Implementing Rehabilitation Sanctions In NDPS Law : Justice Maria Clete Writes

This article emphasizes the crucial importance of integrating rehabilitative sanctions provided for in the NDPS Law with the current case management procedures. The NDPS law aims to promote collaboration between the criminal justice system and the rehabilitation systems to ensure that drug-dependent and non-violent offenders receive the necessary services while still being held accountable for their actions. Therefore, it is proposed that courts incorporate rehabilitation services into their NDPS case processing to promote anti-drug social justice. One way to achieve this is establishing a judiciary-supervised NDPS Court Annexed-Rehabilitation Centre for Drug Dependent and Non-Violent Offenders (JUSCARE-NDPS).

1. Introduction

The rise in drug abuse amongst school and college students and vulnerable groups in recent years is indeed deeply troubling. This issue has far-reaching consequences that impact individuals, families, and communities in significant ways, including increased incidents of family and sexual violence, community and street violence, as well as a decline in public health and public safety.

Consequently, the Supreme Court of India and High Courts in states like Punjab and Haryana, Kerala have taken proactive steps, initiating Suo moto proceedings and issuing directives to combat this issue. Read judgements in re Suo Motu Proceedings Initiated Based On ... vs State of Kerala on 10 February 2021 Equivalent citations: AIRONLINE 2021 KER 595] [In re Bachpan Bachao Andolan and Anr Vs State] [Court On its Own Motion Vs State of Punjab on 15 September 2023 Neutral Citation No:2023: PHHC: 122143-DB] [ In Re The Menace Of Drug Mafia Network ... vs Unknown on 18 October 2022 SUPREMECOURT OF INDIA Writ Petition(s) (Criminal) No(s). 496/2021]

In Tamil Nadu, the Government has designated August 11 as the Day to Pledge against Drug Abuse, signalling recognition of the issue's seriousness. Beyond the slogan “No to Drugs,” the deeper understanding is that combatting substance abuse entails addressing the underlying situational factors driving individuals to substance abuse. There's a clear need for more decisive and better-coordinated action, and more needs to be done to synergise efforts.

Bail in NDPS cases is stringent under the law. Prolonged trials in NDPS courts lead to prolonged incarceration. Professionals in the legal system acknowledge that lengthy incarceration often pushes incarcerated drug dependents and non-violent offenders into the drug trafficking network. In the truest sense, implementation by the NDPS Courts of the rehabilitation sanctions available in NDPS law as an alternative to imprisonment matters greatly.

II. The Scenario and the Sisyphus Analogy

The NDPS Court grapples with a disquieting question of whether the confinement, especially for extended periods, of drug dependents and novice offenders inadvertently funnels them into the control of drug lords and traffickers. To address this concern, the conscientious NDPS Court meticulously reviews each case during daily remand extensions, ensuring transparency in the reasons for continued detention. Additionally, it monitors default bail situations, prevents the accused from remaining in jail despite court-granted bail due to lack of sureties, and utilizes Legal Aid Services to facilitate the release or reunion of incarcerated individuals with their families.

However, the Addicts, street peddlers, and traffickers form a complex network, with street peddlers acting as the critical link. Despite stringent NDPS laws and the presence of Special Courts, Investigating Agencies, Special Prosecutors, Rehabilitation Centres, and Medical Systems, the drug problem persists. Each entity involved in this fight operates with its goals, such as:

● Prosecutors seek convictions.

● Investigating Agencies aim to increase case registrations.

● Courts focus on case disposal.

● Medical Systems and Rehabilitation Centres treat addicts as they come.

NGOs and People's Movements continuously push for better public safety and health measures, but a more integrated approach is essential.

In Greek mythology, Sisyphus was condemned to an eternal punishment of rolling a boulder up a hill, only to watch it roll back down each time he neared the top. The analogy of Sisyphus's eternal struggle in Greek mythology mirrors our current approach to combating drug abuse. Despite our well-intentioned efforts, it often feels like a repetitive cycle: making progress in arrests and prosecutions, only to witness the drug problem resurface again in alarming ways as in the present scenario. This endless battle signalls the need for a reevaluation of our methods. Rather than merely rolling the boulder of prosecution and incarceration up the hill, we need a strategy that breaks this cycle. This is precisely where the NDPS Court-Annexed Centre steps in.

