July- Dec., 2012,Volume XXXIII, NO.2, pp: 86- 95.
Sandeep Mittal, I.P.S.
The ‘World Wide Web (WWW)’ or popularly known as the ‘Internet’ has become an essential part of our professional and personal lives. It has revolutionized communication and trade beyond the control of National and International borders. Therefore, the prevention of trafficking of drugs through World Wide Web is the emerging evil and remains a global challenge for Law Enforcement Agencies. The problem of understanding ‘Trafficking of Drugs through Internet’ has been compared with the problem of elephant and the five blind men.
A Typical modus operandi of drug trafficking through internet and operation of Internet Pharmacies has been identified on the basis of Indian case -studies. Based on the Indian experience, a Strategic Roadmap for prevention of drug trafficking through Internet has been prepared. The obstacles to the implementation of Strategic Roadmap have been identified and solutions proposed within the existing system of Criminal Justice Administration. Finally, the process of evaluation of the proposed Strategic Plan has been proposed by author.
The ‘World Wide Web’ (WWW) or popularly known as the ‘Internet’ has become an essential part of our professional and personal lives. It has revolutionized communication and trade beyond the control of national and international borders. The unscrupulous criminals are using Internet to their advantage to commit numerous crimes viz.,
pornography, gambling, lottery, financial frauds and not the least drug trafficking as it is difficult to regulate and expensive to monitor. The drug traffickers use the Internet to establish and maintain their global criminal networks and sell the narcotic and psychotropic substances to general public all over the world. The ‘Internet- Pharmacies’ are threatening the continued existence of the current system of global prohibition.1, 2, 3In an international sting operation in June, 2013 spread over 99 countries USFDA shut sownat least 1,677 internet pharmacies many of which appeared to be part of an organized criminal network.4
A few popular examples of such narcotic and psychotropic substances are phentermine, alprazolam, clonazepam, triazolam, diazepam, lorazepam etc. They not only have high potential of abuse but are extremely addictive in nature. The online sales of such narcotic and psychotropic substances is a criminal offence under the Indian Law viz., under section 12 and 24 of The N.D.P.S. Act91985,
a) import/ export, transit, trans-shipment of scheduled drugs and psychotropic substances is prohibited.
b) no import / export of drugs and psychotropic substances through post or bankare permitted.
c) no person shall engage in or control any trade whereby a narcotic drug or psychotropic
substance is obtained outside India and supplied to any person outside India save with the previous permission of the Central Government and subject to conditions.The contraventions of the provisions of Act are punishable with imprisonment for not less than 10 years, extendable to 20 years, and fine of not less than Rs.1, 00,000. Therefore, the trafficking of drugs through World Wide Web is the global emerging evil and remains a challenge for Law Enforcement Agencies.12
A TYPICAL MODUS- OPERANDI OF DRUG TRAFFICKING THROUGH INTERNET
A number of cases of trafficking of drugs through the Internet have come to the notice of Indian Law Enforcement Agencies., e.g., in Gujarat, Uttar Pradesh., West Bengal, New Delhi and Tamilnadu.
The understanding of the mechanism of trafficking of drugs through internet could be compared to the problem of “The Elephant and the Five Blind Men”15pictured in figure-1 above. In most of the cases the investigation agencies had no clue as to modus-operandi of such cases until the land-mark case of ‘Xponse Technologies’ was detected by Indian Law Enforcement Agencies in 2007.6,7It would be interesting to read the following Judgment in this case of Honb’ le Supreme Court of India, wherein the accused has even claimed the benefit of Section 79 of the I. T. Act, 1980.8
CRIMINAL APPEAL NO. 1659 OF 2007 (@SLP (Crl.) No. 3892 of 2007)
Harjit Singh Bedi, J. – Special Leave granted
The appellant Sanjay Kumar Kedia, a highly qualified individual, set up two companies M/s. Xponse Technologies Limited (XTL) and M/s. Xponse IT Services Pvt. Ltd. (XIT) on 22.4.2002 and 8.9.2004 respectively which were duly incorporated under the Indian Companies Act, 1956. On 1.2.2007 officers of the Narcotics Control Bureau (NCB) conducted a search at the residence and office premises of the appellant but found nothing incriminating. He was also called upon to appear before the NCB on a number of occasions pursuant to a notice issued to him under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”) and was ultimately arrested and the bank accounts and premises of the two companies were also seized or sealed. On 13.3.2007 the appellant filed an application for bail in the High Court which was dismissed on the ground that a prima facie case under Sections 24 and 29 of the Act had been made out and that the investigation was yet not complete.
