NDPS Act: Should Vices Be Criminalised?

The makeover of vices as offences to be taken cognisance of by law would end up with most of the human population in prison.

Deepika Padukone, Sara Ali Khan, Shraddha Kapoor, Rhea Chakraborty, Rakul Preet Singh the Narcotics Control Bureau (NCB) is scripting a multi-starrer blockbuster for the small screen. Apparently, we have been getting the full form of NCB wrong as it has been rechristened Naricotics Control Bureau.

Far from being sexist or misogynist, the NCB is dutifully performing its functions and catching the ‘bad’ women of Bollywood, who like the Eve of the ‘Original Sin’ fame may have even lured some of our ‘nice’ boys into temptation.

Principles of criminal jurisprudence

The singling out of women actors apart, an examination of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) from the first principles of criminal jurisprudence seems an interesting avenue to explore and may lead to surprising conclusions. In all civilised jurisprudence life and liberty is valued and is curtailed if an individual commits a crime.

Generally, offences are acts which harm the person or property of others like murder, robbery and theft. The liberty of the perpetrator is curtailed by way of imprisonment due to the injury caused to the victim.

An offence is comprised of two elements the actus reus – the acts which make up the ingredients of an offence and the mens rea – the intention to harm or injure the other person or his/her property. The burden of proof of establishing both the actus reus and the mens rea is on the prosecution to prove the commission of an offence.

Laws such as NDPS brought in 1985 in imitation of and under the pressure of the West create ‘victimless crimes’. Sadhus smoking charas and ganja on the banks of the Ganga in Haridwar and Rishikesh or in the Kumbh Mela, officially organised by the government, are a common sight.

However, NDPS under 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”. 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 of the law proceeds to prescribe stringent punishments extendable to 10 and 20 years’ imprisonment with respect to use, possession, and sale, purchase of opium, charas and ganja.

Naga Sadhus or Hindu holy men take a dip during the first “Shahi Snan” (grand bath) at “Kumbh Mela” or the Pitcher Festival, in Prayagraj, India, January 15, 2019. Photo: Reuters/Danish Siddiqui

Mens rea or the criminal intention

NDPS dispenses with ‘intention’ to cause injury and Section 35 directs the court to presume the existence of a culpable mental state for all the offences under the Act. In law, 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 NDPS, 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.

Also read: The Demonisation of Cannabis Users Needs to Stop

Of decoys and entrapment

NDPS and the Immoral Traffic (Prevention) Act are the two legislations where the modus operandi of sending in decoy customers is employed by the police. It is no coincidence that these two laws have been singled out for the deployment of the methodology. It is the taint of the immoral associated with the offences under the laws and the accused persons being looked upon as the repositories of the all that is ‘bad’ in society, that makes using decoys a methodology acceptable to investigative agencies, the prosecution and the courts.

The Criminal Procedure Code, 1973 does not contain any provision authorising sending in of decoys by the police as part of the investigative steps to be taken in finding out the perpetrators of an offence. The sending in of a person as decoy who offers money for the commission of an act which is an offence would fall within “entrapment”.

It is the conception, planning and execution by a police officer by trickery, persuasion and fraud to get a person to commit an offence. In the context of the offence of theft, enticing a person to burgle a house by offering money would amount to criminal conspiracy and abetment to the offence by the individual.

Denial of bail

The restrictions imposed on grant of bail under NDPS 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, 1987 and Prevention of Terrorism Act, 2002 which resulted in long periods of incarceration and evoked strong criticism from the human rights movement.

Rhea Chakraborty and her brother Showik. Photo: PTI

The provisions of NDPS possibly due to the ‘sinful immorality’ associated have remained unnoticed on the statute books even by the civil liberties movement. The concomitant requirement of speedy disposal of cases under NDPS to offset the curtailment of liberty by denial of bail to the undertrial, remains a chimera in our clogged justice delivery system.

Also read: Strange and Arbitrary Bail Orders: Are Indian Judges Going Too Far?

Victimless crimes

The possession or recreational use of psychotropic substances lacks the primary ingredient of the intention to harm and the causing of injury to the other. There is no ‘victim’ of the crime. The acts are statutorily created offences under the NDPS and are victimless crimes. The acts can at best fall within the category of vices. At the worst, they can be said to be acts by which a person harms himself or herself.

The premise of making these acts an offence comes from the thirteenth century Latin phrase ‘non compos mentis’ in English law. ‘Compos mentis’ meaning ‘having control of one’s mind’ and prefixing ‘non’ translates into ‘not having control of one’s mind’. The individuals are to be treated as infirm and incapable: the State steps in as a moral guardian to protect them.

That those who practice vices are mentally infirm and need to be protected from self-destruction by incarceration leading to the likely ruin of their lives, appears to be a dubious proposition. Criminalising vices is a pandora’s box with an endless stream emerging in the arena. Acts with the criteria of injury and harm to others as a fulcrum are relatively easier to categorise and agree upon as crimes.

Intrinsically, the qualities, behaviour and acts which are to be categorised as vices are in the realm of the subjective with little possibility of agreement. Greed, avarice, hypocrisy, gluttony and acts like drunkenness, smoking and prizefighting may all fall within the category of vices.  The makeover of vices as offences to be taken cognisance of by law would end up with most of the human population in prison.

Actors Deepika Padukone, Shraddha Kapoor and Sara Ali Khan. Photos: Official Twitter accounts

Under the blanket of drug menace to society, the draconian nature of NDPS has received little critical attention. In the case of a second conviction, even for offences in the nature of abetment or attempt to commit an offence, section 31A of NDPS earlier prescribed mandatory death sentence. In a fortunate turn of events, an amendment in 2014 to the Act leaves room for the court to impose the alternative of enhanced sentence, as an alternative to death penalty, for a second offence.

The legislation with unduly harsh punishments, use of decoys, denial of bail, presumption with regard to intention and knowledge, leads virtually to the burden-of-proof being placed on the accused to establish innocence and needs to be reviewed.

In the context of criminalising vices, about a century and a quarter ago, Lysander Spooner in Vices Are Not Crimes: A Vindication of Moral Liberty argued that government should protect its citizens against crime, but that it is foolish, unjust, and tyrannical to legislate against vice. The larger jurisprudential question whether the state should criminalize vices and the assumption that those who practice vices like recreational drug use are mentally infirm and need to be protected from self-destruction by imprisonment needs to be opened up for debate.

Rakesh Shukla is an advocate and member of the Supreme Court Bar Association.