Abstract
The paradigm shift in the usage, prevention, and control of drugs in ‘India’ could be traced by India becoming a signatory to the U.N. Single Convention on Narcotic Drugs, 1961, The Convention on psychotropic substance, 1971, and The Convention against Illicit Traffic of Narcotic Drugs and Psychotropic Substance, 1988 and finally the adoption of rigorous law of its land against the menace of Drug “Narcotic Drugs and Psychotropic Substances Act, 1985.[1]
Cases have piled above in recent times when the media got flooded by the name of popular film stars in India found being indulged in drug racket and illicit trafficking. The charges were framed against them under the NDPS Act, 1985 which has reverse onus clauses. The paper concern about the constitutionality of reversal clauses or reverse onus clauses pertaining to how the onus of proof shifts on the accused as the trial proceeds and why the court presumes ‘the accused guilty until proven innocent’[2] in the case matter filed under the NDPS Act, 1985.
Furthermore, the crucial section of the statute like section 35 and section 54 would be discussed in coherence with the court’s presumption of guilt of an accused. These sections would be reviewed critically and analysis will be drawn for its importance and ‘how’ it is considered for reversing the cardinal principle of criminal jurisprudence.
Keywords
Cardinal Principle of Criminal Jurisprudence, Drugs, guilty, Section 35 & 54, NDPS Act, 1985.
Introduction
Narcotics Drugs and Psychotropic Substance Act 1985, (NDPS Act), was enforced in India with a motive to have control over the cultivation, trade, selling, consumption, storing, possessing, and most importantly consuming of these substances. Narcotics means substances or drug that causes a person to sleep, get relief, or helps to get rid of pain, whereas psychotropic substance is those that influence how the brain shall function after its consumption, influence one individual’s behaviours, feelings and causes presentiments if consumed in the large amount. Going to the profound depth of the meaning of these substances which has a fine line difference we shall find that psychotropic substances act upon the mind which is a conscious and unconscious part. Whereas Narcotics relax muscles and cause a reduction in sensitivity.
NDPS Act, 1985 does not differentiate between the person who sells, who buys it, who produces it, or who stores it, and it is considered in a univocal voice that they are the culprits of using the drug. This particular statute also contains a list of drugs and their commercial quantity and quantity that is considered small. Section 2 of the NDPS act specifies and defines small, intermediate, and commercial quantities.[3] Offenses for possession of these quantities of the drug are punishable and non-bailable under sections 15-23 and 37 of the NDPS Act, 1985 respectively.
However, the liability to prove innocence lies upon the accused in the cases filed under this statute. The court until then presumes him guilty. According to S.54 of the NDPS Act, “any narcotic drug or psychotropic substance, or any facility for production or preparation thereof, may be drawn as evidence of the conduct of an offense.” One of the most arbitrary and tenuous of suspicions may be used as the basis for a presumption of guilt under Section 54.[4]
Research Methodology
This paper is descriptive in nature. And critically analyse the reversal of the cardinal principle of criminal jurisprudence. The literature, facts, and orders are based on the primary source of the NDPS Act, 1985, and cases; secondary sources such as information from newspapers, websites, and case reviews.
Literature review
The Act
Section 35 of the Statute labels all the offences as cognizable and non bailable.[5] Cases related to illicit drug trafficking, are such cases that are inherently cognizable and non-bailable under the Act.[6] For offenses under NDPS Act, the responsibility to prove one’s innocence stands upon the accused.[7] It is the liability of the accused to prove his/her innocence[8] rather than the responsibility of the court or the opposite counsel to prove things vice versa. The fundamental principle of jurisprudence is “an accused is innocent until proven guilty” which is reversed by the NDPS Act 1985 and it is made with a legislative intent that is not against the constitution of India;[9] In NDPS cases ‘Not to grant bail is a rule but to grant bail is an exception[10].