The appellant thereafter moved a second bail application before the High Court on 16.4.2007 which too was dismissed with the observations that the enquiry was at a critical stage and that the department should be afforded sufficient time to conduct its enquiry and to bring it to its logical conclusion as the alleged offences had widespread ramifications for society. It appears that a bail application was thereafter filed by the appellant before the Special Judge which too was rejected on 28.5.2007 with the observations that the investigation was still in progress. Aggrieved thereby, the appellant preferred yet another application for bail before the High Court on 4.6.2007 which too was dismissed on 7.6.2007. The present appeal has been filed against this order.
Notice was issued on the Special Leave Petition on 30.7.2007 by a Division Bench noticing a contention raised by Mr. Tulsi that service providers such as the two companies which were intermediaries were protected from prosecution by Section 79 of the Information Technology Act, 2000. An affidavit in reply has also been filed on behalf of the respondent NCB and a rejoinder affidavit in reply thereto by the appellant.
We have heard learned counsel for the parties at length.
Mr. Tulsi has first and foremost argued that the allegations against the appellant were that he had used the network facilities provided by his companies for arranging the supply of banned psychotropic substances on line but there was no evidence to suggest that the appellant had been involved in dealing with psychotropic substances or engaged in or controlled any trade whereby such a substance obtained outside India had been supplied to persons outside India and as such no case under section 24 of the Act had been made out against the appellant. Elaborating this argument, he has submitted that the two
drugs which the appellant had allegedly arranged for supply were phentermine and butalbital and as these drugs were not included in Schedule-I of the Narcotic Drugs or Psychotropic Substances Rules 1987 in terms of the notification dated 21.2.2003 and were also recognized by the Control Substances Act, a law applicable in the United States, as having low potential for misuse and it was possible to obtain these drugs either on written or oral prescription of a doctor, the supply of these drugs did not fall within the mischief of Section 24. He has further argued that in the circumstance, the companies were mere network service providers they were protected under Section 79 of the Technology Act from any prosecution.
Mr. Vikas Singh, the learned Additional Solicitor General for the respondents has however pointed out that the aforesaid drugs figured in the Schedule appended to the Act pertaining to the list of psychotropic substances (at Srl. Nos. 70 and 93) and as such it was clear that the two drugs were psychotropic substances and therefore subject to the Act. It has also been pointed out that the appellant had been charged for offences under Sections 24 and 29 of the Act which visualized that a person could be guilty without personally handling a psychotropic substance and the evidence so far collected showed that the appellant was in fact a facilitator between buyers and certain pharmacies either owned or controlled by him or associated with the two companies and that Section 79 of the Technology Act could not by any stretch of imagination guarantee immunity from prosecution under the provisions of the Act.
It is clear from the Schedule to the Act that the two drugs phentermine and butalbital are psychotropic substances and therefore fall within the prohibition contained in Section 8 thereof. The appellant has been charged for offences punishable under Sections 24 and 29 of the Act. These Sections are re-produced below:
24. “ Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12.- Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such authorization granted under section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees”.
29. Punishment for abetment and criminal conspiracy. – (1)Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
8. A perusal of Section 24 would show that it deals with the engagement or control of a trade in Narcotic Drugs and Psychotropic Substances controlled and supplied outside India and Section 29 provides for the penalty arising out of an abetment or criminal conspiracy to commit an offence under Chapter IV which includes Section 24. We have accordingly examined the facts of the case in the light of the argument of Mr. Tulsi that the companies only provided third party data and information without any knowledge as to the commission of an offence under the Act. We have gone through the affidavit of Shri A.P. Siddiqui Deputy Director, NCB and reproduce the conclusions drawn on the investigation, in his words.
