Approach To Be Adopted By Our Courts Under NDPS Act, 1985

Manoj Swarup & Ajay Kumar

28 Oct 2020 6:36 AM GMT

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    The marked difference in the case of a drug trafficker as against that of an addict as regards bail as well as sentencing: Scheme of the NDPS Act, 1985.

    As originally enacted i.e. Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'), there existed no distinction between a drug trafficker and an addict. A uniform sentencing structure was prescribed as punishment for most offences under the Act.

    Radical changes brought about by the 2001 Amendment Act

    The 2001 Amendment Act (hereinafter referred to as the 'Amendment Act') brought in material changes. The distinction between a drug trafficker and an addict was incorporated. The 'Statement of Objects & Reasons' of the Amendment Act brought out the need for severe punishment for drug traffickers (peddlers) while envisaging a reformative approach towards addicts. It was therefore proposed to rationalize the sentence structure to ensure that drug traffickers (peddlers) are punished with deterrent sentences. Whereas, addicts who commit less serious offences, are sentenced to a lesser punishment. Accordingly, the Act was amended.

    Restrictions placed on grant of bail: Distinction between a drug trafficker and an addict is maintained (Section 37 of the Act)

    The Amendment Act resulted in changes in conditions for grant of bail as well. An accused alleged to be involved in 'commercial quantity' of contraband or an accused alleged to have indulged in 'financing' of illicit traffic or of 'harbouring' offenders (Section 27A of the Act) is subjected to stringent conditions for grant of bail. The Act would require the Court to be satisfied before grant of bail (as per Section 37) that there are 'reasonable grounds for believing that the accused is not guilty of such offence'. Court has to further record in such a case that the accused 'is not likely to commit any offence while on bail'. These are further requirements in addition to the usual conditions of bail prescribed under Section 439 of Cr.P.C., 1973.

    For an addict, the above two stringent conditions do not apply. Bail application of an addict would be considered as per the provisions of Section 439 of Cr.P.C., 1973.

    While considering bail application of an alleged drug trafficker, it is indeed difficult for the Court to record satisfaction that there are 'reasonable grounds for believing that the accused is not guilty of the alleged offence'. This is for the reason that the matter is at its inception stage. Evidence is still to be lead by the prosecution and by the defence. Therefore, difficult for the Court to record its satisfaction of existence of reasonable grounds for believing that the accused is not guilty of the alleged offence.

    Furthermore, it may seem impossible for the Court to record that the accused 'is not likely to commit any offence while on bail'. Supreme Court addressed these questions in State of Uttranchal v. Rajesh Kumar Gupta[1]. It was held that the bar of Section 37 must be looked at in a pragmatic manner. It cannot be construed in such a way so as to negate the very right of an accused to obtain bail which is otherwise a valuable right.

    Supreme Court in the same judgment further explained the meaning of 'reasonable grounds' that:-

    "….The expression 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. ….."

    On the aspect of the accused 'not likely to commit any offence while on bail', Supreme Court enunciated the approach:-

    "…. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and nature and manner in which he is alleged to have committed the offence."

    As detailed above, Section 37 manifests the distinction between a drug trafficker & an addict added vide the Amendment Act.


    'Financing' illicit traffic and 'harbouring' offenders

    Even before the Amendment Act, the Act in Section 27A punished the act of 'financing' illicit traffic and 'harbouring' offender in the strictest terms. Here the punishment is not less than ten years but may extend to twenty years and also fine which shall not be less than one lakh rupees, which may extent to two lakhs rupees. Whereas, under the Act, an addict is sentenced to maximum of six months or with fine which many extent to ten thousand rupees or with both.

    For 'financing', quantity of the contraband has no relevance. This is for the reason that act of 'financing' & 'harbouring' are way beyond the actions of an addict, who consumes the contraband. An accused who is financing and for that matter, an accused who is harbouring is a drug trafficker and therefore treated in the strictest terms, as distinct from case of an addict.

    Quantity of the contraband

    Another identifier of a 'drug trafficker' is one alleged to be involved in 'commercial quantity' of contraband. The concept of 'small quantity' of the contraband was introduced to identity addicts.

    Punishment is the highest for 'commercial quantity' i.e. 'drug trafficker' attracts the sentence of not less than ten years but may extend to twenty years and also fine which shall not be less than one lakh rupees, which may extent to two lakhs rupees. Whereas for 'small quantity' i.e. addict, punishment may extent to six months or with fine which may extent to ten thousand rupees or with both. A 'drug trafficker' attracts the stringent conditions of bail under Section 37 of the Act, as well.

    We can summarize that financing illicit traffic or dealing in 'commercial quantity' are examples of drug traffickers. Therefore, both these categories attract stringent conditions of bail (mentioned in Section 37 of the Act) as well as deterrent punishment under rationalized sentence structure.


    A. Case of 'financing'

    In Rhea Chakraborty case, the prosecution alleges commission of an offence under Section 27A of the Act and alleges that the accused was indulging in 'financing' illicit traffic.

    Financing is much beyond mere sale or purchase of a contraband. Financing would take within its ambit a course of business, a person who makes investment. 'Financier'([2])([3]) is one skilled in managing financial operations.

    Kerala High Court adopted the reasoning that 'financing' involves an activity other than sale or purchase, in which a person invests or provides funds or resources[4].

    The Special Judge who considered the bail plea of Rhea Chakraborty brought the case under 'financing' on the reasoning that the accused was 'financing' the purchase of drugs for her partner. This may not be the correct test of 'financing'. Rhea Chakraborty is only a case of mere purchase of the contraband. There is no allegation that the accused made commercial gains in the transaction.

