An Analysis Of The Narcotic Drugs And Psychotropic Substances, Act (NDPS), 1985
Let us look at two quotes.
“Drugs are the enemies of ambition and hope- and when we fight against drugs we are fighting for the future”.
“The estimated prevalence of opium use in India is considerably higher than the global and Asian average. The global average is 0.7% (15-64 years) and Asia’s average is 0.46%, India’s estimated average is 2.06% (10-75 years)”
-A 2019 survey by Magnitude of Substance Abuse
The first quote speaks about motivation towards the decrement of drug abuse; and the second quote is the reality that occurs in the world— specifically in India. No matter the amount of awareness that is spread against drug abuse or the steps taken by Indian authorities against it, drug abuse is still sitting high on a throne.
This article shall focus on the “Narcotic Drugs and Psychotropic Substances, Act (NDPS), 1985” in India— with regards to drug abuse.
WHAT IS DRUG ABUSE?
Before delving into the law, let us know what drug abuse is.
“Drug abuse or substance abuse” alludes to the usage of specific chemicals which make pleasurable Impacts on the brain. Some major causes of drug abuse are –
• Children & adults take drugs out of curiosity.
• Prescription drugs- originally provided to patients for reducing pain in some body parts are also used for recreation, and thereby it becomes addictive.
• Some specific chemicals are used in religious practices or rituals.
Some of the widely used drugs in India are-
DRUG LAWS IN INDIAN LEGAL SCENARIO
THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, ACT (NDPS), 1985
This Act came into force on 14th November 1985. The Act “applies to all citizens of India (even citizens outside India), and all persons on ships and aircrafts registered in India.”
THE OBJECTIVE OF THIS ACT IS –
• To consolidate and amend the laws- relating to narcotic drugs.
• To make stricter provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
• Control of illicit trafficking in the drugs- listed under this Act.
• Preventing any sort of drug abuse.
• Medical treatments such as treating and rehabilitating drug addicts.
AUTHORITIES & OFFICERS UNDER THIS ACT –
As per chapter II of this Act, it is mentioned that “it is the duty of the Central Government to take all necessary measures that are essential for preventing and combating the abuse of narcotic drugs, and also the abuse of psychotropic substances and the illicit traffic of them.”
The Central Government has to appoint a “Narcotics Commissioner” and also “other such officers”, as per the necessity in the country.
It is mentioned in the Act that the “Narcotics Commissioner, either by himself or through the various officers inferior to him, shall perform all the functions given to him by Central Government. All the officers other than the Narcotics Commissioner are under the control and direction of the Central Government”.
THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES CONSULTATIVE COMMITTEE
As per this act- “An advisory committee can be constituted by Central Government (through a notification in the Official Gazette) which is to be known as the Narcotic Drugs And Psychotropic Substances Consultative Committee.” This committee shall provide advice to Central Government- relating to the maintenance and control of various narcotic drugs and psychotropic substances.
OFFENSES & PUNISHMENTS UNDER THIS ACT
Chapter IV of this Act (section 15 to section 40) portrays all the offenses and punishments with relation to drug abuse.
PUNISHMENT FOR CONTRAVENTION IN RELATION TO POPPY STORE (SECTION 15)
Under this section, any act of production or possession, transportation, inter-state importation, and exportation, sell or purchase, or use, or omission of poppy straw is an offense.
Now, the punishments are decided based on the amount of poppy straw involved in a particular case-
- PUNISHMENT FOR CONTRAVENTION IN RELATION TO COCA PLANT AND COCA LEAVES (SECTION 16)
As per this act, “If someone is found to produce, possess, sell, purchase, transport or inter-state import or export, or use coca leaves, he shall be punishable with imprisonment for one term which can extend up to 10 years, and with a fine which can extend to ₹1,00,000.”
- PUNISHMENT WHERE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ARE ILLEGALLY IMPORTED INTO INDIA OR EXPORTED FROM INDIA (SECTION 23)
In cases where narcotic drugs and psychotropic substances are imported into India or exported from India illegally, the punishments are-
4.PUNISHMENT FOR EXTERNAL DEALINGS IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES IN CONTRAVENTION OF SECTION 12 (SECTION 24)
As per this Act, “Any person who trades a narcotic drug or psychotropic substance obtained outside India and is supplied to a person residing outside India without any authorization of Central Government or otherwise, then he shall be punishable with imprisonment of one term which shall not be less than 10 years but can extend 20 years. The person shall be also ordered to pay a fine which will not be less than ₹1,00,000 but can extend to ₹2,00,000, and even in some cases, the court can order the person to pay a fine exceeding ₹2,00,000.”
5. PUNISHMENT FOR CONSUMPTION OF ANY NARCOTIC DRUG OR PSYCHOTROPIC SUBSTANCE (SECTION 27)
As per this Act , “Where a person consumes any narcotic drugs or psychotropic substance- particularly those mentioned in the Act- such as cocaine, morphine, diacetylmorphine, or any other narcotic drug or psychotropic substance which is published in the Official Gazette by Central Government, the person shall be faced with imprisonment which can extend up to one year and he shall also be liable to pay a fine which can extend to ₹20,000, or both.”
