India’s statutory control over narcotic drugs is governed by a primary piece of legislation called The Narcotics Drugs and Psychotropic Substances Act, 1985 — commonly referred to as the NDPS. It is the statute under which all cases relating to consumption, possession, and sale of narcotic drugs are prosecuted in the country, and has been amended thrice since its inception in 1985. However, in the recent years, the NDPS law seems to have broken into people’s homes, violated their privacy, and most importantly, failed to eradicate the country’s so-called “drug problem”.
Ganja, charas, and other psychotropic substances can be found playing important roles in Hindu mythology and ancient India, being used as a digestive catalyst, pain relief, and even for psychotherapy. Prior to 1985, India did not even have a law that criminalised the possession and use of drugs.
The Rajiv Gandhi government back then created and implemented the NDPS under growing economic pressure from the US government and eventually became a signatory to the Single Convention of Narcotic Drugs—an international treaty drafted in 1961 which aims at preventing the sale and manufacturing of certain narcotic substances. It is noteworthy to mention that India had managed to keep the sale of marijuana for almost 25 years before buckling on August 23, 1985, when the NDPS Bill was introduced in Parliament and received the President’s assent a month later.
Is Aryan Khan’s arrest justified?
The recent raid conducted by the Narcotics Control Bureau (NCB) aboard a Mumbai-Goa cruise ship and the consequent arrest of high-profile individuals such as Bollywood superstar Shahrukh Khan’s son Aryan Khan resulted in the recovery of “small quantities” of drugs. None of it was found on Aryan Khan, yet, his face has been plastered across news channels; he has been taken into NCB custody for further questioning and has been denied bail—even though the sections imposed upon him are bailable in nature. During Khan’s bail hearing on Monday, the Additional Solicitor General argued that the reason for seeking custody of the accused(s) was to interrogate them and find out a broader nexus of the supply chain.
“Ultimately, we have to see the purpose and object of the Act,” said the ASG in court, according to LiveLaw. “It is to remove the drug menace from society. You can’t claim that just because you are found with a small quantity or nothing, you are entitled to bail. We have to reach the suppliers where the financing is happening. We have to unearth the nexus.”
According to Senior Advocate Rebecca John, the real “mischief” committed by investigating agencies is when they arrest persons with small quantities of drugs. These are bailable offenses, but in order to justify the arrest, they routinely talk of international conspiracies, funding, etc that gives them time to convert a bailable offense to a non-bailable one and extend the period of detention – which is clearly illegal.
“Why does the NCB have to arrest first and then investigate?” she asked. “If they haven’t investigated, then why are people being kept in custody? An arrest demands that a certain threshold of evidentiary requirement is met. The NDPS Act contains provisions with severe punishments. Provisions like Section 37 restrict the right to bail for more serious offenses. It gives the Act a kind of a draconian overview—much like the UAPA—and courts are immediately hesitant to release people on bail.”
She further pointed out: “Investigating agencies first posture, make grand claims, and then tell a court that they are looking for evidence. They must first establish the offense through unimpeachable evidence. What is happening is the exact reverse.”
John said that criminal law is being “weaponised” as of today. “If there are huge recoveries and the authorities feel that the accused person is involved in possessing, selling, purchasing, or trading of large quantities of narcotics —which is clearly prohibited—then they should go after those people without any hesitation. But in a case where small quantities are recovered, to say that they are investigating an international conspiracy is perverse.
‘NDPS obsolete, needs to change with the times’
John opined that the NDPS Act is “ambiguous, and in parts, draconian”. “It hasn’t moved with the times and is not in sync with international law. Authorities also use the NDPS Act to snoop into people’s phones and look at their messages. This is a breach of privacy and should not be allowed without court orders. It leads to a fishing and roving exercise that is essentially meant to intimidate and target individuals.”
Senior advocate Anand Grover, who is also a member of the Global Commission on Drug Policy Anand, says that the Americans who started the war on drugs and at the same time, also forced other countries into many such different agreements such as the TRIPS Agreement (for sharing of intellectual property).
“It was Nixon who imposed this on us and the law itself needs to be scrapped. They forced every country to adopt a law that made possession and consumption of drugs illegal and criminal. However, it was left up to these countries to decide what sort of constitutional scheme they would create to enforce this. Today, the US has moved to decriminalise cannabis but we still use the same law. Section 377 was created and imposed on us by the British…they removed it in 1960 itself but it took us 150 years to scrap it.”
