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A detailed analysis of the Narcotic Drugs and Psychotropic Substances Act

There are typically two categories of crimes. First, there are the more usual crimes that affect people, such as murder, theft, or assault. The second category is White-Collar Crimes, or Socio-Economic Crimes, which include the sale, hoarding, trafficking, and use of illegal drugs and psychoactive substances. These crimes are mostly committed to earn money, property, or personal gain. Such acts are frequently done by organised gangs with connections and influence.

Our country has a long history of opium and cannabis use, mainly for medicinal, religious and recreational reasons, but now this disease of drug misuse hae stretched its tentacles into practically every aspect of public life, and it has had a wide range of negative repercussions on the societies where it has been most prevalent.

Because it is intimately linked to other organised crimes, human trafficking, and money laundering as well as health risks like HIV -AIDS, the problem of drug usage is seen as being significantly more severe than other societal ills. Cannabis and opium have a long history of use in India for social, spiritual, and therapeutic purposes. According to estimates, there are around 850 thousand intravenous drug users (IDUs) in the country.

Drugs Control Laws in India

The origin for the development of the drugs control laws in India trails back to The Opium Act of 1857 followed by The Opium Act of 1878 and the Dangerous Drugs Act of 1930. These laws lacked any overarching concepts or measures to address the issue of drug abuse in a holistic manner instead they were designed to regulate and monitor use of some specified drugs. Additionally, there contained very minor punishments for their violation.

India being signatory to all three of these UN conventions - The UN Single Convention on Narcotic Drugs (1961), UN Convention on Psychotropic Substances (1971), and UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), took into consideration its responsibilities while enacting NDPS Act as well as the Article 47 of the Constitution.

The act being the one of the harshest laws in the country prohibits production, cultivation, sale, purchase, possession, trade, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes under license.

Nature and Object of the Act
  1. To prohibit drug trafficking and its consumption by - Consolidating and amending laws relating to narcotics drugs and psychotropic substances
  2. Controlling and regulating the operations relating to narcotic drugs and psychotropic substances and providing for deterrent punishment.
  3. Implementing the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances
  4. Introducing methods for the forfeiture of property derived from or used in illicit traffic of such drugs and substances.[1]

Major Definitions under the Act
The Section 2 of the NDPS Act defines the meaning of various terms used within the legislation.

Narcotics:

The term 'narcotic drug' is defined in the Section 2 (xiv) as - coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs; while generally it means - a drug that in moderate doses dulls the senses, relieves pain, and induces a feeling of elation and profound sleep but in excessive doses causes stupor, coma, or convulsions.

Psychotropic Substances

The Section 2 (xxiii) defines the term 'psychotropic substance' in its clear definition as - any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;

Chapters of the Act

The Act consists of 6 chapters for the purpose of this act:

Chapter I: Preliminary
This chapter contains the name, jurisdiction of the Act (short title, extent, and commencement) and the important definitions for the purpose of the Act. It also talks about the powers relating to addition or omission of items from the list of psychotropic substances.

Chapter II: Authorities and officers
This chapter deals with the powers of the central government to control the illegal drug trafficking. It also contains the powers of the investigating officers appointed by the central and state governments. It further talks about the Consultative Committee and guidelines for its composition.

Chapter II A: National fund for control of drug abuse
This chapter outlines the establishment of a fund by the central government to manage the abuse of narcotics and psychoactive substances under the Section 7-A. This also talks about an annual report of the activities financed under the aforementioned section.

