December 13, 2011
Law provides immunity to drug users undergoing de-addiction treatment but courts have, so far, ignored this protective intent of the law

Tripti Tandon of Lawyers Collective talks to GOI Monitor about a recent case which brought the issue of immunity for drug users  under treatment into limelight

Q: Please tell us about the case of Aatish Suraj in which Supreme Court allowed Indian Harm Reduction Network to intervene?

A: The Aatish Suraj v State of NCT, Delhi SLP (Crl) No. 1965 of 2011 was an appeal arising out of an order passed by the Delhi High Court rejecting an application for revision of the Metropolitan Magistrate’s order framing charges for possession of ganja under Section 20 (b) (ii) (A) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and refusing the applicant’s plea for exemption from prosecution under Section 64A. Prior to the High Court, the applicant had approached the Sessions Court with a revision application, which came to be dismissed on 28.10.2009.

As the Indian Harm Reduction Network (IHRN) works with people who use drugs and is concerned with drug dependence treatment, it sought to intervene in the proceedings before the Supreme Court on the scope and application of Section 64A. The Supreme Court allowed IHRN’s intervention in public interest by an order dated 10.8.2011. IHRN was represented by a legal team of the Lawyers Collective.  However, by a subsequent order dated 13.9.2011, the Court dismissed Aatish Suraj’s appeal on the grounds that it did not find fault with the High Court’s dismissal of the revision petition. The Supreme Court also directed the appellant to raise the plea of Section 64A before the trial court.

Q What does Section 64 A of the NDPS Act say and how effectively it has been implemented to help people who are undergoing treatment for drug abuse?

A: Section 64A was introduced in the NDPS Act in 1989 by way of a statutory amendment. Section 64A, as it stood then, offered one time immunity from prosecution to an addict charged with an offence punishable under Section 27, who volunteers to undergo medical treatment at a hospital or institution maintained or recognised by the government or local authority. Immunity could be withdrawn if treatment was not complete. At the time, Section 64A was limited in its application to addicts, who were charged for possession of small quantity of drugs for personal consumption and not for sale or distribution, or for consumption itself.  Further, immunity was offered only once; repeat offenders, who relapse into drug dependence, were barred from applying for exemption.

In 2001, the NDPS Act underwent a second set of amendments.  Section 64A was modified too, to: – 1) do away with the one-time restriction and, 2) expand the range of offences for which immunity could be sought by drug dependent persons. As of today, Section 64A offers immunity from prosecution to addicts, who are charged with consumption of drugs (under Section 27) or with any offence involving small quantity of drugs. Further, such exemption is no longer offered only once in a lifetime. It can also be sought by recidivists or relapsing addicts. The condition for enrolling and completing treatment at a facility maintained or recognised by the government remains unchanged as also the option of withdrawal of immunity if treatment is left halfway.

Q Have there been any cases in the past where Section 64 A has come to the rescue of those under treatment?

A: Information as to the number of cases in which drug dependent persons have been granted relief under Section 64A is not known.  Newspaper reports suggest that young persons arrested for using drugs at “rave parties”, have been granted immunity by the trial court.

Q Is everybody undergoing treatment entitled for immunity or the law entails checking of the track record including history of relapse? 

A: Under the law, relapse per se is not a basis to reject an application for immunity. At the same time, once granted, the said immunity may be withdrawn if treatment is not completed. This may imply that the person has stopped treatment midway or starting using drugs, during the pendency of treatment.   

Q At what stage of the treatment the patient is entitled for immunity?

A: The Section uses the phrase “any addict, who is charged with”. The term “charge” is not defined under the NDPS Act. Some courts have held that immunity under Section 64A can be sought only after charges have been framed against the accused. Some courts have, however, granted immunity prior to framing of charge. The Criminal Procedure Code (CrPC) 1973 discusses the term “charge” at various stages including when a person is arrested, at the stage of investigation, when chargesheet is filed, when charges are framed, during trial, at the stage of pardon, etc.  The CrPC does not envisage charge only at the time of framing of charge. Therefore, there is ambiguity as to the stage at which immunity may be sought and granted under Section 64A. 

Q What is the status of the case now? 

A: As discussed above, Aatish Suraj’‘s appeal was dismissed by the Supreme Court on 13.9.2011. As a result, IHRN’s intervention also stands dismissed.