Narcotic drugs menace is the enemy. Not the Rheas or Aryans!

In the recent arrest of Aryan Khan, NCB has been granted custody of superstar Shahrukh Khan's son for a significant number of days for gathering circumstantial evidence as Aryan Khan's statements hold no evidentiary value in the court of law under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS) Act, since the October 2020 ruling by the Supreme Court.
This ruling (October 29, 2020) answered a critical question: Whether the statement of an accused recorded by an authorized officer under the NDPS Act is admissible as evidence in the court of Law?
While the October 2020 ruling had a favorable impact on the Rhea Chakraborty case, giving her immunity against any statement she made before the Narcotics Control Bureau (NCB) it resulted in the investigation process becoming more cumbersome. Post this ruling, the investigating agency will now be required to work even harder to gather circumstantial evidence to be able to corroborate the case of the prosecution.
However, what's important to understand here is the impact of such prolonged custody that will have on the mind, career, and life of an accused, in this case, Aryan Khan. Will the basic principle of Indian law that the accused is to be considered 'innocent till proven guilty' be compromised in the enforcement of the NDPS Act? No doubt the thought process behind enacting the NDPS Act and its subsequent amendments needs a serious re-look.

Is India's Anti-Narcotic Law in Urgent Need of 'Rehab'?
The NDPS Act (bill) was introduced in Lok Sabha on 23rd August 1985, passed hastily within 4 days after introduction in the Parliament and in less than a month it received the then President's assent in September 1985.
However, even after 35 years of its enactment, the October 2020 ruling by the Supreme Court, reveals that the NDPS Act has serious flaws. Additionally, the Act is devoid of provisions required to achieve the objective behind the enactment of the NDPS Act itself. Thus, rendering the NDPS Act a half-baked product.
Currently, the identity of all accused under the NDPS Act are revealed and widely published in the media. The NDPS Act lacks on such crucial aspects and therefore needs a big overhaul of its provisions.

Investigating agencies: All Powerful
Now, let's understand the punishment for possession of drugs in India. The Punishment if proven guilty can range from 1 year to 20 years of rigorous imprisonment to up to 30 years of rigorous imprisonment for repeat offenders. There is a provision of death penalty as well. Classification of offences ranges from cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances.
Interestingly, the catch here is that when an accused is caught under the NDPS Act, the scale and fine varies depending on the substance and quantity found with the accused.
Consequently, determining the substance and quantity of drugs involved in the offence is vital and mostly litigation revolves around this question, especially around the terms 'small quantity', 'less than the commercial quantity', 'commercial quantity', 'mixture', 'preparation' etc. which are defined in the Act.
This has given immense power in the hands of NCB who confiscates the substance and determines the quantity. There have been regular allegations about manipulation of seizure reports filed by the NCB and other investigating agencies. These discrepancies certainly raise tremendous question marks pointing towards corruption and misuse of the NDPS Act to satisfy ulterior motives of the powerful.

Prison Not A Solution to Addiction History tells us that jail is not always the solution. Instead of sentencing harsh punishments like imprisonment for several years in cases where the accused is found with a small quantity of drugs for personal use, the law must provide for mandatory rehabilitation of equal term of imprisonment and take regular medical reports on record.
The offenders who fall under the category of 'user' or 'consumer' need counselling, treatment, and rehabilitation but certainly not jail. Putting such accused in jail in many cases has proven to be counterproductive as these categories of people then come in contact with regular or hardened criminals in the jail and their minds get contaminated permanently.
The element of deterrence is essential too and therefore jail as punishment must be retained for serious and repeat offenders. Similar to some other Laws in India, the first-time offenders should be provided protection from social stigma and offer an opportunity to re-cultivate their path in life. The fact remains that the users/addicts are victims themselves.

Future of Narcotic Drugs Landscape in India India is a major market for drugs and is sandwiched between two major areas of illicit opium production, Golden Crescent and Golden Triangle. Afghanistan, the largest cultivator, and exporter of opium is now under Taliban rule, and it is obvious that the finance thirsty Taliban will try to leverage this to the maximum by pushing the exports further leaving India vulnerable . This means India will have to combat increased inflows of narcotics from now on.
The world has seen an increase in the number of countries and states legalizing the medical and recreational use of Cannabis. India appears to be stagnated on a crossroads when it comes to the current global scenario and the NDPS Act in its current form.
The Indian Judiciary till now has been reluctant in admitting petitions seeking legalization of recreational or medicinal use of cannabis in India. It is high time to think about opening a regulated market for recreational/medical use of cannabis and refining the provisions of the NDPS Act. Again, even from this point of view various proactive campaigns for discouraging and preventing the consumption of Narcotic Drugs must be increased and aggressively implemented by both the Central and State Governments along with the upgrade in the NDPS Act.
By stigmatizing and punishing today's Rheas and the Aryans even before they are conclusively proven guilty by a court of law, we are failing as a society. The NDPS Act is turning out to be counterproductive. Hence, we cannot forget that this is a fight against the drug menace and not against all Rheas and Aryans out there.

Satya Muley
Advocate - Bombay High Court.

Satya Muley

Satya is a leading Civil & Criminal Law lawyer from Western India.
He practices at Bombay High Court, the Supreme Court and Courts in Pune/Maharashtra & New Delhi.
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