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NCB is high on NDPS — the law with loopholes. Rhea Chakraborty to Aryan Khan

From being a law that represented India's will against supply of drugs to being used as a tool to prosecute a select few, the NDPS Act has changed.

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From Rhea Chakraborty to now Shah Rukh Khan’s son Aryan Khan, the Narcotics Control Bureau’s Bollywood encounter has been a potboiler of its own, complete with alleged WhatsApp chat evidence, a cruise party, and an “international drug network”.

While the Bhima Koregaon case, Stan Swamy’s ‘custodial’ death, arrest of Kerala journalist Siddique Kappan and multiple arrests in the Delhi riots conspiracy FIR have ensured that the clamour against the Unlawful Activities (Prevention) Act and sedition law in India gets louder, it has taken the dragging of Bollywood stars through the mud for the country to sit up and take notice of how the anti-drug law is possibly as draconian as the anti-terror laws.

From being a piece of legislation that represented India’s serious will against the supply of drugs, to being used as a tool to prosecute a select few end-users while missing the big fish, the Narcotic Drugs and Psychotropic Substances Act 1985 is increasingly coming under scrutiny. And that’s why it is ThePrint’s Newsmaker of the week.


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An international ‘war on drugs’

Enacted in 1985, the NDPS Act itself is widely believed to have been passed by the Indian government under international pressure, especially by the ‘War on Drugs’ campaign that was led by then US President Richard Nixon. Reports have also since highlighted the ‘racist origins’ of the US’ war on drugs, claiming that it began as a “patently racist propaganda against the African-American and the Hispanic population”.

It’s been five decades since the US programme began, but internationally, the learning has been that although high-profile drug busts might make great headlines, they do little to solve the problem of addiction. The war on drugs itself has been called a public health failure and an “unmitigated disaster”.

Several countries across the world have since recognised this, focussing their efforts on methods other than criminalisation and penalisation of addicts. For instance, while Uruguay, Canada and several US states now permit the recreational and medicinal use of cannabis, some Australian states have adopted diversion programmes, using alternate responses to individual drug users, including referring them to education and treatment.

In 2001, the Portuguese government tried a radically different tack to handle the rising deaths and cases of HIV linked to drug abuse. It diverted its focus on treatment and prevention, instead of jailing drug users, and decriminalised the use and possession of heroin, cocaine, marijuana, LSD and other illicit street drugs. This was combined with the possibility of civil sanctions, such as fines or suspension of driving licence.

Within five years, it saw a decline in drug overdose deaths as well as new HIV cases due to dirty needle use.


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Bail the rule, jail the exception in NDPS?

In India, meanwhile, the law only got stricter over the years. All the offences under NDPS Act are non-bailable.

It has been amended thrice — in 1989, 2001, and 2014. The 1989 amendment, among other things, added a provision introducing the death penalty for repeat offenders. Initially, this provision imposed a mandatory death sentence for a subsequent conviction for drug trafficking. The Bombay High Court declared this provision unconstitutional in 2011. After this, the law was amended in 2014 to allow the death penalty at the discretion of a judge.

The bail provision under NDPS requires the court to have “reasonable grounds” to believe that the accused is not guilty and that he is unlikely to commit another offence while on bail. The bail provision under UAPA, which has been the talking point over the past few years owing to its stringency, does not have any such pre-condition.

This is something that the Supreme Court acknowledged as recently as February this year, saying that the bail provision under UAPA is “comparatively less stringent” than the bail provision under NDPS. What is even more interesting is that the NDPS bail provisions match those of the now repealed Terrorist and Disruptive Activities (Prevention) Act (TADA) 1985.

So while the principle for criminal offences under other laws is that bail is the rule and jail the exception, the additional conditions added under NDPS makes the grant of bail extremely difficult, ensuring that the accused remains in it during the pendency of the trial.


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The ‘shoe’ controversy

While the denial of bail to Khan is of course causing an uproar, what has left people even more puzzled is the order passed by the Mumbai court denying him bail.

Among other things, it said that even though small quantities of drugs were recovered from them individually, since “prima facie there is material to indicate that the accused are parts of a larger network…each of them is liable for the entire quantity of drugs seized”.

