A flawed act
IN the last two decades, the world over, efforts to control drug trafficking have been stepped up and new strategies formulated. Nevertheless, drug abuse persists on a large scale and trafficking has become an enduring problem, despite draconian laws such as the Indian legislation. This paper analyses the Narcotic Drugs and Psychotropic Substances (NDPS) Act 1985, henceforth referred to as the Act. The Criminal Procedure Code is abbreviated as the Code.
The Act was promulgated with the definite intent to terrorise those involved in any manner with the illicit drug market, be it as user, buyer, seller, peddler or an agent, but has not succeeded in even making a visible dent in the illicit drug empire. What has gone wrong? This paper attempts to critically analyse this law by examining various judgements, discussions with professionals in the field and interviews with several accused.1 In a brief paper, we attempt to outline only the major points.
The Act has failed due to (i) delays in trial, (ii) weak bail laws which afford bail to the rich while keeping the poor in prison, (iii) failure of the investigating agencies to present prosecution cases according to the procedure set by the NDPS Act,2 and (iv) poor understanding of the addiction problem.
It must be mentioned that some new amendments were passed without any discussion in the midst of the Tehelka related din. They are yet to be notified.
The Act is a prohibitionist law. Essentially, it contains two categories of offences: (1) trafficking and (2) consumption. Section 8 prohibits cultivation of opium, poppy, cannabis plant and coca plant and the production, manufacture, possession, selling, purchasing, transport, warehousing, consumption, financing illicit traffic, harbouring offenders, and import and export of any narcotic drug or psychotropic substance except for medical and scientific purposes as specified by the government.
A convicted person shall be punished with rigorous imprisonment for a term of not less than 10 years which may extend to 20 years and a minimum fine of Rs one lakh which may extend to Rs 2 lakh or more (sections 15-25 and sections 27A-29). Offences relating to cannabis are punishable with a minimum sentence of five years and a fine which may extend to Rs 50,000 (section 20). Far greater punishment has been imposed for a repeat offence. The amendment in 1989, section 31A laid down the death penalty for second offences with regard to certain drugs if the quantity involved exceeded specified limits.
The Act presupposes the guilt of the accused, reversing the onus of proving one’s innocence, which is not the norm under Indian jurisprudence. Section 35 presumes that an accused under this Act had the intent, motive and knowledge of and for his actions. Section 54 goes a step further to add that unless the contrary is proved it shall be presumed that the accused was in possession of the illicit articles seized from him.
The initial attitude was that drug abuse was a menace to society and needed to be checked. This factor overshadowed the norms set down for the enforcement officials to safeguard the rights of the accused. Thus, there were several convictions for a term of 10 years imprisonment and fine for possession of even very small quantities.3
Chapter V of the Act pays attention to the procedure of investigation to be followed for the offences herein. This chapter is particularly important as it lays down the guidelines for courts to weigh the nature and accuracy of the evidence presented by the prosecution.
This chapter confers enforcement agencies with enormous powers. The magistrate can issue warrants; any officer of gazetted rank of the central government departments (Central Excise, Customs, DRI etc.) has the power to authorise any officer subordinate to him (excluding sepoys, peons or constables). Warrant or authorization can also be dispensed with if such officer has reason to believe that the time lag may afford an opportunity for concealment of evidence or facilitate the escape of an offender (section 41 and 42). Thus, any enforcement person above the rank of a sepoy, constable and peon has the powers of search, seizure and arrest of any person, article, conveyance or building. Such operations can also be carried out at any time between sunset and sunrise if necessary.
Initially it was assumed that the investigation procedure detailed in the Act was only to guide or aid the process of investigation. Only a few years later was the significance of these provisions as safeguards to the accused realised. Judges then became reluctant to convict those accused for 10 long years. In the application of such a draconian law, it was important for the judges to find out whether the enforcement personnel had followed the procedures correctly or not.
Interpretations varied from High Court to High Court. One of the main problems was the meaning of the words ‘shall’ and ‘may’ in sections 41 to 58. Are the procedural provisions mandatory or directory? The confusion and debate persisted till the 1994 judgement of the Supreme Court.4
Bail is the release of an arrested person from legal custody under an assurance that he will appear before the court whenever necessary. Bail is an important right given to the accused to be exercised whenever possible under law as it is presumed that every accused is innocent until proven guilty. As per the Cr PC (Criminal Procedure Code), any accused can seek to be released on bail on the expiry of the total period specified in the Code for framing a charge sheet (section 167 of the Code). A charge sheet is a formal report, submitted to the court after the investigation into the complaint of an offence is complete. The maximum period allowed to file a charge sheet for an offence under this Act is 90 days.