Chapter III: Prohibition, control and regulation
This chapter contains a detailed list of all the activities prohibited under the act, as well as the measures for the control and regulation of Narcotic Drugs and Psychotropic Substances possession. It further talks about the role of the State and Central Governments in the prohibition of the

Chapter IV: Offences and penalties
This whole chapter deals with the list of offences under the act and their subsequent for the purpose of the act. Since the offences defined under the act are criminal offences, hence, this also enumerates trial process as well as stringent punishments. The following table shows the punishments for the amount of drugs confiscated from the possessor[2]-
 
Quantity Punishment
Small Rigorous imprisonment for a term up to 1 year, or with fine up to Rupees 10,000, or with both
Less than commercial Rigorous imprisonment for a term upto10 years, or with fine up to Rupees 1 Lakh, or both
Commercial Rigorous imprisonment for a term of 10 to 20 years, or fine of Rupees 1 Lakhs to 2 lakh
Chapter V: Procedure
This chapter talks about the exact legal procedure that must be followed for an investigation. Any activity by the authorities during the investigation that does not abide by the provisions of this chapter of the act, shall lead to legal violation. It describes:
  1. The process of warrant issue;
  2. Process of property seizure of any convict;
  3. Duty to inform about the illegal cultivation;
  4. The capacity to carry out regulated deliveries in addition to numerous other important processes;
  5. The statements' relevance in certain situations; and
  6. The police's authority to take custody of the items they have confiscated.

Chapter V A: Forfeiture of an illegally acquired property

This chapter covers the process through which a person's illegally acquired property is forfeited by the police. The process includes identifying the property in question, seizing it, managing it, issuing a notice to the offender, and other similar steps. It denotes which party has the burden of evidence, the fine due at the time of seizure, and certain transfers that are void. It further specifies the tribunal's authority to decide on the offences while establishing its jurisdiction over appeals. The police have the authority to seize illegally possessed property, make findings in a case, and in some circumstances, release property.

Chapter VI: Miscellaneous
All of the Act's less detailed provisions are covered in this chapter. This stipulates that when creating laws and regulations for their areas of responsibility, the federal government and the state governments must take into account international conventions. Additionally, it gives the government the authority to locate and manage centres for addicts' recovery. The central government has the authority to enact laws or transfer this authority to other entities. All members of the parliament must study the rules and notices pertaining to any provision of the Act.

For the purposes of this Act, the state governments have been given similar rights, obligations, and responsibilities as the federal government.

Amendments to the Act
The NDPS Act was amended four times in the years 1989, 2001, 2014 lastly in the year 2021.

Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989) 1989:

A significant amendment was made to the NDPS Act which added stricter guidelines and a section for financing illegal activity under Section 27A. Production, possession, sale, purchase, transit, warehousing, and anyone detained under Section 27A are all considered to be part of the trafficking of illicit narcotics.

Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001:

In order to ensure that drug users and others who conduct less serious offences receive less severe penalty, the Amendment Act of 2001 rationalised the sentence structure while sees to it that drug traffickers who deal in considerable amounts of drugs are punished with deterrent terms. These clauses have occasionally been read incorrectly to mean that when calculating amounts, only the pure drug content in the quantity of drugs confiscated should be taken into account. This amendment aims to clarify the legislative intent to use the full quantity of drugs seized in a case for assessing the level of punishment and not only the pure drug content because the Act appropriately allows for punishment for drug preparations as well.

Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014:
The NDPS act's Section 71 outlines how drug cases should be handled, including the regulations for treatment facilities. The Act's high-level offences were subject to harsher penalties as a result of the earlier changes, which also made drug use illegal. Morphine producers just need a single licence from the relevant State Drugs Controller, as opposed to the previous process that required numerous permits with various validity periods and lengthy stages.

The amendment prevented state-by-state conflict by achieving uniform regulation across the nation. Patients now have easier access to a number of necessary narcotics that are utilized in pharmaceutical formulations, including morphine, fentanyl, and methadone. As a compromise, the death penalty was changed to a specific 30-year term for repeat offenders found guilty of trafficking substantial amounts of drugs. The maximum punishment for "small amount" offences has now been increased from 6 months to 1 year as a result of this amendment.

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021:

A drafting error was corrected in the Narcotic Drugs and Psychotropic Substances Act, 1985 through this amendment bill of 2021. When the Act was amended in 2014, the definition of illicit activities was altered. The language in this section, which still makes reference to the preceding clause number about the penalties for funding such illegal actions, was not changed. The section of the Bill that deals with fines gained a new clause number.

