NDPS Act – Needs Urgent Review

Ladies and gentlemen, I welcome you to another session of this month. Today we shall talk upon about the Narcotics Drugs and Psychotropic Substances Act, and where we feel is that there is a need for urgent revision in this particular act. To talk on the subject we have the president of NISSMAT, Mr Sipal Singh, who is a retired senior police officer, who has served in all parts of the country and has been a terrorist expert during the Indo-Pakistan situation, where in Indian Punjab they had created a lot of problems. He raised the Rapid Action Force and also the security academy in Mount Abu in Rajasthan. During a service he has been decorated many times by the President: Police Medal for Distinguished Service, the Indian Police Medal for Meritorious Services, a Sena Medal, a bar, a Police Special Duty Medal with bar, and a number of other commendations and rewards.

Post retirement he's worked with Disco and has been the chairman of the technical committee for quality control which formulated the standards for the star rating of private security companies. He has been deeply associated with the security of the nation within the police services. In the year 2009 the President of India awarded him with the Security Personality of the Year award. Mr Sipal Singh's face is well known as a dynamic security professional, and frequently comments on various security issues in the country on national televisions.

Aryan Khan case has been in the eye of the storm. Before that, last year, it was Rhea Chakraborty. Aryan Khan was arrested along with seven others by the Narcotics Control Bureau on October 3rd after a raid on a cruise ship off the coast of Mumbai. So far 20 persons have been arrested in this case. No drugs were recovered from the 23-year-old Khan, but investigators allege that he is part of a larger conspiracy to procure drugs from an international network. The judge said that Khan's WhatsApp chats showed that he was involved in illicit drug activities for narcotic substances on a regular basis. Mr Sipal Singh, how do you consider the basic framework of the NDPS Act in this context?

Thank you very much indeed for the introduction. The basic framework of the NDPS Act is both reformative as well as punitive. In fact it is said that about quarter billion population in the world is affected by the drug addiction, and as far as India is concerned, being in the midst of, close to, the Golden Crescent, a lot of trafficking of synthetic drugs was reported. In view of that, this legislation was enacted hurriedly to stop this sort of activities by the multi groups or the groups who are from outside the country. You will be surprised to know that at one state in Punjab, which was considered as a sort of maximum affected by the drug affliction, at one time it was said that in Punjab itself, the border areas, between age group between 15 onward, 75 of the young population was affected. So that is the background according to which it needed the introduction of a very stiff act.

Stiff indeed. There are stiff punishments as far as offenses are concerned, offenses which really involve drug trafficking or which are going to affect the national exchange also in some extent; that is why it is under the Ministry of Finance. But at the same time there are a lot of reformative provisions in that. So the broad framework of the act is both, that is punitive as well as reformative. But the question is whether we are only emphasizing on the punitive aspect or we are giving due attention to the reformative aspect. That is the issue, which is basic issue today to be considered by you.

I have some statistics with me in the state of Punjab. You mentioned Punjab. Punjab's all-India share of crimes under the Narcotic Drugs and Psychotropic Substances Act climbed from 9.2 in 2001 to 42.3 in 2013 as a national share. Why do you think this has occurred?

Yes, yes, indeed. Now in Punjab as such in particular, the studies reveal that there have been various reasons of increase of addiction, drug trafficking, etc., and I may mention that most of the drug trafficking takes place from outside of Punjab. There was once upon a time a plant here which produced some synthetic drugs, which was dismantled when the police came to know about it. However most of the trafficking in Punjab takes place from the other areas close by, because we are closer to Afghanistan, Iran and Pakistan, the so-called the Golden Crescent triangle, and therefore lot of infiltration was taking place.

Now the question is why there is increase. The unfortunate part is, number one, the investigations have been rather weak, because whatever investigation was conducted, that was not strictly in accordance with the NDPS Act. It says the searches should be conducted, personal searches should be conducted, in the presence of a gazetted officer unless the circumstances are so that the custody officer's presence is not required. It also indicates that after the search has been conducted you inform the magistrate. So there are a lot of lacunas were there in investigation. More often than not these searches were conducted in a very haphazard manner, with the result at the stage of both prosecution and conviction these people were going scot-free.

