“A person who actually purchases (prohibited) drugs gets lesser punishment (under section 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985) and a person who pays the money gets higher punishment (under section 27A). What logic is that?” asked Justice SV Kotwal to Additional Solicitor General (ASG) Anil Singh, appearing for the Narcotics Control Bureau (NCB), on Tuesday.
A single-judge bench of the Bombay High Court was hearing the bail applications of actor Rhea Chakraborty and her brother Showik Chakraborty in the NDPS case registered against them by the NCB, for allegedly procuring drugs for the late Bollywood actor Sushant Singh Rajput.
After a hearing that started at 11 am on Tuesday, the Bombay High Court reserved the order on the bail applications of Rhea and Showik. The pleas of co-accused Samuel Miranda and Dileep Sawant (Sushant Singh's domestic workers) and alleged drug peddler Abdel Basit Parihar, too, have been reserved.
Opposing the bail plea of Rhea and Showik Chakraborty, the Additional Solicitor General argued that the duo was directly or indirectly involved in ‘financing illicit traffic’ as prescribed under Section 27A of the NDPS Act.
According to Live Law, advocate Anil Singh said that per the allegedly voluntary statement of Rhea and Showik, they have been making the payment for purchasing prohibited drugs for Sushant and so it comes under the purview of section 27A. This section defines the punishment for “financing illicit traffic and harbouring offenders,” which is rigorous imprisonment for up to 10 years and fine of up to Rs 1 lakh. In certain cases, the court can also impose a fine exceeding Rs 2 lakh.
Incidentally, Section 27A also criminalises a person who “harbours any person engaged in any of the aforementioned activities” with imprisonment of minimum 10 years. However, a person who has consumed the drugs may get lesser punishment depending on the amount of the substance found on them. Further, a provision under the NDPS Act allows for the waiver of this as well, where the person who has consumed the drug can opt for rehab and provide a de-addiction certificate.
That being said, Justice Kotwal observed that mere harbouring of a person who is a drug addict will not amount to 'harbouring' under Section 27A. 'Harbouring' must be of a person who is in drug trade and not into mere consumption, he observed.
Further, when Justice Kotwal pointed out that sale and purchase (among others) are covered under section 8(c) of the NDPS Act and asked for the difference between this section and section 27A, the ASG argued that financing is not covered under section 8(c).
Section 8(c) prohibits the “produce, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-state, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance.” Punishment under this section is up to one year.
Surprised by the logic of awarding more punishment to the person who pays the money than the person who actually buys the drugs, Justice Kotwal, according to Live Law, remarked, “Somebody lends you some amount for purchasing drugs for you. The one who advanced the loan gets 10 years and the one who purchased gets only one year.”
Arguing that financing is stringent and that even indirect financing is covered under section 27(b), the ASG said that Rhea and Showik were directly involved in financing the drugs purchased for Sushant Singh Rajput.
Pointing out the Kerala High Court judgement in 'KK Ashraf vs State of Kerala' case, advocate Sayed, who was appearing for co-accused Abdel Basit Parihar, said that “sale of a narcotic drug” is different from “financing the activity of the sale of a narcotic drug.” Sayed said that "financing" is not related to the payment for purchasing the drug but involves an activity in which a person invests or provides funds or resources for facilitating certain activities mentioned in Section 2 of the NDPS Act, i.e. if a person has ‘financed’ a drug, doesn’t automatically mean that the other has sold it.
Closing the arguments and taking the case for orders, Justice Kotwal added the case is voluminous and many aspects have to be discussed.