The court also noted that Merchant had allegedly hidden 6 grams of charas in his shoes. Since Khan and Merchant “are friends since long” and were travelling together, Khan had “knowledge of the contraband concealed by accused no.2 (Merchant) in his shoes”. It concluded that “it (the drugs) was in conscious possession of both the accused”.

Now, while the law itself does not use the term ‘conscious possession’, courts have time and again ruled that the NDPS talks about the “conscious” or “mental state of possession” and not merely physical possession of drugs. This, of course, goes both ways — the court might rule that a person found with drugs did not have “conscious possession” of the contraband since they had no knowledge of it, or that a person without any physical possession of drugs did have “conscious possession” of the contraband since they knew about it.

In fact, a month ago, the Supreme Court refused to grant bail to an NDPS accused, who was in a car that had 3 kg of heroin hidden in the front bonnet.

Moreover, the NCB has heavily relied upon voluntary statements of the accused recorded under Section 67 of the NDPS Act (allowing officers under the Act to call for information) as evidence, which is otherwise not admissible as evidence in court. The issue was unsettled until recently and it was only last year that the Supreme Court clarified that any confessional statement made to a police officer cannot be taken into account to convict an accused under the NDPS Act.

“They (NCB) have misused Section 67 of the Act and have relied heavily upon the statements that were recorded by them under pressure. Firstly, the police cannot record this statement under Section 67. Then they cannot use this material as evidence. It is a clear misuse. In Rhea’s case as well, the courts had relied upon this statement under Section 67, to deny bail,” a lawyer who did not wish to be named told ThePrint.

“Under other acts, the technical evidence — like WhatsApp chats, in this case, is not admissible evidence, but in these cases under NDPS, these have become the sole evidence keeping people behind bars,” the lawyer said.


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A way out, but no takers

Although the stringent NDPS Act calls for strict punishment for an offence committed or even attempted, it makes a distinction between drug traffickers and consumers.

While drug traffickers are booked under stringent sections of the Act, consumers can be punished with imprisonment for up to a year in certain circumstances or sent to de-addiction centres.

For instance, Section 64A of the law grants immunity to certain drug addicts if they volunteer to undergo medical treatment for de-addiction at a government recognised hospital or institution. The addict needs to necessarily undergo complete treatment for this to work out.

In fact, this is exactly what Bollywood actor Fardeen Khan did after he was arrested in 2001 from Juhu on charges of attempting to purchase small quantities of cocaine. However, this immunity was granted only in 2012, after he underwent a three-week-long de-addiction programme at the KEM Hospital in Parel, Mumbai.

However, there is evidence to show that courts have not put these provisions to good use. For instance, a study showed that between 2013 and 2015, no person brought before the courts in Punjab was directed to de-addiction and rehabilitation through the courts.


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‘Ignoring the big fish’

The law also fails to explain what constitutes consumption, and it is up to the enforcement agency to interpret if an offence has taken place. This is the reason why the law is being misused to keep consumers, caught with even small quantities, behind bars for a long time.

Moreover, in the current scenario, the lines between procurement, consumption, and financing seem to have blurred.

For instance, in Aryan Khan’s case, although no drugs were found to be in his possession, he has been booked under Section 27 A of the Act, which criminalises “financing illicit traffic and harbouring offenders”, based on chats from his phone, that allegedly suggest that he “purchased drugs”.

“There is a difference between purchasing and financing of drugs. Purchases cannot be termed as financing. Purchase is covered under Section 20(b)(ii) of the Act, which is punishable with six months of imprisonment and a fine of Rs 10,000. If a person purchases a product in small quantities, that does not mean he or she is involved in the said business, or are making profits out of it,” a lawyer, who did not wish to be named, explained.

“The NCB, which is supposed to focus on busting the drug trafficking nexus, seems to be going after only the consumers with small quantities of drugs, ignoring the big fish,” the lawyer said.

“This is the reason why the NDPS is draconian. Instead of focusing on sending a consumer to a de-addiction centre, it chases them and puts them behind bars, while the traffickers roam free, looking for their next client,” the lawyer said.

It is clear to see that only a significant policy change, and not headline-making arrests, would actually lead to deterrence and rehabilitation. Otherwise, the NDPS Act will only become the new UAPA, ensuring misuse of the law and the process becoming the punishment.

Views are personal.

(Edited by Srinjoy Dey)

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