[Aryan Khan drug case] 'Illicit trafficking' and 'conspiracy' under NDPS Act explained

The hearing in the cruise ship drug case before a Mumbai Sessions Court spanned over two days, during the course of which the Narcotics Control Bureau (NCB) opposed the bail applications filed by Aryan Khan and three others on the ground that they were charged of illicit drug trafficking and criminal conspiracy under the Narcotic Drugs and Psychotropic Substances (NDPS) Act..For this reason, it was submitted, they could not be distinguished from the seventeen other accused in the case and hence ought not be released at a preliminary stage of the investigation..Additional Solicitor General Anil Singh submitted that the NCB was trying to uncover an international drug trafficking chain in which all the accused, including Khan and his friend Arbaaz Merchant, were possibly involved. Hence, their custody was essential to avoid any kind of influence on the other witnesses, the ASG argued..This was opposed by Senior Advocate Amit Desai, who argued that there was admittedly no recovery of drugs or any banned substance from Khan. Further, Desai also pointed out that though Khan’s bail was opposed by invoking Section 27A and Section 29 of the NDPS Act, provisions which lay down some of the most serious offences in the Act, none of these sections had even been invoked against him in the arrest memo..Aryan Khan was headed for cruise to have a blast, says NCB; New gen lingo on WhatsApp misunderstood, says Khan .What are these provisions and how have courts dealt with offences under the same. Let us take a closer look..Section 27A provides for punishment for financing illicit traffic and harbouring offenders.The punishment for the offence is imprisonment between 10 and 20 years and also fine between ₹1 lakh and ₹2 lakh. The proviso to Section 27A also states that the court may, at its discretion, impose a fine of more than ₹2 lakh..What is "illicit trafficking" is defined under Section 2(viiib) of the Act and it includes financing, harbouring, conspiring or abetting. The section elaborately includes:cultivating coca plant or opium poppy or any canabis plant;engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;dealing in activities of any other narcotic drugs or psychotropic substances other than those referred to above;handling or letting out any premises for the activities mentioned above. The activity of harbouring and financing is explicitly punishable under Section 27A and the activity of conspiracy is punishable under Section 29 of the Act. .The Bombay High Court has however clarified that financing is not merely "sale and purchase" of drugs. In the judgement granting bail to Rhea Chakraborty in a drug case linked to the death of Sushant Singh Rajput, the Court specified that “financing is something more than just paying for purchase and other activities involving contraband as is defined under Section 8(c) of the Act". The Kerala High Court in the case of KK Ashraf held that 'financing' involved an activity other than sale or purchase of the narcotic drug in which a person invests or provides funds or resources for facilitating the activities. .The Court went into the Statement and Objects of the legislature for adding a stringent section like Section 27A into the Act. "The aim was to control the traffic in illicit drugs as the spill over from such traffic was causing problems of abuse and addiction. The Legislature wanted to attack the basic cause of illicit traffic of drugs," the High Court noted. .Hence, the Court concluded that financing has to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it..This brings us to the next provision, which is punishment for abetment and criminal conspiracy under Section 29 of the Act..Section 29 states that "whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy (notwithstanding anything contained in section 116 of the Indian Penal Code) be punishable with the punishment for the offence" .'Abetment' as per Section 107 of the IPC is instigating, engaging or intentionally aiding someone to commit an offence or stop from doing anything in an illegal manner. The sum and substance of the section is that any person who is a party to a conspiracy for commission of an offence under NDPS Act could be punished for committing of that offence irrespective of whether the abetment led to the commission or not. .The Bombay High Court in a judgment of Akash Jariwala v. State of Maharashtra held that the elements required to prove 'conspiracy' are "plan or scheme embodying means to accomplish object an agreement or understanding between two or more accused".In another case of Sangita Gaikwad, the High Court clarified that "purchasing drugs from the same person would not constitute independent evidence of criminal conspiracy". .Sub-section (2) of Section 29 states that:"A person abets, or is a party to a criminal conspiracy to commit an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which(a) would constitute an offence if committed within India; or(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.".Sub-section (2) deals with abetment of an offence under the NDPS Act beyond Indian borders. Before we dive into sub-section (2), it is important to consider another provision, Section 12 of the NDPS Act which restricts external dealings without the permit of the Central government. This is punishable under Section 24 of the Act.However, what is to be kept in mind is that for an operation of such magnitude, there requires a certain "scheming and planning". So essentially what Section 29(2) provides for is a punishment for the "conspiracy" which led to the external dealing over and above what would even otherwise be punishable under Section 24. .The punishment under Section 29 also depends on the offence for which the conspiracy is being hatched. Hence, that will vary with the offence. .The Special judge under NDPS Act VV Patil is likely to pronounce his verdict on the bail application on October 20.