There are No Right Answers: The Supreme Court and the Purity / Mixture Debate under the NDPS Act

On April 22, 2020, a Three Justices' Bench of the Supreme Court decided a reference made to it in Hira Singh [Crl. Appeal No. 722 of 2017, decided on 22.04.2020]. The primary issue before the Court was the correctness an earlier decision by a Two Justices' Bench of the Supreme Court, E. Micheal Raj v. Intelligence Officer [(2008) 5 SCC 161, "E. Micheal Raj"]. There, it had been held that determining whether one was carrying "small" or "commercial" quantity of a drug depended exclusively upon the quantity of the "actual" or "pure" drug content, as opposed to the total quantity of the mixture that was seized. In Hira Singh, the Three Justices' have unanimously held that the view taken in E. Micheal Raj was incorrect, and that the determination of quantities for the purposes of the Narcotic Drugs & Psychotropic Substances Act 1985 ["NDPS"] depends upon the total quantity of the item seized. 

This post explains the issues present in this debate about how to judge a "mixture" of drugs under the NDPS Act. As the title suggests, I argue that the approaches taken in E. Micheal Raj and Hira Singh are both problematic for the administration of the law, for ultimately, the problem is an arbitrariness inherent in the NDPS Act itself. Even so, I conclude by critiquing the decision in Hira Singh for its surprisingly unreasoned, uncritical, and unsympathetic acceptance of an alternative which places the lives of many persons under the sceptre of harsh mandatory sentences.   

The Quantification Approach and Effects of Punishment

The NDPS Act is one of the most stringent laws present in the statute book of India today. Birthed as a result of the "War on Drugs" that captured the international imagination during the 1980s, thanks in no small part to the U.S.A, the NDPS Act sponsored a highly punitive approach towards drug crime. The law sponsored high mandatory minimum sentences, even for possession based crimes, took away the possibility of probation for first-time offenders, made getting bail extremely hard, and explicitly reversed the burden of proof. 

As the global community reckoned with the failure of punitive approaches as a sustainable solution for drug crimes, with the heavy punishments clearly not serving as effective deterrents, the world began to tone down the harshness of these laws. The 2001 amendments to the NDPS were the result of this global trend. They brought in a new scheme for administering the law by introducing a classification of "small" and "commercial" quantities, and varying punishments on the quantity of the drugs involved (An old notification detailing such quantities is here). The amendments also recognised that a one-size-fits-all approach that merely criminalised all drug related issues was not the answer, and brought forth a new process to recognise "Addicts" and treat them differently in the law (how successful this has been is a different issue altogether).

E. Micheal Raj and the Problems of a Purity-Based Approach  

This quantification regime was the focus of the decision in E. Micheal Raj, which involved quantities of heroin seized from an accused person. Lab testing showed that the heroin content of the mixture recovered during investigation fell in the "small quantity" category, while the weight of the entire mixture fell in the "commercial quantity" bracket. This mixture was not of two different drugs but of a drug and a neutral substance. The Supreme Court reversed the finding of the High Court, and held that the accused was only liable to be punished for holding a "small quantity" of the drug in question. This emphasis on the purity of drug content was, according to the Court, a direct consequence of the 2001 amendments and the "rationalising" of the punishment system that they sought to achieve.

The problems of such an approach which focuses on the "actual" drug content in a mixture is that it can defeat the oppressive purposes that the NDPS Act was enacted for in the first place, and which the legislature has not explicitly disavowed as yet. As the Court in Hira Singh has emphasised (more on that in the next section), an approach solely committed to identifying the actual drug content will end up being too lenient on suppliers, especially if the street practices entail that certain narcotics are only ever going to be sold as mixtures with small drug content. 

Hira Singh's return to a Total Weight Approach and its Problems

The opinion in Hira Singh suggests that there were several reasons to disagree with E. Micheal Raj — the Court disagreed with how the legislative intent was inferred and also suggested that this aspect of the opinion in E. Micheal Raj was entirely obiter and based on a misapplication of the law and facts. Having done so, the Court in Hira Singh unanimously and unequivocally rejected the actual drug content approach of E. Micheal Raj and approved of an approach that looked at the total weight of the seized items. This approach, the Court held, was in consonance with the legislative intent behind the NDPS Act. 

The reason was simple: An approach focused entirely upon actual drug content did not sufficiently address local practices of how the drug trade worked. Thus, we are told not only about how some kinds of drugs are more popularly sold as mixtures, but also about how some mixtures are in fact much more harmful and addictive than the pure drug itself. The court uses the example of "smack", a popular drug made by combining heroin with other substances such as chalk powder and zinc. An approach concerned with the actual drug content would allow for misplaced leniency in the system as the dealers of smack and other such deadly substances would not get a sufficiently stiff jail term for their conduct.

