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NDPS Act, 1985: Loopholes and Misuse

The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 is a stringent law in India that aims to control and regulate operations related to narcotic drugs and psychotropic substances. It is designed to combat drug trafficking and abuse.

Like any law, there can be perceived loopholes or areas in the NDPS Act too, that might need further refinement.

The Key Objectives of the NDPS Act, 1985

Control and Regulation:

The primary objective of the NDPS Act is to control and regulate the production, manufacturing, possession, sale, purchase, transport, warehousing, use, consumption, import, export, and transshipment of narcotic drugs and psychotropic substances. By regulating these activities, the Act aims to prevent the diversion of controlled substances for illicit purposes.

International Obligations:

The NDPS Act aligns with India's international commitments under various international treaties and conventions, including the Single Convention on Narcotic Drugs, 1961, and the Convention on Psychotropic Substances, 1971. These international agreements promote cooperation among nations to curb drug abuse and trafficking.

Preventing Drug Abuse:

The Act aims to prevent drug abuse by controlling the availability of narcotic drugs and psychotropic substances. By restricting their production, distribution, and accessibility, the Act seeks to reduce the prevalence of drug abuse and its associated harms.

Combating Illicit Trafficking:

The NDPS Act addresses the menace of drug trafficking by imposing strict penalties on individuals involved in the production, manufacture, trafficking, and distribution of controlled substances. It aims to disrupt drug trafficking networks and deter individuals from engaging in such activities.

Dismantling Criminal Networks:

By targeting drug trafficking organizations and seizing assets acquired through drug-related crimes, the Act aims to dismantle criminal networks that profit from the illicit drug trade. This contributes to the broader goal of reducing organized crime.

Preserving Public Health:

While the Act has a punitive component, it also recognizes the importance of preserving public health. The Act acknowledges the need for treatment, rehabilitation, and reintegration of individuals affected by drug abuse, aligning with a harm reduction and health-oriented approach.

Promoting Research and Education:

The Act encourages research into the causes and consequences of drug abuse and related issues. Additionally, it promotes educational efforts to raise awareness about the dangers of drug abuse and the legal consequences of engaging in illicit drug-related activities.

Seizing and Confiscating Assets:

The Act provides provisions for the seizure and confiscation of properties acquired through the proceeds of drug-related offences. This aims to deter individuals from engaging in drug trafficking and provides authorities with tools to disrupt criminal networks.

International Cooperation:

The Act facilitates cooperation with other countries in addressing drug-related issues through the sharing of information, intelligence, and coordinated efforts to combat transnational drug trafficking.

While the NDPS Act has these objectives, its implementation has raised debates about striking a balance between punitive measures and addressing the underlying health and social issues associated with drug abuse. Calls for reform have emerged to ensure that the Act's enforcement aligns with the principles of proportionality, human rights, and public health.

Loopholes in Different Sections of NDPS ACT, 1985

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985 has been subject to criticism for several perceived loopholes in its different sections. These loopholes can potentially be exploited or result in unintended consequences.

The examples of such loopholes are noted below:

Section 8(c):

Possession: This section criminalizes possession of small quantities of drugs without differentiating between personal use and trafficking. This lack of distinction can lead to the punishment of drug users rather than focusing on rehabilitation.

Section 20:

Punishment for Production, Manufacture, Possession, etc. of Small Quantities: This section provides for a lighter punishment for offenses involving small quantities of drugs. However, determining what constitutes a "small quantity" can be subjective and open to interpretation. It is actually at the discretion of the central government as per section 2(xxiiia) of the NDPS Act, 1985.

Section 27A:

Punishment for Financing Illicit Traffic and Harbouring Offenders: This section criminalizes financing of illicit drug trafficking, but its interpretation can be broad and may inadvertently penalize individuals involved in legitimate activities for medicinal purposes unknowingly linked to drug-related offences.

Section 31 (3):

Offences Committed outside India: According to section 31 (3) of NDPS Act, where a person has been convicted by a competent court of criminal jurisdiction outside India, He shall be treated as though he had been found guilty by an Indian court. This section raises issues related to extraterritorial jurisdiction and the potential for conflicts with the laws of other countries.

Section 37:

Outlandish Condition for Bail: Under Section 37 of the NDPS Act, the Court can grant bail to an accused only on being satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that the accused is also unlikely to commit any offence after being released from jail. This is an outlandish condition to deny bail to an accused as no judge can guarantee that the accused will not commit any offence in future. Further, the classification of certain offences as non-bailable can lead to prolonged pre-trial detention, potentially undermining due process. However, according to some views, bail may be granted if the public prosecutor doesn't oppose the bail.

