Law in reverse gear: How accused in drugs cases remain guilty until proven innocent

For rickshaw driver Sahil Hussain Sheikh, February 3, 2021, was like any other day. He had been taking passengers to various parts of Pune city and was getting back home around 8 pm. Near his home, Sheikh saw policemen roughing up an old man. He tried to intervene, and the police retorted, “You want to be smart? Fine, you come to the station with us.” At the station, they proceeded to file a case of possession and sale of banta (bhang) tablets against him. 

The police version of events, as noted in interim court orders and the judge’s final judgment, was something else: From 8 pm on February 3, 2021, Police Inspector K., Head Constable D. and other staff from the anti-narcotics squad were on patrol duty. While passing through the jurisdiction of Faraskhana Police Station, an informer called to tell that a person was selling banta tablets in a paan shop in Raviwar Peth. K. asked D. to call two pancha witnesses, following which K., D. and the two witnesses proceeded to the shop where they saw "one person selling tablets in green colour packets from a bag to the customers", a.k.a, Sahil Hussain Sheikh. They raided the spot around 8.15 pm and D. seized and sealed 15 packets of banta tablets (200 gram in each packet), inscribed with ‘Om Shivshankar, Nit Pharma, Ayurvedik Aaushadhi, Anandvan Churna’. Sheikh was arrested under Section 65(e) of the Maharashtra Prohibition Act and was granted bail within a few days.

But the nightmare was far from over. On January 12, 2023, almost two years after his first arrest, the police claimed that the returned lab samples stated that the substance seized was not banta, but charas. Accordingly, a new chargesheet was filed under Section 8(c) r/w 20(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. Sheikh was re-arrested, this time without a bail provision.

“I had nothing to do with the paan shop or drugs. I have never been associated with such things. How could they arrest and keep me in jail for almost 16 months,” asks Sheikh.

Trapped by the law

Besides routine police negligence, the answer rests in the nature of the NDPS Act, which governs all drug-related offences in India. “It is an extremely restrictive and regressive law,” says Neha Singhal, a legal scholar who has done extensive research on the way the Act is implemented in the country. 

On paper, the law is meant to “make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances”. It criminalises not only the selling, trading and trafficking of various drugs, but also their personal use and possession. Pune has witnessed a wider crackdown on drugs after the Porsche case, its latest iteration being a raid on local bar L3. 

However, the law also reflects most Asian countries’ penchant for strict drug control, often rooted in a morality-based approach to drugs and their consumption. The law is harsher for drug traffickers than for consumers, though ironically, policing strategy over the years has primarily targeted petty consumers while ignoring bigger fish. “The biggest problem is that it reverses the burden of proof,” says Singhal. "What this means is, all the police have to do is claim that you were carrying drugs. The onus is then on you to prove that either you were not carrying the drugs or you did not know you were carrying them” (this reversal of burden of proof was subsequently carried over into many other laws, including POCSO, PMLA and others). 

Another dual aspect of the law is particularly damning: offences under the NDPS Act are cognisable and non-bailable. This means that i) police can search and arrest anyone without a warrant and ii) once arrested, accused do not have the right to bail. Together, this gives police the right to keep NDPS-accused in prison indefinitely, until the trial is concluded. 

At the time of his first arrest in 2021, Sheikh was the only earning member of his family, which comprised his wife and six children. Since the law classifies banta as an intoxicant rather than a drug, meaning more similar to alcohol rather than charas, molly and cocaine, the police registered the case under the relatively lenient Maharashtra Prohibition Act and Sheikh was granted bail. Funnily enough, his bail was posted by the paan shop owner, who apologised for the trouble caused. “He told me that it was a minor case, that there was nothing to worry about as he would hire a lawyer and manage the case once it reached trial,” recalls Sheikh. 

Two years later, Sheikh was re-arrested under the NDPS Act. “The police kept asking me what was my connection to the paan shop and how did I procure drugs,” Sheikh says. When he insisted that he had no connection with the shop or the drugs, the police beat him up. 

