Examination of harshness of criminal liability in NDPS cases in India:

Abstract

The Humans Rights Development Programme guidelines states that it shall be ensured that detention cannot be based solely on drug dependence or drug usage. ICCPR upholds that every person has the right to be presumed innocent unless proven guilty. But the NDPS Act in India reverses the onus and shifts the burden to the accused to prove that the acquisition is false. The mandatory presumption of law holding the culpable mental state strictly applies in NDPS law where it affects the right of the accused leading to 90% conviction rate in NDPS cases.

The Supreme Court, in the case of Sharifbai v. Abdul Razak1, established that failure of producing the accused before a magistrate within the designated timeframe renders the detention unlawful. Additionally, a detained individual must be informed by the arresting officer of the reasons for their arrest and their right to bail. This ensures that the detained person has the opportunity to seek bail and prepare a defense in a timely manner.

In the case of State of Rajasthan v. Balchand alias Baliay2, the Supreme Court emphasized that detention in custody is not necessary if the appearance of the accused can be ensured through other means. The court emphasized the principle that bail, not jail, should be the norm.

The paper examines the rationale of providing liability in NDPS cases in India and the way ahead to balance both the menace at the same time the defenses available for alleged offenders alleged to have committed the respective offenses.