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Analysis Of Legality Of NDPS (Amendment) Act, 2021

The Narcotic Drugs and Psychotropic Substances Act aka the NDPS act came into force on the 14th day of November 1985, to counter the issue of increasing drug consumption and transit traffic throughout the country. Previously, we had the following three legislations that dealt with the situation of narcotics drugs in the country:

  1. The Opium Act, 1857
  2. The Opium Act, 1878
  3. The Dangerous Drugs Act, 1930,

The government at the time, felt an immense need to bring legislation to consolidate and update the law to counter the increasing consumption and the introduction of psychotropic drugs in the country. As a result, the NDPS Act was enacted. And was subsequently amended in the years 1989, 2001, and 2014. The said act was also amended by the Finance Act, 2016.

However, the amendment in 2014 introduced an anomaly in the NDPS act. As the amendment defined essential drugs in Section 2(viiia) to sought clarity on section 9 of the same act which allows the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.

But what went unnoticed was that before the 2014 amendment, a Section 2(viiia), already existed and contained a list of offences for which the punishment is prescribed in Section 27A.

Section 27A reads:
Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, 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 which 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.

Therefore, while defining essential drugs in 2014, the Amendment re-numbered Section 2 and defined essential narcotic drugs in Section 2(viiia). But the drafters missed to amend the enabling provision in Section 27A to change Section 2(viiia) to Section 2(viiib). Thereby making the list of offences, originally listed under Section 2(viiia), come under Section 2(viiib).

However Section 27A as stated above punished offences specifically mentioned under Section 2(viiia) sub-clauses i-v. But after the 2014 amendment, Section 2 (viiia) sub-clauses i-v, which were supposed to be the list of offences, ceased to exist as they then came under Section 2(viiib).
Thereby making Section 27A inoperable.

Now the key issue with this modification is that the amendment of 2021 states that the amendment shall be deemed to have come into force on the 1st day of May, 2014.[1] However interestingly, Article 20(1) of the Indian Constitution prohibits retrospective amendments in Criminal Law. Therefore, bringing the Constitutional Validity of the said amendment into question.

Article 20(1) of the Indian Constitution states that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.[2]

The government, to ratify the anomaly introduced in the said act in 2014, brought the amendment of 2021, but the conflict arose when the amendment was deemed to be in force from 2014 i.e. retrospectively applied. Article 20(1) has two parts. First, that no person shall be convicted of any offence, which is not a violation of law in force at the time of the commission of the act.

Second, more relevant to our current analysis, that no one can be subjected to a penalty greater than the penalty which is enshrined in the law in force at the time of the commissions of the offence. That means that only the penal provisions in accordance with the law in force at the time of the commission of the offence will apply to persons who are charged with a crime before a criminal court, and the penal provisions cannot be amended retrospectively.

The word penalty in Article 20(1) is used in the narrow sense as meaning a payment 'which has to be made or a deprivation of liberty which has to be suffered as a consequence of finding that the person accused of a crime is guilty of the charge.'[3] The amendment in question was termed as a clarificatory amendment by the government, and it was said in support of the government that a clarificatory amendment in criminal law can be applied retrospectively but a substantive amendment cannot.

Retrospectivity was also allowed by the Apex Court in the case of an amendment of 2001 in the NDPS Act, 1985, keeping in view the fact that it was clear from the objectives and reasons while making the amendment that the intention was to make the law beneficial to the accused in petty cases. Therefore, it amounted to the soothing of the rigour of punishment retrospectively for pending cases.

Therefore, we can say that, Retrospective amendment in Criminal Law is as rare as a sight of Madagascar Pochard. This trend to amend Criminal Law retrospectively can lead to a disaster in the long run, but what are the options for the legislature if some prior amendment makes such an anomaly that renders the penal provisions of a special act useless? The Indian Constitution disables the legislature to amend the Criminal Law in such a fashion so as to make retrospective penal provisions and to increase the penalty for any offence retrospectively.

The amendment in question dodged both of these constitutional limitations and rectified the anomaly which was defying the objectives the NDPS Act was expected to achieve. The amendment which was in its true sense, a clarificatory one, saved the NDPS Act from being misused, by correcting a mere indexing error, and the retrospective effect given to the amendment was the sole way to make the amendment effective, and to put a stop to the abhorrent use of the anomaly by the accused persons, and in fact, was the correct way to ameliorate the mistakes of the past.

  1. The Narcotics Drugs and Psychotropic Substances (amendment) Bill, 2021.
  2. The Constitution of India, art. 20.
  3. M.P. Jain, Indian Constitutional Law, 1134(2021).
Written By:
  1. Prerna Bhardwaj and
  2. Nitesh Tomar

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