Bail is important for three reasons: (i) All are innocent till proved guilty. But this law says that you are guilty unless proven innocent. (ii) Justice delayed is justice denied. There are a large number of people awaiting trial at any given point in time in jails. The long time gap between the occurrence of a crime and the trial usually casts doubt on the accuracy of the evidence. Often evidence becomes questionable, leading to acquittal on grounds of insufficient evidence. It is a fact that experienced advocates bring out the inconsistencies in the statement of the witness on cross examination to weaken the case of prosecution. (iii) It is practical and follows common sense. Nearly 43% of prison maintenance costs are spent on undertrials, who constitute 60% of those under detention.
When the Act came into force the cases were initially triable by the regular Sessions courts. These new cases were an addition to the existing backlog of numerous other offences under different legislation in the Sessions court calendar, resulting in an inordinate delay in their disposal. This led to a serious protest from the under-trials lodged in various jails and forced the government to set up special courts to deal exclusively with cases under the Act (amended in 1989). These special courts have succeeded in reducing the delay, but not significantly. In Mumbai, despite eight special courts, the cases still take 2-3 years to come up for trial. The solution would lie in setting a more rigorous time frame for disposal of cases. The poor among the accused bear the brunt of this unscrupulous legislation. They are unable to get out on bail for want of resources.
The Supreme Court ruled that an undertrial could be released on bail after serving half of the minimum period of the sentence, provided he fulfils a series of conditions specified in the order and pays the exorbitant sureties set by the court.5 An accused under this Act then qualifies for bail after five years! These years cannot be compensated in terms of time and damage to the life of the accused were he to be acquitted; and acquittals are common under this Act.
All the offences under the Act remain cognizable and non-bailable. Bail is an exception to be granted in rare cases only after giving the public prosecutor an opportunity to oppose the bail application and if the court is of the opinion that the accused is unlikely to commit any offence while on bail (section 37).
However, courts have granted bail on many grounds including (a) professional panchas, and (b) difference in the weight of samples. In rare cases temporary bail is also granted on medical grounds, where the accused invariably requires treatment in a private hospital. Misjoinder of cases is another reason for granting of bail but a High Court judgement held that even if there is misjoinder of charges, that by itself is not a ground for releasing the accused on bail even under the Code.
Section 100 of the Code lays down that when a person is suspected of concealing something on or around his person, any officer desirous of searching such person should, before making the search, call upon two or more independent and respectable inhabitants (called ‘panchas’) of the locality. Thereafter, a statement with the list of things seized should be prepared and signed by the panchas and a copy given to the accused. This provision is significant since in most cases there are no witnesses other than the enforcement officials, panchas and a chemical analyst. Since the panchas are the only independent witnesses, their evidence is crucial in deciding the guilt or innocence of an accused.
It is difficult to get panchas due to the fear that exists in the minds of the public about police and crime. Under normal circumstances most people avoid being a witness to an offence. This could well be a major reason for using the same people as panchas in several cases. However, since this breeds familiarity, pliability to the police cannot be ruled out. It also gives scope for connivance with the authorities. For these reasons the High Court granted bail in a few cases where the defence proved that the panchas were used in several other cases, usually from the same police station.6
Section 52 specifies that the persons arrested and articles seized should be forwarded without delay to the officer-in-charge of the nearest police station. Section 55 empowers such officer to keep the articles seized in safe custody. Such articles should have the seal of the officer who accompanies them and the seal of the officer-in-charge of the police station. In one case in Bombay when the magistrate ordered a large quantity of heroin to be brought for inspection, it was found that heroin had been substituted with talcum powder by the police when it was in their strong room.7 There are any number of cases where irregularities regarding the samples given to the chemical analyst have occurred. This factor renders the whole seizure questionable. Under such circumstances the High Court in Bombay has given bail to many of the accused.8
Another problem is the failure of enforcement agencies to abide by section 50 of the Act which gives the accused the right to be searched in the presence of a magistrate or a gazetted officer. The Supreme Court (State of Punjab V. Balbir Singh) held that, ‘It is obligatory on the part of such officer to inform the person to be searched. Failure to do so would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.’
