May 22,2020 | 6 min read

NDPS And 138 NI Act

Author - Brahmanand Dube

NDPS

India did not have any law for narcotics until 1985. Cannabis smoking was prevalent in India then. Derivatives of Cannabis like marijuana, hashish, charas, bhang were legally sold in India. Later in 1961, the US started a campaign worldwide against all drugs. India opposed the move; however, due to the American pressure in 1985 enacted the NDPS Act and banning all narcotic drugs in India.

The Narcotic Drugs and Psychotropic Substances Act, 1985, also known as NDPS Act, prohibits a person from producing, manufacturing, cultivating, selling, purchasing, possessing, transporting, storing or consuming any narcotic drugs or psychotropic substances. The Narcotic Drugs and Psychotropic Substances Act came into force from November 14th, 1985. It applies to all the citizens in India and outside of India having Indian citizenship. Also, it applies to all the persons on ships as well as aircraft registered in India. 

Punishments

Punishment for a person who violates the NDPS Act is based on the quantity of the banned substance.

  • If a violation involves a small quantity, the punishment can be the rigorous imprisonment for a term may extend to 1 year and/or fine may extend to Rs. 10000.
  • If the violation involves a quantity lesser than the commercial quantity but larger than a small quantity, the punishment can be the rigorous imprisonment for a term may extend to 10 years and fine may extend to Rs. 1 Lac.
  • If the violation involves commercial quantity, the punishment includes rigorous imprisonment for a term which will not be less than 10 years & may extend to 20 years and fine which will not be less than Rs. 1 Lac & may extend to Rs. 2 Lac.

NI Act - Section 138

A cheque is widely using the method of payment while doing money transactions. Post-dated cheques are frequently used in businesses. It is issued to the payee by the drawer of the cheque for the future. Due to the future date mentioned on the cheque payee cannot encash it before the date. However, it is the responsibility of a drawer of the cheque to ensure a sufficient amount in the bank.

The Negotiable Instruments Act, 1881, known as NI Act, was introduced during the time of British to deal with the negotiable instruments such as cheques, bills of exchange, promissory notes, etc. Section 138 - 142 was introduced in the Act to implant confidence in the efficiency of banking operations and give credibility to negotiable instruments employed in business transactions. If a drawer issues a cheque to the payee and payee accepts the same on the faith that he or she will get credited the payment on the due date.

The provision provided under sections 138 to 142 of the Act is to ensure that the issued cheques as a mode of deferred payment should be honoured. A case of dishonour can be filed according to section 138.

Following are requirements for complying with section 138:

  • A person should have issued a cheque to another person for payment of debt or liability.
  • An issued cheque must be presented in the bank within three months.
  • A cheque returned by the bank unpaid with the reason of insufficient funds in the bank holder's account or the amount mentioned on the cheque exceeds the allowable amount as per the agreement of the drawer with the bank. 
  • A payee demands payment by sending a notice to the drawer within 15 days of getting information from the bank in case of return of unpaid cheque.
  • A drawer fails to make a payment to the payee within 15 days of receiving the notice.

The procedure follows to resolve the matter under Section 138 of the Act:

  • A legal notice should be issued to the drawer within 15 days of dishonour of cheque, and a drawer must pay within 15 days of receiving notice. The issue is settled if payment is made in time. In case of the payment failure, a payee can file a criminal case under section 138 of the Act within 30 days from the expiry of serving period to drawer.
  • A complainant should appear in the witness box with the relevant details to file a case. The court will send a summons to the accused to appear before the court on finding the presented details are satisfied.
  • A bailable warrant may issue if the drawer or accused does not appear in the court. Even after it, if the accused does not appear, a non-bailable warrant may be issued.
  • On the appearance of the accused and in the proceeding if he is found guilty, the court will post the matter of punishment. If the accused denies the charges, he will be served with the copy of the complaint.
  • The accused will be allowed to present his side with the documents and witnesses.
  • After proceedings, the court will pass judgement. Both complainant and accused can further appeal in the High Court on the unsatisfied decision.

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ABOUT THE AUTHOR


Brahmanand Jairam Dube

Practice in high court . Also Practicing in Mumbai, and Navi Mumbai, in the field of Criminal Cases, Family Matters, 138 NI Act, RERA, NDPS, POSCO and other Special Acts, including Drafting, and Registration Work. Working as Legal Advisor at Concare Shipping Services Pvt.Ltd, at Belapur. Working with Companies and Startups for Contract/ Retainer-ship basis Litigation work, all types of drafting, registration works etc.Consumer Law, Labour Law& Company Law.

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