Secondly, the process of prosecution and litigation is so long, so prolonged, that there was hardly any deterrent effect of those who were bringing the drugs into it. Third, very interesting case, a few years back a very famous drug trafficker, he is also a murder convict, he was produced in the court of law, and he mentioned in the court of law the names of some political leaders who were involved in the drug trafficking or who were involved in patronizing them. So with the result that this disease, this affliction, this malice went on increasing in Punjab, and every chief minister who came, he gave assurance that we'll do this thing and we'll do this thing. Basically same thing happened about the rehabilitation center. The rehabilitation center in Punjab were also not looked after that properly as they were to be looked after, and therefore the rehabilitation center also became a sort of just a question of reformative, you know, whatever, they will just sit there and they will escape from the reformation and go into drug attack.

So with result, these reasons were there where the Punjab became much more afflicted. At one stage a picture was made in Punjab, Udta Punjab, that is Flying Punjab, that all the time these people are under that control, and there were a lot of criticism that why are you trying to tarnish the image of Punjab. But then it was pointed out that no, it is not tarnishing, it is only to touch the sensitivities and to have the sensible approach to that, so that people know that this is an addict which is causing a lot of damage to the youth of Punjab.

In the United States the Drugs Enforcement Agency is akin to our Narcotics Bureau, and the effort over the years generally been to destroy the supply chain, whereas the NCB is targeting small-time consumers or alleged consumers, as opposed to destroying the supply chains. At least that is what has come to limelight with the Rhea Chakraborty case and the Aryan Khan case. What do you feel about it?

No, I feel that there is definitely approach is not as it should be, but there are a lot of lacunas in the act. Those lacunas are exploited by enforcement officers, with the result that to gain popularity, or for certain personal gains, or for certain other reasons, maybe political reasons may be there, to appease their bosses, the approach has been to target the small timers, with the result to get a sort of publicity, while the big drug traffickers, they have gone into a sort of wilderness and they are not available to them. But that does not mean the act does not provide. Act does provide. Act says that even for those who are importing for commercial purposes commercial quantities laid down in act, they are to be given death penalty. I mean this is something rarest of rare crime; that is under section 31(1) of the act the death penalty has been laid down. So not that the act does not have punitive clauses, not that the act doesn't have stiffer clauses, but it is question of implementation. If the implementation is wrong, then we have to pinpoint at the enforcement officers are the reason why the punitive action is not being taken against the big drug lords.

You know, one of the things that is coming to mind is whether the act is apt for our country at this point of time, or it requires modifications. What in your opinion are the modifications that the act must go through?

A very apt question, and I think that is the main point which we should consider today. Of course, every act, there are certain discretion powers with the enforcing agencies. In this act also there are discretionary powers. Whenever the discretion is given to enforcing agency or enforcing officer, he is sometime, because of subjective attitude of his, he tends to sometimes exploit that discretion of his to his advantage. Of course that is there, but there are basic lacunas in the act itself. For example, in the case of Aryan Khan, there were no drug recovered from his persona. When the search was made, he was found that medical examination is not necessary, so no medical examination was conducted, no drug was found. But from his friends, that is a brass, some small quantity of drug was found from the shoe of that person, and they said since he is his friend, so in view of that it is supposed to be a conscious possession, that is his knowledge of that. So there's a conscious possession. Now the conscious possession leading to rejection of his bail.

Now there are lacuna in the act itself. The act says that, unless the other way around, you'll be surprised to know that normally in most of the laws in the country it is said a person is innocent unless is proved guilty by the prosecution. In this act, section 37, when the bail questions come, it is laid down that the person is presumed to be guilty and he has to prove his innocence. Surprisingly, not that the prosecution has to prove him guilty or something; in this case he is already considered to be guilty and he has to prove his innocence, which is a very difficult process, to prove his innocence. With the result the courts of law, the junior courts of law, did not want at that time to have the discretion to give him bail, with the result that it prolonged, and for 22 days plus he remained in jail.

Not only that, this is a phenomenon which is everywhere. In most of the other small functions they are rotting in the jails because the bails have not been given. The reason is this, that the act itself has the lacuna, because act should have been framed in such a manner that there are two things which has to be framed in that: A, that you want to consider him guilty before even prosecution proving equity, so he has to prove his innocence, and this is not done. Second, the discretionary power which is there in the enforcement agencies, that has to be circumscribed, that has to be limited. So the act needs to be reformed.

