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11/12/2007 00:00:00

A draconian law

The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, is a
draconian law because it places the state in the capacity of a moral
guardian vis-a-vis the citizen. The recent uproar over former Union
minister Jaswant Singh serving an opium-based drink, riyan, points to
the draconian nature of the NDPS Act. Singh could get a 10-year jail
term if the serving of the drink is established.

The restrictions imposed on grant of bail under NDPS Act amount to
virtual denial and ensure years of incarceration. Section 37(1) declares
that an accused person is not to be released on bail unless the court
has reasonable grounds to believe that the accused is not guilty and is
not likely to commit an offence while on bail. This provision is
identical to provisions of the Terrorist and Disruptive Activities
(Prevention) Act and Prevention of Terrorism Act which resulted in long
periods of imprisonment without trial, evoking strong criticism from the
human rights movement.

Like in the West, the NDPS Act provides for stringent punishment for
cultivating, possessing or purchasing the "substances" enumerated in it.
Sadhus smoking chillums on the ghats of the Ganga are a fairly common
sight. However, the law in its majesty has forbidden the mere possession
of charas and ganja.

Section 2(iii)(a) defines cannabis (hemp) to mean charas and includes
the "separated resin, in whatever form, whether crude or purified,
obtained from the cannabis plant" and subsection (b) includes "ganja,
that is, the flowering or fruiting tops of the cannabis plant". Sections
2(xv) to (xix) define the entire spectrum of opium, opium derivatives
and poppy and bring it within the ambit of the Act. Sections 17 to 20
prescribe stringent punishments extendable to 10 and 20 years'
imprisonment with respect to use, possession, sale, purchase of opium,
charas and ganja.

Generally, a person is punished for acts which 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. For example, if a thing is put in the hand of a sleeping
person A, then it cannot be said that A is in possession of it.
Similarly, if something is slipped in the handbag of B, then B cannot be
said to be in possession of it.

However, 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.

Under the blanket of drug menace to society, the draconian nature of the
legislation has passed unnoticed. Section 31-A provides for 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. There is no doubt 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.

The larger jurisprudential question whether the state should criminalise
vices needs to be debated. The assumption that those who practise vices
like recreational drug use are mentally infirm and need to be protected
from self-destruction is open to question.

The writer is a Supreme Court advocate.

Author: Times of India via UKCIA

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