This article has been written by Nikunj Arora of Amity Law School, Noida and Yash Singhal. This article provides an in-depth analysis of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The article lists down the objectives of the act, positive and negative aspects of the act, related amendments along with important sections.
In recent years, the malady 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 such as organized crimes, human trafficking and money laundering as well as health hazards such as HIV –AIDS. 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 National Crime Records Bureau (NCRB) which indicate that drugs and narcotics worth Rs 19.51 crore and Rs 17.05 crore were seized in 2010 and 2009 respectively. The problem is especially more serious in the states of Punjab and Manipur where estimates show there are roughly 18,000 and 25,000 intravenous drug users (IDUs) respectively.
An overview of drug control laws in India
The genesis of drug control laws in India can be traced back to the Opium Act of 1857. This was followed by the Opium Act of 1878 and the Dangerous Drugs Act of 1930. These laws were designed to regulate and monitor the use of some specific drugs in limited contexts; they were not based on any well-defined principles and did not contain any overarching provisions to grapple with the problem of drug abuse in a holistic manner. Moreover, they provided for meager punishments for their contravention which were to the tune of three years imprisonment for the first time offenders and 4 years imprisonment for repeat offenders. In the post World War 2 period, countries began working collectively on enacting human rights instruments that were designed to allow individuals to live with dignity and respect. The clearest manifestation of this general principle in the context of health can be found in Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights which seek to promote the highest attainable standards of physical and mental health. Against this backdrop, several international instruments such as the Single Convention on Narcotic Drugs, 1961 and, more importantly, the Convention on Psychotropic Substances, 1971 unequivocally recognized the need to put in place regulatory regimes and systems to grapple with the problem of drug abuse. In order to bring India’s narcotics control law at par with international standards and to effectuate the goals of these treaties, the National Drugs and Psychotropic Substances Act, 1985 was enacted by the Government of India. The Act is widely regarded as a prohibitionist law which seeks to grapple with 2 kinds of offences: trafficking of prohibited substances i.e. cultivation, manufacture, distribution and sale, as well as their consumption.
The Indian government is a signatory to the UN Single Convention on Narcotics Drugs (1961), the UN Convention on Psychotropic Substances (1971), and the UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), which prescribe a variety of measures intended to achieve the dual objectives of limiting the use of narcotics and psychotropic substances for medical and scientific purposes and preventing their abuse. India’s obligations under the three UN drug conventions were taken into account when enacting the NDPS act as well as Article 47 of its Constitution. The Act covers the whole of India as well as all Indian citizens living outside India and all persons travelling aboard ships and aircraft registered in India.
India was among the first developing countries to formulate a National Drug Policy (NDP) to improve access to drugs for low-income individuals, although pharmaceutical companies have gradually taken over the market through prescriptions from physicians. A drug price control order (DPCO) was passed by the Indian government in 1963 to regulate the prices of drugs in the market. Although DPCO had little effect, many drug companies withdrew from the country. Consequently, the production of certain drugs moved from India to China. In 2013, DPCO underwent a major reform. In 2013, DPCO was deemed more favourable to non-controlled products, as there were no new investments made.
Initially, opium and morphine were used for medical preparation during the civil war and led to narcotic addiction. Veteran soldiers who had participated in these wars became addicted to these drugs, leading to a diagnosis known as soldier’s disease. During the Second World War, even though hemp (marijuana) production had been effectively banned in 1937, some governments soon discovered they required it for necessities such as rope and cordage.
The Indian government opposed the Single Convention on Narcotic Drugs (1961). It was therefore decided by the convention that India would be given a grace period of 25 years to make cannabis available for scientific and medical purposes only and not for any other reason. Given the political sensitivity of the issue, India had become obligated to international delegations. This forced the Indian government to eliminate the deeply rooted use of cannabis. In consequence, the NDPS Act, enacted on 14 November 1985, prohibited all narcotic drugs in India with very little opposition.
Components of the Act
The Act has been divided into 6 chapters with each covering different domains under the Act. The following are all the chapters for the purpose of this Act:
Chapter I: Preliminary
This provides an insight into the jurisdiction of the Act along with important definitions for the purpose of the Act and powers relating to addition or omission of items from psychotropic substances.
Chapter II: Authorities and officers
This chapter delves into the powers of the central government to control the illicit trafficking of the drugs. It further talks about the powers of officers of the central government and state governments that are capable of investigating any offence and also gives guidelines on the composition of the Consultative Committee on the narcotic drugs and psychotropic substances.
Chapter II A: National fund for control of drug abuse
This part provides for the constitution of a national fund by the central government to control the abuse of narcotic drugs and psychotropic substances. This also advocates for an annual report of finances towards the activities under the Fund.