This criticism of the actual drug content approach is a fair one. But, at the same time, focusing on the total weight of a mixture brings its own problems which the Court all too conveniently ignores. This is the problem of manifest arbitrariness that, if anything, is now amplified in how the NDPS structure will operate. One side of this arbitrariness problem was aptly highlighted in Hira Singh, which I will call the problem of misplaced severity. Thus, the law now allows for the person who carries 4 grams of pure heroin to be punished for carrying a "small quantity" of narcotics, for a person carrying 249 grams of heroin to be punished in the "intermediate" category, while a person carrying a mixture weighing 251 grams, with 249 grams of neutral substance and 2 grams of heroin, will be punished for carrying a "commercial quantity" of heroin. 

This problem of misplaced severity has a twin — the problem of misplaced leniency — which can be understood in context of the American experience of punishing the trading of the drug LSD. The U.S. Supreme Court in Chapman v. United States had such an issue, where appellants were convicted and sentenced to a mandatory ten-year term for distributing LSD weighing around 1 gram. The appellants argued that they had sold blotter paper which, while weighing around 1 gram as a whole, had a much lower LSD content and would avoid the mandatory prison term. The Court held in favour of a total weight approach and upheld the mandatory sentences. 

Chapman was cited approvingly by the counsel for Union of India in Hira Singh. Sadly though, what was not mentioned before the Court was the problems that Chapman created for the law (succinctly explained in this piece). The problem was simple: As a normal dose of pure LSD only weighed about 0.05 milligrams, the total weight approach of Chapman allowed a person to escape the mandatory sentence even if she engaged in thousands of trades for pure LSD. But at the same time, it gave the mandatory ten-year sentence to those who made even one trade for LSD through the medium of blotter paper. Focusing on the total weight of a mixture, then, also brought with it misplaced leniency for drug offenders. 

Hira Singh — A Critique

These are serious problems and potentially invite a constitutional challenge to the sentencing regime under the NDPS Act — the kinds of issues, you would think, are what a Three Justices' Bench of the Supreme Court ought to be addressing. It is excruciating, then, to see the Court in Hira Singh totally avoid any discussion about the arbitrariness issue and offer its uncritical affirmation to the merits of adopting a total weight approach in the NDPS Act context. 

And here, perhaps a word must also be said about the unreasoned manner in which the Court reached at its final destination of upholding the total weight approach. Thus, as mentioned above, the Court notes the potential deadliness of mixtures such as smack and uses this to justify a rejection of the actual drug content approach [Paragraph 8.3]. But what is the basis for these observations? No reports of any government department or any international body are cited. Surely, details of the drug trade cannot be be assumed as matters of which judicial notice can be taken and thus do not require any material in support. Keen googling skills suggest that rather than government sources, the opinion has possibly relied upon a rather unaccredited source for these observations which, if true, would only serve to delegitimise the strength of these observations. 

And then there is Paragraph 8.5, which justifies adopting a total weight approach by (i) referring to the problem of "drug addicts" and in the same sentence refers to the devious workings of the "mafia" internationally, and; (ii) claiming that the "use of drugs by the young people in India has increased" and that "drugs are being used for weakening of the nation", to finally conclude that "the guilty must be in and the innocent must be out". It is nothing short of remarkable that while Hira Singh held the judgment in E. Micheal Raj as having wrongly read the legislative intent of the NDPS Act, it suggests drug addiction is a problem, which is a direct negation of the intent behind the 2001 amendments. If this was not enough, then a series of stereotypes and bald assertions about immorality and national strength are offered to serve as legal justifications. Thus, what are, at best, pleas by prosecutors to deny bail and, at worst, coffee-table rants by senior citizens, have been given the exalted status of legal reasons justifying why a harshly penal regime must be read in a broad, expansive, and potentially arbitrary manner. 

Conclusion

Hira Singh has taken the law on how to assess the quantities of drugs seized in an NDPS case to the position before the intervention made in E. Micheal Raj. In no uncertain terms, the Supreme Court has held that the total value of the seized items will be considered to decide whether or not the case was one of "small" or "commercial" quantities. But while the legal position has merely reverted to what it was a decade ago, the manner in which the Court has arrived at this conclusion is nothing short of extraordinary. The Court failed to address the one serious issue it was presented with — if the total weight approach rendered the NDPS sentencing regime arbitrary — and instead offered a litany of unreasoned assertions to justify its conclusions. After reading Hira Singh, I was left thinking that the Court appeared to have forgotten that underneath all this rhetoric of action and bluster in the context of drug laws, there are actual lives which are seriously affected by the interpretive choices that are being made. It is this lack of compassion that marked Hira Singh as a truly odious opinion.  

Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

The Lawlessness of Land Grabbing Laws? - Part I

In 1982, the government of what was then undivided Andhra Pradesh passed the A.P. Land Grabbing (Prohibition) Act to "curb the unlawful activity of grabbing Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property". A central means of achieving this was to create a new offence of "land grabbing" and to create "Special Courts" for dealing with land grabbing cases that would finish them within six months. Inspired by the A.P. model, similar Land Grabbing laws have been introduced in the states of Assam (2010), Odisha (2015 ordinance), and Karnataka (2016). In 2011, in a much-politicised incident the Madras government relied on similar ideas for "better" enforcement of existing laws but chose not bring a new legislation into effect.

This two-part series discusses some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the A.P. law. I couldn't find anything from Odisha or Assam. Thus, whatever I argue here is based on an assumption that the issues have not directly come up before a court yet. If they have, please share the judgment! 

What is "Land Grabbing"? How Serious is it?

Land Grabbers [defined under Section 2(e) of the Act] are persons who engage in Land Grabbing, or abets others in doing so. Land here means land belonging to the government, essentially [Section 2(d)]. As defined under Section 2(f), "Land Grabbing" means:

... every activity of grabbing of any land, without lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements, construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures ... 

The definition is not very helpful. It contains a clear "physical conduct" requirement: there must be "grabbing of any land without lawful entitlement". But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up "grabbing" any land which you don't own without wanting to take illegal possession over it, one would think that it isn't too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists "Penalty for other offences in connection with land grabbing" and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) "causes or procures or attempts to procure any person" to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 1 year and potentially up to 3 years in prison, along with a fine which could go up to Rs. 25,000 [Sections 4, 5]. If that doesn't sound serious enough, note that all offences are cognizable [Section 13]: which means that law enforcement can arrest persons without warrant on suspicion that an offence was committed.  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to three years in prison. Why would such broad powers be given to states? The definition of "Land Grabber" gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of "a group of persons or a society" engaging in this, or giving "financial aid" to another for grabbing land or illegally constructing upon it. The definition even speaks of persons "collecting or attempting to collect" money from occupiers of grabbed land by "criminal intimidation", again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets. 

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn't even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who "causes or procures or attempts to procure" anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime - "attempts to procure any person to do any of the above". That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence. [See here, and here, for earlier posts that discuss this issue].       

Proving "Land Grabbing" in Court - More Reverse Burdens

Section 11 of the Karnataka Act provides that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove she is not guilty of the crime lies on the person accused. Using reverse onus clauses - where the state does not have to prove guilt - to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie "prove" anything? The Evidence Act in Section 113-B asks the state to "show" facts, and usually the law asks it to "prove" facts. But prima facie proof suggests a lower standard. If the state already doesn't need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine - property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don't have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.      

Summing Up and Next Post 

This post took up two issues with the Karnataka Land Grabbing Act - how it defines the crime of "Land Grabbing" and how it provides for enforcement of the law by the police and by judges. A common theme that emerged was that while the purely legal objections to the statute might be easy to deal with, the real-world problems that the law brings remain unaddressed. Since there is no legal basis to challenge the classification of offences as cognizable and bailable, it means courts cannot act as a check on police powers of arrest and detention. When the legislature confers these powers on the police for the enforcement of vague crimes, which cover not only attempts to commit the crime but attempts to attempt, it invites rather than merely allows misuse. Similarly, reverse burden clauses are now something we can justify as fair when it seems that the accused is not being asked to prove too much. But in imagining this idea of what is "too much", we are assuming a kind of accused person who might be prosecuted: someone who can offer that proof. In context of land grabbing, and many other offences that rely on documentation, the truth is that several people cannot offer those papers. Not because they are violating the law, but because they are poor and vulnerable to oppression by the state machinery which denies them their rights. Does this render a law bad? Unfortunately not.            

The next post will take up issues with the "Special Court" created under the Land Grabbing Act and how it prosecutes and tries offences.

*The definition of Land Grabber is curious. It speaks of collecting rent by "criminal intimidation" as a problem, but does that mean collecting rent without this is not a problem? Going by the definition of Land Grabbing, and associated offences under Section 5, one suspects that the statute is not going to be limited this way.

[Disclaimer: This post was written with inputs from Ms. Nayanatara B.G., a practising advocate who is part of the legal team challenging the legality of the Karnataka Land Grabbing (Prohibition) Act before the High Court of Karnataka, at Bengaluru]