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Critique Of Narcotic Drugs And Psychotropic Substances Act, 1985: Plugging The Loopholes

The Narcotic Drugs and Psychotropic Substances (NDPS) Act[1] came into force on November 14, 1985, and has become the enactment under which all cases relating to possession, consumption, and trade of Narcotic drugs are dealt with.

The main focus of the act is to have control over the manufacture, possession, trade, and transport of similar narcotic and psychotropic substances. The act bans around 200 psychotropic substances resultant upon these drugs are not available over the counter for any walk-in individual. These drugs are on trade only when a tradition for the same is available. Violation of this law may affect discipline including rigorous imprisonment or fine or both. The degree of discipline is dependent upon the harshness of the case of the respective case.

Amendment to the Act
The NDPS Act has been amended three times since its inception. The first amendment was made in 1988, followed by another in 2001, and again in 2014. New provisions and regulations for the use of narcotics and psychotropic substances were established in the 2014 amendment. The NDPS Act of 2014 gave the Centre the authority to regulate the possession, sale, transportation, import, export, and use of narcotic medicines and poppy straw. Codeinone, fentanyl, morphine, methadone, and codeine are all necessary narcotic medications.

Critical Evaluation of the Act:
  1. Delays in the trial:
    "Justice delayed is justice denied." Special courts have been created under this Act to deal with the cases. However, in many states, such courts are given the additional responsibility of dealing with other cases as well causing undue delays in the disposal of drug-related cases[2]. Further, it is quite difficult to find witnesses, often due to threats from the accused including possible bribes to turn hostile. A number of times long time gaps between the occurrence of the crime and the trial cast doubts on the accuracy of the evidence leading to acquittal on grounds of insufficient evidence. It is indeed a well-known fact that experienced advocates bring out inconsistencies in the statements of the witness on cross-examination so as to weaken the case of the prosecution.
     
  2. Presumption of Guilt:
    One of the major drawbacks of the act is that it presumes the guilt of the accused which brings complete responsibility of proving an individual's innocence on him[3]. Bail isn't usually granted to the accused of offenses that fall under Sections 19, 24, or 27A of the NDPS Act and those relating to commercial quantities of drugs.[4] Indian judicial system considers each person innocent till proven otherwise. "Justice Delayed is Justice Denied" in spite of the availability of special courts assigned for specific cases under this act delayed judgments are too common. Certain times accused arrested for having a small quanitity of drugs are freed after a long time in custody during the investigation period.
     
  3. Harsh Punishments:
    "No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been." - Hannah Arendt in Eichmann in Jerusalem (1963)

    As per the Act, a convicted person shall be punished with rigorous imprisonment for a term of not less than 10 years which may extend to 20 years and a minimum fine of Rs 1 lakh which may extend to Rs 2 lakh or more (sections 15-25 and sections 27A-29). Offenses relating to cannabis are punishable with a minimum sentence of five years and a fine that may extend to Rs 50,000 (section 20).

    Under Section 27[5], a person can be imprisoned for a period of 10 years for possessing even a very small quantity of an illegal drug. Such provisions again make the Act very unpractical. As mentioned before, most of the substance abusers are from rural or poor backgrounds. These people will not able to pay the fines and due to the unavailability of legal aid, they are denied justice.
     
  4. Stringent Bail Provisions:
    Section 37(1)[6] declares that an accused person should not be released on bail unless the court has reasonable grounds to believe that the accused is not guilty and is not likely to commit an offense while on bail. This provision is identical to provisions of the Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorism Act which resulted in long periods of imprisonment without trial, evoking strong criticism from the human rights movement.

    Powers of the High Court under Sec. 439 of CrPC are looked down upon in any way except that they are to be exercised with restrictions and considerations as laid down under Section 37 of the Act[7]. Ordinarily, on a bare reading of these provisions, it would look as if the Court were to adopt a negative approach and to decline bail as Grant of Bail might be a rule and its rejection an exception.
     
