By Jalaj Tokas
Published On: October 18, 2021 at 13:08 IST
The infamous Narcotics Drugs Psychotropic Substances Act, 1985 is again making the headlines these days. This time with reference to the trial and arrest of a Bollywood stalwart’s son. The coverage of the drug bust was over the top but was to be expected in our eyeball-driven and click-driven journalism.
While the arrest and custodial interrogation of several celebrity attendees of a cruise party has sparked controversies and rumors, it has more importantly spurred the debate over criminalization of cannabis. The hype created by the media has in fact turned many people’s attention towards this subject.
In recent years, the menace of drug abuse has spread its tentacles in almost every sphere of public life and has had a large array of corrosive effects on the societies in which it has been most rampant. The reason why the problem of drug abuse is viewed as a far more serious problem than other social evils is because it is inextricably intertwined with other offences.
India has a long history of cannabis and opium use in social, spiritual and medicinal contexts. The gravity of the problem can be gauged from the statistics released by the Directorate of Revenue Intelligence (DRI) which indicate that during the last financial year, there was a massive spurt in the seizure of narcotics, with the increase in shipments seized by agencies estimated at over Rs 4,500 crore, a jump of almost nine times compared to 2018-2019.[i]
Unlike western countries India has a cultural connection of using certain natural forms of narcotic substances for celebrating some religious festivals. Thus, this cultural difference was an important aspect to be considered while framing and forcing any drugs laws in India. But, it had to be done keeping in mind the menace of substance abuse, which is still on a rise in our India.
Although since the establishment of the law, it has been amended time and again. But due to the availability of synthetic drugs and issues relating to street drugs and designer drugs, the problem in dealing with new drugs having the nature of substance abuse is a difficult task. Besides NDPS also lacks in differentiating among users, drug peddler and hard core criminals in this drug trade. Thus, the present study is an overview on the NDPS act and its competency.
What are Narcotic Drugs and Psychotropic Substances?
A Narcotic Drug means coca leaf, cannabis (hemp), opium, popy straw and includes all manufactured drugs.[ii] Narcotic drugs are those which induce sleep. Basically, a Narcotic Drug produces analgesic (pain relief), narcosis (state of stupor or sleep), and addiction (physical dependence on the drug). In some cases narcotics also produce euphoria (a feeling of great elation).
While, a 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.[iii]
Psychotropic Substances have the ability to alter the mind of an individual. According to the National Cancer Institute (NIH), a psychotropic substance is a drug or any other substance that affects how the brain works and causes changes in mood, awareness, thoughts, feelings, or behaviour. Examples of psychotropic substances include alcohol, caffeine, nicotine, marijuana, and certain pain medicines. Many illegal drugs, such as heroin, LSD, cocaine, and amphetamines are all psychotropic substances. They are also called psychoactive substances.
However, as these kinds of drugs have their importance in the practice of medicine, therefore the Act even has provisions mentioned for the cultivation of cannabis, poppy, or coca plants and manufacture of any psychotropic substances dealing with the medicinal practices.
NDPS Act, 1985
The National Policy on Narcotic Drugs and Psychotropic Substances is based on the Directive Principles, contained in Article 47 of the Indian Constitution, which direct the State to endeavor to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drugs injurious to health. The government’s policy on the subject which flows from this constitutional provision is also guided by the international conventions on the subject.[iv]
It was enacted with an aim to control drugs of abuse and prohibit its use, dissipation, distribution, manufacture, and trade of substances of abuse. The NDPS Act was enacted on 14 November 1985 by the Parliament of India.
The NDPS Act, 1985 is the principal legislation through which the state regulates the operations of narcotic drugs and psychotropic substances. It provides a stringent framework for punishing offences related to illicit traffic in narcotic drugs and psychotropic substances through imprisonments and forfeiture of property.
The main agenda of the act is to have a control on manufacture, possession, sale and transport of such 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 sale only when a prescription for the same is available. Violation of this law may result in punishment including rigorous imprisonment or fine or both.
As far as the Indian scenario is concerned, the use of cannabis dates back to Vedic period. Atharva Veda also documents the use of cannabis. In India until 1985, cannabis and its derivatives (bhang, charas and ganja) were legally sold and were commonly used for recreational purposes.
India opposed the Single Convention on Narcotic Drugs (1961) which was proposed by the United States under law against all drugs. Thus, the convention came to a favourable decision giving India a grace period of 25 years to make cannabis available for scientific and medical purposes and not for any other reason. Since it was a politically sensitive issue and India became obligated to the international delegations. This compelled the Indian government to eliminate ethnically deep-seated use of cannabis.
India consequently became a signatory to the Single Convention on Narcotic Drugs 1961, as amended by the 1972 Protocol, the Conventions on Psychotropic Substances, 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
Narcotic Drugs and Psychotropic Substances Act, 1985 which is usually termed as the NDPS Act of 1985, made an express provision for constituting a Central Authority for the purpose of exercising the powers and functions of the Central Government under the Act.
Overview of Key Offences and their Punishments
The quantum of punishment under the NDPS Act is based on the quantity of drugs found which may be classified into 3 categories: small, intermediary and commercial. The degree of punishment is dependent upon the harshness of the case being dealt with. Thus, the punishment varies from case to case. It may be as low as one year imprisonment or fine and it could go as high as 20 years imprisonment and fine.
The court is empowered to send any convict, imprisoned for consumption of drugs, to an appropriate medical centre for seeking necessary treatment. Agencies seizing the drugs are also required to destroy them suitably in the prescribed manner.