Despite abiding by the procedure laid down and the circumstances pointing to the seizure being otherwise legal, in the absence of a written statement of the accused or a mention about its compliance in the panchnama, the trial is vitiated. The Supreme Court as well as the High Courts have upheld the provision and acquitted the accused only because of non-compliance with the section.
The Act does not adequately discriminate between the addict, petty peddler and drug trafficker. There is a complete lack of distinction between various offences. Under the Act, any illegal activity related to drugs has been termed as trafficking and the punishment made absolute. Circumstances of the offence, intent of the accused, discretion of the judges, all of which form the basis of deciding the guilt or innocence of an accused, have been done away with by a single stroke. The judge has to punish the convicted with a minimum sentence of five years (in the case of ganja) and 10 years rigorous imprisonment in other cases. The punishment cannot be commuted, reduced or transferred.
Further, the Act does not understand the concept of addiction, particularly in its provision of once in a lifetime reprieve to addicts with mandatory treatment. It, however, does attempt to provide some reprieve to the addicts. Under section 27, illegal possession of certain drugs in small quantities intended for personal consumption carries a punishment of only upto one year or a fine or both. The amount of the specified drugs is listed by the central government and in case of drugs not listed, the punishment is upto 6 months or a fine or both. In the case of heroin, the small quantity specified is a quarter gram. Imagine sending a young man to 10 years of rigorous imprisonment for possession of a quarter gram of heroin!
However, any addict who is convicted under this section may once in a lifetime be released for medical treatment subject to certain conditions, to any hospital or organisation maintained or recognised by the central government in lieu of the sentence (section 39A and 64A).
Addicts typically relapse several times before stabilizing. This one time reprieve shows a complete ignorance of the phenomenon of addiction on the part of policy-makers. Though the Ministry of Social Justice and Empowerment has funded over 375 NGOs to run treatment centres, none of them are notified centres; instead they are only recognised as centres where patients can seek voluntary treatment. Only three centres run under the auspices of the Ministry of Health and Family Welfare are notified.
The Act lays down ‘the conditions and manner in which narcotic drugs and psychotropic substances shall be supplied for medical necessity to the addicts registered at the centres (section 71 and 78).
But till date, no mechanism has been created at the district or state levels for the purpose. The central registry of addicts was frozen in the late 1950s. This has had serious consequences on the type of addiction in the country. Traditionally, India has a large number of opium consumers and an even larger number of people using cannabis in one form or another. Earlier there were numerous retail outlets all over the country. But because of this law, these natural products have become scarce even as heroin and several pharmaceutical drugs are available in plenty.
Many users of traditional drugs have shifted to these extremely harmful drugs. Opium is bulky in comparison to heroin – one kilo of heroin is extracted from 10 kilos of opium; ganja smells and is also bulky. It is easier to transport, hide and sell heroin than the raw drugs. Since heroin gives higher profits it enables the peddler to bribe the authorities. In any case, if one has to go to jail for 10 years for both opium and heroin, why sell opium? This law has brought drug users in contact with criminal gangs who alone can buy political and police protection.
The law makers and the judiciary are conscious that this law is extremely harsh and can be misused just as TADA was. Hence, they have included section 58 which affords protection from vexatious (malicious) entry, search, seizure or arrest of any person, place or object by making such act a punishable offence.
Chapter VA, section 68A-68Y on the forfeiture of property derived from or used in illicit traffic has been included by the amendment of 1989, subsequent to the 1988 UN International Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This chapter details the procedure for identifying, freezing and forfeiture of illegally acquired assets, and subsequent legal action. The law stipulates some necessary preconditions for forfeiture (e.g., the person should have been convicted for a minimum sentence of five years by court under this Act) and has created a Board to review the cases.
For implementation purposes these preconditions make forfeiture impractical and difficult. Another problem is that the involvement at the higher rungs is not easily visible, nor is it easy to gather evidence as these people operate a respectable front with legitimate businesses. It is often difficult to trace all the assets of such suspects. Under the circumstances it is a rare case in which forfeiture laws are used by the prosecution.
