The Narcotics Control Bureau (NCB) clearly stated that no drugs were recovered from the possession of Aryan Khan, while only 6 grams of charas was found in the possession of Arbaaz Merchant. So why was their custody sought? And if someone were to be found in possession, what is the legal position on the possession of small quantities of ‘soft’ drugs? Legal experts decode the rulebooks

Vivek Sood, senior lawyer, Delhi High Court, who has been a defence lawyer in many cases related to narcotics, says: “In 2001, the NDPS Act was amended to distinguish quantities of drugs. Prior to 2001, there was no classification regarding the amount of drugs. Let’s say before 2001, if I had 1 gram drugs I would be equated with someone who had 1000 kg of drugs. There was no classification between the quantity which was found in possession of a person and it created a lot of difficulty. Consumers would be equated with traffickers. Now you have classification of quantities (as per NDPS Act), and punishment varies depending upon the quantities – whether it is small quantity for consumption or commercial quantity for trafficking. The law differentiates between consumers and traffickers. The argument that consumers of drugs should only be treated as victims and should not be punished is about legalisation of drug consumption. In my view, they should be seen as quasi-victims, and should be punished, otherwise youngsters will go berserk with consumption.”

Vivek Narayan Sharma, a lawyer of the Supreme Court says: “Aryan Khan was sent for further NCB custody because they claimed in the court that they got incriminating evidence which points toward an international link, procuring drugs in bulk. The prosecution has a right to seek custody in such a case, and there can be three or maximum seven days in which he can be granted bail. In this case, the possession of drugs from his friend is also of small quantity (6 gms), hence it will be considered under small quantity in the court.”

“From the arguments, in the court we know that Aryan Khan was not in possession of any drugs. As per law, consumption of drugs is prohibited, and the punishment is according to the quantity. Drug consumption is an act against yourself while drug trafficking is an act against society. For self consumption, action is taken under Section 27 while for drug trafficking it is under Section 27 A of the NDPS Act. A drug addict is seen as a victim, but we don’t know yet if he is an addict or not. There is no information yet if any drugs were found in his medical results or not. Hence he has not been granted bail because the angle of international drug trafficking links inflated by the prosecution.”

If we were to treat all soft drug users in the country as criminals, there would not be enough jails to house them. As families that deal with substance abuse know so well, addicts need to be treated as victims and not criminals. And it is empathy and care – and not being put in prison – that often helps them come out of the addiction and find a new purpose in life. Our laws that deal with narcotics charges are decades old and do not reflect the present-day realities of drug addiction. There is an urgent need to stop criminalizing soft drug abuse in order to create a healthy atmosphere where the problem is addressed as a social ill. For that, the first step should be to treat possession of a small quantity of narcotics for personal consumption as a civil offence, as opposed to a criminal one. This would be an important step towards de-stigmatising drug abuse. Peddling can, and should, be treated as a crime, but a substance abuse victim needs our helping hand and not a police baton.

Another important step would be to delink cannabis products – ganja and charas – from other ‘hard drugs’ like opiates and cocaine. There is growing medical evidence that cannabis derivatives can be beneficial in treating many ailments. India also has a long history of socially sanctioned cannabis use, as can be seen in many of our festivals. In fact, it was not till the 1980s that cannabis was clubbed with other drugs in the same bracket legally. While this pushed the cannabis trade underground, it also aided the booming market for narcotics like heroin and brown sugar. The western world has already recognised this and taken remedial measures, which is why cannabis products are gradually getting legalised in different countries, including in 19 US states. Ironically, it was pressure from the US back in the ’80s that forced India to criminalise cannabis use. It is high time India seriously examined the possibility of legalising cannabis, especially since we voted only last year at the UN Commission on Narcotic Drugs to remove cannabis from Schedule IV of the 1961 convention, where it was listed with other drugs like heroin.

— With inputs from Niharika Lal