By Harshpreet Kaur
Published On: November 18, 2021 at 19:10 IST
Introduction
What is the meaning of the word ‘drug’? What is drug addiction? And why do we need to control or regulate it? Drug is a chemical substance that affects the structure or functioning of a living organism, i.e., it causes changes in the working of mind and body.
Drug Addiction is a disease, in which a person losses his ability to control usage of drugs and takes it repeatedly leading to addition, which then ultimate affects a person’s brain and behavior.
As to why it is necessary to regulate it, is an open book, we regularly come to know lots of cases where drugs have not only ruined the person’s life but as well other person’s life even if they have no connection between them such as in cases of rape.
Entry 19 of List III (Concurrent List) of Schedule VII of Constitution of India, gives power to State and Center to legislate upon the matters relating to “Drugs and poisons”, but the power is subject to Entry 59 of List I (Union List) of Schedule VII of Constitution of India which is, “Cultivation, manufacture, and sale for export, of opium”.
The Centre drawing its power from Article 253 of Constitution of India[i], wherein, the Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or conventions, introduced a Bill, to prohibit the person from production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance production, the Bill was introduced in Lok Sabha on 23 August 1985, it was passed by both the Houses of Parliament, and on 16 September, 1985.
The Bill got assent from then President Giani Zail Singh and became an Act called, The Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred as NDPS Act).
The preamble of the Act says:
“An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, [to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances] and for matters connected therewith.”[ii]
Why do we need NDPS Act, 1985?
- Article 47 of Constitution of India mandates a duty upon the State, wherein State shall raise the standard of living of people and improve the public health as well as shall endeavor to stop the consumption of intoxicating drinks and drugs which can be injurious to health except those which are made for medicinal purposes[iii].
- Insufficiency of previous laws
- Opium Act, 1857
- Indian Penal Code, 1860
- Opium Act, 1878
- The Dangerous Drugs Act, 1930
These Acts were made to regulate the drugs and opium but certainly they lacked many provisions and stringent punishments and thus all these Acts were consolidated into one Act and Opium Act, 1857, Opium Act, 1878, The Dangerous Drugs, 1930 were repealed by Section 82, of NDPS Act, 1985
- International Conventions
The Act was also made keeping in view of international treaties signed by India, to fulfill its obligations under the:
Single Convention on Narcotic Drugs of 1961, (to prohibit production and supply of specific narcotic drugs and of drugs with similar effects except under license for specific purposes, for example in medical treatment and in research),
Convention on Psychotropic Substances of 1971, (to control psychoactive drugs such as amphetamine-type stimulants, barbiturates, benzodiazepines and psychedelics), and
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, (it provides additional legal mechanisms for enforcing the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances).
Important Provisions
- Extent
First of all, what we need to know is what it is extent of the Act, so Section 1 of NDPS Act, tells the short title, extent and commencement like any other Act, which is, this Act applies to Whole of India, and also its extent not only citizens in India but All Citizen whether they are outside India as well as to All Persons on ships and aircrafts registered in India.
- Important Definitions
Section 2 of NDPS Act, gives us definitions, like any other Act, but we will discuss only some of the important definitions which is given under this Act:
(i) “Addict” means a person who has dependence on any narcotic drug or psychotropic substance
(iii) “cannabis (hemp)” means— (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
(xiv) “Narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
(xv) “Opium” means— (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent. of morphine
(xxiii) “Psychotropic substance” means 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
Thus if a person is found to be dependent on drug he will be considered as addict under NDPS Act, and such drug could be charas, ganja, any mixture of them, opium etc.
- Power to add to or omit from the list of psychotropic substances
Very Interestingly the Central Government under Section 3 of NDPS Act[iv], has reserved its power to add or delete such substance or natural material or salt or preparation of such substance or material, from the list of psychotropic substances as and when the government thinks it is necessary or expedient to do so in a very simple way just through notification in official gazette without any Bill or amendments to be passed on the basis of available information or a decision under any international convention.
- Narcotics Control Bureau
The Central Government has set up a Statutory body under Section 4(3) NDPS Act, working as an Indian federal law enforcement, intelligence, and nodal agency in 1986, with regard to drug trafficking, assisting international and foreign drug law enforcement agencies, and coordinating drug law enforcement nationally.
- Prohibition
Section 8 of NDPS Act, puts prohibition on operations such as cultivation of cannabis or coca plants and also prohibits its manufacturing, possession, sale, purchase as well as puts prohibition on import or export from any narcotic drug or psychotropic substance but has exceptions to it for medical and scientific purposes.
- Death Penalty
Section 31A of NDPS Act, puts punishment on a person which make extend to death or capital punishment in cases where a person has been convicted for the commission, attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under section 19, section 24, Section 27A and for offences involving commercial quantity of any narcotic drug or psychotropic substance in certain offences, or financing, directly or indirectly such offenses.
- Jurisdiction
Under Section 31A(2) of NDPS Act, if any person convicted by a competent court of criminal jurisdiction outside India under any corresponding provisions under Section 19, Section 24 or Section 27A and for offences involving commercial quality of any narcotic drug or psychotropic substance he shall be dealt with as if he has been convicted by a court in India. As discussed earlier in the extent, citizens outside India will also be guilty of such offences and accordingly be dealt with.
- Presumption of guilty mind
Under Section 35 of NDPS Act, the court shall presume the existence of culpable mental of the accused but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the Act charged as an offence in the prosecution.
- Special Courts
Section 36A of NDPS Act, with a ‘non-obstante’ clause mandate that all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court, to ensure speedy trial.