“(i) The accused and its associates are not intermediary as defined under section 79 of the said Act as their acts and deeds was not simply restricted to provision of third party data or information without having knowledge as to commission of offence under the NDPS Act. The company (Xponse Technologies Ltd. And Xponse IT Services Pvt. Ltd. Headed by Sanjay Kedia) has designed, developed, hosted the pharmaceutical websites and was using these websites, huge quantity of psychotropic substances (Phentermine and Butalbital) have been distributed in USA with the help of his associates. Following are the online pharmacy websites which are owned by Xponse or Sanjay Kedia.
(1) Brother Pharmacy.com and LessRx.com: Brothers pharmacy.com, online pharmacy was identified as a arketing website (front end) for pharmaceutical drugs. LessRx.com has been identified as a “back end” site which was being utilized to process orders for pharmaceutical drugs through Brotherspharmacy.com. LessRx.com’s registrant and administrative contact was listed True Value Pharmacy located at 29B, Rabindra Sarani, Kolkata, India-700073. Telephone No.033-2335-7621 which is the address of Sanjay Kedia. LessRx.com’s IP address is 22.214.171.124. The following websites were also utilizing this IP address:
ALADIESPHARMACY.com, EXPRESSPHENTERMINE.com, FAMILYYONLINEPHARMACY.com ONLINEEXPRESSPHARMACY.com, SHIPPEDLIPITOR.com Domain name Servers for LessRx.com (IP
address: 126.96.36.199) were NS.PALCOMONLINE.com and NS2PALCOMLINE.com.
The LessRx.com’s website hosting company was identified as Palcom Web Pvt Ltd, C-56/14,1st Floor, Institutional Area, Sector 62, Noida-201301. Sanjay Kedia entrusted the hosting work to Palcom at VSNL, Delhi. These servers have been seized. Voluntary statement of Shri Ashish Chaudhary, Prop. Of Palcom Web Pvt Ltd.indicates that He maintained the websites on behalf of Xponse.
According to the bank records, funds have been wired from Brothers pharmacy, Inc’s Washington Mutual Bank Account #0971709674 to Xponse IT services Pvt Ltd, ABN AMRO bank account No.1029985, Kolkata.
(2) Deliveredmedicine.com : A review of the Xponse’s website-XPONSEIT.com was conducted and observed and advertisement for XPONSERX. That XPONSERX was described as a software platform developed for the purpose of powering online pharmacies. Xponserx was designed to process internet pharmacy orders by allowing customers to order drugs. Drug Enforcement Administration (DEA), USA conducted a “whois” reverse lookup on domain name XPONSERX.COM was at domaintools.Com and it revealed that XPONSERX.COM was registered to Xponse IT Services Pvt Ltd, Sanjay kedia, 29B, Rabindra Sarani, 12E, 3rd floor, Kolkata, WB 70073. Telephone no. +91-9830252828 was also provided for Xponse. Two websites were featured on the XPONSEIT.COM websites as featured clients. And these were DELIVEREDMEDICINE.COM AND TRUEVALUEPRESCRIPTIONS.COM. Review indicated that these two websites were internet pharmacies.
Consequently a “whois” reverse look-up* on domain name DELIVEREDMEDICINE.COM at domainstools.com conducted by DEA revealed that it was registered to Xponse Inc.,2760 Park Ave.,Santa Clara, CA, USA which is the address of Sanjay Kedia.
(3) Truevalueprescriptions.com: Review of this website indicated that this website was an internet pharmacy. In addition TRUEVALUEPRESCRIPTIONS listed Phentermine as a drug available for sale. It appeared that orders for drugs could be made without a prescription from the TRUEVALUE website, it was noted that orders for drugs could be placed without seeing a doctor. According to the website, a customer can complete an online questionnaire when placing the order for a drug in lieu of a physical exam in a physician’s office. Toll free telephone number 800-590-5942 was provided on the TRUEVALUE website for customer Service.
DEA, conducted a “whois” reverse look-up on domain name TRUEVALUEPRESCRIPTIONS.COM at
domaintools.com and revealed that IP address was 188.8.131.52 and the server that hosts the website
was located at Palcom, Delhi which also belongs to Xponse. From the above facts it is clear that the Xponse Technologies Ltd and Xponse IT Services Pvt Ltd were not acting merely as a network service provider but were actually running internet pharmacy and dealing with prescription drugs like Phentermine and Butalbital.”
