Justice Sarang V. Kotwal yesterday (7th October) granted Rhea Chakraborty bail in the drugs case investigated by the Narcotics Control Bureau. The actress was arrested on 8th September for procuring and financing drugs for her boyfriend, Sushant Singh Rajput, who committed suicide on 14th June. It was also alleged by the NCB that she harboured Sushant. Below are mentioned certain observations of Justice Kotwal in the order:
“…Simply providing money for a particular transaction or other transactions will not be financing of that activity. Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it. It is the financial support which directly or indirectly is cause of existence of such illicit traffic. The word ‘financing’ would necessarily refer to some activities involving illegal trade or business. The allegations against the Applicant (Rhea Chakraborty) of spending money in procuring drugs for Sushant Singh Rajput will not, therefore, mean that she had financed illicit traffic.”
“The next key word in Section 27A is ‘Harbours’. Again, ‘harbouring’ is not defined under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The expression ‘harbour’ is used in other Acts as well. One such Act is Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, ‘TADA’). …. Even in Section 27A of NDPS Act, the concept of mens rea is applicable. Section 52-A of IPC can be used for a limited purpose as mentioned by the Hon’ble Supreme Court. The key words in that Section are “to evade apprehension”. This only means that first of all, there has to be another offender who has committed the offence. The person who is charged with harbouring that main offender should have supplied him with shelter, food etc.; and then the next requirement is that the second person should have done this to prevent the main offender’s apprehension. In the present case, no criminal case or FIR was pending against Sushant Singh Rajput. He was residing in his own house and was spending for his own food and other necessities. At that point of time, he had no apprehension of any arrest. Therefore, the act on the part of the Applicant cannot be stretched to attract the allegation of harbouring Sushant Singh Rajput.”
“Another important word in Section 27A is ‘engaged’. The offence of harbouring is attracted when a person harbours the persons ‘engaged’ in the activities mentioned in Section 2(viiia)(i) to (v). The Black’s Law Dictionary gives the meaning of the word ‘Engaged’ as to ’employ’ or ‘involve oneself’; ‘to take part in’; ‘to embark’. Thus if Section 27A is read in its entirety, it indicates that financing is in respect of illicit traffic through which the financier expects monetary or other returns. In the same context, Section 27A makes harbouring a punishable offence. Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities.”
“… Section 27A will have to be interpreted harmoniously with other Sections as well as Objects and Reasons of the Act so that it attacks the illicit drug trafficking, but, does not extend to sentencing another accused more severely than the main offender.”
“I am unable to agree with the submission that giving money to another for consuming drug would mean encouraging such habit and would mean ‘financing’ or ‘harbouring’ as envisaged under Section 27A of the NDPS Act.”
“The allegations and material against the present Applicant are that on some occasions, she had used her own money in procuring drugs. She facilitated procuring of drugs through her brother. For that purpose, employees of Sushant Singh Rajput were also used. As discussed earlier, her acts would not fall under Section 27A of the NDPS Act.”
“The main Section which could be attracted in her case is violation of Section 8(c) of the NDPS Act, which is made punishable under Section 20 or Section 22. In that case, it is necessary for the investigating agency to show that her activities or contravention involved commercial quantity of a Narcotic drug or psychotropic substance. The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh. … In that case, there is nothing at this stage to show that the Applicant had committed any offence involving commercial quantity of contraband. The material at the highest shows that she has committed an offence involving contraband, but the crucial element of incurring rigours of Section 37 in respect of commercial quantity is missing. Therefore, I am satisfied that there are reasonable grounds for believing that the Applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity. There are no other criminal antecedents against her. She is not part of the chain of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits. Since she has no criminal antecedents, there are reasonable grounds for believing that she is not likely to commit any offence while on bail.”