Drug seizure: Onus on accused to prove whether he is addict or trafficker, rules HC
“We say so for the simple reason that as soon as a person with prohibited drugs or psychotropic substances is arrested, the normal investigation would stand to be derailed or otherwise seriously prejudiced because the arresting officer/IO would be obliged to proceed into a direction of having the arrestee to be medically examined while in custody for determining whether or not he is actually an addict,” the bench said.
The Punjab and Haryana high court has held that it is not the duty of an investigating officer (IO) to take into consideration whether the accused is an addict or trafficker in drug seizure with marginally above commercial quantity.
“We say so for the simple reason that as soon as a person with prohibited drugs or psychotropic substances is arrested, the normal investigation would stand to be derailed or otherwise seriously prejudiced because the arresting officer/IO would be obliged to proceed into a direction of having the arrestee to be medically examined while in custody for determining whether or not he is actually an addict,” the bench said, adding that this would result in diverting the IO from other urgent aspects of investigation such as seeking to uncover the source, and identification of others involved.
This was stated by the special division bench of justice Surya Kant and justice Sudip Ahluwalia while answering a reference of a single-judge bench on a bunch of petitions challenging the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the quantity fixed for classification of various drugs as commercial and non-commercial. And also if seizure is marginally above the notified commercial or non-commercial quantity, the accused who is an addict would attract the same punishment as a trafficker.
The high court division bench underlined that if the accused in question claims any special concession on the ground of being an addict, the onus to establish this claim automatically shifts on him even as per Indian Evidence Act, 1872. It will not amount to “harsh and stringent” against him when he is found to be in possession of prohibited drug, the bench said.
The court, however, clarified that an addict would be liable for punishment under Section 22(b) of the law (where the contravention involves quantity, lesser than commercial quantity but greater than small quantity) and might not be liable to suffer punishment under Section 22(c)(where the contravention involves commercial quantity),if the accused was able to satisfy the court. However, the court said this benchmark would depend from case to case, on the nature and quantity of the particular drug seizure and medical history and profile of addict.
As of other questions pertaining to challenge laid to the law itself and declaration of commercial quantity for different drugs, the court did not interfere stating the matter was already pending before a Supreme Court.
COMMERCIAL QUANTITY OF DRUGS
The single-judge bench had referred the matter for consideration to a larger bench stating that law had a “seriously skewed design” for treating different drugs as commercial quantity. The commercial quantity of opium would be 2.5kg. For an addict, it would translate into about 10,000 doses. But for a Rexcof, where an addict’s dose could be 100ml, the commercial quantity starts at 1,000ml (which means 10 doses). Likewise for Bupre Norphine, another drug, the commercial quantity would not be more than 40 doses
