The ongoing probe into the alleged consumption and procurement of drugs among Bollywood and Sandalwood actors has thrown up several prominent names including Deepika Padukone, Shraddha Kapoor, Sanjana Galrani, Ragini Dwivedi and Sara Ali Khan. In the Bollywood case, the three actors were summoned after messages over chat purportedly between Deepika and her manager Karishma Prakash from Kwan, a Bollywood talent management agency surfaced in the media where the actor is reportedly seen asking if Karishma has ‘maal’ (marijuana). Sara and Shraddha's names were mentioned by Rhea Chakraborty.
However, is electronic evidence alone – which has appeared in the form of ‘chats’ and screenshots – enough to pin someone under the Narcotic Drugs and Psychotropic Substances Act, 1985? There isn’t a precedent, for one. Four lawyers that TNM spoke to said that in their experience, there haven’t been any prior convictions based on just electronic evidence alone under the NDPS Act.
For one, electronic evidence was not always admissible – it is now, under section 65B(1) of the Indian Evidence Act, but that happened only four years ago, say lawyers.
NP Kumar, Special Public Prosecutor for NCB cases at the Madras High Court says that no convictions have happened in his experience based on just electronic evidence under the NDPS Act. “In my experience, we only take electronic evidence as supporting evidence to corroborate other evidence,” he tells TNM.
Paul Kanagaraj, who also practices in Chennai says that in his experience too, just electronic evidence has not been enough to convict someone under the NDPS Act so far.
Lawyers say that this is because the NDPS Act talks about discovery, possession and seizure of narcotics as clinching evidence in NDPS cases.
Kandhaswamy Revanth Rao Gopalaswamy, a lawyer who practices in Hyderabad as well as Delhi high courts, says that even if there are messages, or there was consumption two years ago, unless the accused are in possession of the banned substances, culpability is very difficult to establish.
Even if a person has asked over text of 'maal' (marijuana), Revanth says, "‘Maal’ could be anything. The most important factor here is possession, and for links to be established to prove the events. For instance, if a murder happens, investigators have to establish that someone brought a weapon, where they brought it from, and that they killed someone with it. Establishing this chain of events has to be beyond reasonable doubt and not a preponderance of possibility,” says Revanth.
Even later in the chat where Deepika allegedly asks for hash and not weed, the chat only proves that these messages were exchanged.
Rizwan Merchant, a Mumbai-based lawyer who has been practicing for over three decades, explains that such an exchange would only prove that a messages was sent and received. “Ultimately, there is no proof that the transaction took place. If A says to B that they want 10 grams and B says come and take it, it only shows and intent to buy and to sell respectively. It is not strong enough evidence,” he says.
He adds that convictions under the NDPS Act rely on possession (section 8C), transportation (sections 21 and 25), and conspiracy (section 29). “These are the key sections. For section 29, investigating agencies rely on taking statement under section 67 (power to call for information) of the NDPS Act to establish that there was a conspiracy. Here, they can get a confession or admission. For sections 8C, 21 and 25, they will rely on the punchnama for actual discovery, seizure or recovery of narcotics. Without the possession and seizure, it will not be corroboration enough.”
Some lawyers also say that it remains to be seen if just electronic evidence can be considered clinching enough to convict a person. “With statement of witnesses it may be possible. The court can even admit sim cards, emails, phone call records as evidence. So hypothetically, it (conviction) may be possible, but we have yet to see a case like that,” says Paul.
According to one lawyer quoted in the Indian Express, in two decades of practicing, he/she had seen just one case under the NDPS Act where drug seizure did not happen. In this case, the agency was able to pin the exchange of drugs based on money seizure.
However, the lawyers agree that if the NCB can prove possession or consumption presently, these can be grounds to charge the individuals.