Act issued and their statements recorded by the DLEO?

Arrests

21. Was a written Arrest Memo informing of the arrest and grounds of arrest prepared, in respect of persons arrested?

22. Was the arrest made in the presence of a witness and his signature obtained on the Arrest Memo?

23. Was the fact of arrest informed to one relative or friend of the person who was arrested and the same endorsed on the arrest memo to this effect?

24. Were the details of arrest shared with the SHO, Police Station in whose jurisdiction the normal place of residence of the arrested person falls?

(Points 21 to 24 are some of the guidelines prescribed by the Hon’ble Supreme Court of

India in Re. Govt. of West Bengal Vs D.K. Basu)

25. If the arrested person is a foreign national, were his arrest details shared with:

(i) The Joint Secretary, CPV Division, MEA, Patiala House, New Delhi

(ii) Ministry of Home Affairs, Foreigners Division, No.26 Man Singh Road, Jaisalmer

House, New Delhi

26. Was the arrested person produced before a magistrate within 24 hours of his arrest?

27. Was a report of seizure and arrest sent to the immediate superior within 48 hrs of seizure/arrest as required under Section 57 of the NDPS Act?

Chain of Custody of Seized Drugs and Precursors

28. Were the seized goods and samples deposited in the Malkhana at the earliest opportunity after seizure, and acknowledgement receipt obtained from the Malkhana-in-Charge?

29. Were the samples sent to the designated laboratory for analysis and report within 72 hours of seizure?

(Samples to be sent to CRCL in case of Customs and other agencies under Ministry of Finance;

CFSL for police and other agencies under MHA and State FSLs for police and other state agencies)

Seizing, freezing and forfeiting Assets

30. Was an order seizing/freezing all assets/ IAP issued by him and served on the person searched/investigated under Section 68F of the NDPS Act?

31. Was a copy of the Freeze/Seizure Order sent to the Jurisdictional Competent Authority within 48 hrs of it being made, as per proviso to Section 68F (1) of the NDPS Act?

32. Was the confirmation of Seizure/Freeze Order from Competent Authority received within 30 days? Was the case monitored for final orders by the Competent Authority regarding confiscation of the seized assets?

33. Were all the leads/clues evaluated, analyzed and investigated subsequently to establish independent corroborating evidence of the roles of the accused persons, their links, collusion in the crime and their links to assets seized, etc?

Preventive Detention:-

34. Was the case evaluated and processed for preventive detention under Sec 3 of the PITNDPS Act, 1988 and if found to be a fit case, a proposal sent to the Detaining Authority (DA) at the earliest, preferably within 30-45 days of seizure?

35. Was any detention order (DO) issued by the DA?

36. Was the DO served on the detenu (person detained), whether in jail or outside, and acknowledgement copy bearing signature of the detenu obtained?

37. Were the grounds of detention served on the detenu within five days of detention in complience with Article 22(5) of the Constitution of India and acknowledgement copy bearing signature of the detenu obtained?

38. Was a record of the efforts made to trace and detain the person maintained periodically?

(If the person is not available and absconding)

39. Was the acknowledgement set of documents of detention sent to the PITNDPS CELL within 15 days of detention/service so that the matter can be placed before the Advisory Board by the PITNDPS CELL within five weeks from the date of detention?

Follow Up

40. Was the investigation case file put up before superior officers to inform them of the progress in the case on a regular basis (at least once in a week/fortnight) for their instructions, monitoring and guidance?

41. Was the test report received from the lab in time before filing complaint? If not, is it being followed up?

42. Was the investigation completed on time, at least two weeks before the time to file complaints?

(Complaint has to be filed within 180 days for large quantity cases and 60 days for other cases. The DLEO should have adequate time to compile and collate all evidence, prepare a draft complaint, vet it from superior officers and legal officer/ departmental counsel before filing it in court)

43. Is the complaint complete in all respects and includes all material facts and evidence collected during investigation, details of all the witnesses in the memo and is accompanied by all the original documents at the time of filing the complaint in the court?

Pre Trial Disposal of Seized Drugs:

44. Was an application for pre-trial disposal of the goods filed before a Magistrate under Section 52A of the NDPS Act?

(Notification no G.S.R 339 (E) dated 10.5.2007)

45. Was the application for pre-trial disposal decided by the Magistrate? If yes, was the process of disposal initiated by DLEO by intimating the same to the Drug Disposal Committee?

