Recently, Shah Rukh Khan's son Aryan Khan along with seven others were charged with various sections under Narcotic Drugs and Psychotropic Substances Act,1985 (NDPS Act). The following article shall seek to explain the legislative intent behind the law, the offences therein, the punishment prescribed and the provisions for bail etc. The NDPS Act was enacted with the objective to make stringent provisions and consolidate the law in relation to narcotic drugs and psychotropic substances.
Narcotic Drug and Psychotropic Substance - Meaning
The NDPS Act defines narcotic drug[i] as coca leaf, cannabis (hemp), opium, poppy straw, derivatives/concentrates of all the aforementioned substances and other narcotic substances notified by the Central Government in the official gazette. Further, psychotropic substances[ii] are defined to include any natural or synthetic substances included in the list of psychotropic substances specified in the Schedule of NDPS Act.
Offences and Exceptions under NDPS Act
The NDPS Act punishes the possession, purchase, sale, transport, consumption etc. of a narcotic drug or psychotropic substance[iii]. Any use of narcotic drugs and psychotropic substances for scientific or medicinal purposes are exempted from the rigour of the law. However, even in those cases, one needs to obtain the required permit or authorisation[iv].
Small Quantity versus Commercial Quantity
The quantum of punishment under NDPS Act depends upon the quantity of narcotic drugs and psychotropic substances found. Small quantity[v] means any quantity lesser than the quantity specified by the Central Government and commercial quantity[vi] means any quantity greater than the quantity specified by the Central Government. Both small and commercial quantities for various drugs have been notified[vii]. For instance, for the substances seized by Narcotics Control Bureau (NCB) in the recent raids that led to the arrest of Aryan Khan and others, small quantity and commercial quantity are as follows[viii]-
Narcotic drug/ psychotropic substance
Punishment under NDPS Act
The punishment under NDPS Act becomes more stringent as the quantity of drugs found increases from small quantity to commercial quantity.
Punishment for contraventions relating to various substances, for possession, purchase, sale, use etc. in small quantity, is rigorous imprisonment up to one year, or fine up to ten thousand rupees, or both[ix]. Whereas if the quantity is between small and commercial, punishment is rigorous imprisonment up to ten years and fine up to one lakh rupees[x]. For commercial quantity, punishment is rigorous imprisonment of ten to twenty years and fine of up to two lakh rupees[xi].
There will also be enhanced punishment of one and half times the maximum term of imprisonment and one and a half times the fine, if one is convicted of an offence with the same amount of punishment after a previous conviction[xii]. NDPS Act also empowers the judges to impose a fine exceeding two lakh rupees while providing reasons for the same in the judgment.
Punishment WRT Consumption
For consumption, the punishment is imprisonment of six months to one year or fine of ten to twenty thousand rupees or both, depending upon the types of drugs used[xiii].
Punishment WRT attempt, allowing use of premises for an offence
Even the attempt to commit an offence under NDPS Act is punishable with the same punishment as that of the offence[xiv]. Similarly, if an owner or occupier or others of the same nature, knowingly permit the commission of an offence in their premises, it incurs the same punishment as if the offence was committed by them[xv].
Commutation/suspension of sentence not allowed
Owing to the serious nature of the offences, no sentence awarded under the NDPS Act can be commuted except the sentence awarded for consumption[xvi].
Presumption of Motive
Crucially, while prosecuting an offence under NDPS Act, the accused is presumed to have the motive or culpable mental state required for commission of the offence and it is upon the accused to prove that he had no such mental state.[xvii]
Presumption of Offence from Possession
The accused is presumed to have committed an offence, unless and until the contrary is proved, if he is found to be in possession of narcotic drugs, psychotropic substances etc[xviii].
Appeal and Bail
The issue of bail under NDPS is a contentious one. As per the heading of S.37 of NDPS Act, all offences under NDPS Act are non-bailable. However, the same is not reflected in the text of S.37. It only mentions that bail cannot be granted in certain offences such as those that involve embezzlement of opium by cultivator, trade in narcotic drugs and substances outside India, finance of illicit traffic or harbouring offenders and offences that involve commercial quantity, unless certain conditions are met with. The conditions to be met with before granting bail under NDPS Act are that the Public Prosecutor should be given an opportunity to oppose the release of the accused and where the Public Prosecutor opposes the release, in order to grant bail, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
The Bombay HC in a recent case[xxi] held that all NDPS Offences Are Non-Bailable regardless of the quantity of drugs found. Therefore, even if the drugs found are not commercial quantity or fall within the small quantity category, bail under NDPS cannot be sought as a matter of right. In an NDPS case, the SC dismissed bail stating that mere absence of recovery of contraband from possession of accused by itself is not a ground to grant bail.[xxii] In Aryan Khan's case too, no contraband substance was recovered from him. However, as held in the aforementioned case[xxiii], that in itself is not a ground to grant bail.