Section 68 I (3):

Power to Attach Property: According to section 68 (I) (3) of the NDPS Act, where the competent authority records a finding under this section to the effect that any property is illegally acquired property, it shall declare that such property shall stand forfeited to the Central Government free from all encumbrances. While this section allows authorities to attach and confiscate property derived from illegal operation, its implementation can sometimes raise challenges in proving a direct link between the property and the offense.

Section 42:

Search of Suspects: This section grants law enforcement agencies the power to search suspects based on information, but it can lead to abuse if the power is not exercised responsibly and ethically.

Section 43:

Power of Entry, Search, Seizure, and Arrest without Warrant: This provision grants law enforcement agencies wide powers for search, seizure, and arrest in public place without a warrant. However, these powers can be prone to abuse and may infringe on individual rights.

Section 50:

Conditions under which Search of Persons Shall be Conducted: This section lays out the conditions under which a person can be subjected to a personal search. However, it may not always ensure adequate safeguards against potential abuse of power during searches. This section grants law enforcement agencies the power to search individuals based on "reasonable information," but it lacks clear guidelines on what constitutes "reasonable information," leading to potential abuse and invasion of privacy.

Section 54:

Presumption as to Commission of Offences in Certain Cases: This section creates a presumption of guilt for certain offenses unless proven otherwise by the accused. Such presumptions can shift the burden of proof and affect due process. Further, according to section 35 of NDPS Act, it is for the accused to discharge the onus of proof that he was not in conscious possession.

Section 64A:

Immunity from prosecution to addicts volunteering for treatment: In accordance with this provision, any addict facing charges under section 27 or related to small quantities of narcotic drugs or psychotropic substances can avoid prosecution under section 27 if they voluntarily seek and complete medical de-addiction treatment at a government or locally recognized hospital or institution or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances.

However, courts, in fact, have granted such immunity to very few accused persons an there is also non-availability of such treatment in the districts and cities for such accused persons. Further, according to section 33 of NDPS Act, nothing contained in section 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 1958 shall be applicable to individuals who have been convicted of an offense under this Act, except in cases where the individual is under eighteen years of age or when the offense falls under the purview of section 26 or section 27.

Section 69:

Protection of Action Taken in Good Faith: While this section protects actions taken by authorities in good faith, it could potentially be used to shield actions that lead to human rights violations or abuse.

Section 71:

Power of Government to establish centres for identification treatment, etc., of addicts and for supply of narcotic drugs and psychotropic substances: This power has not been utilised considerably and the number of such centre is too few to arrange for medical treatment of the drug addicts present in society and lodged in jails.

Some Other Loopholes in the NDPS Act, 1985

The NDPS Act, 1985 has many other loopholes, which are noted below:

Harsh and Disproportionate Punishments:

As many other countries have created laws under the pressure of international conventions, they have made the laws too harsh as we have already discussed even the death penalty in some cases. Raju v. State of Kerala AIR 1999 SC 2139:In this case, the appellant served 10 years rigorous imprisonment and was fined 1 lakh for possession of 100 mg heroin worth ₹25. Absence of withdrawal was considered evidence that the applicant was not addicted to drugs and therefore the heroin was not intended for personal use. The Supreme Court eventually ruled that such a small amount could not be intended for sale or distribution and reduced the penalty to possession for personal consumption. The Act imposes severe penalties for certain offenses, including the death penalty for large-scale drug trafficking. Critics argue that such harsh punishments may not be effective deterrents and could lead to human rights violations.

Inadequate Differentiation between Users and Traffickers:

The Act does not clearly distinguish between drug users and traffickers, often treating both categories similarly. This can hinder efforts to offer appropriate support and intervention to users who need help rather than punishment.

Small Quantity Offences:

The Act penalizes even the possession of small quantities of narcotics, which can lead to the arrest and punishment of individuals with relatively minimal involvement in drug-related activities. This approach is criticized for potentially criminalizing drug users rather than focusing on rehabilitation.