(Pre-disposal procedures prescribed in the Notification no G.S.R 339 (E) dated 10.5.2007)

Trial

46. Is the progress of trial satisfactory? If not, was the SPP/Departmental Counsel consulted and

steps taken to tackle the causes of delay?

47. Was a judgment order of conviction (or acquittal) and confiscation of goods under Section 60/61/62 read with Section 63 of the

NDPS Act passed in the case?

48. In case of order of confiscation of drugs and other items by the court, was the disposal

proceeding of confiscated drugs/articles initiated? Are the procedures, as prescribed in the NCB S.O. No 2/88 dated 11.4.88, being

followed?

49. Was the judgment order analyzed in case of acquittal or in case of an apparently lighter punishment in case of conviction and consultations carried out with superior officers and Legal Officers to file an appeal in the case?

Reward to Informers and Officers

50. Was the case processed for rewards to officers and/or informer?

(In cases involving drugs, proposal for one time final reward can be placed before the competent authority after filing complaints and finishing financial investigations).

Chapter 2

INTELLIGENCE AND INFORMATION COLLECTION

AND MANAGEMENT

One of the main objectives of the NDPS Act is to make stringent provisions for the control and regulation of operations relating to ND, PS and CS. And, the same is reflected in the strict terms of imprisonment and fine. The law seeks to make drug trafficking very risky for the drug trafficker whose natural response is to conduct the operations in a very secretive manner so that detection and subsequent investigations becomes difficult. To ensure things go according to the plan, the DLEO should collect information in a discreet manner.

Look for a clue: The DLEO must understand that his powers come into play only when he has reasons to believe that an offence has been committed. Such

a reason can either come from personal knowledge or intelligence collected and developed through secondary sources. These sources could be other sister LEA and their records or specific information provided by secret informers or generated through physical and electronic surveillance of suspects.

It is important that a DLEO keep his eyes and ears open all the time to receive a lead about potential

violations and violators of the NDPS Act. A lead or clue from a linked crime or a previous crime may be very useful to identify and target a suspect individual or premises.

Other sources: There can be a clue anywhere and everywhere. A custom officer while detecting a case of smuggling of gold may arrest a border crosser who indulges in transporting drugs also; or a Company caught by Central Excise authorities for evading duty by under-reporting production and clandestine removal of goods; or an Income Tax officer detecting unaccounted income from aperson or industrialist; or a Police officer catching a local thief or pick pocket may be a good source of information. Secondary sources like newspapers, books and other publications as well as data from other government agencies or private bodies/NGOs may provide excellent initial inputs too. Follow procedures: It is imperative that the DLEO record the gist of intelligence in the form of an Intelligence Report. This should include all material details like the type of ND, PS or CS, the persons, premises, vehicles, etc., involved along with the modus operandi and bring it to the notice of his superior officer from time to time. This can help the team plan an operation at the right time to intercept and catch the culprits red handed with incriminating evidence.

Information Handling: If DLEO receives information from a person, he should get it recorded in writing in the first person, preferably in the handwriting of the informer duly signed by him or putting his left thumb impression. The officer should then seal the recorded information after endorsing ‘Recorded by Me’ and sign it mentioning his name, designation and the time and date of recording. The next step involves filling in other entries including the gist of information in NCB-I format and sending the same along with the sealed envelope to his superior officer, if possible, immediately, or within 72 hours of such recording. Do note that this is a statutory procedural requirement under Sec 42 (2) of the NDPS Act the compliance of which is mandatory. The reason behind compulsory recording of information and intimation to a superior officer is to safeguard against harassment of general public without sufficient cause and reason. This also gives an opportunity to the officer to look into facts and take action as he deems fit on the basis of the information received.

Informer Protection: It must be noted here that the law protects the safety and security of the informer and Section 68 of the NDPS Act states that no DLEO shall be compelled to say from where he got the information as to the commission of an offence.

Punishment for false Information: Another safeguard for the general public provided in the Act under Section 58(2) makes giving false information willfully and maliciously which leads to a search or an arrest, a punishable offence inviting a prison term of two years or fine or both.

BHUPENDER SHARMA

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