In addition, if the accused is found to have any illegal property, it shall be forfeited to the Central Government. The proceeds from the sale of such illegally acquired properties shall be pooled into the National Fund for Control of Drug Abuse in order to facilitate the treatment of drug addicts and to promote initiatives for drug control.
According to people who treat addicts, drug seizures reported are just the tip of the iceberg when compared to the number of opioid dependents.
- One of the major drawbacks of the act is that the Act presumes the guilt of the accused and puts the onus on the accused to prove that he/she is innocent.
- It further states that, unless the contrary is proved, it will be believed that the accused intentionally held the illicit drugs that were found in his possession. This is in sharp contrast with the principle that an accused is innocent until proven guilty, which is the pillar upon which the edifice of most statutes in India rests.
- Further, bails cannot be given to accused of offences which fall under Sections 19, 24 or 27A of the NDPS Act and those relating to commercial quantities of drugs.
- Many times it is debated that the NDPS Act does not distinctively differentiate between a casual drug user, a hard addict, a petty peddler and a seasoned drug trafficker.
- Furthermore, it also does not make any meaningful distinctions between hard and soft drugs which is the reason why many drug addicts resort to hard drugs because, in most cases, the punishment that their use encompasses does not significantly differ from the punishment that is handed down to those who use soft drugs.
In addition to these challenges, political influence and corruption are parasites to any system and therefore affect the effectiveness of this Act during investigations.
Apart from the sections defined which might need some reforms it is a necessity that this act should be reviewed from time to time, since every now and then a new drug or its derivative comes in existence as an addictive substance in the market. Therefore, its regular amendment becomes necessary as it could be highly beneficial.
Amendment made to NDPS Act in 2014
The 2014 Amendment made important, path breaking changes for medical access to narcotic drugs by removing barriers that dated back to 1985, when the Act was first introduced. The amendments also include provisions to improve treatment and care for people dependent on drugs, moving away from abstinence-oriented services to treating drug dependence as a chronic, yet manageable condition.
Some of its key amendments introduced include:
- The amendment added the definition of essential narcotic drugs re-lettered the old Section 2(viii)(a) that was the catalog of offences as Section 2(viii)(b), and under the Section 2(viii)(a), defined essential narcotic drugs.
- Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals. The amendment allowed for better medical access to narcotic drugs.
- The Amendment increased penalties for low-level offences and continued to criminalise the consumption of drugs.
- The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralised.This was done by first introducing a provision in Section 2 that defines essential narcotic drugs, and subsequently in Section 9 allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
Producers of morphine just need a single license from the respective State Drugs Controller unlike the earlier procedure which had prolonged steps and multiple licenses of different validation periods. The amendment ensured a uniform regulation for the whole country, eliminating state wise conflicts.
- The death sentence for repeated conviction for trafficking large quantities of drugs was revised and diluted allowing courts to discreetly sentence for 30 years. On the other hand, punishment was increased for “small quantity” offences from a maximum of 6 months to 1 year imprisonment after this amendment.
The NDPS (Amendment) Bill 2014 was strongly influenced by recommendations of the Standing Committee on Finance, which reviewed the NDPS (Amendment) Bill, 2011 in its 50th Report of March 2012.
One of the most important reasons for the slackness of such drug laws is investigators are more concentrated on the big players who sell drugs on a large scale than regular drug peddlers.
The legislation can play a more proactive role here by amending the Act to keep it in touch with the changing trends. For instance, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b. However,what is more important is not just the enactment but its proper implementation as well.
Therefore, effective implementation of NDPS act for regulating the drugs and its usage in the society needs to be kept under view. Inclusion of new precursors, drugs and their derivatives with narcotic and psychotropic effect in act is required for increasing the effectiveness of the law.
Ensuring the quality of drugs used for medical purposes is an important aspect which should be taken into consideration.
Data of drug addicts should also be well maintained and regulated incorporating various organizations working in this area. Differentiating synthetic drugs from natural drugs can be helpful for clear lines of investigation.
And finally raising awareness and educating people can help in eradicating the problem of drug addiction in our country. Rehabilitation centres should coordinate with the central and state governments for preventing the substance abuse of drugs and its practice in coming generations from the harms of substance abuse.
Drug menace is the manifestation of deep-rooted distortions in the socio-cultural, economic and political system of our country. Being systemic and multi-dimensional, its solution shall have to be systemic and multi-pronged.
The war on drugs and substance abuse has resulted in more sensitive issues being taken up than in any other phenomenon in our history. It is very often found to be a root cause of crimes which range from white collar crimes to blue collar crimes. In these times where terrorism is prevalent and almost inevitable, drugs play an important and an equally unfortunate role by facilitating and producing funds for terrorist activities. It therefore becomes a very important area which cannot be ignored while framing and amending laws related to drugs.
Therefore, effective laws are a necessity to fight the nuisance associated with drugs. However, a long road lies ahead of us to cover and eradicate the menace of drug abuse. Therefore, the role of legislation and law enforcement agencies becomes crucial.
ABOUT THE AUTHOR
Jalaj Tokas is a second Year Law student pursuing B.A.LLB from University School of Law and Legal Studies, GGSIPU, New Delhi. He is a life-long learner is self driven towards his ambitions. He strongly believes that expectations are premeditated disappointments and strives not just to be successful but more importantly to be of value.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
[ii] The Narcotic Drugs and Psychotropic Substances Act, 1985, s. 2(xiv).
[iii] The Narcotic Drugs and Psychotropic Substances Act, 1985, s. 2(xxiii).