Updated: Mar 14
A row of narcotic drug-related cases and arrests of leading Bollywood celebrity figures by the Narcotics Control Bureau (hereinafter, the NCB) in the recent past threw open a Pandora’s box of controversies, not only on the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, the NDPS Act) but also, its implementation by the law enforcement agencies.
This article sheds light on one the operational nuances of a very important provision from the Act, i.e., Section 27A, that deals with punishment for financing illicit traffic and harboring offenders.
THE 2014 AMENDMENT
Seven years ago, the 2014 amendment of this act re-lettered and relocated Section 2(viiia) to Section 2(viiib). Post this amendment, Section 2(viiia) defined what an ‘essential narcotic drug’ is, whereas Section 2(viiiib) defined ‘illicit traffic’ in narcotic substances. This created a dichotomy in the concurrent meaning of section 27A.
WHAT HAS CHANGED POST AMENDMENT OF 2014?
It was a recent order passed by the Tripura High Court(The Court in its own Motion v. The Union of India, Crl.Ref. 1/2020) that brought this matter up for consideration. Originally, Section 27A read that:
Any person indulging in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbors any person engaged in any of the aforementioned activities, is punishable with imprisonment for a term ranging between ten to twenty years or fine upto two lakh rupees.
This implied that the Section 2(viiia) has to be read with the provisions of Section 27A. However, the problem embarks post an amendment of 2014. Two changes were made:
1. Section-2 (viiia) has been re-lettered as:
“(viiia) “essential narcotic‟ drug means a narcotic drug notified by the Central Government for medical and scientific use.”
2. The Content of the former Section-2, clause (viiia) of the NDPS Act has been re-lettered and relocated at Section-2, clause (viiib) which defines the phrase ‘illicit trade’ relating to narcotics and psychotropic substances in the following terms:
Cultivation or gathering of any cocoa, poppy or cannabis plant or parts of it, engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import or export or transhipment of such products, as well as financing, abetting or harboring the persons connected with such activities.
THE LEGAL LOOPHOLE IN SECTION 27A 2014 AMENDMENT
1. It’s not difficult to understand that for not amending Section-27A of the NDPS Act in the wake of re-lettering of the clause (viiia) of Section-2 to clause (viiib) of the same section of NDPS Act, Section 27A has lost its operability.
2. Section 2(viiia), post the 2014 amendment did not coincide with the context of what was enshrined in Section 27A. Due to this, all punishments made under Section 27A to the offenders were liable to be rendered inoperative since there was a clear gap in understanding of the law.
In the instant matter the court took cognizance of this legal omission and directed the central government to take appropriate steps to amend Section 27A, which otherwise was creating an incongruity to the constitutional protection provided under Article-20.
Pursuant to identification of the error and dysfunctionality in Section 27A, the court adopted the rule of liberal and contextual interpretation rather than literal interpretation of the statutes. In ordinary parlances, the rule of literal interpretation prevails; mandating that the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. However, where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, the judge’s work involves finding the intention of Parliament, from the language of the statute, from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy to supplement the written word so as to give 'force and life' to the intention of the legislature.(Punjab Land Development and Reclamation Corporation Ltd. Chandigarh vs. Presiding Officer, Labor Court, Chandigarh and Others, (1990) 3 SCC 682). A catena of cases supporting this postulate was referred by the court.
For instance, in the Standard Chartered Bank case(Standard Chartered Bank and Others vs. Directorate of Enforcement and Others, (2005) 4 SCC 530 it was clearly laid down that although the rule of interpretation requires strict construction of the penal statute, but it does not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to escape(Balaram Kumawat vs. Union of India and Others, (2003) 7 SCC 628). Multiple factors should be taken in consideration by the court, such as construing the statute in a way that can avoid the lacuna, suppress the defect and mischief and advance the remedy following the rule laid in the founding Heydon’s Case.(Murlidhar Meghraj Loya vs. State of Maharashtra, (1976) 3 SCC 684) This rule lays down that the scope, aim and object of the whole act and the intention of the parliament towards resolving a remedy, must be contextualized. Further, a judge should ask themselves the question that how would straighten it out if they had themselves come across this ruck in the texture of the Act, and accordingly in that direction. (Seaford Court Estates Ltd. vs. Asher, (1949) 2 All ER 155 (CA)
THE 2021 AMENDMENT
Finally, pursuant to an order of the impugned judgment in the above case, an amendment was made under the Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021, vide which the phrase “clause (viiia) of section 2" in Section 27A was substituted by "clause (viiib) of section 2", thereby, clearing existent legal loopholes.(The Narcotic Drugs And Psychotropic Substances (Amendment) Ordinance, 2021 (No. 8 Of 2021)
Pursuant to this order of the Court directed to the Ministry of Home Affairs, the Central government brought an ordinance to further amend the act. Hence finally, the phrase was substituted under Section 27A as required, rendering it functional once again. The court had cited a violation of Article 20 in the case of the Constitution in its order, which means that in its erstwhile state, Section 27A defeated the fundamental rights relating to wrongful arrest and conviction of offences, as it created dilemma in the law relating to what are the punishable activities falling under the act.
The implication of this amendment on recent cases concerning Bollywood celebrities and other public figures is that their punishment will get addressed accordingly after determining whether their activities fall under the ambit of Section 2(viiib) and are addressable by Section 27A or not.
Further, as per recent updates, the Social Justice and Empowerment Ministry has recommended decriminalizing possession of small quantities of drugs for personal consumption in its review of the Act, suggesting compulsory treatment in government centers to those caught with small quantities for personal consumption as an alternative of a jail term.(https://www.latestlaws.com/latest-news/govt-considering-decriminalisation-of-ndps-act-provision-for-possession-of-small-quantity-of-drug-for-personal-use-178530/)