  5. Immunity for treatment seekers:
    Under Section 64A of the current Act[8], drug addicts who choose medical treatment are exempt from prosecution if the charge is one of consumption or includes a small number of narcotics. This clause's applicability has been plagued with ambiguity. Most drug addicts have been denied immunity due to a variety of technical reasons. These include requiring proof of addiction, entering a guilty plea, and waiting for the case to be framed. As a result, the section's legislative objective to discourage the criminalization of drug addicts and encourage treatment-seeking has been undermined.
     
  6. Deterrence as a theory of Punishment:
    They not only show the limitations of deterrence as a punishment theory, but they also expose a gap in our theoretical understanding of deterrence[9]. Further, it may be suggested that we overhaul the fundamental approach of a linear narrative � those harsh laws and stringent punishments lead to alterations in social behavior, hence deterring future criminal acts. It is imperative that the law designed must be mindful of the social realities of the milieu in which it intends to effect a change. Often, deterrence as a theory has been criticized for only bearing the 'long distance danger' that is overshadowed by the 'near pleasure' of committing a crime. In other words, acts of individuals have considerations that may not necessarily be deliberated upon by the law.
     
Indicative Statistics to highlight the poor Effectiveness
The National Crime Records Bureau (NCRB) has revealed crime data for the year 2015[10]. The data show a rise in all areas, including the number of arrests made, the total number of instances recorded, and the total amount of seizures made by various authorities. Although we don't have state-by-state statistics for Punjab, the total number of NDPS cases recorded across India is on the rise. The number of instances recorded under the Act in 2015 was 50,796[11], up from 46,923 in 2014.

The NDPS Act also ranks among the few legislations that have high conviction rates (77.2%) as well as high pendency rates (80.6%).

[12]A study by the Vidhi Centre for Legal Policy said that most arrests in drugs cases in India are for personal consumption. The study showed 81,778 people in India were charged under the Narcotics Drugs and Psychotropic Substances (NDPS) Act in 2018. Of these, 59 per cent were arrested for possession for personal use.

The same study also looked at the magistrates' courts in Mumbai, where it found 10,669 cases. Of these cases, 99.9 per cent were for personal consumption, and 87 per cent of the total involved cannabis and not hard drugs like cocaine, heroin, or smack.

Gupta highlighted that there's an ongoing global debate on legalizing cannabis. While some states in the US, and even several European countries, have legalized cannabis, there's still a debate on the fact that criminalizing cannabis has driven more people into jails. Studies in the US have found that the cost of rehabilitating people on cannabis is six times less than keeping them in jails.

According to a 2019 study, National Survey on Extent and Pattern of Substance Abuse in India, by the Ministry of Social Justice and Empowerment, around three crore people are cannabis users in India.

"Jailing these three-crore people will completely break the legal system,"

The debate surrounding decriminalizing cannabis needs to start strongly in India due to its large number of users as well as its easy availability.

Suggestions And Recommendations:
  1. There is a requirement to urge the Indian authorities to Strengthen efforts to know patterns and trends of drug use within the country, especially in rural areas falling along the drug trading routes and people near cultivating areas. Develop methods for supporting socio-cultural controls on drug use. Urgently assess the demand for drug treatment, particularly amongst the urban poor engaging within the most dangerous kinds of drug use, and increase the coverage of a variety of treatment interventions. As a matter of priority, it's recommended that renewed attention should be inclined to the knowledge and research base which facilitates understanding of the evolving picture of drug use and therefore the cost-effectiveness of welfare and control responses. Routine statistics should be improved to scale back gaps within the understanding of the dimensions, nature, and extent of drug use. Enforcement and treatment policies should be evaluated thoroughly, making full use of the available range of scientific discipline research methods.
     
