"That's not mine"
- Puss-in-boots, Shrek-2, upon the recovery of a little baggie of dope from his person when apprehended by the F.F.A.P.D. (Far Far Away Police Dept.).
That defence seldom works. Even when it really isn't your dope. So if that ever happens to you, you could get into a lot of trouble. Or not. Depending on how well you know the law.
In India, the primary law that governs drug related offences is the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Now, just how much trouble you're in would depend on what you are doing at the time you are apprehended by the party-poopers, and how much 'contraband' (i love that word) you have on your person. So what is illegal, and how much is too much?
The Offence:
When are you committing an offence under the NDPS Act?
Among other acts, under section 8(c) of the Act, if you "produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance," you are committing an offence.
Just to be sufficiently clear, possession of a banned substance, its use and/or consumption are all offences under this Act.
The NDPS Act creates three categories of quantities of possession, and prescribes separate punishments for each category, namely:
- Small quantity
- Greater than 'small quantity' but lesser than 'commercial quantity', and
- Commercial quantity
To get an idea of what these quantities are like, refer to the following table(1):
Contraband Quantity Classifications | |||
Substance | Small Qty. | Everything In Between | Commercial Qty. |
Ganja | 1 kg | 20 kg | |
Amphetamine | 2 grams | 50 grams | |
Buprenorphine | 1 gram | 20 grams | |
Charas/Hashish | 100 grams | 1 kg | |
Cocaine | 2 grams | 100 grams | |
Codeine | 10 grams | 1 kg | |
Diazepam | 20 grams | 500 grams | |
Heroin | 5 grams | 250 grams | |
MDMA (Ecstasy) | 0.5 gram | 10 grams | |
Methamphetamine | 2 grams | 50 grams | |
Methaqualone (mandrax) | 20 grams | 500grams | |
Morphine | 5 grams | 250 grams | |
Popy Straw | 1 kg | 50 kg | |
Now, the smart pot-head will ask, "but what if i'm caught with less than the 1kg of Ganja you've mentioned in your fancy table? I walk free, right?". Wrong.
See, this Act wasn't drafted by some newbie. The model Act was originally drafted by the U.N., that's right, the United Nations. The Act was designed to fulfil India's treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. And India proceeded to adopt the model Act almost entirely without any material changes, save for the requisite localisation. And sadly, those guys in the U.N. seem to know their legal drafting depressingly well. The way "small quantity" has been defined under Section 2 (xxiiia) of the Act is:
"2. (xxiiia) 'small quantity', in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
And, as mentioned in the table above, that small quantity of Ganja is 1 Kg. From the above definition, any quantity lesser than 1 kg is also a 'small quantity', and is therefore punishable.
Sorry brah. You could have as little as 2 grams of Ganja or any other banned substance on you and you'd still be in trouble. So "Don't even think about it. Punk.". Clint Eastwood couldn't have put it any better himself.
"But everybody does weed and Bhang on Holi", our pot-head protests.
True. But Bhang is not Ganja. In multiple cases(2), various High Courts have, as recently as 2004, ruled that Bhang is not the same as Cannabis (Hemp), which is banned under the NDPS Act. Therefore, Bhang is legal, but weed (Ganja) still isn't.
Then what is 'Ganja' under the NDPS Act?
Section 2(d) of the Act defines Ganja as:
"ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;"
And since Bhang ostensibly does not contain the "flowering or fruiting tops" of the plant, it is therefore, legal. Ganja, unfortunately, isn't.
Also, every Act is usually accompanied by its corresponding 'Rules' of implementation. In the case of the NDPS Act, every state has the power to prescribe its own Rules. And some states have, in their Rules, permitted the personal consumption and even the sale of Bhang. For example, Rule 24 of Rajasthan Narcotic Drugs and Psychotropic Rules, 1984, which permits both personal consumption and sale of Bhang. This explains the various sightings of "Government Authorised Bhang Shops" in various North Indian states.
The Punishment:
Right. Now that we know what constitutes an offence under the NDPS Act, lets find out what the punishment for committing the offence of "possession" is.