- Probation
Under Section 39 of NDPS Act, the court has power to release addicts convicted under Section 27 or for offences relating to small quantity of any narcotic drug or psychotropic substance, and if found Guilty the court may, on entering on bond with or without sureties, instead of sentencing him at once to any imprisonment, with his consent, direct that he be released for undergoing medical treatment for de-toxification or de-addiction from a hospital or an institution maintained or recognized by Government, to appear and furnish before the court within a period not exceeding one year.
- Search and Arrest Warrants
Section 41 of NDPS Act, have given the power to issue search and arrest warrants, to Magistrates as well as in specially designated Gazetted officers of departments of central excise, narcotics, customs, revenue intelligence, or any other department. This is done to ensure both timely and effective action in response to any information received.
- Conditions under which search of persons shall be conducted
Under Section 50 of NDPS Act, a person can make a request to be searched under a Magistrate or Gazetted officer and the officer can detain such person until the Magistrate is brought.
However, if the officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, he may, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973[v] and shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
- Immunity
This is an very appreciable initiative taken by the government, under which a addict is given a chance to go for a medical treatment and upon which he shall not be liable for prosecution, Section 64A of NDPS Act, can be used by an addict but such addict should be charged with an offence punishable under Section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, and who voluntarily seeks to undergo medical treatment for de-addiction and if he undergoes such treatment he shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. But this immunity can be withdrawn if the addict does not undergo the complete treatment for de-addiction.
- Division of Punishment
Under NDPS Act, Punishment is divided into 3 categories based upon the quantities taken, which are- small quantity, commercial quantity and quantity lesser than commercial quantity but greater than small quantity.
Under Section 21 of NDPS Act,Punishment for contravention in relation to manufactured drugs and preparations is given as follows: is given as follows:
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, 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.
- Provision for Punishment
Minimum Sentence for dealing in drugs – 10 Years Rigorous Imprisonment coupled with Rs. 1 lakh fine
For repeated drug offenders – Capital punishment can be given
For Personal Consumption – 6 months to 1 year Imprisonment
No relief for drug convicts by – termination, remission, computation.
Landmark Judgements:
- Toofan Singh Vs The State of Tamil Nadu, 2013[vi] – Officers invested with powers under Section 53 of NDPS Act are “police officers”; confessional statement made to them are inadmissible as evidence.
In this case, Supreme Court observed that the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act[vii], and thus any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. That a statement made before an officer designated under Section 42 or Section 53 cannot be used as a confession statement but can be used as a basis to convict a person under the NDPS Act.
- Gurdev Singh Vs State of Punjab, 2021[viii] – Poverty cannot be a Mitigating Factor while awarding punishment under NDPS Act. & Quantity Of Narcotic Substance Recovered is a Relevant Factor to impose Punishment Higher Than the Minimum Punishment of 10 Years.
In this case, Supreme Court Observed:
That persons who are dealing in narcotic drugs are instruments in causing death and also have increased the death numbers of innocent young people who are the most vulnerable; which is causing a deadly impact in the society. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration.
Merely because the accused is a poor man or is a sole bread earner cannot be such mitigating circumstances in Favour of the accused while awarding the punishment in the case of NDPS Act.
That quantity of narcotic substance recovered is a relevant factor that can be taken into account for imposing higher than the minimum punishment under Section 32B of NDPS Act,1985 as the section itself gives the right under “such factors as it may deem fit”.
Conclusion
The drug problem in India has been increasing with no of years passing by. The most terrible part is that younger generation which is the future of the country are been widely affected by it, either directly or indirectly, which is not good thing for any nation.
As per a report on “Magnitude of substance use in India, 2019”, about:
“1.2% of Indian population (approx. 1.3 crore persons) have used illegal cannabis products i.e., ganja and charas (as opposed to legal cannabis i.e., bhang) between 2017 and 2018 and around that 2.1% of the country’s population (approx. 2.26 crore individuals) use opioids which include opium, heroin and a variety of pharmaceutical opioids.”[ix]
The NDPS Act was enacted with the objective to make stringent provisions in relation to narcotic drugs and psychotropic substances, and so thus this Act justifies the objectives.
Recently you might have seen many news relating to NDPS Act, especially when it comes to the celebrities, such as Rhea Chakraborty, Aryan Khan, (son of Shah Rukh Khan) and many others, and the fight of them getting bail. NDPS Act, has made a stricter provision of getting bail. The fight against drug is a long journey due to involvement of drug trafficking, under world etc., but we will fight it through one day.
ABOUT THE AUTHOR
Harshpreet Kaur is a final year student of LL.B. at Lloyd Law College. She has completed CS Executive and has won 1st Prize in Tax Quiz as well as Company Law Quiz. She is a very creative, responsible, self-motivated and practical person. She chose law as a career because she believes law is very interesting and she is working in this field to make the law interesting for others as well using platforms like YouTube on hp tales and Instagram on hp.tales.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
[i] The Constitution of India, art. 253
[ii] The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985)
[iii] The Constitution of India, art.47
[iv] The Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985), ss. 1, 2, 3, 4, 8, 19, 24, 27A, 31, 31A, 35, 36A, 39, 41, 42, 43, 50, 53, 64A
[v] The Code of Criminal Procedure, 1973, s. 100
[vi] Toofan Singh Vs The State of Tamil Nadu, (2013) 16 SCC 31
[vii] The Indian Evidence Act, 1872 (Act 1 of 1872), s. 25
[viii] Gurdev Singh Vs State of Punjab, LL 2021 SC 196
[ix] National Drug Dependence Treatment Centre (NDDTC), & All India Institute of Medical Sciences (AIIMS), New Delhi , Report on “Magnitude of substance use in India, 2019”