"Your honour," the public prosecutor began, after clearing his throat. "The present case involves a case of intentionally causing hurt using a poisonous substance," he said in Marathi.
The additional sessions judge sighed audibly. "Aala white powder (The white powder has arrived)," she said wearily, turning to the stenographer, who sniggered.
As the prosecutor powered on manfully, the judge rifled through the case papers before her. Five minutes in, she lost her patience. "Aho, kiti cases aanaal? Murder samplay ka Mumbait? (How many cases will you bring? Have murders stopped in Mumbai?)" she said, turning to the investigating officer. He smiled sheepishly at his feet. The prosecutor resumed. The judge resigned herself to the morning ahead.
"Every day or every alternate day I was hearing one. More than double the cases of attempted murder, murder and rape put together," the judge told me on a recent morning in Mumbai, recalling the scene and her outburst in late 2015. "And the same damn bogus story every time. I was sick of it!"
The magistrate was describing a curious episode in the war against drugs in India's largest metropolis.
Sometime in 2013, the Mumbai police grew increasingly alarmed about the spread of a cheap and popular new drug.
Mephedrone, known on the street as meow meow, was gaining rapid popularity as a party drug. It was cheap (sometimes a fraction of the price of Cocaine) and widely available. It could be ordered off websites that looked like online pharmacies.
The white or off-white powder, a wholly synthetic drug that can be made easily in a basic lab from easily acquired substances, when inhaled, produced effects all party drugs are known for—a boost in energy and confidence, a feeling of invincibility, euphoria and visual distortion. And like other drugs, the high was followed by a severe low, which turned some people depressive or violent, and created incidents of public disorder, according to newspaper reports.
The drug spread before the law could catch up, which means possession of the drug had not been made illegal under the stringent Narcotic Drugs and Psychotropic Substances (NDPS) Act. Which meant the cops could merely stand by and watch even as the drug made deep inroads in the city. They made multiple representations to various central agencies for the substance to be banned under the NDPS Act, but the files moved slowly.
So in 2013, in a move some would find characteristic of policing in many parts of the subcontinent, they devised a creative, if flawed, solution, under the then city police commissioner, Rakesh Maria.
They began to arrest and prosecute users and peddlers of Mephedrone under Section 328 of the Indian Penal Code, which pertains to causing hurt using a poisonous substance.
Nearly 150 young people spent more than a year in jail on charges that the police knew early on were bad in law
For a conviction under IPC 328, a court needs to see proof of intention to cause hurt, and in drug peddling, because of the consensual nature of the transaction, this is never the case. Between June 2015 and November 2016, Mumbai's sessions courts pronounced judgments in at least 100 such cases, an investigation by HuffPost India has found.
The exercise didn't yield a single conviction.
Here is what did happen. Nearly 150 young people spent more than a year in jail on charges that the police knew early on were bad in law, but persisted nonetheless. They were overwhelmingly male, and 80% of them were Muslim. Yet no one—not the higher police officials, prosecutors or annoyed judges—stopped what was going on. Ultimately, it was the inclusion of Mephedrone in the NDPS in February 2015 that brought an end to this murky chapter in Mumbai's policing.
"The Drug Of The Future"
There is no doubt that Mephedrone posed a very real challenge to policing, particularly in Mumbai which, the city's narcotics experts say, has over the decades gone from being a major transit hub of narcotics to a major consumer. "Mephedrone is the drug of the future," Shivdeep Lande, deputy commissioner of police, Anti-Narcotics Cell of the Mumbai Police, told me in a recent interview.
Unlike Cocaine, which is derived from the coca plant and comes to India from South America, or Heroin, derived from the poppy plant, which comes from Afghanistan or south-east Asia, or Charas (a form of cannabis) which is cultivated in the Naxalism-affected regions of eastern India or in Jammu & Kashmir, Mephedrone has no natural base and can be made in a slum in Mumbai, Lande said.
Some of the manufacturing units he has busted just required someone with a BSc degree, access to labs and simple machinery they could get made in any small town, Lande said. "So there is no transport cost or risk at all and the margins are huge. It costs no more than Rs 30,000 to make a kilo of MD (Mephedrone), but it sells for anything from Rs20 to Rs40 lakh per kg," he said. In addition, the drug can be consumed in multiple forms, all of which adds up to why the police now see it as the dominant drug especially in big cities; of the Rs 6 crore in drug seizures his team has made in the last four months, Mephedrone accounts for Rs 5 crore.
"See, the hands of police were tied. So they had to use whatever tool was available."
Between 2013 and 2014, the top brass of the Mumbai police tried to convey the scale of the problem to the state leadership and whenever possible to Central authorities, but progress was slow. As a result, Maria took the decision to go after Mephedrone peddlers by using IPC 328, senior cops who were associated with the decision at the time in 2014 said (Maria, who has since retired, could not be reached for comment). "See, the hands of police were tied. So they had to use whatever tool was available," Lande explained. An assistant commissioner of police (ACP) was more explicit: "We wanted to throw them in and create some fear. It didn't really matter that they were getting acquitted; anyway courts always find fault with our evidence."