    The case against Rhea Chakraborty is that of sale-purchase of the contraband. As mentioned above, financing is an activity beyond sale or purchase. Mere sale or purchase is indeed included in 'illicit traffic' under Section 2(viiib) of the Act, and is made separately punishable. Whereas, the provision of Section 27A & 37 would be attracted only when an accused is found to be financing a sale/purchase of contraband. Only sale/purchase would at best be constituting act of 'illicit traffic' which is in itself not punishable under Section 27A of the Act.

    This is for the reason that sale purchase (illicit traffic) is a case of an addict and whereas financing illicit traffic would be a case of a drug trafficker.

    The approach of the Special Court was corrected by the High Court of Bombay, in Appeal[5]. It has been held that 'financing' is an offence beyond sale-purchase of a contraband. 'Financing' involves illegal trade or business.

    Having examined the domestic law, we look at the international scenario. Prior to the Amendment Act, we find that India became signatory to United Nations Convention Against Illicit Traffic In Narcotic Drugs & Psychotropic Substances, 1988. Under UN Convention, case of an addict is mentioned in Article 3(1)(a)(i), where production, manufacture, preparation, sale etc. are enlisted.

    As against this offences of organisation management or financing any of the above mentioned [Article 3(1)(a)(i) offences] are mentioned separately. Article 5 of the said Convention, categorizes 'organised criminal group' and 'international organised criminal activities' as particularly serious. These cases are referable to that of a drug trafficker.

    Subsequent to UN Convention, SAARC Convention on Narcotic Drugs and Psychotropic Substances was signed by member States including India. This convention contains similar covenants as in the above-mentioned United Nations Convention.

    It can thus be stated that the Amendment Act brought in the classification of offences which was mooted by the UN Convention and by the SAARC Convention. Financing is a case of a 'drug trafficker' which attracts the maximum punishment & stringent conditions of bail under the Act. Whereas, the case of an addict is covered under activities of 'illicit traffic' which attracts less severe punishment.

    The conclusion of the Bombay High Court in Rhea Chakraborty's case appears to be in line with the above.

    B. Case of admixture of a contraband vis-à-vis 'commercial quantity'

    While the Amendment Act comes down heavily on an accused dealing with 'commercial quantity', the situation on the ground[6] is that contraband are more often than not found in the market as an admixture. Here admixture is pure form of the contraband mixed with a neutral material (like bournvita or plain sugar).

    The important aspect that fell for consideration before the Supreme Court was whether if the total quantity of the admixture weighs to be 'commercial quantity', then whether the neutral material would have to be excluded to calculate the offending material.

    Supreme Court in Hira Singh6 has taken the view that even when contraband is mixed with a neutral material, the total quantity of the admixture is to be taken as the 'offending material'. For arriving at this conclusion, the Supreme Court relies upon the definition of 'preparation' under the Act. The definition reads thus:-

    "2(xx) "preparation", in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture in whatever physical state, containing one or more such drugs or substances;"

    The above definition, as can be seen, does not travel beyond 'narcotic drug or psychotropic substance'. This does not include any neutral material !

    Further, Supreme Court relies upon a notification issued by the Executive in the year 2001. The said Notification issued by the Executive contemplated that there could be a mixture/preparation of any contraband with or without a neutral material (Entry 239). Secondly, Supreme Court relied upon Note 2 appended to this Notification issued by Executive which stated that the 'preparation' from the contraband (drug) would include its salts and chemical derivatives.

    It is pointed out that the Act specifically mentions 'neutral material' wherever it was so intended. For instance, in cannabis (hemp), coca leaf, opium, neutral material is specifically included. However, Hira Singh has read 'neutral material' in every corner of the Act.

    Supreme Court has substituted its own opinion for the opinion of the Legislature when it records that:-

    "8.3. …. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances."

    In fact, in an earlier judgment of the year 2008, Supreme Court in E.Micheal Raj v. Intellegence Officer[7], had taken the opposite view. The view taken was that the quantity of the contraband alone would be taken into consideration and not the total quantity of the admixture. In that case, the quantity of the contraband was taken as the percentage of the contraband in the admixture. The earlier view appears to be the correct view.

    This question of 'commercial quantity' was required to be examined from the view point of the Amendment Act to the parent Act of 1985. This Amendment Act had sought to rationalize the sentencing structure. That is, sentence to be commensurate to the quantity of the contraband involved. The Statement of Objects and Reasons of the Amendment Act reads thus:-

    "Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences."

    In the light of the above discussion, the accused is to get punished for the actual quantity of the contraband. The opposite view revolts not only against a plain reading of the Act but also against all canons of culpability. How can a person be incriminated for being in possession of any quantity of bournvita or for that matter, of plain sugar.

    Manoj Swarup, Senior Advocate practices before the Supreme Court of India. Ajay Kumar, Advocate-on-Record practices before Supreme Court of India. Authors had assisted Supreme Court of India in Hira Singh's case. Views are personal.

    [1] (2007) 1 SCC 355:

    [2] Black's Law Dictionary

    [3] Webster's Dictionary

    [4] MANU/KE/1166/2009 – K.K. Ashraf Vs. State of Kerala (Bail Application No.5251/2009)

    [5] Rhea Chakraborty v. UOI & Anr. Bombay High Court in Criminal Bail Application (Stamp) No. 2386 of 2020 - Order dt. 07.10.2020.

    [6] Judicial notice taken by Supreme Court of India in Hira Singh & Anr. v. UOI & Anr., (2020) SCC OnLine 382 (Para 8.3).

    [7] (2008) 5 SCC 161

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