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Monday, October 26, 2020

Explained: Can a person be booked under the NDPS Act based on WhatsApp chats?

Are the charges for consumption of drugs and their commercial usage different? Can communication like WhatsApp chats/ messages call recording where a person is talking about buying, selling, consumption not be used as evidence?

Written by Mohamed Thaver , Srinath Rao , Edited by Explained Desk | Updated: October 2, 2020 2:02:13 pm
(From left) Sara Ali Khan, Rakul Preet Singh, Shraddha Kapoor, Deepika Padukone. (File Photos)

With the Narcotics Control Bureau charging Rhea Chakraborty in connection with the messages found on her whatsapp chats in the first FIR and summoning Deepika Padukone, Sara Ali Khan, Shraddha Kapoor and Rakul Preet Singh, there are various questions about the circumstances under which law enforcement agencies can charge a person.

Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985 says, “No person shall cultivate any coca plant or gather any portion of coca plant; cultivate the opium poppy or any cannabis plant; or 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, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act …” Any person found violating these measures can be charged under the NDPS Act.

Generally in NDPS cases, a person is charged after they are caught red-handed with the drugs or money for “commercial usage”. In cases of ‘consumption’, they are also asked to undergo a blood/urine test. The contraband seizure and blood test report work as evidence which correlates the charge.

An NCB official, however, said that in cases of illicit financing – Section 27(A) of the NDPS Act – under which Chakraborty was booked in the second FIR in which she was arrested, there is no need for narcotic seizure and cash seizures could also be enough. The NCB said they have details of Chakraborty allegedly making payments to drug peddlers using credit cards. The amounts were allegedly in thousands of rupees.

Her lawyer Satish Mandeshinde has countered this saying payments of purchase of drugs does not make her part of a “drug cartel” as the NCB has claimed. There is a difference between small-time drug users and drug cartels that deal in bulk quantities, he has stated. A local court, while denying Chakraborty bail, said, under Section 27 (A), no particular quantity is required to prove the offence”.

Are the charges for consumption and commercial usage different?

As per law enforcement officials, there are three types of charges. Possession of small quantity, Intermediate quantity and Commercial quantity that are specified by the Central Government by notification in the official gazette. Different narcotics have different quantities that fall under these categories and carry varied punishments. For example in case of cannabis, small quantity (upto 1kg) , carries rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to Rs 10,000 or with both.

Intermediate quantity for cannabis (between 1kg to 20 kg) carries rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to Rs 1,00,000.

Commercial quantity (above 20 kg), with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs 1,00,000 but which may extend to Rs 2,00,000. The court may, for reasons to be recorded in the judgment, impose a fine exceeding Rs 2,00,000.

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Can someone who has been caught with a small quantity of drug get immunity from prosecution?

Yes, as per Section 64 (A) of the NDPS Act, which stands for immunity from prosecution to addicts volunteering for treatment, says, “Any addict, who is charged with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under any other section for offences involving small quantity of narcotic drugs or psychotropic substances: Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.” In simple terms, if a person is caught smoking weed, he can get immunity from prosecution by undergoing treatment for de-addiction.

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An example of this was actor Fardeen Khan who in 2001 was charged with possession and consumption of small quantity cocaine. He underwent a three-week-long de-addiction programme at KEM Hospital and got exemption from prosecution under Section 64 (A) of NDPS.

An NCB official, however, clarified that the immunity can be applied for only once a chargesheet is submitted by the prosecuting agency. It does not have a bearing during the process of investigation.

Also read | No arrests, seizures in case in which Deepika Padukone summoned

What is the difference between the two cases Rhea Chakraborty has been charged under?

NCB’s first FIR (15/20) against Chakraborty is based on WhatsApp chats provided to the agency by the Enforcement Directorate. In this, there are chats to the effect of “having tried MDMA once” and “scoring weed”. In this case, apart from Chakraborty and her brother Showik, there are five other accused. This is based primarily on chats and does not have cash or narcotic seizure.

A lawyer who deals with NDPS cases said that in his over two decade long career there was just one case where drug seizure was not there. “In that case, however, the agency had money seizure to corroborate the exchange of drugs,” the lawyer said. No arrests have been made in this case so far. NCB officials say they may not charge Chakraborty in this case.

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In the second FIR (16/20) registered suo moto by NCB two days after the first FIR, in which 19 persons including Chakraborty and her brother Showik have been arrested, they have seizures in the form of 590 gm of hashish, 0.64 gm of LSD sheets, 304 gm of marijuana including imported marijuana joints and capsules, Rs 1,85,200 in cash and 5,000 Indonesian Rupiah from an alleged peddler, Anuj Keshwani, arrested in the case. This falls under commercial quantity. This is the case where NCB told a local court they want to “uproot the citadel of narcotics in Mumbai, especially Bollywood.” The NCB plans to charge Chakraborty in this case and have a six month period to file the chargesheet from the time of arrests.

Can communication like WhatsApp chats/ messages call recording where a person is talking about buying, selling, consumption not be used as evidence?

It can be used in a case provided there is corroboration of the conversation with evidence. For example, if there is a message where a person places an order for a drug, there has to be evidence of the drug being delivered. “ The person can place an order and change his mind at the last moment and not have the drugs. A person may just be bragging to someone that he/she had done some drugs. There are cases where small-time criminals brag about murdering someone even though they are not involved. The chats by themselves may not be enough to prove drug use or for that matter any crime without corroboration,” said NDPS lawyer Taraq Sayed.

What in case if there are statements that provide evidence about the chats?

As against statements given to police, those given to NCB officials who are technically not considered “police officers”, and hence civilians, are admissible in a court of law under Section 67 (A) of the NDPS Act. So statements given by Chakraborty and others to NCB are admissible as evidence in a court of law.

However, the Supreme Court is hearing petitions against allowing NCB officials to be not treated as “police officer” and the same could be used by the defence if the NCB relies purely on confessional statements given before the agency. Several suspects, including Chakraborty, have already retracted the statements they have given to NCB stating it was made “under coercion”.

What about the case of Deepika Padukone, Sara Ali Khan, Sharaddha Kapoor and Rakul Preet Singh?

Based on what the NCB has said so far, they have been summoned mainly on the basis of WhatsApp chats found on the phones of Chakraborty and Jaya Saha and confessional statements made by them before the police. NCB officials said it will depend upon what they say in their statement for them to decide if they should be charged. Sources, however, said based on the evidence, the maximum the said suspected can be charged is under consumption, for which they can seek immunity by willing to undergo rehabilitation at the time of the chargesheet if they do not wish to contest it.

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