In October 2021, Aryan Khan, son of superstar Shahrukh Khan, was arrested for alleged possession of narcotics. Over a week after the arrest, the Narcotics Control Bureau (NCB) held a press conference, notably in presence of Sameer Wankhede (a former NCB officer), and justified the arrest. It was stated that on the basis of interrogation of the arrested persons, further contraband has been recovered which indicates “towards large network in this drug menace spoiling our younger generation.” In the meanwhile, the then Maharashtra’s Minority Affairs Minister Nawab Malik raised series of questions on credibility of Sameer Wankhede as also arrest of Aryan.
Aryan failed to secure a bail from the Trial Court. The Court held that Aryan was in conscious possession since he was aware that his friend was carrying contraband, Whatsapp chats show he was in touch with international peddlers, he was part of a conspiracy on account of his disclosure. Interestingly, within 8 days, Aryan was granted bail by the Bombay High Court on the grounds that there is nothing in Whatsapp chats to show that he conspired with other accused and his confessional statements cannot be used for drawing inference of commission of offence. There was a twist in the tale when a chargesheet was filed without making Aryan as an accused. As per the media reports, there was lack of sufficient evidence against Aryan.
The entire sequence of events shows difficulty in balancing two conflicting societal interests under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): (a) a society free of deadly menace of drug addiction and (b) fundamental rights and liberty of an accused.
Undoubtedly, criminal law has to achieve a balance between punishing crime and rights of accused and victim. However, Article 47 of our Constitution (part of the Directive Principles) enjoins a State to endeavour to bring out prohibition of intoxicating drugs injurious to health. The Preamble to the NDPS Act, specifically mentions that it is an Act “to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.” Thus, when the constitutional and legislative objective is focused more on deterrence and punishment is used as a tool for such objective, the task of balancing the above objectives becomes extremely challenging.
Unlike the IPC, NDPS creates a distinct scheme and procedure in an attempt to achieve the objective of deterrence. For example, the trial of an NDPS case is by a special judge, the general provisions of bail for “commercial quantity” are curtailed, statements made to an investigating officer are admissible in evidence against the accused, presumption is against the accused, punishment in case of second offence is enhanced, etc.
In an attempt to balance the rights of an accused, the Act also provides for procedural safeguards such as recording of information, option of search before a gazetted officer, sharing of information of search, seizure and arrest with superior officers. However, such balancing of competing interests appears good on paper, but is difficult in reality. Even, the Courts have constantly found it difficult to maintain such a balance.
In Arif Khan vs. State of Uttrakhand (2018), the Supreme Court interpreted Section 50 of the NDPS Act to mean that any search of an accused has to be in front of a Gazetted Officer. This ran contrary to the earlier precedents. Subsequently, Arif Khan’s interpretation was used by the accused for acquittal and for purposes of the bail. Some judges distinguished Arif Khan by stating that it cannot be used at the time of considering bail. At the same time, in an exceptionally well-reasoned judgment, the Delhi High Court held that irrespective of Arif Khan, the moment an accused is given the clear option of getting search conducted in presence of a Gazetted Officer and he refuses, there is no further mandatory requirement of a Gazetted Officer to be present at the time of search.
Likewise, in Toofan Singh vs. State of T.N. (2020), Supreme Court held that officers of the Central and State agencies appointed under NDPS Act are police officers and therefore, the ‘confessional’ statements recorded by them under Section 67 was not admissible. The judgment is significant because in innumerable instances, the investigation conducted by NCB would be focused only on confessional statement by the accused, without any supporting evidence.
On vexed issue of calculating the quantity of contraband, in Hira Singh vs. Union of India (2020), the Supreme Court held that even quantity of neutral substance(s) can be taken into consideration and it is wrong to say that only the actual content of the weight of the offending drug, is relevant for the purpose of determining whether it would constitute “small quantity or commercial quantity”. It is worth noting that under NDPS Act, there is a high threshold for obtaining bail for “commercial quantity.”
In the case of Aryan Khan, on the same set of facts and issues, i.e., possession and conspiracy, (a) the investigative agency aggressively gave media statements against Aryan Khan, (b) special court rejected the bail, (c) High Court granted bail and (d) the investigative agency (with a different investigative officer) dropped Aryan Khan’s name from the chargesheet. Thus, an individual who was initially touted to be part of an international network, denied bail by Trial Court on account of conscious possession, was behind bars for 27 days, was ultimately held not to be involved in the offence.
As if the above was not sufficient to highlight the need to prevent abuse of law, registration of a case by CBI last week against Sameer Wankhede on charges of corruption, including seeking a bribe of Rs. 25 crore for not framing Aryan Khan, lends another interesting twist. Considering an individual associated with a high-profile arrest himself facing the heat, it is worth pondering over the situation of those who are either falsely accused for oblique reasons or with small quantities.
At the same time, it is undeniable that drug menace is extensive. Even in our country, we have had instances of the seizure of a large quantity of contraband goods. It is, therefore, important to ensure that the objective of law does not get defeated on account of excessive delegation of powers to the officers, who can abuse it with impunity for personal gains. On the other hand, the authorities need to ensure that the law is used to actually stop the actual source of the drug or supply chain and avoid use of money generated from such activities for further illegal purposes.
Amit Gupta, an Oxford University and Columbia Law School graduate, specialises as Counsel/Litigator in New Delhi, with focus on white collar crime, arbitration, commercial litigation, competition law, media, and intellectual property.