The provision enshrined under S.35 of the Statute escalates assumption for knowledge of possession of drugs and narcotic substances and the culpable mental state of the one who possess it. The expression “possess or possessed’’ is interpreted in connection with statutory offenses of owning prohibited drugs or contraband substances. Conscious or mental possession is necessary to hold any person liable U/S. 35 of the NDPS Act, 1985[11]. The word possession refers to the mental state as noticeable from the language employed in section 35 of the NDPS Act. It includes knowledge of a fact.[12] In the case of Mohan Lal v. the State of Rajasthan[13], it was held that a conscious or mental possession is necessary to hold a convict liable under the NDPS Act.
Cardinal Principle of Jurisprudence
In the case of Kali Ram v. State of Himachal Pradesh, it has been observed that what crime really is, the hon’ble justices have remarked crime is the interplay of different human emotions in real life.[14] When an individual commits a crime and the trial has been initiated then as per the rule of the cardinal principle of criminal jurisprudence the accused is presumed to be innocent until he is proven guilty beyond any reasonable doubt. This is considered to be the rule of general evidence and is based on the Latin Maxim “ei incumnit probation qui dicit, non qui negat” which means the burden of proof is upon the one who opines the case and not the one who denies it.
The Indian Evidence Act, 1872 never postulates that the accused should prove his innocence, moving in dept with the Universal declaration of Human Rights says that whosoever charged with a penal offense should never be burdened with proving his innocence in the trial, but can defend the anything by simply denying the facts until evidence is brought up in the court of law without any degrees of doubt.
Types of Cardinal Principles of criminal jurisprudence-
There exist three main cardinal principles of criminal jurisprudence
- The prosecution to prove the case beyond reasonable doubt
- The accused to be presumed innocent during the trial until final judgement is reached.
- The responsibility of prosecution is something that never shifts, and he needs to fulfil every criterion to prove whatever he asserts.
The Cardinal principle of jurisprudence never postulates that the accused needs to presents certain evidence in favor of his own defense and just he can rely upon the assertion given and made by the prosecution. There are several cases to prove this basic principle some of which is Dahyabhai Chhaganbhai Thakker v. State of Gujarat[15] with regards to the prosecution’s onus to prove guilt beyond reasonable doubt which never shifts and only shifts when the accused needs to prove his insanity. The prosecution can never derive benefit from the weakness or falsity of the accused while proving the case.[16]
Reversal Process Under NDPS
If an individual is tried under the NDPS Act, 1985, the onus to prove his innocence is on the accused and this responsibility never shifts. This is due to the gravity of the crime committed and such crimes under NDPS Act, are categorized differently other than penal offenses in India. The moment an allegation is established by the First Information Report [F.I.R.] and compliances are made with lawful procedure the burden of proof from the very inception of the prosecution shift to the accused without having to prove anything.[17]
This presumption is quite rebuttable by many lawyers themselves. According to Section 35(2) a fact is said to have to prove only when it prevails beyond a reasonable doubt and not merely when it is in existence by a preponderance of probability. The inflexible provision of the NDPS Act, Section 37 envisages a minimum sentence of ten years, every crime conducted under the NDPS Act, 1985 will be cognizable. Whereas section 37(2) entails that if the public prosecutor raises any doubt on the application, then the court becomes satisfied for believing that the alleged accused is not likely to commit such an offense when on bail.
The reversal takes place in this paradigm shift of onus from the prosecution to the accused to prove his innocence. But “this does not absolve the prosecution to establish any prima facie evidence against the accused” and the same has been observed by Justice Indira Banerjee and Justice Navin Sinha while entertaining an appeal challenging the conviction under section 8 and section 18(b) of NDPS.
If one still looks minutely at the flow of onus to prove guilt, it is always from the prosecution to the accused. Once the prosecution sets the assertion beyond the reasonable doubt then the trial is initiated then the onus shifts to the accused. The standard of proof is different here for both parties, for the prosecution it’s beyond all reasonable doubt, and for the accused it’s based on the preponderance of probabilities. The actus reus, which is the accused’s possession of contraband, cannot be deemed to have been proven if the prosecuting party fails to demonstrate the fundamental facts necessary to subject the case to Section 35 of the Act’s strictures.