9. We thus find that the appellant and his associates were not innocent intermediaries or network service roviders as defined under section 79 of the Technology Act but the said business was only a facade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itself.
10. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted.
11. For the reasons recorded above, we find no merit in this appeal, which is accordingly dismissed. We however qualify that the observations made above are in the context of the arguments raised by the learned counsel on the bail matter which obligated us to deal with them, and will not influence the proceedings or decision in the trial in any manner.”
It was a great learning experience for investigators and would be the basis of developing a strategic plan for preventing trafficking of drugs through internet. Let us understand various stages of a typical modus-operandi of the entire sequence of trafficking of drugs through internet. It is depicted in figure-2.
- A customer located anywhere in the world and who needs narcotics and psychotropic substances, accesses a website hosted for this purpose. This website is known as “front end website” and may (invariably) be co-hosted with a number of other similar websites on the same or different I.P. address. The “Front End Websites” are generally hosted on a server located abroad to dodge the local law enforcers and make their task difficult.
- The data collected by the “Front- end Websites” is routed to the “Back- end Websites” at a domestic location in another State away from the location of drug trafficker.
- The data received by “Back- end Websites” is extracted by the traffickers to their location generally through File Transfer Protocol.
- Now, the staff of the B.P.O takes order from clients over highly encrypted internet telephone or Skype and receives payment online, many times in small amounts and mostly through ‘high-risk-payment-gateways’.
- Once, the payment is received, a label and prescription is generated with fake signatures of doctor and the drug is dispatched to the customer through Courier Services or Postal Services. It would be evident from the above narration that the entire system is designed to dodge the domestic as well as foreign Law Enforcement Agencies.
THE STRATEGIC ROADMAP
By now we understand clearly that any strategy to prevent trafficking of drugs through internet and choke such Internet Pharmacies has to be multi-pronged, comprehensive, consistent, and dynamic. However, it can never be a short term one-time event. It would need continuous development depending upon developments in the Internet-Technology. Piecing together the bits and pieces of the puzzle of elephant16,a strategic roadmap to combat trafficking of drugs through the Internet is depicted in Figure – 3, and outlined in the following lines. It is a multi-pronged strategy to choke and neutralize every stage/step of the typical modus-operandi of drug traffickers.
- Formation of specialized unit to cyber-patrol the World Wide Web to detect websites that are selling narcotic and psychotropic drugs online. Once these websites are identified, the IP Address and the physical location of the server would be ascertained. The reverse -IP would be performed to find other related websites.
- Internet Service Providers to provide mirror image of servers to conduct forensic examination of transactions.
- Special Teams would be formed to investigate such cases.
- Requisition to CERT-IN to block all the identified websites.
- ‘Surveillance Teams’ to regularly visit the ‘Foreign Post Offices’ and Courier-Hubs to detect consignments of narcotic and psychotropic drugs.13
- Real time sharing of intelligence and information with Narcotics Control Bureau (NCB) and National Crime Bureau (in C.B.I) for Interpol’s assistance.The International Criminal Police Organization (ICPO/INTERPOL) has a Drugs Sub-division at General Secretariat and monitors and responds to incoming communications on drug enforcement matters, conducts intelligence analysis of information & produces tactical, statistical and strategic, intelligence reports5,14.
- Tracking the routes and channels for transferring money from foreign countries with the assistance of Financial Intelligence Unit, India(F.I.U- India).
- Arrest of the accused and freezing his financial assets under the Indian Law. The financial assets would be frozen under chapter 5A (u/s 68 (F) (1)) of N.D.P.S Act.9 The confirmation would be obtained from the Competent Authority (SAFEMA / NDPS) under the Ministry of Finance, Government of India.11
- The fit cases would be detained under PITNDPS Act.( 10)
THE OBSTACLES & SOLUTIONS
- Lack of skills and knowledge on the part of the Investigators.
A capsule course on various aspects of trafficking of drugs through Internet should be designed and imparted to the specialized unit staff with active co-operation from NIBCID units of states and NCB-India.
