For Nearly a Decade, A Farmer Has Been Serving Time For A Drug-Related Crime Committed Before The NDPS Became Law
In November 1985, about a day before the Narcotic Drugs and Psychotropic Substances (NDPS) Act went into effect, the malkhana—warehouse—of the district court at Osian, in Jodhpur district, Rajasthan, was broken into and burgled. It was the night of 12 November, or early in the morning on 13 November—the day of Diwali. The burglar broke the lock for the main gate and the malkhana, went inside, raided packets of contraband and evidence, and disappeared into the darkness. There were no witnesses: the watchman would later say that he had left early because he had not been feeling well. In the morning, a court employee arrived at the complex and found the malkhana in disarray. When the police arrived, they took note of what was missing: a lungi, some betel nuts, a few biscuits, and 10.428 kilograms of opium. By the next day, 14 November 1985, the NPDS act had become the law of the land.
In January 1986, Mohan Lal, an illiterate farmer then in his late twenties or early thirties, confessed to breaking into the malkhana and stealing the opium. Lal lived about 30 kilometers away from the Osian court complex, in the village of Mathania, with his mother, father, and four brothers. According to police records and subsequent court judgments, Lal was taken into custody on 15 January 1986, with regard to a separate First Information Report (FIR). It is unclear what he was originally suspected of, but he reportedly made a confession while he was being questioned. He was then read a disclosure statement admitting to the break-in and thefts at the court complex, which he signed. Then, Lal reportedly led the police and two independent witnesses to the underpass of a small bridge nearby. There, hidden in a pit, was the missing opium. With a signed confession, corroborating witnesses, and over 10 kilograms of recovered opium, the state's case against Mohan Lal seemed headed for a just and speedy outcome. Over the next three decades, however, it would prove to be anything but.
Passed in September 1985, the NDPS act was part of a global shift towards “tough on crime” legislation that intended to suppress the supply and demand of drugs by establishing harsh punishments for drug-related crimes. The government of the United States of America, led by President Ronald Reagan, had exerted pressure on countries such as India, which supplied drugs to the international market, to pass stricter laws to curtail drug cultivation, trade, and use. Despite the subcontinent’s long history of opium trade and internal use, the Indian government, then under Prime Minister Rajiv Gandhi, buckled.
Prior to the passage of the NDPS, opium possession was prosecutable under the All-India Opium Act of 1878. This colonial law restricted opium consumption to registered opium eaters, and was intended to bar recreational abuse, while regulating religious and cultural uses. Until 13 November 1985, the maximum punishment for possession of 10 kilograms of opium was one year in prison with a Rs 1000 fine. On 14 November 1985, under Section 18 of the NDPS Act—which deals with the possession of opium—the same crime was punishable by a mandatory minimum of 10 years in prison and a fine of Rs one lakh.
Lal was charged with violating Section 457 and 380 of the Indian Penal Code (IPC), which outlaw breaking into a home at night to commit a punishable offence and theft, respectively. He was also charged with violating Section 18 of the NDPS act, even though the theft took place a day before the act came into effect. He pled not guilty to both charges. Lal’s father sold a portion of his land to pay for a lawyer, a distant relative named Surajmal Megwal. In 1987, while his case was being heard at the sessions court, Lal was released on bail. In 1989, the court found him guilty on all counts. He was sentenced to three years’ imprisonment for each of the IPC violations, and ten years for violating the NDPS act, to be served concurrently. He was also ordered to pay a fine of Rs one lakh or, on failure to pay, face an additional year of imprisonment.
Although he signed a confession in the police station, when I spoke to him in June this year, Lal told me that he could not read the statement and did not know what he was agreeing to at that time. Lal’s mother and younger brother maintained that he spent the eve of Diwali on the family’s farm. More strikingly, the narrative of Lal’s recovery of the opium had broken down during the sessions court hearing. Both the independent witnesses that the police claimed had accompanied them to the small bridge, where the opium was found, recanted their statements. In June 1989, under cross examination in the sessions court, one of the witnesses, Gulab Singh, said, “It has been wrongly [sic] mentioned that the policemen had taken me from outside the police station to any bridge and in front of me any goods have been recovered.” Singh was declared a hostile witness. The other witness, Koja Ram, said in his testimony that the “accused present in the court has been seen by me only today in this court.” Like Lal, both Singh and Ram were illiterate farmers. On the witness stand, Ram said, “Police called me to the police station and they obtained my signatures there. I made the signatures while trusting the policemen.”
By the time the sessions court judgement was released in 1989, Lal had already been out on bail for two years. His case was immediately appealed to and accepted by the Rajasthan High Court at Jodhpur, and he remained out on bail until the court could hear his case. He began to live his life as if uninterrupted by the case. He married Mori Devi, to whom he had been engaged since childhood. Devi told me that she was convinced of Lal’s innocence and that the accusations didn’t matter to her. “I knew what the truth was,” she said, and “I knew that God would punish those who did wrong.”
Lal’s family said that for a few years after his marriage, whenever his case was called up, he would go to Jodhpur in anticipation of a hearing, but it never came. Soon after his son Kishor was born in 1993, he stopped going altogether. A few years later, Lal and his wife Mori Devi had a daughter and then, shortly after, another. He continued to work on his farm in order to provide for his family. In the ensuing years, Lal’s father died, and so did an older brother. Kishor told me that his father wanted him to finish school. “He didn’t want me to become a farmer,” he recalled. “He said, maybe I could become a government clerk instead.” Assuming the incident was behind them, Lal, and those in the family that knew about the crime, stopped speaking of it.