Important Sections under the Act

Section 3: Power to add or omit from the list of psychotropic substances

It deals with the authority to include or exclude items from the list of psychotropic drugs. Under Section 3 of the NDPS Act, the Central Government has reserved the right to add or remove any substance, natural material, salt, or preparation of any such substance or material from the list of psychotropic substances as and when it deems it necessary or expedient to do so. This can be done in a very straightforward manner by publishing a notification in the official gazette without a bill or amendments needing to be passed based on the information that is currently available or a decision that has been made.

Section 7: National Fund for the control of drug abuse

Under Section 7A[3] of the NDPS Act, the Central Government of India is empowered to form a fund named as National Fund for Control of Drug Abuse. The fund is specifically meant to be used to pay for costs associated with the actions taken to combat the illicit trafficking of narcotic narcotics and psychotropic substances. Section 7B[4] includes a requirement for the Central Government to submit an annual report on the projects it funds.

Section 8: Prohibition of certain operations

It is unlawful for anyone to cultivate any coca plant or gather any portion of a coca plant, or cultivate the opium poppy or any cannabis plant, or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import interstate, export interstate, import into India, export from India, or tranship any narcotic drug or psychotropic substance, according to Section 8(c).[5]

But there is an exception to this section:
'Medical or Scientific Purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder.'

In 2006, State of Uttaranchal[6] held that the exceptions must be judged on two criteria:

  • Whether the drugs are used for medicinal purposes,
  • Whether they fall within the scope of the regulatory provisions contained in Chapters VI and VII of the act.

Section 21: Punishment for contravention in relation to manufactured drugs and preparations

Under this section, the NDPS Act divides the punishment into three categories based on their quantity taken: small quantity, commercial quantity, and quantity less than commercial quantity but higher than a small quantity.

Section 25: Punishment for allowing premises, etc. to be used for commission of an offence

This section talks about the punishment for intentionally allowing premises, etc., to be used to commit an illegal activity. Anyone who knowingly permits a home, room, enclosure, space, place, animal, or conveyance to be used by someone else to commit an offence punishable under any provision of this Act while they own, occupy, control, or use that property will be subject to the punishment specified for that offence.[7]

Section 27: Punishment for consumption of any narcotic drug or psychotropic substances

The consumption of any narcotic drug or psychotropic substance other than cocaine, diacetyl-morphine, or any other narcotic drug or psychotropic substance may result in a prison term of up to six months, a fine of Rupees 10,000, or both. Various punishments are set forth in this section for the consumption of narcotic drugs or psychotropic substances, including harsh imprisonment up to one year, a fine that may reach twenty thousand rupees, or both.

The Goa Court Stated That In Order To Satisfy The Section 27 A, The Requirements Must Be Met.[8]
  • A person has been discovered in possession of any narcotic or psychoactive substance, regardless matter how "small" the quantity is;
  • Any such drugs or psychoactive substances he may have had were for his own use only, not for resale or distribution.[9]
  • As a result, it should be illegal to possess such products in accordance with any of the Act's provisions, rules, orders, or permits;

According to the Punjab Court[10], if a person who is already incarcerated is found guilty of a later crime, the jail term will typically start after they have completed their initial sentence. Only if it makes sense given the particulars of the case might the court run the sentence concurrent with a prior one. The court must utilise its power responsibly, not automatically, and in accordance with solid judicial standards. Whether the option to order concurrent sentences is to be used depends on the type of offense(s), as well as the specific facts and circumstances of each case.
 

Section 35: Presumption Of Culpable Mental State

According to Section 35 of the NDPS Act, the accused's culpable mental state shall be presumed to exist; however, the accused shall have the burden of proving[11] his innocence. The section says that the existence of accused's culpable mental state cannot be established by a preponderance of probabilities.[12]

Section 36A: Offences Triable By Special Courts

To ensure a speedy trial, this Section's "non-obstinate" provision specifies that any offence under this Act that carries a sentence of more than three years in jail shall only be tried by the Special Court.