III. Introducing the NDPS Court-Annexed Centre JUSCARE- NDPS: A New Approach.

The Hon'ble Supreme Court, in State of Punjab v. Baldev Singh [AIR 1999 SC 2378], observed, “Anti-drug justice is a criminal dimension of social justice.”

The NDPS Court is categorized under the Problem-Solving Court umbrella. The Special Public Prosecutor is envisioned to serve as both a sword and a shield. Acting as a sword, the prosecution will combat drug lords and street peddlers while functioning as a shield for consumers, victim peddlers and similar offenders. Law is an instrument for social change. The NDPS law indeed wants the criminal justice system and the rehabilitation systems to work together to enable drug-dependent and non-violent offenders to receive the services they need while still holding them accountable for their crimes. So, Courts must integrate rehabilitation services with their NDPS case processing work to ensure a holistic approach to justice that addresses offenders' punitive and therapeutic needs. This is best achieved through establishing a judiciary-supervised NDPS Court Annexed-Rehabilitation Centre.

The establishment of a judiciary-supervised NDPS Court-Annexed Rehabilitation Centre for Drug Dependent and Non-Violent Offenders aims to disrupt the drug supply chain and decrease demand by collaborating with Prosecutors and defence, academics, educators, researchers, counsellors, legal services authority advocates, NGOs, medical professionals, and rehabilitation experts. This proactive measure is vital for breaking the cycle of addiction and crime, facilitating the smooth and safe reintegration of offenders into society, minimizing harm and improving public health and safety.

IV. Why This Centre?

The NDPS Rehabilitation Legal Framework:

The NDPS crime is far from victimless, as drug use harms both individuals and society at large in various ways. Recognizing this, the legislature aims to deter the criminalization of evidence-based drug dependents and promote public safety while guarding against criminal recidivism.

The NDPS law regime provides avenues for offenders to seek immunity from prosecution by undergoing treatment. Courts have the authority to release offenders for drug treatment and rehabilitation in government institutions established per Section 71 of the NDPS Act. The government can develop centres and set norms to identify and rehabilitate addicts.

In NDPS Court, a significant portion of the accused hails from economically disadvantaged backgrounds, primarily young individuals. Differentiating between hardcore traffickers and street peddlers, who often operate in the shadows, can be challenging. Section 64 of the NDPS Act allows the government to tender immunity to those willing to provide complete disclosures about contraventions. This can help identify and dismantle the drug network.

Provisions within the NDPS Act allow accused individuals charged under Section 27 for drug consumption to seek immunity from prosecution under Section 64 A and volunteer for treatment. Courts have also interpreted Section 64 A to apply to small quantities and larger quantities of drugs. Additionally, Section 39 of the Act permits judges to release offenders who opt for treatment in government institutions and are found guilty of offences relating to Section 27 of the Act.

The NDPS law lacks the automatic presumption of innocence in ordinary criminal jurisprudence. Here, the burden of proof shifts upon the accused, necessitating them to justify the possession of seized drugs. Courts have ruled that arresting officers are not obligated to consider whether the accused is an addict or trafficker, as this would disrupt the normal investigation process. Consequently, accused individuals claiming addiction must prove their status, shifting the onus onto them. Courts typically require evidence demonstrating the intended use of seized drugs for consumption to classify the accused as drug dependents.

This scenario presents challenges for accused individuals, as volunteering for treatment may be perceived as an admission of guilt. Additionally, proving addiction status can be arduous. Prosecutors often pursue convictions for drug trafficking, leading to the incarceration of individuals who may only be drug dependents. Exposed to criminal elements within prisons, drug dependents are at risk of further exploitation and recidivism, perpetuating the cycle of drug-related offences. Different High Courts have often quashed proceedings utilizing Section

64 A and directed rehabilitation. In contrast, some have directed accused individuals to petition trial courts for immunity consideration under Section 64 A. The High Court of Madras has made a referral to drug de-addiction treatment facilities [In re Sanjiv Bhatnagar vs State Represented By Its on 27 January 2016 in CRIMINAL REVISION CASE NO.1278 OF 2015 and M.P.Nos.1 and 2 of 2015, the High Court of Madras].

