The act is recently in the news following the arrest of Bollywood actor Rhea Chakraborty for allegedly financing the supply of drugs for her boyfriend Sushant Singh Rajput who died of “suicide” in June this year.
Here is a look at the details of the NDPS Act and what the experts have to say about the law —
How Act evolved
Narcotic Drugs and Psychotropic Substances Actenacted to consolidate narcotic drug laws. The act views drug offences seriously and mandates stiff penalties.
- 1989: Act amended with strict provisions; sections added include under 27A for ‘financing illicit traffic’. ‘Illicit traffic’ means production, possession, sale, purchase, transportation, warehousing, use. Rhea is booked under Section 27A
- 2001: Act amended to rationalize sentencing; easy on ‘addicts’; bail liberalised.
Quantity at play
Act now defines three categories: ‘small quantity’, ‘commercial’ and ‘more than small but less than
commercial’. There are different penalties for the possession of different quantities of drugs.
- Small quantity — Up to 1 year rigorous imprisonment or fine up to Rs 10,000 or both
- Commercial quantity — 10-20 years rigorous imprisonment and fine of Rs 1-2 lakh
- More than small quantity but less than commercial quantity — Up to 10 years rigorous imprisonment, fine up to Rs 1 lakh
Provision for addicts
Small quantity in possession attracts immunity from prosecution. Consumption is an offence under sec 27 of NDPS Act and punishable with imprisonment of up to one year (in case of some drugs) or six months (for all other drugs). However, addicts volunteering for treatment get immunity under section 64A of the Act.
Question of bail
Eminent counsel Amit Desai says the legislature itself adopts a more empathetic approach to matters of small quantities as is borne out by several judgments too when they held that stringent provisions of bail would not apply to small quantities. Courts should thus on a construct of provision which is capable of interpretation, lean in favour of personal liberty.
Sec 37 of the NDPS Act makes bail difficult for offences involving commercial quantities and for those involving embezzlement (Sec 19), external dealings (Sec 24) and financing illicit traffic (Sec 27A). These offences attract 10 years of jail or more. Hence, unless the court hears the prosecutor and is reasonably satisfied that accused is not guilty and unlikely to commit any offence if released, it does not grant bail.
What is ‘financing’?
Rhea was booked under Section 27A for ‘financing’ supply of drugs to her boyfriend. However, Desai says, “financing’ is essentially a form of lending. A consumer who purchases it out of his own funds cannot be said to be financing a narcotic activity.”
Question before HC — Can bail be denied even under Sec 27A when quantity is small or whether the section itself is applicable when a small quantity is alleged?
Rhea’s query — If Sushant was alive his would’ve been a bailable offence of possession of small amount for personal use; while NCB is seeking to charge her with stringent offence punishable with 10 years’ RI for allegedly paying for small quantities for his use.