Cops need to prove Rahul had enough drugs on him
The case against Mahajan Jr flounders on this count, writes Harish V Nair. Counterpoint | Pimps, fixers & tentwallahsindia Updated: Jun 08, 2006 02:44 IST
The conspiracy theories have been junked, doctored reports exposed and Rahul Mahajan sent to police custody. But for how long? Time is running out for the Delhi police to prove that the amount of drug seized from Rahul was substantial enough to deserve a non-bailable warrant.
Under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, a non-bailable warrant can be served only when a person is in possession of more than 5gm of heroin or 2gm of cocaine. The case against Rahul flounders on this count. "The whole world saw how the prosecution was tongue-tied when the court asked them to quantify the seized drug. The prosecution says the amount is miniscule. If the quantity falls under the small category, the offence is bailable," Rahul's lawyer Sunil Mittal said.
According to a Supreme Court guideline, no arrests under the NDPS Act can be made without specifying the nature and quantity of the narcotic seized from a person. "Otherwise, as a matter of right, the accused is entitled to bail", says Sanjiv Kumar, a lawyer specialising in NDPS cases.
Sensing an escape hatch, Rahul's lawyer Sunil Mittal is likely to file a bail application before the Metropolitan Magistrate on Thursday when Rahul is produced before the court again after his two-day police custody.
On Tuesday, when magistrate AK Chaturvedi asked the prosecution to "take a final stand" on the quantity of the narcotic, they fumbled for a while and said that the amount "could be around 5 grams," says Mittal.
This, too, was based on a presumption. As Sahil was given Rs 15,000 - the market rate for 5 grams - to buy the drug, the police appears to have just put two and two together. Moreover, the prosecution argued that Vivek Moitra's death from overdose indicated that much more than five grams was consumed during the party. For this, "Rahul needs to be investigated", the prosecution said seeking his remand.
According to Mittal, the only argument the prosecution had to prove that Rahul was a regular user was that Sahil had tried to return the remaining Rs 2,500 out of Rs 15,000 given to him. Rahul asked Sahil to "keep it for further supplies", they claimed.
Section 21 of the NDPS Act classifies offences involving drug seizures into three classes: (a) small quantity (in case of heroin below 5 gm, and cocaine below 2 gm) - a bailable offence; (b) medium quantity, and (c) commercial quantity.
"The FIR filed against Rahul mentions miniscule quantity but does not specify the sub-clause. No one can be charged under all clauses simultaneously. They also charged him for destruction of evidence because they failed to collect any further evidence against him other than that he consumed some drug," claims Mittal.