Courts have observed some of the stereotypical documentation from investigating agencies on seizures and possession of prohibited substances by the accused. Moreover, false accusations against innocent individuals are a persistent concern. Given such challenges, a judiciary-supervised court-annexed centre could help alleviate concerns about false accusations. Incarcerating individuals without offering rehabilitation leads to jail congestion and perpetuates involvement in the drug mafia. Moreover, society and families ultimately lose these individuals, who could otherwise be reintegrated into society and contribute positively. A judiciary-supervised centre can break this cycle. Utilising provisions of the NDPS Act necessitates the establishment of a judiciary-supervised court-annexed institution and ensures the Rule of Law in the NDPS legal regime.

Nothing is impracticable; what truly matters is professionalism and dedication to the cause.

V. Establishing JUSCARE-NDPS within NDPS Legal Framework: How it Works

The JUSCARE-NDPS initiative will harness the judicial authority to enforce rehabilitation measures. In essence, the Centre will facilitate the smooth integration of rehabilitation services into NDPS case management, overseeing the court-monitored rehabilitation of drug-dependent and non-violent offenders. The Centre will actively participate in all associated activities in pursuit of this goal.

The Court-Annexed Centre will be an interconnected network involving judicial, law enforcement, service organisations, occupational therapists, health professionals, and more. By engaging various stakeholders and delegating responsibilities within judicially supervised structures like the Court Annexed Centre, we can enhance judicial processes, leverage the Act's non-punitive provisions, and effectively achieve anti-drug social justice.

Establishing the NDPS Court-Annexed Centre will alleviate public criticism of prolonged incarcerations. Stringent law enforcement will ensure that only deserving individuals face punishment. In contrast, others undergo rehabilitation programs, with the Special Public Prosecutor playing a crucial role in the supervision and accountability standards of those admitted to the Centre. This approach will reduce the state's court and jail costs. The proposed centre would involve a multi-disciplinary team, including:

● Academicians

● Educationists

● Researchers

● Counsellors

● Legal Services Authority and its enrolled Advocates

● NGOs

● Medical Professionals

● Rehabilitation Therapists

This team would ensure a coordinated effort to reduce drug demand and supply, rehabilitate offenders, and help them reintegrate into society.

By re-strategizing and pioneering initiatives like the NDPS Court Annexed Centre, this State and our Judiciary will continue to lead the nation in innovative judicial interventions, as we did with establishing the Court-Annexed Mediation Centre.

Summary of Practical Benefits

1. Enhanced Judicial Processes: The centre would facilitate better adjudication, especially for bail hearings. For instance, in the case of Sanjiv Bhatnagar vs State (2016), the High Court of Madras referred the accused to T.T. Ranganathan Clinical Research Foundation for treatment.

2. Reduced Incarceration: The centre would minimize jail congestion and reduce recidivism by offering treatment and rehabilitation instead of prolonged incarceration. It would protect the accused from exposure to hardcore criminals and offer a path to recovery.

3. Cost Efficiency: Reducing long-term incarcerations and promoting rehabilitation can lower costs associated with courts and jails, benefiting the state by decreasing expenditures on judicial and penal systems.

4. Public Safety and Health Improvement: Coordinated efforts among various stakeholders ensure comprehensive care and support for individuals, reducing overall drug demand and improving community health.

Moving Forward

Implementing this Centre requires careful planning and coordination, including a timeline:

VI. Conclusion

The establishment of a judiciary-supervised NDPS Court-Annexed Rehabilitation Centre for Drug-Dependent and Non-Violent Offenders is not just imperative—it's urgent. This initiative is key to reducing drug demand, facilitating

offender rehabilitation, and enhancing public health and safety. Immediate and

concerted actions are crucial to transforming this vision into reality.

Much like Sisyphus yearned for liberation from his ceaseless task, we, too, seek an end to the relentless cycle of drug abuse and its ramifications. The NDPS Court-Annexed Centre represents a beacon of hope, offering a sustainable and compassionate approach to tackling the drug issue in this state and other regions as well.

Author is a Judge, High Court, Madras.