I'll tell you another thing, very interesting phenomena. Though the death penalty is provided, and there was a lot of criticism on the section 31 that death penalty should not be there as rarest of rare crime, but they said no, these people are supposed to be committing crime on many many young people who are falling to death under their trap, so therefore death penalty should be there. When this case came up in one of the high court in Punjab, it was mentioned at that time that no, it is Article 19 of the constitution, and the death penalty, 31, they are, and also the discretionary part, they are ultra vires to the constitution. The freedom is allowed; how do you deny them freedom under Article 19? The freedom is allowed, so they say it is ultra vires to the constitution. But we are not dealing with this particular subject, so somebody should go in this, few years back, and go to the court and get the Supreme Court orders that these particular sections are ultra vires to the constitution.

So when you question that what are the lacunas: about bail, that you have to prove yourself innocent; B, the discretionary power with the authorities; see that the circumstances, you know, circumstances. A, the conscious possession, this is something which is very, I mean, far-fetching. He is not behaving consciously; you have to implicate conscious possession. B, the other very interesting thing, that if the enforcing officer has a reasonable belief that he is going to indulge in the practice of importing or outside and having a drug mafia associated with him — reasonable belief. You know what is the reasonable belief? Nobody can, in no dictionary, even the legal dictionary, does not provide what is reasonable. To give any definition of reasonable belief is itself unreasonable. So there's a reasonable belief; what are you going to define, what is the reasonable belief with the enforcing officer? So there are large number of small small lacunas which are making this act a little difficult, and implementation becomes a little more subjective.

So I am of the view that there is a need of review of this act, particularly in respect of the conditions of bail, particularly in respect of his being, his accused, proving himself that he is not guilty, or his innocence, particularly in respect of discretionary power of the enforcing authority, and then of course the punitive powers which are exercised in this indiscrete manner. So there are a lot of things which needs review, and the act needs review, because when sometime it is said that the courts, they should have enjoyed their powers of discretion and given bail, I am of the view when the courts are limited by the wording of act, then nowadays they do not want to exercise their discretion. They leave it: all right, the act says so, so there is that they have to prove their innocence, we will not do so. Of course the court should enjoy their discretion, but in this case particularly, in this case where the law is against this sort of discretion to be enjoyed by the court, because they say the legal political language is this, that he has to prove his innocence.

Mr Sipal Singh, there are two issues that come up. There is discretionary power with the investigating officer, or the people who need to charge a particular person with this particular act, and the second part is the discretionary powers with the lower judiciary judges. Where do you think, in the Aryan Khan, has the error been committed?

You see, first of all, I think the main point which needs to be brought to your notice and to the viewers is that in this case, A, there was no medical examination; B, only conscious possession was indicated; he didn't have anything in his own possession. C, the criminal conspiracy which was attributed to him. The other very different, you see, in the act it provides incidentally that criminal conspiracy, abetment, etc., equal to the offense. This act is very punitive that way, that even criminal conspiracy is equal to the offense. I mean, whatever the offense is punishable, what are the quantum punishable for the offense, that will be punishment for the criminal conspiracy. Now in this case criminal conspiracy, the criminal conspiracy was mainly attributed to WhatsApp, because otherwise it could not be — there's no criminal conspiracy, because he was not having anything in his possession, only conscious possession. He was not medically examined, so he was not a consumer. And thirdly, as far as his bail was concerned, it was being judged by the lower courts, but the very fact that a criminal conspiracy was attributed to him, that is the reason where the bail was rejected, because they said the criminal conspiracy is attributed, that conspiracy is there, and this is equal to the offense itself.

Now here I think the so-called reasons to believe by the discretionary authority, that is the enforcing authority — I'm sorry, this key enforcing authority — is wrong. Then you come to the court. You have questioned how about court. Yes, when the question of bail comes, the court has to take a holistic view, should have taken, in normal cases. In most of the cases, except the cases where the countries, there's a sedition etc., in their cases it's a criminal conspiracy has been viewed differently. But in all other laws the criminal conspiracy is when there are people meeting together, some conspiracy is hatched, and then in this case is criminal conspiracy attributed. And in this case the courts could have used their discretion power to come to the conclusion, but I have already told you in my interview before this that somehow the wording of section is different. It is so binding that the lower court did not want to use their discretion. So though they failed to the extent that they should have used, but the question is there should be some way out for the lower courts also. In this case the law is making it so circumscribed for the bail, that the bail should not be given unless this is there, so with the result that the courts took a sort of view which was a sort of escapist: why get into this rigor more of giving a bail and then asking, is it not according to the law, is it against the law?

