‘Implementation of theNDPS Act was draconian’

The narcotics drugs and psychotropic substances (NDPS) Act came into focus more than ever before due to the recent Aryan Khan case and kick-started a debate about the law being implemented. Well-known lawyer Firdos Mirza who practices at the Bombay High Court believes the recent implementation of the NDPS Act by the narcotics control bureau (NCB) is draconian, even though the Act itself is not. Mirza also shares some key pointers for both youngsters and their parents, on how some seemingly regular chats on WhatsApp can land you in trouble.
Excerpts from an interview...
Q. The much-debated part of the Aryan Khan case was that you can land up in jail even though you did not consume or possess narcotics.
A. Frankly, the way things have been presented is something that has scared even us lawyers. Our Constitution grants us certain rights, which include protection from malicious offences being registered and now, these rights have to be looked at in the context of what has happened in the last one month. NDPS is a special enactment and it has been formed because drugs are a menace that’s destroying our families, our society. And under this Act there is a definition of minimum, medium and large quantity of narcotics and that is related to the punishment which can be given to the accused if found guilty. Under the minimum quantity ambit come end users for which maximum punishment is one year. Whereas the other two are for drug peddlers or cartels. But here an accused was denied bail on ‘conscious possession’, a new word which we have all come across now.
Q. So, any person can face potential jail time based on ‘conscious possession’?
A. Possession, the word, needs to be understood in legal terms. I possess a car but I don’t carry it around in my pocket and it’s not on my physical self. It’s parked somewhere but yes, legally I posses it. But I must be fully aware that I possess the car, and that’s called conscious possession. I possess an office and while I am away if someone leaves a bag there without my knowledge so I can’t be in conscious possession of that. Now, if narcotics are recovered from you, then there is a presumption that you possessed it and it is up to the accused to prove otherwise. However, the prosecuting agency has to prove beyond reasonable doubt that you possessed it. In other cases, it is up to the government to prove that you actually possessed the recovered materials.
Q. Let’s take a hypothetical situation and talk about what an accused must do if he/she is being framed or if they are simply at the wrong place at the wrong time?
A. Usually, we are known by the company we keep, but fine, let’s consider that at a party a few anti-social elements enter and soon the cops raid the place. Do understand your rights about being searched. You have the option of getting searched either by the cops there or a gazetted officer from their department or before a magistrate. This way the person being searched is also assured that nothing is being planted. The way the NDPS Act has been implemented, not interpreted, by the agency concerned is a bit alarming. I do not believe that NDPS Act is draconian, but the way it is being implemented by the officers is draconian.
Q. Another angle is of WhatsApp chats. Youngsters now communicate mostly through social media. Should they be more circumspect now lest it is misinterpreted?
A. For those who are innocent, why should they live in fear while communicating with friends on social media. Then it will be like living under British rule. Anyway, a nine-judge bench of the Supreme Court has already said that WhatsApp chats have no evidence value. Still, I would advise youngsters to be very clear in their communication on social media so that there is no vagueness and no scope for misinterpretation.
Q. But youngsters nowadays communicate with emojis or short forms of words, which may not always be understood by people belonging to one generation up.
A. I know of a case wherein a milkman got entangled in an extremely serious matter. He kept a diary in which names of clients to whom he had delivered were written. But he never mentioned the word “milk”. In some case this diary got seized and the charge sheet mentioned that he was delivering RDX. It took the man nine years to prove that he was talking about milk and not RDX. So, taking this example I would urge everyone to be very clear in communication.
Q. But how can parents keep a check on their wards and follow their social media interactions?
A. Once we all are convinced that drugs are a menace from which our kids need to be protected, parents can go to any lengths. Parents must always be aware of who their kids’ friends are, where are they going, for what etc. That concept of privacy of kids etc cannot be an argument against safeguarding them. Youngsters too must become aware about whom they are associating with in college or elsewhere.