In our country, most crooks keep property in benami names. When property is seized from such notorious persons, no one dares to bid at the auctions. The sale of the alleged properties of Dawood Ibrahim comes to mind. In the first round no one came forward to buy it. Then a Shiv Sena member bid for one building only to be challenged in the court by another person claiming that the property was his and he did not know anyone by the name of Dawood Ibrahim.
The proceeds from the sale of such properties shall be pooled into a National Fund for Control of Drug Abuse (section 7A) to combat drug trafficking and for treatment of addicts. However, so far, not a single rupee of this fund has been disbursed to any government or non-government agency. Officials of the NCB state that there is no decision on whether this money can be given to NGOs.
Iwould like to recommend that the declaration of all offences as equivalent to illicit trafficking in drugs be changed. The gravity of the offence can only be decided after looking into the nature and level of involvement – user, peddler, carrier, middleman, financier, supplier; amount of seizure and the market value of the drug; nature and extent of returns accrued by the accused; type of drug and the extent of harm it can cause to the user; and last, the pattern of use and the choice of drug – which alone can determine the action to be taken. Thus, categories of offences should be listed with some consideration to circumstances of the crime and judges should exercise minimal discretion in awarding punishment.
Alcohol prohibition gave rise to the formation of organized crime groups (OCGs) in Bombay in the late 1940s, as did similar measures in many parts of the world. Over a period of time, OCGs networked with each other, competed for territory and clashed (often violently) with each other, sometime taking the help of the media, a segment of politicians and the police themselves. In Mumbai, they have even diversified into legitimate businesses, like film production.
What were once dispersed and local, petty operations have today consolidated into oligopolies. They have moved from smuggling gold, diamonds, electronic goods and arms into drugs, thanks to this law. This was inevitable once a prohibitionist approach was taken on the issue of drug use because:
* profits are enormous; export potential brings even greater profits that can be put in Swiss and other tax havens;
* money is required to pay smart lawyers which the dispersed petty groups do not have. Thus, petty criminals have either to quit dealing in opium, charas and even heroin, or tie up with OCGs who can fix protection from the system.
The real loser is civil society, particularly the poor and marginalised. Just to prove the efficacy of the Act, enforcement personnel are forced to file many cases. Given the provisions of the Act and the manner in which they are used, many of the accused end up in jails, even as undertrials. It bears remembering that half the jail inmates in the US are vulnerable minorities charged with drug related offences. It is, therefore, crucial that we review our basic premises and reform this Act.
1. A supplementary law, Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, was enacted in 1988. It provides for the detention of any person in order to prevent him from engaging in illicit traffic of drugs. The maximum period of detention permissible within very highly vulnerable areas of illicit traffic is set as two years and in other areas as one year. This Act is not discussed in the paper.
The Money Laundering (Prevention) Bill was drafted as a sequel to the UN Special General Assembly at New York in 1998. It was passed in the Lok Sabha, but due to strong protests by the IMC, FICCI, ASSOCHAM and other business groups, the Rajya Sabha has referred it to a select committee for review. In India, where black money is estimated to be nearly 40% of the GDP, how will our ruling elite ever pass a bill that makes money laundering a criminal offence?
2. A glaring example is that of the Bombay Police approaching British courts for extraditing Iqbal Mirchi on the grounds of him being a drug trafficker. The case was thrown out for want of adequate evidence.
3. The judgement of Deepak Ghansham V. State of Maharashtra (CLJ, 1989, 1181) being a case in point where the quantity of heroin seized was worth only Rs 20.
4. State of Punjab V. Balbir Singh (JT 1994 (2) SC 108).
5. The Supreme Court Legal Aid Committee representing Undertrials V. Union of India (1995 SCC (cri) 39).
6. Sanjay Arun Bagawe V. State of Maharashtra (unreported, Bombay High Court) and Mohd. Afzal H. Mistry V. State of Maharashtra (unreported, Bombay High Court).
7. On this and other grounds, the IG Police of Maharashtra, under the powers vested with him, dismissed several middle and high level police officers serving in the Narcotics Cell of Bombay Police from service.
8. In Smt. Noorbanu B. Pathan V. State of Maharashtra (unreported, Bombay High Court) and Satnam J. Bhagi V. State of Maharashtra (unreported, Bombay High Court) the accused were granted bail. In Kamruddin J. Pathan V. State of Maharashtra (C.L.J. 1991 826) the court even allowed an appeal for acquittal.