“The US’ moral imperative is not our culture,” he said. “Our culture neither criminalised same-sex relations nor any drug use.” While appearing on behalf of the Indian Harm Reduction Network earlier, Grover had challenged the mandatory death penalty in the Bombay High Court for a second conviction under the NDPS.
“Why should you be punished for something that you’re doing recreationally? In the 1930s, the US made criminal, the use, possession, and consumption of alcohol. And who benefited from this? Big criminal gangs—not ordinary people. This is exactly what is happening today: the criminal gangs are politicians and others who’ve stored large quantities of substances at Adani port. The (NDPS) law is actually allowing criminal gangs with political nexus to make huge amounts of money. The question is: where is the money going? Is it going to politicians? Or the other persons who are only in possession of narcotics and psychotropic substances? These people are simply the end-user. Most of them are drug dependent (addicts). They need medical help—not to be thrown into prison. It (the law) is just creating more criminals.”
Grover dishes out a lesser-known fact about the NDPS. “Under CrPC or general law, when a police officer catches a criminal and takes his statement under Section 161, it (the statement) is not admissible in evidence, meaning, it cannot be produced in court. However, under the NDPS Act, such statements under Section 67 were used by investigating agencies to threaten and intimidate people since they are admissible in evidence—like a confession. Fortunately in Tofan Singh’s case, the Supreme Court through Justice RF Nariman held that these statements are not admissible. As a result large numbers of accused have been released on bail.”
‘NDPS works, if used the right way’
However, Delhi-based trial lawyer Dharmendra Mishra says that the NDPS is a law that is very much required—but only if it is used by the authorities and investigating agencies in the right manner and to reach the right people i.e. the source of the drugs.
“Every law is a law for the welfare of society, but if it is misused, it becomes draconian. The more stringent the law, the more likely it is for it to become draconian in nature. Since the NDPS is a very, very strict law, its misuse becomes even more dangerous. The problem lies in how the law is being used i.e. to catch only tier 2 and tier 3 people, but failing to reach the source of where the drugs originate. Laws have two parts: creation and implementation. So although we might have NDPS, its implementation needs to be correct. Having said that had there not been such a law, the prevailing situation in society would have been much worse.”
When asked if the recent busts carried out by the NCB were an example of the NDPS law being implemented correctly, he said: “These are just cosmetic surgeries.”
How India switched to intolerance mode
“India has always had a tolerance towards certain drugs,” said Bombay HC Advocate Ajay Kumar.
“We didn’t criminalise for the longest time, but on the contrary, promulgated the Indian Hemp Commission in the 1800s to study hemp and its uses among the natives. But then the US found out that drugs were making black and white people meet each other (laughs) and become friends, and therefore decided to take a hard stand on the global level. At the time, lots of people from the US used to travel the ‘hippy trail’ through Kabul and enter Kathmandu via Afghanistan and Pakistan. But the United Nations Single Convention on Drugs did two things: it not only created an international prohibition on drugs—but also built a framework around the convention by which drug-producing countries would receive financial incentives to destroy their drugs,” he said.
“This meant that countries like India were more than happy to sign the convention because it meant a ton of foreign exchange coming into the country every year simply to burn crops. However, we didn’t sign the convention for almost 20-25 years.”
Kumar makes it clear that he is not one to believe in the concept of prohibition. “That being said, if one has to prohibit, the NDPS is probably not the smartest way to go about it, primarily because it is a law that is designed for a context which is nonexistent i.e. it is a law that will work largely in developed countries but not in a country like India. This is simply because what the NDPS does—from an enforcement perspective— is that it requires people to inspect farms since these drugs are grown on farms. However, investigating agencies and authorities cannot tell what is growing on these farms because India doesn’t have a central database for agriculture. A farmer in Punjab could, bang in the middle of his wheat field, grow a poppy plant—and no one can even tell. India is an agrarian economy and because of this, you cannot really control what people grow.”
He says that in India, authorities first arrest the person and then investigate the case—much like in the Aryan Khan case, wherein he has been arrested despite no drugs having been found on him and then detained to “unearth a nexus.”
Kumar says: “Indian law will arrest you while the investigation is happening. Funnily enough, right there in the middle of the fundamental rights chapter, there is a fundamental right to the Government of India to detain you indefinitely without telling you why they’re detaining you. It is called preventive detention. Technically, you cannot even have an NCB since only state governments are allowed to perform law and order—not the central government. They have used the power of the treaty to create the agency.”