"Completely And Totally The Wrong Law"
Quite apart from the Mumbai police's inability to correctly collect, label and present evidence—as borne out from the observations of sessions judges in every single case—the basic problem was that this was clearly the wrong law. "You need to show intention to cause hurt. How hard is that to understand and how many times did I need to tell the police that? No effect," the judge said.
"Section 328 was bound to fail because the section requires the prosecution to prove that a drug was administered to a person with the intent to cause hurt to the person," Neha Singhal, senior resident fellow at the Vidhi Centre for Legal Policy, said. "Merely finding Mephedrone on a person would have not been enough to meet that standard of proof, but this from a mere reading of the section. I am guessing they would have had to write their chargesheets rather imaginatively," she said.
Singhal's guess was spot on.
All the chargesheets from that time followed essentially the same script—the complainant's brother, son or friend had become increasingly ill. On enquiry, the complainant found that the victim has been forced to consume a drug by the accused. The police swooped in to arrest the accused, who was found with a white powder on him. This powder was later found to be Mephedrone.
Except, none of this ever stood in court.
For this investigation, I read every Mumbai sessions court ruling under IPC 328 between 2014 and 2017. The first case appears in court on 1 June 2015 (there are no such cases prior to this) and the last case is decided on November 15, 2016. In all, there are 93 judgments, each ending in an acquittal.
In no more than three cases are the police even able to prove possession of the drug. Time and time again, the basic evidence to show that the drug was found on the accused is not produced, and in dozens of cases, the judge accepts that the panchas (eyewitness to the recovery) are "habitual panchas" set up by the police.
And then there is the matter of proving intention to cause hurt, which the police make virtually no attempt to, in the cases HuffPost India investigated. The result: a 100% acquittal rate.
The Mumbai police reject suggestions that these were trumped-up charges to harass young men or settle local scores. Apeksha Vora, a defence lawyer who secured acquittals in at least three such cases, says that in some of these cases, the accused are genuinely Mephedrone peddlers, but the police's shoddy investigative work and misapplication of the law did them in. In some, however, she said, the accused were completely innocent.
Of the seven acquitted men who spoke to HuffPost India, two admitted to petty peddling and drug use, but disputed all the stated facts of the police case. "I was not where they said I was and did not sell the drug they named to the person they named. Yes, I have used and sold Charas but that doesn't mean they can arrest me for any story they like and keep me in for one year just because the local cop knew I use drugs," Arif Khan (name changed), a 25-year-old with a bony frame, sunken eyes and sallow skin, who lives in the slum of Govandi in eastern Mumbai, said.
The police hotly rejected the charge that there was any religious bias to their prosecution.
The five others said that they had nothing to do with drugs. Bhajan Lal (name changed) is a vegetable vendor near Dadar in central Mumbai. "I had a dispute with a local cop, that is all. I make enough selling vegetables and I have no time for drugs. They picked me up, showed my arrest in some other part of the city and kept me in for a year," he said.
"You look at the areas where drugs are sold and arrests are made in Mumbai--all of it centres around Dongri, which just happens to be largely Muslim. "
IPC 328 is a non-bailable offence; the accused in the cases seen by HuffPost India spent between one year and 20 months in custody. An analysis of their names shows that 119 of the 148 acquitted were Muslim.
The police hotly rejected the charge that there was any religious bias to their prosecution. "You look at the areas where drugs are sold and arrests are made in Mumbai--all of it centres around Dongri, which just happens to be largely Muslim. I don't want to get into a controversy here, but most of the people in this trade just happen to be Muslim," the ACP said.
Muslim community leaders too have of late invited the Narcotics Cell to talk to and counsel their young people to prevent them from becoming drug addicts, Lande said.
Will the NDPS change things?
It is a fact that without the NDPS, the police's hands were tied. Until a drug is included in the NDPS schedule, there is no other legal provision in the IPC or other laws that allows the police to go after peddlers or users, Singhal agrees. But what also remains true is that for nearly two years, the Mumbai police went after Mephedrone with a law that they knew—or realised quite soon—was simply the wrong one, and no one stopped them.
While the NDPS is indeed the right law, it is not apparent that it will fix these deep problems. For one, the police remain convinced that the law is stacked against them and the standards of evidence and paperwork required of them are too high. Singhal says this isn't the case; the NDPS in fact has a particularly low standard of proof. "The NDPS Act basically requires the police to show possession alone. Once they have proved possession, the burden of proof shifts on to the accused to prove that the possession was not "conscious possession". The law does not require the police to prove intent or motive," she says.
The state government has signalled its intention to improve how the narcotics cell works--the appointment of Lande, for one, who gained a reputation for tough but honest policing in Bihar before his surprise posting here, is seen as a move to clean up the department, crime reporters in the city say. When I met him in Mumbai, his spacious, modern office was empty, and stood in stark contrast to the rest of the Cuffe Parade police station, a crumbling building adjacent to a slum. Clean-shaven and dressed in a fitted short-sleeved shirt, you could see why the Mumbai press had taken to calling him "Mumbai's Singham" or "Mumbai's Chulbul Pandey".
For the 150 people who bore the brunt of a bad law for two years, there is no redressal. "We got out with all our limbs intact. In Mumbai, that's more than you can ask for," Khan said.