  2. Decriminalize cannabis possession and/or consumption:
    Until its prohibition in 1985, cannabis was an integral part of Indian traditional medicine, social customs, and spiritual functions. Even the NDPS Act was forced to depart a loophole when it involves marijuana use by removing the stigma of contraband from the leaves and the seeds. It's a well-documented proven fact that marijuana consumption is way less dangerous than alcohol or cigarettes and doesn't cause addiction as previously believed. additionally, the widespread belief that marijuana may be a 'gateway drug' is solely erroneous and has been debunked numerous times since the enactment of the prohibition regime. Potential medical applications of marijuana are many and its prohibition is kind of simply wrong and serves only to stop access to better and more cost-effective drugs for treating ailments.
     
  3. Proposed deletion of Section 27 from the NDPS Act [13]:
    If incarceration reduced addiction, the criminalization of addicts will be justified. However, over the years, drug use and addiction have only increased alongside drug traffic. Stringent penalties provided for by the NDPS Act have done little or no to discourage drug use. India houses the biggest number of repeat offenders guilty of violating the NDPS Act. Around 63 percent of prisoners in India have a history of drug use and around 23 percent of the whole number are apprehended for drug-related offenses. rather than addressing the matter of consumption or addiction, incarceration aids drug users' exposure to/and contact with other criminal offenders, likely forcing them into a lifetime of a more and high crime.

Conclusion
India faces an alarming spike in consumption and injection of illicit drugs among young adults and teenagers � especially, synthetic drugs like heroin, ephedrine, and methaqualone. the matter of abuse in states like Punjab has become so severe that quite � of all rural households are home to a minimum of one junky. Incarceration of drug users and subsequent criminal charges, destroy any chance of their rehabilitation or reintegration into society. Out of fear of being incarcerated, drug users are reluctant to return out seeking treatment and instead intercommunicate a lifetime of crime to fuel drug dependency.

Factors and Recommendations mentioned above if not adhered to, can lead to serious repercussions in the Civil Society creating a perception of seeing every person accused of the offense under the same lens whether it be a consumer or a trafficker. Hence a serious review of this act needs to be looked through the prism of neutrality and criminal jurisprudence and to strictly contrast to the Human Rights Standards as laid down in our Constitution.

End-Notes:
  1. Narcotic Drugs and Psychotropic Substances Act, 1985, Acts of Parliament, 1985 (India)
  2. Sharma, Shweta. (2017). An Overview on Narcotic Drugs and Psychotropic Substances Act, 1985. Journal of Forensic Sciences & Criminal Investigation. 4. 10.19080/JFSCI.2017.04.555644.
  3. Noor Aga v. State of Punjab and Ors. (2008) 16 SCC 417 (India)
  4. George, Joshua and Krishnan, Ashwin, Loopholes in the Narcotic Drugs and Psychotropic Substances Act, 1985 (March 14, 2012). Available at SSRN: https://ssrn.com/abstract=2021750 or http://dx.doi.org/10.2139/ssrn.2021750
  5. Section 27 of NDPS Act, 1985.
  6. Section 37(1) of NDPS Act, 1985.
  7. Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705 (India)
  8. Section 64 of NDPS Act, 1985.
  9. Ronald L. Akers, Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken, Fall 1990, Article 6, Northwestern University.
  10. https://ncrb.gov.in/sites/default/files/Statistics/Statistics-2015_rev1_1.pdf
  11. http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Table%204.7.pdf
  12. Neha Singhal-Naved Ahmed, Criminalisation Leads to Exploitation: The Mumbai Story No One Knows About, Vidhi Centre for Legal Policy, https://vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/
  13. Mathew John, The NDPS Act: Room for greater reform, POLICY BRIEF, Centre for Public Policy Research, https://www.cppr.in/wp-content/uploads/2016/05/The-NDPS-Act-Room-for-greater-reform.pdf

    Award Winning Article Is Written By: Mr.Aditya Mehrotra
    Awarded certificate of Excellence
    Authentication No: FB205814499304-22-0222

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