NCB Ignores Bombay HC Order by Charging Rhea Chakraborty for 'Financing' Drug Op

High court had clearly said just paying for drugs cannot be considered an offence Under Section 27A of the NDPS Act.

Prominent voices on Twitter question Rhea Chakraborty’s arrest by the NCB.

(Photo: Altered by The Quint/Kamran Akhtar)

The Narcotics Control Bureau (NCB) has finally filed a charge sheet in the drugs case it launched in the aftermath of the death of Bollywood actor Sushant Singh Rajput in 2020.

The case had made headlines two years ago because of the arrest of actor Rhea Chakraborty, who used to date Rajput and had allegedly helped procure marijuana for him. Chakraborty spent a month in jail before getting bail from the Bombay High Court.

In the charge sheet filed by the NCB, it is looking to charge 35 people with various drug offences, some of which are connected to Rajput, while others go beyond the drugs procured for him.

The NCB has sought charges against Rhea Chakraborty for purchasing 'small' quantities of marijuana for Rajput and her brother Showik Chakraborty. The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) specifies different degrees of punishment for offences related to 'small,' 'intermediate,' and 'commercial' quantities of drugs.

While there is little controversy to be generated over the basic charge regarding purchase of marijuana if the NCB can prove receipt and payments for the drugs by her (as they have previously claimed), the agency has gone further and included a charge against her which is entirely baseless.

And which the Bombay High Court told them was baseless back in October 2020.

The Section 27A Charge

The NCB have sought charges against Rhea Chakraborty under Section 8(c) read with Sections 20(b)(ii)(A), 27, 28 and 29 of the NDPS Act. These relate to the purchase of small quantities of drugs and conspiracy/abetment for their consumption.

The problem is that they have also charged her under Section 27A of the NDPS Act, for allegedly 'financing' drug traffic.

This is an incredibly serious charge, because it comes with a minimum punishment of 10 years' imprisonment and a maximum punishment of 20 years' imprisonment. On the other hand, the maximum punishment for purchasing small quantities of drugs is one year in jail.

This charge has been on the table since the case began, with the NCB using its claim that she committed a Section 27A offence to try and deny her bail.

If it had been a viable claim, it would have been incredibly difficult for Chakraborty to get bail, as when a person has been accused of an offence under Section 27A, then a court cannot grant them bail unless it is satisfied that there are reasonable grounds to believe they are not guilty (Section 37 of the NDPS Act).

And this is why it is strange that the NCB has included this provision in the charge sheet, since the Bombay High Court rejected its applicability after considering the NCB's allegations against Rhea Chakraborty.

Why Did the Bombay HC Say Section 27A Didn't Apply to Rhea Chakraborty?

In its judgment granting her bail the high court undertook a detailed examination of the origins of Section 27A, and what it is supposed to cover:

"Thus, 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 prohibitory Section 8 was already existing at that time. Therefore, a separate Section 27A was introduced to check these activities which were the root cause of illicit traffic. “Financing” and “harbouring” such activities were, therefore, specifically mentioned under Section 27A."

The high court noted that 'financing' is not defined in the NDPS Act, but after considering various definitions, including those in the Oxford Dictionary and Black's Law Dictionary, it held that "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 judgment explained.

The high court observed that for it to be relevant to the allegations against a person, it would necessarily have to be in connection with illegal trade or business.

As a result, it held that

"The allegations against the Applicant of spending money in procuring drugs for Sushant Singh Rajput will not, therefore, mean that she had financed illicit traffic."

The high court also acknowledged an argument made by Charkaborty's lawyers, that if the NCB's argument, that paying drug dealers amounted to financing, were accepted, it would mean that someone who paid for small quantities of drugs for another person would end up being liable for a higher punishment than that person who consumed the drugs.

"This is highly disproportionate and would be extremely unreasonable," the high court observed in its judgment.

So What Is Rhea Chakraborty Likely To Face in the Case?

At this point of time, the charge sheet has only been filed in the special NDPS court. The court has not yet considered the charge sheet and the arguments and framed charges till now.

It is only once the charges are framed by the court that they are finalised, and so it could well be that Rhea Chakraborty never has to face this 'financing' charge under Section 27A.

Unless the NCB has found some additional evidence to show that Chakraborty was involved in the drug-dealing business, there is no way the court should be willing to accept this charge, thanks to the clarity provided by the Bombay High Court in its judgment.

At this point, it does not appear that such a charge can be backed up. The Quint has accessed the draft charges drawn up by the NCB based on what they have, and this is what it has to say about Rhea Chakraborty:

"That in pursuance of aforesaid criminal conspiracy or otherwise, you accused no. 10 Rhea Chakroborty received many deliveries of ganja from A/6 Samuel Miranda, A/7 Showik Charoborty and A/8 Dipesh Sawant and others and handed over those deliveries to Actor late Sushant Singh Rajput and made payments for those deliveries at the instance A/7 Showik & Late Sushant Singh Rajput during the period March 2020 to September 2020 and thereby you have committed an offence u/s 8[c] r/w 20[b][ii]A, 27A,28, 29 & 30 of NDPS Act 1985."

This does not include any broader claim of financing drug traffic beyond the purchases of drugs made for the late Rajput.

As a result, the only thing that the NCB might be able to prove against Rhea Chakraborty (depending on the evidence) is that she purchased small quantities of drugs (Section 20(b)(ii)(A) specifically deals with small quantities), for which the maximum punishment is one year in jail.

It remains to be seen what the special court will do, though it should be noted that even if the court agrees for some reason to frame a Section 27A charge against her, this can be appealed in the Bombay High Court, which will of course follow the precedent set by it back in October 2020.