Ambiguity in Definitions:

Some definitions in the Act, such as "small quantity" and "commercial quantity," can be vague and may lead to inconsistent application and interpretations by law enforcement agencies and the judiciary. The NDPS Act contains several definitions related to terms like "manufacture," "possession," "small quantity," "commercial quantity," etc. Individuals might try to interpret these definitions in a way that works to their advantage in court, especially in cases where the quantity of the substance in question is borderline between different categories.

No Discretion in Bail:

The Act limits the granting of bail in certain categories of offences, which can result in lengthy pre-trial detention. This can be perceived as a challenge to the right to a fair and speedy trial.

Courts Unable to Grant Bail:

Under the NDPS Act, courts lack the authority to grant bail to those accused under Sections 19, 24, or 27A, as well as for offences involving substantial quantities (Section 2) of drugs. However, according to some views, bail may be granted in appropriate cases where public prosecutor does not oppose the bail.

Burden of Proof on the Accused:

The Act places the burden of proof on the accused persons to demonstrate their innocence in certain cases, which can be problematic in cases where evidence is difficult to obtain. The law presumes the guilt of the accused and reverses the burden of proof of innocence. The NDPS Act operates on a presumption of guilt, placing the burden of proof on the accused. Section 35 assumes that individuals charged under the Act possessed illicit drugs intentionally, with motive and knowledge of their actions. Furthermore, Section 54 takes this presumption a step further by stating that unless proven otherwise, the accused is presumed to have possessed the confiscated illegal substances. This approach contradicts the standard legal principle of "innocent until proven guilty."

Mandatory Sentencing:

The Act imposes mandatory minimum sentences for certain offenses, restricting judges' discretion to consider individual circumstances, rehabilitation prospects, or alternative sentencing options. Critics argue that this mandatory sentencing can be excessively harsh, disproportionately affecting minor offenders and hindering efforts toward rehabilitation. There is a need to review and adjust penalties to ensure they are proportionate to the offense and the substance involved, avoiding mandatory sentences that do not allow for consideration of individual circumstances.

Limited Judicial Flexibility:

The NDPS Act provides limited flexibility for judges to account for individual circumstances when determining sentences, making it challenging to handle cases on a case-by-case basis. Judges should be granted more discretion in sentencing, allowing them to consider factors such as the defendant's criminal history, willingness to seek treatment, and cooperation with authorities.

Imbalance in Focus:

The Act primarily concentrates on reducing demand by criminalizing possession and use of illicit substances. Critics argue that an equal emphasis on supply reduction measures, such as targeting trafficking networks, is necessary to address the root causes of drug-related issues.

Uniform Treatment of Substances:

The Act treats all narcotics and psychotropic substances uniformly, without distinguishing between different substances' varying levels of risk and harm. This one-size-fits-all approach can lead to unjust punishments and fails to acknowledge the complexities associated with different substances.

Neglect of Medical Use:

The Act does not adequately differentiate between substances with medical and recreational applications, potentially obstructing access to legitimate medical treatments involving controlled substances.

Concerns with Undercover Operations:

Some cases have raised concerns about the use of undercover operations, informants, and potential entrapment, raising questions about individual rights.

Investigation Challenges:

The Act poses difficulties for law enforcement agencies in gathering sufficient evidence, particularly in cases involving synthetic drugs or online transactions with cryptocurrencies.

Slow Amendment Process:

Amending the Act to address evolving drug trends and international obligations can be a lengthy process, potentially hindering the Act's ability to effectively respond to emerging challenges. Overburdened Special Courts:While special courts were established to handle NDPS cases, they are often overloaded with other case types in several states, resulting in unnecessary delays in resolving drug-related cases. In some states, these special courts do not exist.

Witness Availability:
Finding independent witnesses can be challenging due to threats from accused individuals, including possible bribes to turn hostile.

Long Delays in Trials:
Lengthy gaps between the occurrence of the crime and the trial can cast doubt on the accuracy of evidence, leading to acquittals due to insufficient evidence. Establishing dedicated courts exclusively for NDPS cases is necessary for expediting trials.

Extended Pretrial Detention:
Research indicates that many individuals arrested on drug charges spend years in jail before their cases reach trial, primarily due to the slow pace of India's justice system. This can lead to the release of those caught with small quantities of drugs after years of incarceration. Prolonged pretrial detention can increase the risk of individuals being recruited into organized crime and gangs, underscoring the need for effective training for judges, prosecutors, and investigating officers.

Economic Disparities in Bail:
Bail laws tend to favor the affluent, allowing them to secure bail while leaving economically disadvantaged individuals in custody.

