Drugs and the Law
By Dr Swati Jindal Garg
The Aryan Khan case is back in the news after a petition was filed by former zonal director Narcotics Control Bureau (NCB) Sameer Wankhede at the Bombay High Court while seeking relief days after the Central Bureau of Investigation registered an FIR against him for allegedly trying to extort money from Bollywood actor Shah Rukh Khan in the Cordelia cruise ship “drug bust” case. Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself. Prohibition goes beyond the bounds of reason in that it attempts to control a man’s appetite by legislation and makes a crime out of things that are not crimes. Ron Paul has rightly said: “You wanna get rid of drug crime in this country? Fine, let’s just get rid of all the drug laws.”
Repealing drug laws would not only remove the risks involved with producing and distributing drugs, bringing “street prices” crashing down (it’s estimated that a “spoon” of heroin would cost about a quarter in the free market), it will also eradicate any incentive that criminals might have to compete with legitimate businesses. It will also greatly reduce, if not eliminate altogether, any economic reason to “push”drugs on children. The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, is once again under the scanner following the media frenzy that ensued after the arrest of Aryan Khan. The NCB was granted the custody of Shah Rukh Khan’s son for a significant number of days for gathering circumstantial evidence as his statements held no evidentiary value in a court of law under the NDPS Act, since the October 2020 ruling by the Supreme Court which answered a critical question: “Whether the statement of an accused recorded by an authorised officer under the NDPS Act is admissible as evidence in the court of Law?”
As per the latest ruling of the apex court, an accused is granted immunity against any statement made before the NCB. However, this has resulted in the investigation process becoming more cumbersome. Post this ruling, the investigating agency will now be required to work even harder to gather circumstantial evidence to be able to corroborate the case of the prosecution. More and more people today are asking the question: “Is India’s anti-narcotic law itself in an urgent need of ‘rehab’?”
The NDPS Bill, which was introduced in the Lok Sabha on August 23, 1985, was passed hastily within four days by Parliament and received the then president’s assent in less than a month. However, it cannot be denied that even after 35 years of its enactment, the October 2020 ruling by the Supreme Court goes to show that the NDPS Act has serious flaws. The Act is devoid of provisions required to achieve the objective behind the enactment of the law itself and renders the Act a toothless tiger. Currently, the identity of all accused under the Act are revealed and widely published in the media rendering the legal adage of “innocent until proven guilty a complete myth”. The Act lacks in such and many other crucial aspects and therefore needs a major overhaul of its provisions.
Medically speaking, the word “narcotics” is derived from the Greek word “narkoticos”, which means numbing or deadening. The term “narcotic” refers to a class of drugs that act as central nervous system depressants, causing insanity or stupor. The term “narcotic” as it is commonly used refers to opioids, which include opium, its derivatives, and semi-synthetic or fully synthetic replacements. The term psychotropic drug, on the other hand, derives its connotation from historical rather than pharmacological sources. The drugs classified as psychotropic substances in either the 1971 Convention on Psychotropic Substances or the NDPS Act share no common qualities that distinguish them from the group of narcotic drugs.
The users of narcotics and psychotropic substances are not necessarily the same class of people. While some consume drugs for purely recreational purposes—an extra bit of fun, something that goes on for years without having any adverse impact on their personal or professional life—there are others who end up inflicting self-harm and become a cause of concern for their families. Then there is also a third class of abusers who fall in the category of being extreme addicts—for whom drug abuse is intermingled with committing violent and extreme crimes. While the law needs to leave the first category alone, the second category is the responsibility of the medical world. It is the third category that needs the attention of the justice system as this category is the biggest threat to the society at large and is beyond correction in most cases.
The punishment for mere possession of drugs in India ranges from 1 year to 20 years of rigorous imprisonment to up to 30 years of rigorous imprisonment for repeat offenders; there is also in some cases, a provision of death penalty. The classification of offences under the much talked about NDPS Act ranges from cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances. The catch, however, under the Act is that when an accused is caught, the scale and fine varies depending on the substance and quantity found with the accused, and hence, determining the substance and quantity of drugs involved in the offence becomes the most important aspect around which most of the litigation revolves, especially around the terms—“small quantity”, “less than the commercial quantity”, “commercial quantity”, “mixture”, “preparation”, etc., which are defined in the Act.
This determination has given immense power in the hands of NCB officers who confiscate the substance and determine the quantity, as it is the quantity that shall also determine the fate of the accused person. There have been innumerable allegations about manipulation of seizure reports filed by the NCB officers and other investigating agencies during drug trials, including that of Aryan Khan and Rhea Chakraborty. These discrepancies not only raise question marks against the officers involved, but also point fingers towards corruption and misuse of the NDPS Act in order to satisfy the ulterior motives of the powers that be.
History has time and again taught us that jail is not always the solution. Imposition of harsh punishments like imprisonment for several years in cases where the accused is found with a small quantity of drugs for personal use is not the answer; rather the law must provide for mandatory rehabilitation of equal terms of imprisonment and take regular medical reports on record so that the accused can be monitored in a proper fashion.
The offenders who fall under the category of “user” or “consumer” must be given proper counselling, treatment and rehabilitation, not jail. Putting such accused in jail in many cases has not only proven counterproductive, but is also a useless drain of precious state resources. However, the element of deterrence is essential too, and therefore, jail as punishment must be retained for the third category of drug users, namely the serious and repeat offenders who pose a risk to the society.
Similar to some other laws in India, the first-time offenders should be provided protection from social stigma and offered an opportunity to re-cultivate their path in life instead of being made the dinner table gossip by the media as the fact remains that these users/addicts are victims themselves.
India being the most populated country, is a major market for drugs and this situation is magnified as the country is sandwiched between two major areas of illicit opium production—the Golden Crescent and Golden Triangle. Afghanistan, the largest cultivator and exporter of opium, is now under the Taliban rule, and it is quite clear that the Taliban will try to leverage this to the maximum by pushing the exports further to earn money, leaving India vulnerable as the country will have no other option, but to combat increased inflows of narcotics.
The policy employed the world over has been to steadily legalise the medical and recreational use of cannabis. India appears to be stagnated at a crossroads when it comes to the current global scenario and the NDPS Act in its current form. Not only does the Act seem to be archaic in its approach, it also fails to differentiate between the recreational users and the hard core violent addicts, leaving the entire power in the hands of officials who can make or break the case against those accused under the Act solely by stating the quantity confiscated. The Act leaves a lot to be desired.
Even though the Indian judiciary till now has been reluctant in admitting petitions seeking legalisation of recreational or medicinal use of cannabis in India, it is high time we take our head out of the sand and think about opening a regulated market for recreational/medical use of cannabis and redefining the provisions of the NDPS Act. Attention also needs to be given to working on various proactive campaigns for discouraging and preventing the consumption of narcotic drugs by both the central and state governments along with making the much needed amendments in the NDPS Act.
By stigmatising and punishing all those—be it the hapless Aryan or the luckless Rhea—even before they are conclusively proven guilty by any court of law, we are not only failing as a society, but also paving the way to a frustrated future. The NDPS Act in its current form, is turning out to be an albatross waiting to suffocate an entire generation.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi