New Delhi : The Supreme Court on Tuesday said the Bombay High Court ruling in actress Rhea Chakraborty’s case—that giving money to a person for procuring drugs would not mean encouraging trafficking—would not be considered as a precedent while allowing NCB’s (Narcotics Control Bureau)’s plea not to challenge the bail granted to her.

At the outset of the hearing on NCB’s appeal, additional solicitor general S V Raju said the government was not challenging her bail and the legal issue regarding interpretation of Section 27A of the Narcotics Drugs and Psychotropic Substances (NDPS) Act be left open for a decision at a later stage.

The central agency disagreed with the HC’s interpretation of Section 27A (under which one can be jailed for up to 20 years for financing illicit drug trafficking and harbouring offenders) and urged the court that the ruling should not be treated as precedent by other courts.

Allowing the NCB’s plea, the bench of Justices A S Bopanna and M M Sundresh said, “At this stage, the challenge to the impugned order in so far as grant of bail may not be required. However, the question of law raised is left open to be considered in an appropriate case and, as such, the judgment may not be treated as precedent in any other case.”

Chakraborty and others, including her brother Showik, were accused of having facilitated procurement of drugs for actor Sushant Singh Rajput who died. She was arrested on September 8, 2021, and got bail on October 4, 2021.

While granting relief to the actress, the HC had pointed to the anomaly in Section 27A as the punishment for consumption of narcotic drugs was a maximum one year or imposition of fine up to Rs 20,000 but if some other person, such as a friend or a relative, paid for such drugs, the person who actually consumed the drug would be punished only with imprisonment up to one year but the person who paid for the drugs would face the prospect of spending 20 years in jail.

“Therefore, Section 27A will have to be interpreted harmoniously with other sections as well as the ‘objects and reasons’ of the Act so that it attacks illicit drug trafficking but does not extend to sentencing another accused more severely than the main offender."

I am 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 HC had said.

“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. There are no other criminal antecedents against her," Justice Sarang V Kotwal had said in his verdict.

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The union government on Tuesday did not challenge the bail granted to Rhea Chakraborty by the Bombay High Court in the cases registered against her under the Narcotics Drugs and Psychotropic Substances (NDPS) Act when the matter came up for hearing in the Supreme Court. The Bombay HC had granted bail to Chakraborty in October 2020.

However, the government submitted that it wants to keep the Bombay HC interpretation of Section 27A of the NDPS Act (under which one can be sent to jail for a maximum of 20 years for financing illicit traffic and harbouring offenders) open for challenge at an appropriate time.

Representing the government in the SC, Additional Solicitor General SV Raju told a bench of Justices AS Bopanna and MM Sundresh, “We are not challenging the grant of bail, but on the interpretation of section, please keep it open for consideration. Let the order not be a precedent also.”

The SC ordered, “Union government submits bail is not being challenged. However, the question of law (is) kept open for consideration at an appropriate time. ”

“She is not part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits... there are reasonable grounds for believing that she is not guilty of any offence punishable under Sections 19, 24 or 27A (of NDPS Act) or any other offence involving commercial quantity.”

Section 27A prescribes punishment for financing illicit traffic and harbouring offenders, providing punishment of not less than 10 years, which may extend to 20 years. Application of Section 27A makes the offence not only non-bailable but prescribes additional condition under Section 37 that no such person shall be released on bail unless the public prosecutor has been given opportunity to oppose the bail, and, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and is not likely to commit any offence while on bail.

During the hearing of Rhea and her brother Showik Chakraborty’s bail pleas in the Bombay High Court in Oct 2020, the Narcotics Control Bureau (NCB) argued that if a person does not disclose that someone known to them consumes drugs, that’ll amount to ‘harbouring’ of an offender, according to Section 27A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. This brought into focus the aforementioned section of the act and a peculiar case of not reporting a crime amounting to a far greater jail time than the actual crime itself.