NDPS Act dispenses with ‘dishonest intention’ and Section 35 directs the court to presume the existence of a culpable mental state for all the offences under the Act

Mumbai’s Special Narcotic Drugs and Psychotropic Substances (NDPS) court on 21 October extended the judicial custody of Aryan Khan and others till 30 October in connection with the cruise ship drug case. Earlier on Wednesday, the special court refused to grant bail to Aryan and two others in connection with the seizure of drugs. Following this, Aryan Khan moved a bail application in the Bombay High Court against the NDPS court order on his bail rejection. As per Live Law, the extension of Aryan Khan’s judicial custody will not affect his bail plea hearing by the Bombay High Court, which is due on 26 October.

The special NDPS Court said that even though Narcotics Control Bureau did not recover any drugs in his possession, he would not be entitled to bail as he was in “conscious possession” of the drugs. The NDPS said that Accused No two — Arbaaz Merchant — was hiding charas (2.6 gms) for them to consume on the cruise, and therefore, it would amount to both of them being in conscious possession of the drugs.

So here’s a lowdown on what the NDPS Act is all about

Promulgation

The system of control of Narcotic Drugs in India has been put in place considering the requirement of narcotic drugs and psychotropic substances for medical use and the country’s obligations towards the UN conventions.

India is a signatory to the UN Single Convention on Narcotics Drugs 1961, The Convention on Psychotropic Substances, 1971 and The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

A strict law

NDPS Act views drug offences very seriously and penalties are stiff. The quantum of sentence and fine varies with the offence. For many offences, the penalty depends on the quantity of drug involved — small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Small and commercial quantities are notified seperately for each drug.

For instance, two grammes of cocaine or less is considered a small quantity, whereas a quantity of 100 grammes or more is put under ‘commercial quantity’; for heroin it is five grams and 250 grams respectively. For methamphetamine, the corresponding figures are two grams and 50 grams; and for MDMA, 0.5 gram and 10 grams.

Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence attract the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases death penalty. Since the penalties under this Act are very stiff, several procedural safeguards have been provided in the Act. Some immunities are also available under the Act.

It is not easy to dodge the NDPS Act or get bail. It is a special legislation in which the basic principle of natural justice — that one is innocent till proven guilty — is reversed. The accused has to prove his or her innocence.

Punishment

Under the NDPS Act, penalties depend on the quantity of the narcotics material involved. The Centre has notified the individual small and commercial quantities for each drug. For hashish, the commercial quantity is one kilogram.

Consumption of drugs like cocaine, morphine and heroin attracts rigorous imprisonment up to one year or fine up to Rs. 20,000 or both. For other drugs, the punishment is imprisonment up to six months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution.

Production, manufacture, possession, sale, purchase, transport, import inter-state, export inter-state or use of narcotic drugs and psychotropic substances in small quantities involve rigorous imprisonment up to six months or fine up to Rs.10,000 or both. More than small quantity but less than commercial quantity involves rigorous imprisonment up to 10 years and fine up to Rs one lakh. Those activities involving the commercial quantities of drugs attract rigorous imprisonment of 10 to 20 years and fine of Rs one lakh to two lakh.

Why is the law controversial

Usually, a person is punished for acts that cause harm to others, such as murder or theft. Statutorily created offences like those under the NDPS Act fall under the category of victimless crimes. There is no harm done to anyone by a person being in possession of marijuana or partaking of an opium-laced drink and there is no victim.

An offence comprises two elements, the specific action and the guilty mind or dishonest intention which leads up to it. According to criminal jurisprudence, it is the responsibility of the prosecution to establish both before a person is convicted and punished.

However, NDPS Act dispenses with ‘dishonest intention’ and Section 35 directs the court to presume the existence of a culpable mental state for all the offences under the Act. If possession is to constitute an offence, it must mean conscious possession (a term used in Aryan Khan’s case).

Under the NDPS Act knowledge of the contents is imputed to the accused. Section 54 says that it is to be presumed that a person has committed an offence under the Act, if he fails to account satisfactorily for the possession of any narcotic drug or psychotropic substance or any other incriminating article.

Section 31-A provides for a mandatory death sentence, without the alternative of life imprisonment, in the case of a second conviction, which could be restricted to abetment or attempt to commit an offence.

The point that civil activists make is that with its unduly harsh punishments — death penalty, virtual denial of bail, presumption with regard to intention and knowledge, virtually leading to the burden-of-proof being placed on the accused to establish innocence — the NDPS Act should be reviewed from the viewpoint of civil liberties.

What is the NCB’s role?

One of the Directive Principles in the Constitution (Article 47) directs the state to act against narcotic activities injurious to health. The NDPS Act mandates the formation of a central authority to exercise its powers and functions under the statute. The government constituted the NCB on 17 March, 1986 to coordinate with other departments and ministries to fight illicit trafficking of drugs and drug abuse.

With input from agencies

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