The paan shop owner had appointed a lawyer to fight Sheikh’s case. “But he was botching it up. In the evidence submitted at trial, he did not include a copy of the Shop Act Licence, which is clearly in the paan shop owner’s name. He did not even bring up the owner’s name, leading everyone to believe that it was my paan shop,” says Sheikh. 

Outside the courtroom, the paan shop owner had promised Sheikh that he would take care of his family. But Sheikh’s cousin divulges how the owner would curse Sheikh’s family when they went to him for help, refusing to offer anything beyond a paltry Rs 6,000 a month, which was barely sufficient to pay their rent. 

“During Eid that year, the family had nothing to eat. They were surviving on Parle-G biscuits,” the cousin recalls. It was this cousin who scoured the city for another lawyer who would get Sheikh out on bail. They visited multiple lawyers, but all of them sought a hefty advance ranging from Rs 70,000 to 1 lakh, and offered no timeline or guarantee for Sheikh’s release. Most of them said that district courts almost never gave bail in commercial quantity NDPS cases, so it would be better to approach the High Court, where it usually takes two years for NDPS bail petitions to be heard. 

The NDPS Act follows a graded form of punishment based primarily on the quantity of drugs in question. The punishment is the least for small quantities of drugs. Usually, in cases of personal possession, it can extend up to a year with a fine of up to Rs 10,000. For intermediate quantities, punishment usually is up to 10 years in prison, with a fine of up to Rs 1 lakh. For commercial quantities, punishment is the strictest, with 20 years in jail and a fine up to Rs 2 lakh. 

“The Act does not consider intention, it just considers the quantity of the drugs you are carrying,” explains Singhal. This means that the law makes no distinction between a consumer, peddler, trafficker or kingpin. Rather, it assumes that if the quantity of drugs is small, you are a consumer; if it is large, you are a trafficker. 

“So what does it mean if you are caught with an intermediate quantity of drugs? Are you a consumer or a trafficker? Or what if you are a truck driver caught transporting a commercial quantity of drugs? Are you a trafficker or just a middleman? The law is not clear on these aspects,” says Singhal. 

Bail allowance is similarly graded: for small and intermediate possessions, bail is usually granted. But for commercial quantities, the offence is non-bailable; unless there are “reasonable grounds for believing that the accused is not guilty of such offence and that they are not likely to commit any offence while on bail”. What this means is the law’s ‘innocent until proven guilty’ presumption is reversed. In NDPS arrests involving commercial quantities, the law presumes the accused is guilty until proven innocent. To get bail, the accused must prove that they are innocent at the bail hearing itself, which is impossible to do. So, bail plea is usually rejected. 

The law does have certain safeguards. Because bail provisions are so strict, lawmakers tried to ensure that the threshold for arrests was also high. The police must follow a legally mandated procedure to search accused persons, delineated under Section 50 of the NDPS Act. This involves informing them that they have the right to be searched in the presence of a Gazetted Officer (GO) or the nearest magistrate; and unless they waive their right for the same, police must take the accused to a GO or magistrate, who “if he sees no reasonable ground for search, forthwith discharges the person but otherwise shall direct that search be made”. 

In case the police believe that it is not possible to take the accused to the nearest GO or magistrate without them parting with the drug they are supposedly carrying, then they can proceed to search the person; but they must “record the reasons for such belief that necessitated such search and within 72 hours send a copy thereof to their immediate official superior”. If any of these processes are not followed, the arrest does not hold up and the accused have the right to bail and subsequently, acquittal. 

Cracks in the case

With bail elusive, Sheikh’s cousin finally approached Advocate Hafizuddin Kazi, a family friend. Kazi agreed to take up the case, refusing any advance or payment for the time being. “Once I get him out, you give me whatever you think fit,” Kazi recalls saying. The first thing he did was to apply for bail. 

Sheikh had been accused of carrying 15 packets (200 gram in each packet) of charas, which amounted to a commercial-quantity drug possession. This meant bail would be hard. However, police had failed to follow the legally mandated procedures during his arrest; and Sheikh had already been granted bail once, under the erstwhile Maharashtra Prohibition Act. Kazi presented these facts in the bail application, particularly highlighting the police’s failure to comply with Sections 50 of the NDPS Act. Sheikh had not been informed of his right to be searched in the presence of a GO or magistrate. In fact, he was not even produced before a magistrate. 

