Mumbai: Almost two decades after the Centre rationalized punishment and liberalized provisions for liberty making both jail and bail dependent on quantity of contraband, legal experts say if amounts involved are small, to pin a person with non-bailable crime of ‘financing illicit traffic’ is “stretching the drug law.”

The recent spate of over two dozen arrests by the Narcotics Control Bureau (NCB) including of late actor Sushant Singh Rajput’s girlfriend Rhea Chakraborty, has brought into sharp focus the twice amended but rarely debated Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Bail in an offence involving small quantities is a sure shot, said Shyam Keswani, who has almost exclusively focused on NDPS cases for 50 years. There are division bench judgments of Bombay and Delhi high courts which rule that when quantities are small, offences are bailable.

The trouble is when serious offences are invoked, for which the NDPS Act has stricter bail provisions. Courts after hearing both sides, have to believe the accused is not guilty and that he or she won’t commit a crime once released.

An offence that raises the bar for those seeking bail is of ‘financing illicit traffic and harboring’ under section 27A as it attracts 10-20 years in prison but refers to no quantity. It was introduced in 1989 just after India became a signatory to the UN convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 in order curb international drug trafficking and organized syndicates.

However, Keswani says, "Section 27A is clearly intended for cases involving significant commercial amounts or large and international drug cartels, not peddlers of small amounts.” He said, “merely alleging procurement does not make out a case of financing.’’ In the last big amendment to the NDPS Act in October 2001, punishment has also been linked to drug quantity. Bail restrictions were modified. Offences under three sections including 27A, which attract a minimum 10 years, and those involving commercial quantities are the crimes now facing a stringent test for bail.

In February 2002, in a landmark ruling, the then division bench of Justices J N Patel and P S Brahme of Bombay high court noted the “drastic change was brought with object to liberalise bail provisions” of certain offences. Bail became “dependent on quantity of contraband article found in possession of offenders.” It held that an offence involving charas in small or even intermediate quantity, would not attract bail restrictions. It directed special courts to take note of the legislative intent.

Ten years later, in 2012, even a division bench of Delhi high court headed by Justice S Ravindra Bhat said possession of small quantities is bailable and suspects can be released without having to seek it in court. Delhi HC even directed Delhi police commissioner to “issue necessary guidelines.... to all police officials.’’

Advocates Taraq Sayed, representing a few of the accused in the Sushant case and Satish Maneshinde, who is appearing for Rhea and Showik Chakraborty, in their submissions also submitted that the object of both amendments clearly indicate that 'financing...' as an offence cannot be applied to cases of small quantities and if invoked, based on earlier judgments including one in the Stefan Mueller case in 2010, bail is inevitable.