2. Lack of Tools / Software / Hardware for monitoring and forensic analysis.
- The funds should be sought from NCB-India under existing scheme of funding for the state police forces. However NCB itself is ill-equipped to handle such cases.
- Lack of co-operation on the part of Internet Service Providers (ISPs) during investigation.
Regular short- duration educational and sensitization Programmes should be organized to overcome this obstacle.
- Lack of awareness among the postal and courier staff regarding the criminal nature of these transactions.
Regular sensitization Programmesshould be organized for their nodal officers.
- Lack of awareness among the financial institutions, credit card companies, banks etc. They should be sensitized about their duty to send Suspicious Transaction Reports (STRs) and Cash Transaction Reports (CTRs) to F.I.U-India without fail. The data provided by F.I.U- India should be analyzed by Intelligence Analysts in the investigation agency.
- Lack of awareness among the citizens regarding the criminal nature of this business as many may think it to be a legal pharmaceutical trade. Regular campaignsshould be organized to educate public to overcome this obstacle.
Any process of evaluation of such multipronged strategic plan cannot be simple. However, the assessment would be based on
E = f ( it + iv + t + c )
The Evaluation ( E ) would be a function ( f ) of,
Intelligence Factor ( it ): Human intelligence, technical intelligence and analysis of cyber-patrol logs of identified websites would account for this factor.
Investigation Factor ( iv ): Detection of quality cases registered, websites blocked, accused arrested and the financial assets frozen would account for this factor.
Training Factor ( t ): Number of quality training programs conducted for Investigators, Financial Institutions, Judicial Officers & educational campaigns etc.
Coordination Factor ( c ): Generalized and need based coordination exercises with CERT-IN, NCB, Interpol (NCB-CBI), FIU-India and International Drug Liasion Officers ( D.L.O.s ).
It is firmly believed that this strategic plan would go a long way in preventing trafficking of drugs through internet.
Note: The views expressed in this paper are of the author and do not reflect the views of the organizations where he worked in the past or is working presently.
- National Institute of Justice, U.S. Department of Justice:NIJ Special Report on Investigations Involving
the Internet and Computer Networks (2007). http://www.ojp.usdoj.gov/nij
- United Nations Office on Drugs and Crime, Vienna & UN Counter – Terrorism Task Force:Report
on the Use of the Internet for Terrorist Purposes (2012).
- WALSH C. (2011). ‘Drugs, the Internet and Changes’ Jan-Mar; 43(1): 55-63.doi: 10.1080/02791072.
2011 566501 Journal of Psychoactive Drugs.
- 4ANNA Edney (2013). ‘Crackdown on Online Pharmacies Nets $41 Million in Drugs’: June 27, 2013 in Bloomberg.
- LEAMY WJ. (1983). ‘International co-operation through the Interpol System to counter illicit drug trafficking’: Bull. Narc. 1983 Oct-Dec.35 (4); 55-60.
- American addicts, fed from Calcutta. The Telegraph, Calcutta, India, February 14, 2007.
- An IIT brain, selling illicit drugs online. The Times of India February 14, 2007.
- SANJAY Kumar Kedia Vs NCB and another. Supreme Court of India Judgment Dated 3rd Dec. 2007 in Appeal (Crl.) 1659 of 2007 (@ SLP (Crl.) No.3892 of 2007).
- The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985 dated 16 September,
1985 as amended from time to time).
- The Prevention of Illicit Traffic in Drugs & Psychotropic Substances Act, 1988 (Act No.46 of 1988 dated 4th July, 1988)
- The Prevention of Money Laundering Act, 2002 (PMLA) (as amended in 2005 & 2009).
- International Narcotics Control Board (2009), United Nations, New York. Guidelines for Governments on Preventing the illegal Sale of Internationally Controlled Substances through the Internet.
- DARIN D. Fredrickson, Raymond P. Siljander. Street Drug Investigation: A Practical Guide for Plainclothes Uniformed Personnel. Charles C Thomas Publisher Ltd. Springfield, Illinois USA.
- ‘Connecting Police for a Safer World’. http://www.interpol.int/interpol.
- ‘Clear Thinking, Persuasively communicated JackMalcolm’s Blog’: http