So therefore the amendment of law should be on both the verses: that there should be change of language at various places, particularly in respect of bail, also in respect of some punitive section, and secondly in respect of the judicial powers, that there should be some way that the authorities, the judicial authority, the magistrate at the lower court, should be able to have some leeway as to grant the bail. So in both the cases, I am of the view that act needs review.

So one is that the NDPS Act requires to be reviewed thoroughly, but let me come back to the question that we had sort of done in our previous interview also, regarding the BSF. Now in the state of Punjab, you increase the jurisdiction to 50 kilometers of the border for the BSF to be able to take preventive and precautionary actions. Do you think that the drug abuse would be checked by the BSF by increasing the limit to 50 kilometers?

Now that I have already spread, that in that case it is doubly doubly away from — first is, they are not acting under the NDPS Act; secondly, they are not acting under the local laws. They are acting under their own bars of searches, whether to cause deterrent among some people that they are importing drugs and all that. You caught deterrent, and that deterrent ultimately, who has to — again there will be much more difficulty in this case. When the direct enforcement was there, the problem arose. In that case they have done the searches, FIR is to be launched with the local police. The local police officer: investigation proof is wrong, or is it just discretionary, they have done wrong thing. Whether that, not only there can be conflict between the two forces, but also as far as the so-called alleged accused is concerned, he is sandwiched between the two enforcing agencies: one is BSF, second is the local police, and in between, if it is a drug thing, then also NDPS will come into it. So therefore it is much more difficult for those people who are living in that area of 50 kilometer, if only they use their authorities for searches etc. for the drugs.

Now you've been a very senior police officer in the Government of India. What would you advise the enforcement officers in the Narcotics Bureau to be careful about when implementing this particular act?

So I'd like to bring to your notice one important factor. You know, first of all, just on the 15th of August, the Chief Justice, Supreme Court, pointed out that there are large number of laws, there are number of legal powers or legal enactment, which even the court doesn't know why they have been done. So he said that there's a lot to be done as far as the certain extra concern, because this is his own assessment on the basis of his long experience of being the higher most judicial functionary, that the legal and the laws and the enactment which are there, the parasol of laws and platforms of enactment and parasaur clauses, there is some things which are not even known to the judiciary as to what they are meant for. So first is that I feel that there is a need of review.

B, absolutely, you said enforcement authorities, said what, how do you want. As a senior I tell you that even an SHO of a police station who is given discretionary power, you know the powers he enjoys for arrest on basis of information, on seeing that there's an offense being committed, whether it's a cognizable or non-cognizable, and what deterrent it creates. Unless these functionaries are trained, are made to understand that you are here for the benefit of the society, not to create deterrent, not to use your powers for the sake of your personal gains or for obeying his master's voice, going by his master's voice, unless these people are made sensitized to this sort of attitude, the attitudinal changes have to be brought about in the particular enforcing authority where the discretionary powers are vested. And in most of the cases, both in the police as well as most of the enforcement agency, there are discretion power, while in the NDPS Act the discretion powers are there, but legislature has gone far ahead by saying no, no, everyone, which they say if they have a reasonable belief that he is a guilty, then he could be kept. Who will define that reasonable belief? It is the enforcing authority. If he is acting either for his personal gain or on behalf of some master, then what is the reasonable, who is going to define the reasonable?

So I feel, as far as my feeling is concerned, that these people, those who have got this discretionary power, they have to be sensitized, and secondly, there have to be certain parameters laid down itself, that so far and not beyond that, that this power will go so far. So it can be also certain amendments in certain acts, whether this discretionary power should be curbed.

Mr Sipal Singh, thank you very much for your views on the NDPS Act, and I hope that our viewers have benefited by what you have said. Thank you very much, sir.