Human Rights Concerns:
Despite its alignment with international principles, the NDPS Act still raises human rights issues as it presumes the accused guilty until proven innocent and places the burden of proof on the individual accused. This stands in contrast to the fundamental legal principle of "innocent until proven guilty."

Mandatory Death Sentence:
The Act has mandated the death penalty under Section 31A, but the Supreme Court ruled in 1983 that the death penalty should be imposed only in the rarest of rare cases.

Absence of Data:
One of the major problems in Indian politics is data. The nature and extent of drug use, addiction and associated health consequences etc should have been paramount in framing the NDPS Act but ironically it is still unknown. The only survey on the extent of drug use was conducted in 2001-2002. According to this survey, there were an estimated 8.7 million cannabis users, of which 2.3 million were addicted (26%). The number of opiate users was estimated to be 2 million, of which 0.5 million (22%) were thought to be dependent.

Shortage of Medicine:
NDPS Act allows the use of drugs as medicine. Yet, morphine and other opiates were unavailable to patients due to strict provisions and penalties. Until recent years these were all regulated by state governments, which meant more licenses were needed, but since 1998 the central government has taken over, but the situation has not improved. Western media questions regularly how is that India supplies morphine to the world when it can't supply it back at home.

Lack of Consultation in Policy Making:
Section 6 of the NDPS Act, 1985, allows government to make a not exceeding 20-member body NDPS Consultative Committee as a policy advisory body. The committee may prepare a special report on any topic of importance for the government consideration and advice the government on policy matters, and other issue as requested by the government. The committee can call on experts and representatives of civil society to review and recommend changes in almost all areas of drug policy. Unfortunately, these provisions have not yet been implemented.

Section 7A of NDPS Act provides for the constitution of National Fund for Control of Drug Abuse. � No appreciable work of this agency has been noticed since its inception.

Gherao by the accused Party:
In some cases, during seizure of Ganja in the village the police team is gheraoed by the villagers and to avoid law and order problem, police have to rush back from the village and during this period it is very difficult to observe all formalities of seizure at the place of seizure leading to advantage to the accused persons. The Act is silent over this issue.

Problem in drawing sample of the seized narcotics substances:
For drawing sample of the seized narcotics substances, the entire seized property has to be produced before the concerned judicial magistrate in the court along with weighing machine and other items by the police officer. This process may be simplified in the Act. The Act is also silent as to where the drawing of sample will be done, at the place of occurrence, at the police station or at the court.

Limited Resources for Treatment:
While the NDPS Act emphasizes treatment and rehabilitation, there are often inadequate resources and facilities available for this purpose, leading to a gap between policy intentions and implementation.

Limited Emphasis on Rehabilitation:
The focus of the NDPS Act has been more on punitive measures rather than rehabilitation and treatment for drug users. Critics argue that a more balanced approach that emphasizes prevention, treatment, and harm reduction is necessary.

Scope for Abuse:
The Act provides authorities with wide powers for search, seizure, and arrest. While these powers are meant to aid law enforcement, there have been instances of abuse and misuse, leading to concerns about individual rights and due process.

Criminalization of Users:
The Act treats drug users and traffickers similarly, criminalizing drug possession even for personal use. This approach can deter users from seeking help and rehabilitation. Decriminalizing the possession of small quantities of drugs for personal use may be considered. Instead of criminal penalties, focus may be shifted on education, counseling, and rehabilitation to address the root causes of drug abuse.

The NDPS Act treats all drug possession as a criminal offense, including possession for personal use. This approach fails to differentiate between drug users and traffickers, discourages individuals from seeking help, and perpetuates a cycle of punishment without addressing the underlying issues of addiction.

Focus on Punishment over Rehabilitation:
The Act emphasizes punishment over rehabilitation, which fails to address the underlying issues of addiction and drug abuse.

Criminal Justice Backlog:
The Act's strict provisions have contributed to the overcrowding of courts and prisons, diverting resources away from more serious criminal cases.

Stigmatization of Drug Users:
The Act's punitive approach can further stigmatize drug users, hindering their integration into society and discouraging them from seeking help. Criminalizing drug possession can stigmatize and marginalize individuals struggling with addiction, making it harder for them to reintegrate into society and access necessary support.

Lack of Differentiation between Low-Level and High-Level Offenders:
The Act does not distinguish between low-level offenders and major traffickers, leading to similar penalties for both.

