The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) defines drug possession as a crime. The severity of the punishment is determined by the amount of the substance, not by whether it was purchased or was in possession for personal use or was for sale.
Section 27 of the NDPS Act defines drug consumption as a crime that carries a maximum of one year (for some drugs) or a six-month (for all other drugs) sentence upon conviction.
The punishment for the crime under the NDPS Act is variable, ranging from a criminal being sent to a rehabilitation centre to jail for up to one year and a fine.
Section 35 in The Narcotic Drugs and Psychotropic Substances Act, 1985 defines presumption of culpable mental state as, “In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.”
In simpler words, a person apprehended under the NDPS Act is assumed to have knowledge, intent, and motive for the drug-related offence with which they are charged. Before the court, the accused must demonstrate that they do not have a “culpable mental state” to obtain bail.
However, under section 64A of the Act, addicts who volunteer for treatment are exempted from prosecution. Anyone with a drug addiction who is accused of a crime punishable by Section 27 or a crime involving a minor amount of narcotic drug or psychotropic substance, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognized by the Government or a local authority and undergoes such treatment, shall not be liable to prosecution under section 27. However, if the addict is found carrying drugs, say, for a party, and the total quantity of drugs exceeds a small quantity (https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences ), then he cannot get immunity under section 64A.
In the case of Sanjiv Bhatnagar vs State CRIMINAL REVISION CASE NO.1278 OF 2015, the petitioner voluntarily submitted that he is willing to undergo Medical Treatment for de-addiction. The Madras High Court exercising its power under Section 482 of CrPC, ordered him to undergo treatment towards de-addiction and file a report. After evaluating the mental and physical health based on such a report, the court stated that “by applying Section 64(A) of the Act and the petitioner therein has gained immunity from prosecution; consequently proceedings before the II Additional Special Judge under NDPS Act, Chennai, have been quashed by the Madras High Court.”
Anish Kumar Dundoo Versus State of Telangana Criminal Petition No. 1231 of 2021, where the High Court of Telangana, relying on the judgement rendered in the case of Sanjiv Bhatnagar vs State, quashed the proceedings against the petitioner stating the fact that the quantity which has been seized was small and the petitioner also produced a certificate of treatment issued by Government recognized De-Addiction centre.
Simply put, Section 64(A) of the NDPS Act is intended to rid a user of drugs from the evil thereof and towards his/ her rehabilitation, the end object is to facilitate a life free of drugs.
