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On 22nd April 2020, a 3-judge bench of the Hon’ble Supreme Court in the case of Hira Singh v. Union of India overruled the original 2-judge bench decision given in 2008 in the case of E. Micheal Raj. The 3-judge bench ruled that the punishment for possession of illicit drugs as under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS”) would not depend on the exact quantity of the drug found in a given consignment. Rather, in plain words, it said that it is the quantity of the whole substance and not the purity which will determine the punishment for the offenders.
This judgment can be seen as a major development in the existing law. According to the older position of law, laid down in the case of E. Micheal Raj, only the weight of the banned substance was taken into consideration for determining whether the substance was in “small or commercial quantity”. Under the relevant provisions of NDPS Act, punishment for commercial quantity is higher than the one provided for small quantity. Evidently, the judgment has added teeth to the Narcotics law in India.
Significance of this development
This judgment in the Hira Singh case can be seen as a welcome step in tackling the rising drug menace in India. The apex court went on to describe E. Micheal Raj as ‘not good in law’, on the point that only the quantity of the actual drug is relevant for deciding the quantum of punishment. The judgment assumes significance due to the fact that it directly attacks the problems related to drug abuse. It is because when the entire quantity of the consignment is taken into account, along with the neutral substances added, it basically makes it difficult for storage of drugs in a conspicuous manner. It can no longer be safe to use other neutral substances in order to protect the original drug content.
The business related to drugs is a crime against the society. It had to be dealt with in a stronger manner to reach a solution. Use of drugs has seen escalation amongst the youth which is aggressively caught in this web. Along with the development of drug abuse, a lot of deficiencies have been spotted in the existing law. An advanced approach was thus required to be taken in order to do justice to the entire legal framework. The judgment also acknowledged the existence of mafia and drug lords around the world who have been continuously working on the supply chain of drugs.
Salient features of the judgement
It can be reasonably inferred that the judgment is a purposive interpretation of the NDPS Act. The court termed NDPS Act as a special law and the recognised the purpose with which the Act was enacted. The purpose of the Act is to combat the menace of the drug abuse which has a strong potential to destroy the public health and can lead to larger issues at the national level. This was one important feature of the judgment. As regarding the Objects and Reasons of the Act, court was duly convinced that the legislature never intended to exclude the quantity of the neutral substance. In this sense, the court recognised that while punishment part is important in relation to drugs, the prevention part is even more important in order to capture the drug market.
Under Section 21 of the NDPS Act, punishment has been defined for “small quantity” as well as a “commercial quantity”. Earlier, in order to qualify under the above categories, only the actual amount of the consignment withheld was taken into account. However, the judgment has thrown on light on the prevalent adulteration that takes place in order to make drugs accessible to general public. It was observed by the court that what goes often unnoticed is the fact that drugs are seldom sold in pure form. They are always adulterated with other substances. For example, heroin is often mixed with caffeine which makes heroin to vaporise at a lower rate and hence makes it easier to preserve the drug for a longer duration. Examples of chalk powder and zinc oxide were also given. This in turn, allowed the consumers to take the “drug faster and get a big bunch sooner”, a noted by the bench. Therefore, the judgment directly attacks the poison which is openly sold in the market.
Its objectives and purposes
India is a country where significant volumes of illicit drugs are sold on a regular basis. As can be seen, the sentencing scale and the fine differ greatly depending on the content and quantity contained. Consequently, determining the amount of drugs involved in an offense is crucial, and a great deal of litigation revolves around this subject, particularly the words “mixture;” “preparation” and “with or without neutral material” found in the legislation. Since the NDPS Act does not provide guidelines for assessing quantity, some courts have begun to rely on the statutory description of narcotics, especially those referring to a numerical percentage (e.g. opium and opium derivatives) to determine the amount involved. This had often resulted in inconsistent interpretations and decisions which are conflictual in nature.
Also, after the Supreme Court in 2008 (E. Micheal Raj case) held that for narcotics combined with ‘neutral substances,’ only the actual content of the narcotic drug is relevant to deciding whether it is a small or commercial quantity, the ‘purity vs total weight’ debate raged on. And now in the latest position of law as laid down in the Hira Singh case, the court declared that the total weight of the seized product should be considered in the calculation of the quantity and not the pure content of the drug. This move is greatly detrimental to people who use narcotics and other low-level criminals who fear being prosecuted for crimes involving moderate or industrial amounts, since street narcotics are heavily ‘broken’ and only confiscated in pure forms.
Drug use is illegal and will result in a prison term of up to six months or one year and/or a fine, depending on the drug being ingested. Heroin and alcohol use will lead to a longer prison sentence while cannabis will lead to a less severe sentence. In 2001, the definition of “possession of small quantities intended for personal use” was abolished and at present, possession of small quantities attracts universal punishment, regardless of intent.
While it was intended for violent criminals, limits on bail grants were also enforced in situations involving the use or possession of small amounts of drugs. Courts have made it clear that people charged with crimes involving small quantities of drugs are entitled to bail. And neither police nor people who use drugs seem to be aware of the law, indiscriminate searches and arrests are not unusual, particularly of street users.
Official crime reports do not show the proportion of drug law arrests and convictions against consumers or low-level criminals (including small-scale offenses) as opposed to ‘traffickers’ (including larger quantities of drugs). Since the legislation itself does not differentiate between personal use possession and profit-selling possession, it is difficult to comment on who it is that the law is targeting for the use of drugs. Therefore, the only indicator in this situation is the ‘amount of drugs’. However, it can be easily argued that quantity is itself an imperfect criterion due to the fact that in most of the cases, the person involved with drugs is only aiding the transportation process and not actively involved in the trade.
While the judgment in the above case can be seen as a liberal interpretation of the NDPS Act, the apex court seems to have missed on the larger questions that need to be asked in relation to the deterrence theories attached to drug violence. Whether punishment really is sufficient to control this problem or there is a need to bring in some other measures, is the question that we need to ask at this point of time. It is understandable that in order to bring an intelligible differentia, the legislators had to form some kind of classification of drugs in order to bring the criminals on record. However, what goes unnoticed is the fact that the punishment is not the only way the drug problem can be cured in our society.
Instead of sentencing a drug addict convicted of a low-level drug crime to imprisonment, the court may, after evaluating her / his history and health condition and obtaining consent, remand her / him to a government-conserved or approved treatment facility. Access to treatment relies on filing medical records and taking an oath not to commit drug-related offences again. After care has been completed, the court can delay the sentence and release the prisoner on a bond. To date, this policy has helped few people, if any. Consequently, when the person is convicted of an offence, he/she has already spent major part of the sentence during the court processes, hence leaving little to no room for rehabilitation.
Unless all the available options are brought under the radar, the reformative aim of the legislation will not be fulfilled. The ultimate aim of the NDPS Act has to be realised in order to bring about a positive change in society’s perspective with respect to drugs. In spite of the fact, that the society’s representatives and other drug authorities can be involved in formulating drug policy, the measures have not been taken to a full effect. It is of utmost importance to appreciate the reasons that go behind a person in choosing drugs as means to their recreation. This has everything to do with quality of life associated with the citizens of our nation.
The linkage between the government divisions and the common society representatives has be brought into the picture. Research bodies should be actively involved in accumulating systematic research on drug dependence, substance use and the consequences of the drug use on the health of the individuals. The government as well as the judiciary need to work hand in hand in the conquest of eliminating this evil from the society.
Author: Nipun Kalra from National Law University, Delhi.
Editor: Anmol Mathur from Symbiosis Law School, NOIDA..