The Bombay High Court order that granted bail to Bollywood actor Rhea Chakraborty in the case filed by the Narcotics Control Bureau (NCB) raised several gaps within the act itself, calling a section of the act ‘highly disproportionate’ and ‘extremely unreasonable.’ The Bombay High Court bench headed by Justice SV Kotwal held that Rhea was not a part of the drug syndicate and does not have any criminal antecedents to indicate the same. Here are five takeaways from the high court’s order.
The Bombay High Court, while pronouncing the order, also took into consideration the scope and interpretation of Section 27A of the NDPS Act. The court noted in the judgment that as per NCB, Rhea had committed an offence punishable under Section 27A, which prescribes the punishment for financing illicit traffic and harbouring offenders. The court noted that the Act never defines the word financing, and said that “simply providing money for a particular transaction or other transactions will not be financing of that activity.”
“Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it. It is the financial support which directly or indirectly is the cause of existence of such illicit traffic. The word “financing” would necessarily refer to some activities involving illegal trade or business. The allegations against the Applicant of spending money in procuring drugs for Sushant Singh Rajput will not, therefore, mean that she had financed illicit traffic,” the court said.
The court also noted the word ‘harbouring’ in Section 27A, stating that it had not been defined in the NDPS Act. The court said that Section 52A of IPC can be used for a limited purpose and that key words in that section are “to evade apprehension”.
“This only means that first of all there has to be another offender who has committed the offence. The person who is charged with harbouring that main offender should have supplied him with shelter, food etc.; and then the next requirement is that that second person should have done this to prevent the main offender’s apprehension. In the present case, no criminal case or FIR was pending against Sushant Singh Rajput. He was residing in his own house and was spending for his own food and other necessities. At that point of time, he had no apprehension of any arrest. Therefore, the act on the part of the Applicant cannot be stretched to attract the allegation of harbouring Sushant Singh Rajput,” the court said.
Justice SV Kotwal said that he is unable to agree with the submission that giving money to another for consuming drugs would mean encouraging such a habit and would mean “financing” or “harbouring” as envisaged under Section 27A of the NDPS Act.
The Bombay High Court also noted that there is a discrepancy with respect to the gravity of the crime committed and the punishment prescribed to it for the same. The court noted that someone who consumes drugs faces a jail term of one year or can even get immunity from prosecution by volunteering for treatment, but someone who gives money for purchasing drugs faces 20 years in jail.
“By applying the interpretation of Section 27A by NCB, if some other person like a friend or a relative pays money for such consumption, then the person who actually consumes the drug can be punished only upto one year or can get immunity under Section 64-A of NDPS Act; but the person who gives money for purchasing that drug faces the prospect of spending twenty years in jail. This is highly disproportionate and would be extremely unreasonable,” the court said.
Justice SV Kotwal said that the main charge against her is the violation of Section 8(c) of the NDPS Act, which penalises production, manufacture, possession, sale, purchase, transport, etc of banned drugs. The court said that in such a case, it is necessary for the investigating agency to show that she committed such a crime. “The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh Rajput. It is their own case that the drugs were already consumed and hence there was no recovery. In that case, there is nothing at this stage to show that the Applicant had committed any offence involving commercial quantities of contraband,” the Bombay High Court said in the order.
“The material at the highest shows that she has committed an offence involving contraband, but, the crucial element of incurring rigours of Section 37, in respect of commercial quantity, is missing. Therefore, I am satisfied that there are reasonable grounds for believing that the Applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity,” the court said.
“There are no other criminal antecedents against her. She is not part of the chain of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits. Since she has no criminal antecedents, there are reasonable grounds for believing that she is not likely to commit any offence while on bail,” the court added.
The Bombay High Court took on record the Additional Solicitor General’s argument that celebrities and role models should be treated harshly so as to set an example for younger people and so that they are not encouraged to commit similar offences. However, Justice Kotwal said he does not agree.
“Everybody is equal before law. No celebrity or role model enjoys any special privilege before the Court of law. Similarly, such a person also does not incur any special liability when he faces law in the Courts. Each case will have to be decided on its own merits irrespective of the status of the accused,” the court said.