The prosecution opposed bail, stating that the police had not known the seized intoxicant was charas at the time, and thereby the question of compliances under NDPS did not arise. After hearing both sides, the Additional Sessions Judge ruled on January 9, 2024, that “looking at the nature of offences, the possession of commercial quantity of contraband by the accused, and facts and circumstances of the case, it transpires that the accused has failed to make out a prima-facie case for grant of bail.” 

Back in 2022, Justice DY Chandrachud had warned against this very thing. At an event organised by the Bar Council of India, he said, “There is a general reluctance among district courts to grant bail. It is a sense of fear… If this continues, it risks rendering our district courts toothless and higher courts dysfunctional.” This tendency is even more pronounced in commercial-quantity NDPS cases, which are legally dubbed non-bailable.

Pune-based Advocate Aashutosh Srivastava also emphasised that district courts are overworked. “They have to go through dozens of cases a day and do not get time to scrutinise each one carefully,” he said.

By this time, Sheikh had already spent a year in prison, where other NDPS accused were telling him that his case was hopeless. “He was actually contemplating suicide,” says the cousin. To assuage him, Kazi would write him letters, updating him on the case’s progress and assuring him that he would be out soon. 

Over the course of the next four months, Kazi systematically poked holes into the prosecution’s already non-existent case. Glaring inconsistencies started to emerge: while one police witness said they started their patrolling duty at 8 pm, after which they received a call from the informer, another said that the informer called at 7.45 pm. In his written complaint, the police informant had said that he received information that the accused was selling banta tablets, but in his trial testimony, the same police informant said the informer had told that the accused was selling charas. One of the prosecution’s panchawitnesses turned hostile, admitting that he was not present at the time of the arrest; the police had told him to sign on a piece of paper and he had complied. Moreover, the prosecution failed to establish any connection between Sheikh and the paan shop, curiously failing to mention the shop owner’s name anywhere in the course of their investigation. 

Ultimately, on April 6, 2024, the Additional Sessions Judge ruled that “the prosecution had not made the mandatory compliances, including under Section 50 of the NDPS Act, at the time of raid and search of alleged paan shop. Prosecution had failed to prove the seizure of 15 packets each of 200 gm of alleged banta tablets from the possession of the accused at the paan shop, Raviwar Peth, Pune. Moreover, the prosecution had failed to prove the nexus of the accused with the paan shop.” Consequently, Sheikh was acquitted, after a full 14 months in prison for a crime he had absolutely no connection with.

His case raises serious questions about police negligence and malpractice. More significantly, it points out the explicit harshness of the NDPS law, whose guilty-until-proven-innocent presumption allows arbitrary arrest and imprisonment of innocent people. “The thing is, a lot of these shortcuts, whether it is the reversal of burden of proof in NDPS, or preventive detention, have been brought in because there is a complete rot in the system. So you find ways to bypass the system altogether,” says Singhal. 

Instead of reforms in individual laws, what is needed, she says, is reform in the system. “So whether it is NDPS or any other law, it has to work on the principles of criminal justice, of presumption of innocence, of accounting for intent, of thorough investigation, and no shortcuts in procedure.” 

Advocate Srivastava also stresses that arrests should be made very carefully in non-bailable offences like NDPS. “The police should follow all the procedural requirements before actually arresting someone.” For their part, courts too should act as watchdogs, granting bail where proper procedures are not followed. 

Maharashtra has one of the highest number of NDPS cases across the country. The number of NDPS cases for commercial quantities of drugs in the state increased from 751 in 2018 to 1,823 in 2022, a jump of almost 143%. The total number of those arrested under the NDPS Act for small, intermediate and commercial possession increased from 1,140 in 2018 to 2,444 in 2022, a jump of 114%. How many Sahil Hussain Sheikhs are buried within these statistics remains unknown. 101Reporters/SP