If the person consumes a drug that is not specified in the Official Gazette, then the person shall “face imprisonment for one term which can extend to 6 months, or with a fine which shall extend to ₹10,000, or with both.”
IMMUNITY FROM PROSECUTION TO ADDICTS VOLUNTEERING FOR TREATMENT (SECTION 64A)
Under section 64A of this Act, it is mentioned that “any addict who is convicted under any offense as mentioned under this Act under section 27, or with offenses which involves a small quantity of narcotic drugs or psychotropic substances, he shall be allowed to undergo medical treatment for de-addiction from a hospital or an institution which must be maintained or recognized by the Government or a local authority, if he voluntarily seeks so. Such a person shall not be prosecuted under section 27 or any other section under this Act involving a small quantity of narcotic drugs or psychotropic substances.” However, it must be noted that he shall be prosecuted if the person does not undergo complete treatment.
State of Punjab v. Balbir Singh
Under this case, the court held that the accused person must be given an opportunity to be “searched before a Magistrate or a Gazette officer” and he shall be made known of the existence of such a right. The court further held that “if the person is not informed that he is going to be searched, then that would be against section 50 of the NDPS Act”, where it is written that the “search must be conducted in front of a nearest Gazette officer or Magistrate”.
Arif Khan v. State of Uttarakhand
In this case, Mr. Arif Khan was accused of owning “charas”, or cannabis. He was informed that he has the right to be searched in the presence of a Gazette officer or a Magistrate. However, Mr. Khan consented to the fact that the raiding police party can search him as well. As per his wish, the police searched him after obtaining his consent in a written form, and thereby found that the accused had 2.5 kg of charas in his possession.
In this case, the court acquitted the person “on the grounds of non-compliance with section 50 of the NDPS Act.” The court held that-
“It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act, but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate”.
Surinder Kumar Khanna v. Intelligence Office Directorate of Revenue Intelligence
In this case, the plaintiff was reportedly involved in a drug racket case. During the investigation of the same, 2 persons allegedly said that Mr. Khanna was involved in this racket. Thereby, the plaintiff was arrested. The High Court convicted the person; however, Mr. Khanna appealed to the Supreme Court. He appealed because he was being convicted solely based on words and that there were no records or evidence to prove it.
The Supreme Court quashed the verdict made by High Court, and thereby the court held that – apart from the statements provided by the co-accused in this case, there exists no evidence which suggests that the appellant is involved in this crime. It further held that the confessional statement made by the co-accused cannot be used to make a conviction. Even if a search statement under section 67 of the NDPS Act may amount to confession, but the court held that “certain additional features must be established before such a confessional statement could be relied upon against a co-accused.”
Note- As per section 67 of this Act, any person authorized by Central Government or State Government can –
“• Call for information from any person to satisfy himself, whether there has been any contravention of the provisions of this Act, or any rule or order made thereunder.
• Require any person to produce or deliver any document or thing useful or relevant to the inquiry
• Examine any person acquainted with the facts and circumstances of the case.”
AMENDMENT OF THE NDPS ACT
The Act has been amended three times – in 1988, in 2001, and recently in the year 2014.
Under The 2014 Amendment Of The Act- It recognizes the necessity for pain relief through some drugs and so, the Act created “a class of medicines called Essential Narcotic Drugs (ENDs). “
CRITICISMS OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, ACT (NDPS), 1985
• A major shortcoming of this Act is that the burden of proof is put largely on the accused person and it is pre-assumed that the person is guilty. As per section 54 of this Act, unless the opposite is proved, it is believed that the accused person is intentionally holding the drugs.
• Thirdly, it is not mentioned under the Act about the definition of consumption. Thus, the question arises that at what stage is the crime been committed? Is it after the act of consumption or before it? For example, if a person “A” has consumed a drug several years ago, will A be arrested in the present time?
• Under section 37 of the Act, it is mentioned that the person who has been accused as per the Act, cannot be released on bail, and his offense shall be deemed as a cognizable one.
In conclusion, I would like to point out that despite the prevalence of the recently amended NDPS Act, yet drug usage and drug abuse are not at all decreasing in India.
India is really “high on drugs” – such as ganja, heroin, opium, and others. What the real problem here is that- the moment India realizes that there is a problem, it comes up with a law- without realizing the perfect way in which the law can be implemented.
Just as strict implementation of laws on drugs are necessary, similarly awareness and education amongst the citizens of India in this context are necessary as well. As we all know, through a strong and practical education system, India can one day be known as a country without any consumption and possession of illegal drugs. Hoping for that day to come very soon.
Aheli Ghoshal, Amity University Kolkata, BA LLB, 1st Year.