Introduction:
Drug abuse in India is not a new subject area to look into. We have been witnessing the abuse for ages. Alcohol, Cannabis, Heroin, opium and morphine are some drugs which are being abused by a large number of society. These drug abuses directly/indirectly affect the mental health, family, imbalance the physical order, attract heinous crimes such as murder/ rape or child abuse. To tackle such social problems legislature enacted Narcotics Drugs and Psychotropic Substances bill on 16th of September 1985 (hereinafter NDPS act). This article tries to look into the act and what it states.
Background of NDPS
India being the ritually oriented country had witnessed the usage of drugs in ceremonial rituals and there was no prohibition on it because of its culture at that particular time period. Marijuana and opium are amongst the drugs which were used by many people and sold at free of cost. It was also said that the usage of cannabis was mentioned in Vedas. As time passed, its usage became an addiction, which resulted in trafficking and started weakening the country’s economy, either directly or indirectly. To tackle such problems Narcotic Drugs and Psychotropic Substances Act was introduced by the Rajiv Gandhi led government in the year 1985, and since then the act has been amended thrice ( 1988,2001, and 2014).[1]
Elements of NDPS Act
The act is divided into six chapters and the schedule where the list of psychotropic substances is mentioned. The chapters are –
I – Preliminary
II- Authorities and Officers
IIA- National Fund for Control of Drug Abuse
III- Prohibition, Control and Regulation
IV- Offences and Penalties
V – Procedure
VA- Forfeiture of Illegally Acquired Property
VI- Miscellaneous
Chapter I- Preliminary
This chapter is divided into 3 sections. Section 1 talks about the applicability of this act on citizens as well as citizens of India living outside the country and to persons on ships and aircrafts registered in India. Section 2 gives the definition of 37 terms. Definition of terms like cannabis(hemp), coca derivative, coca leaf, illicit traffic, medicinal cannabis, opium derivative, poppy straw, and psychotropic substance are given along with the definition of other important terms. Section 3 talks about the power of the Central government in omitting and adding substances from the list of psychotropic substances in the schedule.
Chapter II – Authorities and Officers
This chapter has four sections. Section 4 talks about the measures that could be taken by the Central government in combating drug abuse and trafficking of narcotics drugs. Section 5 talks about the appointment of officers by the Central government for the purpose of this act. Looking into section 6 of this act which states that the Central Government may constitute, ‘the Narcotics Drugs and Psychotropic Substances Consultative Committee’ which will work as an advisory committee. The last section of this chapter is section 7 which talks about the appointment of officers by the state government for the purpose of this chapter.
Chapter IIA- National Fund for Control of Drug Abuse
This chapter was inserted by the amendment of this act in 1989. This chapter contains two sections which are section 7A and section 7B. Section 7A gives the power to the Central government to constitute the National Fund for Control of Drug Abuse. The fund will meet the expenditure incurred while taking measures to control drug abuse. On the other hand section 7B states that there should be an annual report of activities financed under section 7A, after the end of each financial year.
Chapter III- Prohibition, Control and Regulation
This chapter has nine sections which are related to Prohibition, Control and Regulation. Section 8 prohibits any person from cultivating coca plant, opium poppy or any cannabis plant. It also prohibits to- produce, sell, manufacture, possess, transport, warehouse, use, consume, or any tranship of narcotics drugs or psychotropic substances. Section 8A prohibits to transfer or to convert any property which is derived from the offence committed under the act. Section 9 gives the power to the Central government to permit, control and regulate the production/cultivation/manufacture of opium/poppy straw/coca plant/essential narcotic drugs/essential psychotropic substances whereas section 9A talks about the power of Central government in controlling and regulating any controlled substances. Section 10 gives similar power to the State government in permitting, controlling, and regulating just like the Central government. Section 11 says that for recovery of money after any order or decree, cannot be done by detraining/attaching narcotic drugs and psychotropic substances by any person. Section 12 restricts any person from trading or engaging, narcotic drugs and psychotropic substances outside India. Section 13 and 14 are the special provision on coca plant and cannabis, respectively.