Analysis
Constitutional legitimacy of Reverse Onus Clauses
The constitutionality of reverse burden clauses has been challenged in different jurisdictions across the globe and in most of these jurisdictions these clauses or presumption of innocence are being recognized as fundamental or statutory right. Presumption of innocence is enshrined under the Canadian Charter of Rights and Freedoms[18] in which various tests are being established pertaining to the determining of the Reversal provisions and are these tests are widely followed by the world which establishes a state practice.
According to the constitutional framework of India, Under Article 20(3) no one shall be forced into self-incrimination. Diving deeper into the pond of the burden of proof, if the accused cannot satisfy the court, he or she shall be prosecuted and convicted, hence in a manner the accused would be self-incriminating against themselves. In a judgment given by Justice R F Nariman, in the year 2020, when so many actors and actresses in the country got listed for crimes under NDPS law in India. According to him, the new guideline would not be applied in a retrospective manner to the crime that has already been listed or under trial. Under NDPS law the central and state government can invest their officer such as officers from central excise, narcotics, customs, revenue intelligence or paramilitary or armed forces with the powers of an officer in charge.
India’s constitution states that no one may be coerced to testify against himself. Going deeper into the burden of proof, if the accused cannot convince the court, he or she will be charged and found guilty, which will result in the accused implicating them self. Different sections of NDPS law enshrine punishment on the basis of conduct. The new regulation will not be applied retroactively to crimes that have already been charged or are currently being tried. Both the federal and state governments are permitted to invest their officers under the NDPS statute.
The possession of illegal items gives rise to a presumption about knowledge and culpable mental state under the NDPS Act of 1985. According to Section 35 of the NDPS Act, 1985, any individual cannot be held accountable without conscious or mental possession. The burden of establishing innocence in this Act rests with the accused. Instead of the court or the opposing attorney, it is the accused’s duty to establish their innocence. The Indian Evidence Act of 1872 makes no mention of the need for the accused to establish his innocence. He must meet all requirements in order to establish anything he alleges since the burden of proof never moves. When establishing its case, the prosecution can never gain from the accused’s fallibility or weakness.
The burden of establishing one’s innocence remains with the accused throughout a case under the NDPS Act, 1985. The burden of proof shifts to the accused without any more evidence being required as soon as an allegation is substantiated by the First Information Report and compliances with legal process are completed. According to Section 35(2) of the NDPS Act, 1985, if the public prosecutor raises any concerns on the application, the court must be persuaded that the accused is unlikely to commit the crime in question while out on bail.
The prosecution is still required to present some sort of prima facie evidence against the accused, though, therefore when evaluating an appeal against the conviction under sections 8 and 18(b) of the NDPS, Article 20(3). This particular clause gives these officials the authority to question the subject of the doubt or any other individual to ascertain if the NDPS Act’s legal provisions have been broken. These officials may request any document or information connected to the inquiry from the people in issue using the authority granted to them by law and legislation. If the author draws a parallel between these officers and the term “Police” under the Indian Evidence Act, then these officials would fall under the same category as police. Since the Indian Evidence Act forbids it, self-incriminating statements made during a trial are no longer admissible in a court of law. On the other hand, this proof shouldn’t be ignored.
The Indian Constitution provides that material gathered in a criminal case should not be made available for public sale. It would be a clear violation of articles 14, 20 (3), and 21 of the Indian Constitution to utilize this statement as the foundation for the alleged accused’s conviction in the absence of any law superior to the constitution and the Indian Evidence Act. Everything that violates these fundamental rights should be eliminated and declared invalid.