Section 41: Power To Issue Warrant And Authorisation

According to Section 41 of the Act, magistrates and specially appointed Gazetted officers of the central excise department, narcotics department, customs department, revenue intelligence unit, or any other department of the state are both able to issue search warrants. As a result, while getting information, actions can be conducted quickly and successfully.

Section 50: Conditions Under Which Search Of Persons Shall Be Conducted

The NDPS Act lays out requirements that must be met while conducting a person search. Such requirements must be adhered to in order to avoid breaking the law, which could lead to the accused's acquittal. According to Section 50 of the NDPS Act, if the person whose search is to be conducted demands to be searched by a Gazetted Officer, the authorised officer who is acting on prior information to search the person must take the person to the closest Gazetted Officer.

Section 64A: Immunity From Prosecution To Addicts Volunteering For Treatment

Any addict who is charged with a crime punishable by Section 27 or with crimes involving a small amount of narcotics or psychotropic substances and who voluntarily seeks out and receives medical treatment for addiction from a hospital or other facility run or recognized by the government or a local authority is not subject to prosecution under Section 27 or under any other section for crimes involving a small amount of narcotics or psychotropic substances.

As long as the addict receives the whole course of de-addiction treatment, the aforementioned protection from prosecution may be revoked.

Section 67: Power To Call For Information, Etc.

According to this clause, if an authorised officer suspects a violation of the NDPS Act, the officer may request information from anyone. No confession may be recorded under Section 67 since the empowered official has not been given the authority to do so, either expressly or obliquely.

Major flaws associated with the Act

Like many other acts, this act also comes with some shortcomings like:

  • Prolonged Trails
  • Bail rules that release the wealthiest on bail while keeping the poor in jail
  • Investigating agencies' failure to present cases for prosecution in accordance with the prescribed procedure
The Act reverses the burden of proof and assumes the guilt of the accused person. It is assumed that the accused knew what he was doing, had a purpose, and intended to do it.[13] The Act's restrictions on the issuance of bail amount to a denial and guarantee years in prison. A defendant cannot be released on bail unless the court has a good faith belief that the defendant is innocent.[14]

Furthermore, it is stated that if the accuser is not proven to be in possession of the illegal narcotics that were taken from him, it will be assumed that he was.[15]

Conclusion
Even though India has robust legal protections, drug trafficking remains unchecked as the number of drug usage cases rises daily. The inappropriate application of the laws is the primary cause of this. As a result, updates that include the incorporation of new drug compounds and their derivatives are occasionally required. Addicts' drug use should be monitored and controlled by established institutions and organisations.

Many laws are made to address societal issues, but when they are applied incorrectly, they can have harsh consequences. When laws are increasingly restrictive, draconian legislation is more likely to appear. The NDPS has the potential to be abused even more given how stringent it is. The courts must therefore make sure that the law is not used as a weapon and that justice is served to all societal groups.

References:
  • Analysis of the NDPS Act 1985 (finology.in)
  • Drug Laws & Punishment in India | NDPS Act, 1985 Explained - YouTube
  • Narcotic Drugs and Psychotropic Substances Act, 1985 - Wikipedia
  • IJCRT1801345.pdf
End-Notes:
  1. Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330
  2. Section 21 of the NDPS Act, 1985 (refer to page )
  3. Section 7A of the NDPS Act, 1985
  4. Section 7B of the NDPS Act, 1985
  5. Section 8(C) of the NDPS Act, 1985
  6. State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356.
  7. Pradip Raghunathsingh Thakur v. State of Maharashtra, (2000) 3 Mah LJ 28.
  8. Arun Kambli v. State of Goa, (2000) 1 Mah LJ 780.
  9. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, (1993) 3 SCC 145 (150) : 1993 SCC (Cri) 803
  10. Anil Kumar v. State of Punjab, (2017) 5 SCC 53.
  11. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 : 2000 SCC (Cri) 496.
  12. Bhola Singh v. State of Punjab, (2011) 11 SCC 653 : (2011) 3 SCC (Cri) 454.
  13. Section 35 of the NDPS Act, 1985
  14. Section 37(1) of the NDPS Act, 1985
  15. Section 54 of the NDPS Act, 1985

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