Chapter IV- Offences and Penalties
This chapter contains 36 sections (section 15 to 40). This chapter of the act covers the punishment part. The provision of punishment for contravention in relation to poppy straw, coca plant and coca leaves, opium, poppy opium, the cannabis plant, narcotic drugs and psychotropic substances are given here. The punishment depends on the quantity involved. Punishment may extend to one-year imprisonment for small quantity, ten years imprisonment for quantity lesser than commercial quantity but greater than small quantity, and twenty years imprisonment for commercial quantity. One thing which needs to be noted here is that in Hira Singh v. Union of India[2], the court emphasised that in the seizure of mixture of any narcotic drugs and psychotropic substances, neutral substances could not be excluded from the mixture of actual substances. Suppose a person carries a mixture of 1kg of cannabis (100 gm of cannabis + 900 gm of neutral substance), 100 gm of cannabis comes under small quantity, and the punishment for it may extend to one year, now according to the judgement a person will get the imprisonment which may extend to twenty years because the involved quantity is commercial in nature. However, this judgement was subject to criticism because it was arbitrary in nature.
Every offence in this act shall be cognizable, and non-bailable for the offences coming under section 19, 24, or 27A and for commercial quantity but the condition is prescribed under the act and it is also held by the Supreme Court in State of Kerala v. Rajesh, that for bail, a chance should be given to the prosecution to oppose the bail and secondly, that for the court to believe that the accused is not guilty, there must be a reasonable ground for that and both conditions need to be satisfied.[3] It is given under section 36A which is inserted in 2001, that offences which are punishable with more than three years of imprisonment will be triable under Special court. It is interesting to note here that after the 1989 amendment, provision of the death penalty for certain offences was also inserted.
Small quantity and commercial quantity of some drugs are-
1. Poppy straw- small quantity 1000 gm, commercial quantity 50 kg.
2. Coca leaf- small quantity 100 gm, commercial quantity 2 kg.
3. Opium- small quantity 25 gm, commercial quantity 2.5 kg.
4. Cannabis- small quantity 100 gm, commercial quantity 1 kg.
5. Morphine- small quantity 5 gm, commercial quantity 250 gm.
Chapter V- Procedure
32 sections are there in this chapter (section 41 to 68). This chapter majorly talks about the procedure for issuing warrants and power to entry, search and seizure. According to this act, code of Criminal Procedure, 1973 is to be followed for warrant, arrest, search and seizures. The power of issuing a warrant is given to the Metropolitan Magistrate of either first class or second class. After the amendment of 2001, section 64A was inserted which gives immunity to any person from prosecution if he/she voluntarily seeks medical treatment for de-addiction but only if it involves a small quantity of narcotic drugs.
Chapter VA- Forfeiture of Illegally Acquired Property
This chapter was inserted by the 1989 amendment and has 26 sections (68A-68Z). It talks about the forfeiture of property acquired illegally under this section. For the application of this chapter definition of terms like freezing, illegally acquired property, concealment, and tracing along with some other terms are given.
Chapter VI- Miscellaneous
This chapter contains miscellaneous parts and has 16 sections. According to section 73, no civil court will entertain any suit or proceeding against the order or decision passed by the authority or officer under this act. Power of the Central and State government in making rules in pursuance of international conventions is also mentioned in this chapter. After the 1989 amendment, according to section 74A Central government has given the power to give directions to the State government as it deems necessary for the execution of this act.
Conclusion
Ignoring Health; Infringing Rights
Looking at the condition of drug abuse this act was enacted but this act is considered as one of the stringent and barbarous laws in India. Drug abuse and its trafficking is majorly practised by poor section of our society and the minimum imprisonment of 10 years or otherwise fine of 1 lakh, leaves this section of society nowhere and apart from that there is no regulation provided by the Central or State government for the establishment of regulated de-addiction centres because of which high-priced unauthorised centres are being established and due care is not given to the patients for de-addiction which sometimes results in death. Addition of the death penalty also makes this act equivalent to the punishment for murder. This act needs the reform by giving meaning to the act because some provisions in the act have failed to give the detail explanation, like the meaning of quantity lesser than commercial quantity but greater than small quantity, as we know that small quantity and commercial quantity of every drugs and substance has been given by the notification of the Central government, but the usage of quantity lesser than commercial quantity but greater than small quantity, is questionable, suppose a person is involved in having 102 gm of cannabis, would he be then imprisoned for ten years rather than one year for having 2 more gm than small quantity?
Legislators need to redress these undefined parts of the act for well ordered working.
References:
[1] Chaitanya Kediyal, Understanding the NDPS act, FACTLY ( June 20,2016), https://factly.in/understanding-ndps-act/
[2] 2020 SCC OnLine SC 382
[3] 2020 SCC OnLine SC 81
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