The punishment will vary based on the quantity of the contraband you are in possession of when caught. The following describes the kinds and quanta of punishment one can expect:
Small quantity - Rigorous Imprisonment (R.I. "Chakki peesing") up to 6 months or fine up to Rs. 10,000 or both
More than small quantity but less than commercial quantity - R.I. up to 10 years + fine up to Rs. 1 Lakh
Commercial quantity - R.I. 10 to 20 years + fine Rs. 1 to 2 Lakhs
Trial & Possible Defence:
Here, i will proceed under the presumption that the readers of this blog are not drug dealers or transporters, but 'recreational users' at worst, and would therefore only be caught with a 'small quantity' of a banned substance on their person. If, on the other hand, you are a drug dealer and/or transporter, and are caught, you might want to call me on my cell phone.
Lets be very clear. Under the current laws, any use or possession of any banned substance is an offence and entails a mandatory punishment. There is no escape.
Under Section 37 of the Act, "every offence punishable under this Act shall be cognizable" and is also "non-bailable". Translated, that means the Police are empowered to investigate and make an arrest without a warrant from a Court. And, bail can only be obtained from a Court, when the accused is presented before a Magistrate.
Under Section 37 of the Act, "every offence punishable under this Act shall be cognizable" and is also "non-bailable". Translated, that means the Police are empowered to investigate and make an arrest without a warrant from a Court. And, bail can only be obtained from a Court, when the accused is presented before a Magistrate.
When caught, an offender will be presented before a Magistrate, most likely, for a 'Summary Trial' (Section 260 Cr.P.C.). This is a fast-track procedure usually adopted for offences entailing small penalties or imprisonment of less than 2 years.
When the trial commences, the Magistrate has the option to either sentence the accused to 6 months rigorous imprisonment, or impose a Rs. 10,000 fine upon him, or both, based entirely on his own discretion. The Magistrate is likely to inform the accused of what he intends to do should the accused plead "not guilty".
If such an accused wants to avoid jail and/or fine, the only sensible defence he might adopt is to plead guilty of "addiction". As per Section 39 of the NDPS Act,
"When any addict is found guilty of an offence [...] relating to small quantity of any narcotic drug or psychotropic substance, and if the court by which he is found guilty is of the opinion, regard being had to the age, character, antecedents or physical or mental condition of the offender, that it is expedient so to do, then, [...] the court may, instead of sentencing him at once to any imprisonment, [...] direct that he be released for undergoing medical treatment for de-toxification or de-addiction from a hospital or an institution [...]"
The decision of the Magistrate will depend on the "age, character, antecedents or physical or mental condition of the offender". If the accused is a first time offender, he is more likely to be released on probation.
If you are caught with a small quantity of contraband, your best shot at avoiding jail is to plead guilty. That is, unless, you really are innocent. And aren't we all?
Case in Point:
Remember Fardeen Khan, and how he was apprehended by the Narcotics Control Bureau (NCB) while allegedly purchasing cocaine? Whatever happened to that case?
The Narcotics Control Bureau had arrested Fardeen [Khan] outside an ATM in suburban Juhu on May 5, 2001 for allegedly possessing cocaine(3). While Fardeen claimed he had attempted to purchase only one gram of cocaine from Nasir, the NCB alleged that nine gram of cocaine was recovered from Fardeen and Nasir (his supplier).
In January 2008, Fardeen obtained a major reprieve when the Court reduced(4) the charge against him from attempting to purchase 9 grams of Cocaine (greater than 'small quantity' but lesser than 'commercial quantity') to 1 gram ('small quantity'), which would, if convicted, entail a maximum 6 month jail sentence and/or Rs. 10,000 fine.
As is to be expected of our criminal justice system, his case is still carrying on, well into its 10th year. Perhaps he should celebrate its 10th anniversary, though this time, preferably with a birthday cake.
Conclusion:
With what has been explained in the preceding paragraphs, i think it is fairly clear that it does not pay to do drugs. Especially if you get caught.
If i have missed anything, or you would like more information, feel free to leave a comment or inbox me. All feedback is appreciated.
REFERENCES:
1 The table is by no means exhaustive. Source: http://www.antidrugs.gov.il/download/files/indian_drug-laws.pdf
Samid v. State of U. P., 1995 (3) Rec Cri R (Cri) 449 : (1995 All LJ 1103);
Manjee v. State of Rajasthan, 1996 (2) Rec Cri R (Cri) 258 : (1996 Cri LJ 3787)
