Pubdate: Mon, 10 Dec 2007
Source: Times of India, The (India)
Copyright: Bennett, Coleman & Co. Ltd. 2007
Author: Rakesh Shukla
Note: The writer is a Supreme Court advocate.
Bookmark: (Marijuana)


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.
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