In 2008, after a gap of 15 years, the police arrived at Lal’s farm and took him into custody. They told him that his bail bonds—set after the initial appeal in 1989—had been cancelled. It was the first time Lal’s children had heard of the case. Soon after, his counsel successfully argued that he had been given no notice of the cancellation of the bonds and secured his release. Almost 20 years after the initial sessions court judgement, Lal and his family found themselves at the onset of another round of convoluted legal activity, rife with changing lawyers and unnecessary delays.
In 2009, the high court upheld the sessions court decisionand Lal was sent back to prison. His lawyers immediately filed an appeal to the Supreme Court, which was accepted in 2010. However, their repeated requests for bail were denied, and for the remainder of the trial—about five years—Lal stayed behind bars. Like many other cases, Lal’s was subject to numerous adjournments, extensions, and delays. On 27 July 2012, the appeal was called for a hearing and the Supreme Court ordered that additional documents be filed before 18 September. However, for unknown reasons, the documents were not submitted on time and the case was delayed again. A month later, in October 2012, the lawyer for the state of Rajasthan failed to show up to the hearing, resulting in yet another postponement. As the pattern of delays and multiple hearings continued, Lal sat in jail, his family waiting for him to return.
The narrative that led to Lal’s conviction is questionable at best. However, by law, higher courts are not required to re-examine evidence, they only evaluate whether or not due process was followed. In both the high court and the Supreme Court appeals, the focus of the arguments was not his guilt but the applicability of the NDPS act: should Lal have been charged under the Opium Act of 1878 or the NDPS act of 1985 as he had been? According to the high court judgement, Mahesh Bora, Lal’s then-lawyer, reasoned that “…on November 12/13 [sic], the NDPS Act was not in force—whomsoever committed theft did not with intention or knowledge of stealing opium” He also argued that there was no indication of the Lal dealing in any contraband articles, and that “at best, he can be convicted for the offence of theft. The high court ruled that since the possession of opium was an offence before the 14 November 1985, and continued to be one after, the argument that Lal could not be charged for was “not tenable”.
This question of continued offence was discussed at length when the appeal was being heard at the Supreme Court. According to the judgement, Lal’s lawyer in the Supreme Court submitted that upholding Lal’s sentence under the NDPS act would be “tantamount to retrospective operation of law…which is prohibited under Article 20(1) of the Constitution.” Article 20(1) states that no individual can be charged with an offence except for the violation of the law in force at the time; nor can they be given a sentence more severe than that under said law. In his written submission to the Supreme Court, arguing against Lal, Shiv Mangal Sharma, the additional advocate general for the state of Rajasthan, pointed out that, “If an arms enthusiast buys a gun before a gun control law goes into effect, and doesn’t relinquish it afterwards, he would clearly be committing a crime under the new law, even though he bought the gun before it went into effect.” On the question of the independent witnesses, the high court merely noted that since the sessions court verified that both witnesses had signed the memo, the recovery of the opium “stands proved.”
Ultimately, both courts judged that, because Lal effectively maintained possession of the opium from the moment of the theft until the moment of recovery, he was justly sentenced under the more recent statute.
Almost 30 years after the break-in and 26 years after his initial conviction, Lal is serving his sentence at the central jail in Jodhpur. He told me that he doesn’t know any details of the crime he has been imprisoned for. He cannot recall what he was doing on the night of the crime. He is now an old man, but doesn’t remember his age. His stomach and joints hurt, he is hard of hearing and needs a cataract operation. When I asked Lal to describe his life in 1985, to provide any context for his possible involvement in the break-in, he simply repeated that he did not do it, that there was a mistake, and that he was framed. He does not know by whom, or he no longer remembers. His family blames the first lawyer, Megwal, and suspects that he worked with the police to force a confession. They have severed all ties with Megwal’s branch of their family.
After Lal was imprisoned in 2009, his children quit school to work on the family’s farm. His son, Kishor, was in the ninth standard; his daughters were in sixth and fifth standard respectively. They relinquished their father’s dream of a different life for them. Kishor told me that he was never a farmer, and that he struggled to learn the trade. He works on his father’s small tract of land, harvesting onions, garlic, wheat, and some rice. He estimates that he has a debt of at least Rs three lakh: around Rs one lakh due to the cost of lawyers, the rest due to his farming troubles.
It may be near impossible to find out what happened 30 years ago; memories fade, and people turn to other concerns. But there is no doubting that at nearly every stage, Lal's case could have taken a turn for the better, but did not. Regardless of his culpability, had he been charged under the law of the land on the day the crime was committed, his years in prison would be far behind him. As it stands, Lal's decade-long sentence ends next year, but he will stay in jail for longer still because his family cannot afford to pay the Rs one lakh fine mandated under the NDPS act. He has asked them not to pay it, saying it would be more cost-effective to just let him serve the additional time. His family expects that even though their farming troubles will continue, on his return, they will at least be able to attend to his many health problems. His mother is anxiously waiting for him to come home. When I mentioned the case to her, she started to cry. “One of my sons has already passed away,” she said through her tears. “I have not seen Mohan Lal in years. I might just die without meeting him.”
Koyna Tomar assisted with the reporting for this article and acted as a translator during interviews. Tomar interned in the Photography department at The Caravan.