Community-Based Alternatives:
There is no provision in the Act to provide community-based alternatives to incarceration, such as diversion programs, where offenders participate in rehabilitation and community service rather than serving prison sentences.

Limited Emphasis on Harm Reduction:
The Act does not adequately prioritize harm reduction strategies that focus on minimizing the negative health and social consequences of drug use.

Lack of Rehabilitation Emphasis:
The focus of the NDPS Act is primarily punitive rather than rehabilitative. This approach neglects the importance of addressing addiction through comprehensive treatment and support services.

Protection of Vulnerable Groups:
There is no mechanism to provide specific provisions to protect minors, individuals with mental health issues, and marginalized communities from being disproportionately impacted by the law.

Lack of Alternatives to Incarceration:
The act does not provide sufficient alternatives to incarceration, such as diversion programs or community-based rehabilitation options, that could offer more effective ways to address drug-related issues.

Overcrowding of Prisons:
The strict provisions of the NDPS Act contribute to the overcrowding of prisons in the form of large number of under trial prisoners and convicts languishing in prisons without bail, regular hearing and parole.

Proportionality of Seizures:
There is no mechanism to ensure that the quantities seized are considered in relation to the offence, preventing excessive seizures that could disrupt medical access or livelihoods.

Lack of Public Health Approach:
The act does not sufficiently integrate a public health approach that prioritizes prevention, treatment, and harm reduction over punitive measures.

Ineffective Rehabilitation Programs:
The NDPS Act's focus on punishment has led to inadequate investment in effective rehabilitation programs and facilities.

In addition to concerns of obvious injustice, extended prison terms for low-level drug offenders also raise the issue of recruitment by criminal groups.

A recent study on organised crime in Mumbai suggests that prisons in India, as in many other parts of the world, are ideal places for orienting vulnerable individuals into the world of crime.

These examples highlight areas where the provisions of the NDPS Act could be susceptible to misuse, misinterpretation or unintended consequences. The implementation of the law, while aimed at combating the drug problem, must strike a balance between law enforcement and the protection of individual rights and due process. Addressing these potential gaps and ambiguities is essential to ensure a fair and effective legal framework.

Misuse of NDPS Act, 1985
The high number of Under Trial Prisoners (UTPs), more than six thousand, allegedly arrested in NDPS cases and lodged in the Correctional Homes (Jails) of West Bengal represents both good works of police as well as alleged highhandedness. The imprisoned UTPs tend to resort to violence due to their frustration over refusal of bail as bail in NDPS cases is sparingly granted by the courts and the UTPs have to remain in jail for years together without bail, without regular trial and without the facility of Parole.

Though police overcome pressure from different quarters by putting people including many innocents in jail, these UTPs are a constant source of headache for the jail authorities. Hence, arrest of people in NDPS cases may be given a judicious and sympathetic thought so that large numbers of people are not arrested in allegedly false cases and UTPs don't gather in the Correctional Homes in large number in the form of a constant source of headache for the jail administration.

The following 08 correctional homes in west Bengal have the highest number of under trial prisoners arrested in NDPS Cases:
SL.No. Name of Correctional Home (Jail) No.of UTPs imprisoned under NDPS Act
1 Dum Dum CCH 1210
2 Berhampore CCH 1050
3 Krishnanagar DCH 550
4 Jalpaiguri CCH 399
5 Presidency CH 396
6 Hooghly DCH 314
7 Coochbehar DCH 306
8 Malda DCH 300

The NDPS Act, 1985 has faced criticism for being "draconian" and ineffective, leading to concerns about its fairness. It often targets lesser offenders while influential individuals escape punishment due to connections. Even people near drug users can be charged under this law, and it lacks clarity on distinguishing minors from serious offenders and justifying punishments. These issues highlight the need for reforms in the NDPS Act to achieve its intended purpose.

It's important to recognize that perspectives on these issues vary among stakeholders, including law enforcement, legal experts, policymakers, and civil society. Discussions are crucial for a balanced approach to drug control.

Efforts to address these gaps involve potential reforms like decriminalizing personal drug possession, reevaluating sentencing, and combining punitive measures with prevention, treatment, and harm reduction.

Comprehensive reform is necessary, shifting focus from punishment to a balanced approach involving harm reduction, rehabilitation, individual rights, and evidence-based strategies. Collaboration among policymakers, legal experts, health professionals, and community organizations is essential to create more effective and humane drug policies that consider the complexity of drug-related problems.

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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