Rhea Chakraborty's Arrest: Cannabis And Its Legal Status In India

The arrest of Rhea Chakraborty has raised questions on the application of the NDPS Act of 1985 for possession & consumption of cannabis.

Bollywood actor Rhea Chakraborty was arrested on Tuesday by the Narcotics Control Bureau for allegedly purchasing cannabis for herself, and her late boyfriend, actor Sushant Singh Rajput. According to the remand report filed by the NCB officers, Chakraborty is allegedly an "active member of drug syndicate connected with drug supplies".

Chakraborty, who has faced the ire of the Indian public upon the death of Rajput - with the latter's family filing a case of abetment of suicide against her - initially denied the allegations, but is later reported to have admitted to smoking joints (marijuana laced cigarettes) at parties, and has now been sent to judicial custody in Byculla jail in Mumbai.

Cannabis, or ganja, is one of the most commonly consumed illegal substance in India which was entirely legal in the country until 1985. It has also been associated with spiritual and religious ceremonies in the country for thousands of years. So what are the laws regarding possession, consumption, distribution and cultivation of cannabis?

NDPS Act 1985

In 1985, the Central government passed the Narcotic Drugs and Psychotropic Substances Act which prohibits the cultivation, possession, distribution, purchase and trade of narcotic drugs and psychotropic substances, including cannabis, barring medical or scientific use.

This act was passed under Rajiv Gandhi, with a push from the Ronald Reagan-led administration in the United States, at the peak of the "war on drugs" in the country. Ironically, multiple states in the United States have now legalised commercial and medical use of cannabis.

However, in India, the NDPS Act of 1985 still governs the laws regarding cannabis, and can lead to serious legal issues for possession or consumption of the fruiting tops of the plant (ganja) and the resin (charas). The penalty is dependent on the quantity under question, similar to other narcotics such as cocaine and heroin.

Small Quantity (under 1kg for ganja, 100g for charas or resin, 2 grams for cocaine, and 5 grams for heroin) : for such an amount, the accused may face rigorous imprisonment up to 6 months or fine up to Rs. 10,000, or both, maybe levied.

Between small and commercial quantity (1kg - 20kg for ganja, 100g - 1kg for charas, 2g - 100g for cocaine, 5g - 250g for heroin) - for such an amount, the accused may face rigorous imprisonment up to 10 years and fine up to Rs. 1 lakh.

Commercial quantity (above 20kg for ganja, 1kg for charas, 100g from cocaine, 250g for heroin) - for such an amount, the accused may face rigorous imprisonment 10 to 20 years, and fine of Rs. 1 - 2 lakh.

In 2018, Uttarakhand became the first state in the country to legalise the cultivation of cannabis hemp for industrial purposes - after identifying it as a source of high-quality fibre and a wide range of medicinal and nutritious products. Furthermore, hemp-derived food items such as bhaang chutney and bhaang sabzi are commonplace in the state's diet.


What about Bhaang?

While cannabis is illegal around the country, bhaang - which is a mix of cannabis hemp seeds and leaves - is commonly consumed in India during religious ceremonies, and even sold in government licensed shops across the country.

Bhaang thandai, a traditional Indian drink made with milk, almonds and spices, along with cannabis seeds and leaves, is legally sold across the country during festivals such as Holi.

How is it that bhaang is legal, while the other products are not, despite having psychoactive properties? The answer lies in the fact that bhaang has been left out of the definition of cannabis in the NDPS Act, and is thus considered outside its purview.

Here is the definition of cannabis (hemp), according to Chapter 2(iii) of the NDPS Act 1985:

a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;"

NDPS Act, 1985, Chapter 2(iii)

Cannabis Use In India

While the true extent of cannabis cultivation and consumption in India is not known, it is generally accepted as being wide-spread in use and distribution.

The "Magnitude of Substance Use in India 2019" survey conducted by the Ministry of Social Justice and Empowerment found that roughly 2.83% Indians (around 31 million people) admitted to having consumed cannabis in the past year. Uttar Pradesh, Punjab, Sikkim, Chhattisgarh and Delhi were found to be the states with the highest prevalence of cannabis use.

In 2019, a report by the International Narcotics Control Board noted that, "India is among those countries worldwide with the greatest extent of illicit cannabis cultivation and production."

Furthermore, in 2018, New Delhi and Mumbai were found to be the third and sixth largest cannabis consuming cities in the world, with a consumption of 38.2 tonnes and 32.4 tonnes, respectively, by German data firm ABCD.

The Case Of Rhea Chakraborty

According to the remand report, Chakraborty has been charged with Sections 8(C) interstate movement of psychotropic substances, 20(B) possession and transportation of drugs, 27(A) financing/harbouring offenders, 21- manufacturing drugs, 22 - consuming drugs, 29 - criminal conspiracy, and 28 - attempt to commit offences, under the NDPS Act, 1985.

While the report stated with certainty that Chakraborty is an "active member of drug syndicate connected with drug supplies", Mumbai Mirror reported on Wednesday that that NCB officials have no evidence to back that accusation yet. A senior NCB official told the newspaper that the agency has only been able to dig up a history of personal consumption, and purchase for Rajput. Chakraborty has not been directly found in possession of any drugs either.

The NCB also arrested alleged drug dealers Abbas Ramzan Ali Lakhani and Karan Arora, who were allegedly in possession of 59 grams of marijuana, and have now been granted bail. The Print reported that this is the only hard evidence found by the NCB that is linked to the case.

59 grams is far from a commercial quantity (20kg and above) and would be considered as small quantity (under 1 kg). The penalty for such an amount is 6 months jail time, or Rs. 10,000 fine, or both.

However, in practice, such small quantities relating to personal consumption, especially for first time offenders, is hardly dealt with stringently.

Mutha Ashok Jain, deputy director general of the NCB told the media on Sunday, "Normally we look into international and inter-state connections. We look for the big fish. Normally this is not part of our mandate. Now we are getting information, we will not shrug our responsibility."

Senior advocate C Aryama Sundaram, in conversation with Faye D'Souza, stated that the remand report is self-contradictory and flawed. "If Rhea Chakraboty was his (Rajput's) partner, and procured drugs on his behalf for personal consumption, then it is Sushant Singh Rajput who would be the first accused if he was alive," he said.

Senior advocate Geetha Luthra stated in the show that in most cases of consumption of cannabis, it is not even filed. "There are even provisions (Section 64(A) of NDPS Act, 1985) under the act that state that if you are a consumer then you shall be protected," she said.

"This case is heading where it was intended - the arrest of Rhea Chakraborty," she added.

Updated On: 2020-09-12T11:50:26+05:30
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