In another case[xxiv], the Gauhati HC denied bail and held that all the three conditions for granting bail under NDPS Act are conjunctive, i.e. all the three must be fulfilled in order to grant bail and not part fulfilment. The three conditions are that the public prosecutor should be given an opportunity to oppose bail of the accused, there must be reasonable grounds for the court to believe that he is not guilty and there is no likelihood of the accused committing an offence while on bail. In the above case[xxv], the court denied bail stating that the third condition is not fulfilled.
Immunity Available under NDPS Act
An addict convicted for consumption or for offences involving small quantities will be immune from prosecution if he volunteers for de-addiction[xxvi]. This immunity may be withdrawn if the addict does not undergo complete treatment[xxvii].
Immunity may also be granted for the sake of obtaining evidence in relation to contravention of NDPS Act, upon the condition that one makes full and true disclosure of all the circumstances relating to the contravention[xxviii].
Sections invoked in the Cruise Ship Drug Case
In the recent cruise ship drug case, Aryan Khan, Arbaaz Merchant and Munmun Dhamecha were booked under sections 8(c), 20(b), 27, 28, 29 and 35 of the NDPS Act. S.8(c) prohibits possession, purchase, sale, transport, consumption etc. of a narcotic drug or psychotropic substance. S.20(b) deals with possession, purchase, sale, transport, consumption etc. of cannabis. The punishment for this is dependent upon the quantity of cannabis recovered and since the quantity recovered is small, punishment could be rigorous imprisonment up to one year, or fine up to ten thousand rupees, or both. S.27 provides the punishment for consumption of any narcotic drug or psychotropic substance and it ranges from imprisonment of six months to one year or fine of ten to twenty thousand rupees or both, based on the drugs consumed. S.28 punishes any attempt to commit an offence under NDPS Act with the same punishment as that of the offence attempted to be committed. Similarly, S.29 dealing with abetment and criminal conspiracy provides the same punishment as that of the offence abetted or conspired to be committed. As per S.35, a culpable mental state is presumed while prosecuting an offence under NDPS Act and the burden to prove that no such intent or mental state existed, lies upon the accused.
The drug problem in India is more severe than it appears. As per a report on substance use in India, about 1.2% of Indian population (approx. 1.3 crore persons) have used illegal cannabis products i.e. ganja and charas (as opposed to legal cannabis i.e. bhang) between 2017 and 2018. The report also states that 2.1% of the country's population (approx. 2.26 crore individuals) use opioids which include opium, heroin and a variety of pharmaceutical opioids.
The NDPS Act in line with the objective for its enactment, provides stringent provisions and stricter punishments in order to tackle the drug menace. The courts have also taken the same view and impose stricter punishments regardless of the circumstances, in lieu of the societal impact drugs can have.
[i] S.2(xiv) and S.2(xi), NDPS Act
[ii] S.2(xxiii), NDPS Act
[iii] S.8(c), NDPS Act
[v] S.2(xxiiia), NDPS Act
[vi] S.2(viia), NDPS Act
[ix] S.15 – S.24, NDPS Act
[xii] S.31, NDPS Act
[xiii] S.27, NDPS Act
[xiv] S.28, NDPS Act
[xv] S.25, NDPS Act
[xvi] S.32A, NDPS Act
[xvii] S.35, NDPS Act
[xviii] S.54, NDPS Act
[xix] S.36B, NDPS Act
[xx] S.37(1)(a), NDPS Act
[xxi] Rhea Chakraborty v. Union of India and others, Bom HC, Crl Bail Appln. /2386/2020
[xxii] Union of India vs Md. Nawaz Khan, LL 2021 SC 489
[xxiv] Md. Mofidul Haque v. State of Assam, Bail Appln./1162/2021
[xxvi] S.64A, NDPS Act
[xxviii] S.64, NDPS Act