28th January 2023

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Section 8 (c) of NDPS 1985

With the Office of Narcotics Control charging Rhea Chakraborty in connection with the messages found on her WhatsApp chats in the first FIR and invoking Deepika Padukone, Sara Ali Khan, Shraddha Kapoor and Rakul Preet Singh, there are several questions as to the circumstances under which which law enforcement agencies can charge a person.

  • Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985 states: “No one may cultivate coca or harvest any part of it; cultivate the poppy or any cannabis plant; or produce, manufacture, possess, sell, buy, transport, store, use, consume, import interstate, export interstate, import into India, export from India or transship any narcotic or psychotropic substance, except for any purpose medical or scientific and in the manner and to the extent provided for in the provisions of this law… ”Anyone violates these measures may be charged under the NDPS law.
  • Typically, in NDPS cases, a person is charged after being caught red-handed with drugs or money for “commercial use”. In cases of “consumption”, they are also asked to have a blood / urine test. The report of the contraband seizure and the blood test serve as evidence correlating the charge.
  • However, an OCN official said that in cases of illicit financing – article 27 (A) of the NDPS law – under which Chakraborty was registered in the second FIR in which she was arrested, was not necessary to seize narcotics and cash seizures might also suffice.
  • NCB said it had details of Chakraborty who allegedly made payments to drug traffickers using credit cards. The amounts would be in thousands of rupees.
  • Her lawyer, Satish Mandeshinde, countered this by claiming that the payments for the purchase of drugs were not part of a “drug cartel” as claimed by the CBN.
  • There is a difference between small drug users and large-scale drug cartels, he said. A local court, while denying Chakraborty’s bail, said that under section 27 (A) no particular amount is required to prove the crime.
  • According to law enforcement officials, there are three types of charges. Possession of small quantities, intermediate quantities and commercial quantities specified by the central government by notification to the Official Gazette.
  • Different narcotics have different amounts that fall into these categories and carry different penalties. For example, in the case of cannabis, a small amount (up to 1 kg) is punishable by a rigorous prison sentence which can be extended to six months, or with a fine, which can be increased to 10,000 rupees. or both.
  • The intermediate quantity of cannabis (between 1 kg and 20 kg) is punishable by a severe prison sentence which can be increased to 10 years and a fine which can be increased to 100,000 rupees.
  • Commercial quantity (greater than 20 kg), with a rigorous prison sentence of a duration which will not be less than 10 years but which may be increased to 20 years and will be punishable by a fine which will not be less than 1 , 00,000 rupees but which can be extended up to 2.00,000 rupees. The court may, for reasons to be recorded in the judgment, impose a fine of more than Rs 2.00 000.
  • According to Section 64 (A) of the NDPS Act, which means immunity from prosecution for drug addicts who volunteer for treatment, it says: “Any drug addict, who is charged with crimes related to small quantities of narcotic drugs or psychotropic substances, who voluntarily seeks medical treatment for drug addiction in a hospital or institution maintained or recognized by the government or local authority and submits to such treatment shall not be liable to prosecution under any other section for offenses involving small amounts of narcotic drugs or psychotropic substances; provided that said procedural immunity can be withdrawn if the addict does not undergo full drug addiction treatment. ”Simply put, if a person is caught smoking of marijuana, she may be granted immunity from prosecution if she is undergoing drug treatment.
  • Actor Fardeen Khan, who in 2001 was charged with possession and use of small amounts of cocaine, is one example. He completed a three-week drug rehab program at KEM Hospital and was granted a waiver of prosecution under Section 64 (A) of the NDPS.
  • However, an NCB official clarified that immunity can only be applied once the prosecution submits a charge sheet. It does not influence the investigation process.
  • NCB’s first FIR (15/20) against Chakraborty is based on WhatsApp chats provided to the agency by the Applications Directorate. In this, there are discussions of “trying MDMA once” and “noticing marijuana.”
  • In this case, in addition to Chakraborty and her brother Showik, there are five other defendants. This is primarily based on discussions and does not allow for the seizure of money or narcotics.
  • An attorney who handles NDPS cases said that in her career of more than two decades there was only one case where the drug seizure was not there.
  • “In this case, however, the agency confiscated money to substantiate drug trafficking,” the attorney said. So far no arrests have been made in this case. NCB officials say they cannot indict Chakraborty in this case.
  • In the second FIR (16/20) registered their motorcycle by NCB two days after the first FIR, in which 19 people were arrested, including Chakraborty and her brother Showik, they have seizures in the form of 590 g of hashish, 0, 64. g of LSD leaves, 304 g of marijuana, including imported marijuana joints and capsules, Rs 1.85,200 in cash and Indonesian Rs 5,000 from an alleged street vendor, Anuj Keshwani, arrested in the case.
  • It comes under the commercial quantity. This is the case where NCB told a local court that it wanted to “uproot the drug citadel in Mumbai, especially Bollywood.” The BCN plans to bill Chakraborty in this case and has six months to present the charge sheet from the time of the arrests.
  • Communication such as WhatsApp conversations / messages, call recording where a person talks about buying, selling, consuming, cannot be used as evidence?
  • It can be used in a case as long as there is corroboration of the conversation with evidence. For example, if there is a message in which a person places an order for a drug, there must be evidence that the drug was delivered.
  • “The person can order and change their mind at the last minute and not have any medicine. A person can simply brag to someone who has used drugs.
  • There are cases in which petty criminals brag about having killed someone even though they are not involved. Discussions alone may not be enough to prove drug use or any crime without corroboration, “said NDPS attorney Taraq Sayed.
  • Unlike statements made to the police, statements given to OCN officials who are not technically considered “police officers” and therefore civilians, are admissible in court under article 67 (A) of the NDPS Act. Statements made by Chakraborty and others to NCB are, therefore, admissible as evidence in court.
  • However, the Supreme Court hears petitions against allowing OCN officials not to be treated as “police officers” and the defense could use them if the OCN relies solely on statements, made in front of the agency. Several suspects, including Chakraborty, have already retracted statements they made to NCB, claiming they were made “under duress.”
  • According to what the NCB has said so far, they have been summoned mainly on the basis of the WhatsApp chats found on the phones of Chakraborty and Jaya Saha and the confessional statements made by them to the police.
  • NCB officials have said it will depend on what they say in their statement to decide whether they should be charged. The sources, however, said based on the evidence that the maximum that can be imputed to the suspect is insufficient alcohol consumption, so they can request immunity by agreeing to undergo re-education at the time of the charge if they do not wish to challenge him.
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