This very provision empowers these officers to call the person upon whom the doubt has arisen on any other person to satisfy them for contravention of the provision of laws under the NDPS Act. These officers by their power conferred by the law and statute can ask these individuals in question to submit any document or information related to the investigation. Pondering over this if the author here derives an analogy between these officers and the word Police under Indian Evidence Act; it results in these officers being under the same class of police. Now the Indian Evidence Act prohibits this in the course of the trial in a court that self-incriminated words are not admissible in a court of law.
Contrarily this evidence should not be set free to sell off the shore; it could be used as corroborating or circumstantial evidence in the findings of the case. Taking this statement as evidence as the basis of conviction of the alleged accused without any law that is superior to the constitution and the Indian Evidence Act, it would be a direct transgression to articles 14, 20(3), and 21 of the constitution of India. The enlisted articles provide the right to a free and fair trial, the right against self-incrimination, the right to life, and the right to personal dignity. Moreover, if anything is in derogation of these fundamental rights, according to article 13 of the constitution of India should be removed and quashed.
Suggestions
Government belatedly should review the NDPS law and which is against the constitutional framework. Certain sections are against the fundamental right mentioned in the Constitution of India. As mentioned in Article 13 any law in derogation of basic structure should be repealed, then NDPS law should also be brought under scrutiny. The laws should have different provisions for the one who is consuming, producing, selling, cultivating, or possessing in different gravity. The NDPS law should be reviewed again because if an innocent person without any knowledge has been found in possession of the contraband and could not establish his innocence would be wrapped under different severe charges and would be behind bars.
As enshrined in the NDPS law that the officers have right to call upon the suspected person for enquiry and can call upon the alleged accused to submit documents and give testimony is against the rule of self-incrimination entitled in the constitution of India. Nevertheless, not everything can be denied in the NDPS laws, because it is crime of a different category where a presumption of guilt has to be there otherwise the criminal would be left unpunished. Crime in conduct with the selling, purchasing, possessing, and consuming of contraband is illegal and unlawful according to law, and no doubt this crime should be dealt with differently.
Conclusion
“Injustice anywhere is a threat to justice everywhere”. To uphold the object and purpose of the Constitution of India, to render justice to the innocent persons who are being charged under NDPS without having a clue of the offense(s) he/she has committed, it becomes necessary and need of the hour that the NDPS laws especially the Reversal Onus clauses be reviewed again because, if an innocent person who had no knowledge of the contraband was discovered in possession of it and was unable to prove his innocence, he would face serious charges and be imprisoned. The Indian Constitution contains certain parts that violates fundamental rights. For those who are consuming, producing, selling, farming, or possessing in varying degrees, the rules ought to provide different provisions.
Paper by
Harshita Raj
Second semester, Lloyd School of Law, Greater Noida.
[1] Narcotic Drugs and Psychotropic Substances Act 1985.
[2] Mohan Lal v State of Punjab, (2018) 17 SCC 62.
[3] Section 2, NDPS Act, 1985.
[4] Section 54, NDPS Act, 1985.
[5]State of Punjab v. Baldev Singh, (1999) 6 SCC172; see also, Steffan Muller V State of Maharashtra,2010 SCC OnLine Bom 1974; Rhea Chakroborty V Union of India and Anr.,2020 SCC OnLine Bom 925.
[6] Rajesh and Ors.v. State of Kerala and Ors., (2020) 12 SCC 122.
[7]Gangadhar v. State of Madhya Pradesh, (2020) 9 SCC 202.
[8]Karamjit Singh v. State (NCT of Delhi), (2003) 5 SCC 291;see also, S. Jeevanantham v. State, (2004) 5 SCC 230.
[9] Noor Aga v. State of Punjab and Anr.,2008 16 SCC 417
[10]Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294.
[11] Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222.
[12] Id. at. 35.
[13] Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222.
[14] Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773.
[15] 1964 AIR 1563, 1964 SCR (7) 361
[16] Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, (1960) 3 S.C.R. 319. 324; See also. Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439.
[17] Mohan Lal v.State of Punjab, (2018) 17 SCC 627
[18] Guide to the Canadian Charter of Rights and Freedoms – Canada.ca.