Chapter III: Prohibition, control and regulation
This chapter is a detailed account of all the activities prohibited under the Act, along with provisions of controlling and/or regulating the Narcotic Drugs and Psychotropic Substances possession. It also accounts for the Central Government and respective State Governments role in the prohibition, control and regulation under the Act. It restricts the external dealings in drugs by any individual or an organisation or any authority.
Chapter IV: Offences and penalties
This chapter deals in various offences and their subsequent punishments for the purpose of this Act. The offences have been defined along with all the activities that constitute the particular offence. The offences under the Act are categorised as criminal offences and hence the punishments are stringent and in the form of imprisonments. This part also enumerates the trial process in cases falling under this Chapter of the Act.
Chapter V: Procedure
This chapter lays out the exact procedure that needs to be followed for an investigation. Any activity beyond the provisions of this chapter, by any authority during the investigation process, shall lead to a legal violation on the part of that authority. It describes:
- Process of issuing of warrants;
- Process of seizure of property of any convict;
- Duty to inform about illegal cultivation;
- Powers to undertake controlled delivery among many other significant procedures;
- Relevancy of the statements under certain circumstances; and
- Power of the police to take charge of the seized articles.
Chapter V A: Forfeiture of an illegally acquired property
This part deals with the procedure of forfeiture of an illegally acquired property by an individual by the police authorities. The procedure includes identification of such property, followed by its seizure and management and finally, a notice issued to the offender and other such processes. It signifies the burden of proof lies with which party, the fine payable at the seizure and particular transfers that are null and void. It further states the power of the tribunal to adjudicate the offences while providing their jurisdiction in matters of appeal. The police have the power to take possession of illegal properties and findings in a matter and can release property in certain cases.
Chapter VI: Miscellaneous
This chapter deals with all the less specific provisions under the Act. This provides for a provision wherein the central government and the state governments shall regard the international conventions while formulating rules and policies for their subject matter jurisdiction. It also empowers the government to identify and operate centres for recovery of the addicts. The central government has the power to make rules or delegate this power to other authorities. The rules and notifications in respect to any provision under the Act shall be laid before the parliament for the consideration of all the members. The state governments have been entrusted with similar powers, duties and responsibilities as the central government for the purpose of this Act.
Aim and object of the NDPS Act
To achieve the following objectives, the NDPS was enacted:
- To amend and consolidate the laws governing the use and possession of narcotic drugs.
- To establish stringent provisions for the control, regulation, and supervision of the illegal possession, sale, transit, and consumption of narcotic drugs and psychotropic substances.
- To provide a mechanism for forfeiting narcotic drugs and psychotropic substances, as well as the properties derived from, or used in, illicit drug trafficking.
- To establish a mechanism for the implementation of the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, as well as for other purposes connected therewith.
Important definitions under the NDPS Act
The NDPS Act defines various terms used throughout the legislation in Section 2. Defining narcotics as a legal concept is very different from describing them medically as a sleep-inducing agent. Narcotic drugs are defined by Section 2 (xiv) of the Act as coca leaf, cannabis (hemp), opium, poppy stems, derivatives/concentrates of any of these substances, and other substances notified by the government in its official gazette.
In accordance with S.O. 1350 (E) dated 13.3.2019, certain additions to substances, salts, and preparations thereof have also been declared manufactured drugs, together with the existing notified manufactured drugs.
Narcotics are substances that reduce the effectiveness of the senses and soothe discomfort. In the past, ‘narcotics’ term was generally considered as something that constituted all drugs, but nowadays, the term’s meaning has been changed to heroin, heroin derivatives, and their semi-synthetic versions. There is also the term Opioid that describes these medications. A few examples include heroin and prescription drugs such as Vicodin, codeine, morphine, etc.
Drugs are also often referred to as opioid pain relievers. Their primary purpose is to treat severe pain that cannot be adequately treated by other pain relievers. As long as these medications are used with caution and under the close supervision of a health care provider, they can be quite beneficial in the treatment of pain.
Further, the term ‘psychotropic substances’ is used to refer to any substance which modifies the mind. In Section 2(xxiii), ‘psychotropic substances’ are defined as any substances, whether natural or synthetic or any natural derivative or for that matter any preparation of such substance or derivative on the list of psychotropic substances specified in the Schedule of NDPS Act. For example Amphetamine, Methaqualone, Diazepam, Alprazolam, Ketamine, etc.
Positive and negative aspects of the NDPS Act
Among the significant features of this act is the fact that narcotics and psychotropic substances can be added or removed from the list quite easily. The government does not need to pass any formal bills or amendments to effect these changes, as the changes can be made based on information available or by simple publication in the official gazette.
The Central Government has established the Narcotics Control Bureau with specific responsibility for coordinating drug law enforcement nationwide in accordance with subparagraph 3 of Section 4. Based on national plan parameters, the NCB functions as the coordinator of national liaison and a central point for collecting and disseminating intelligence.
Specifically, the act empowers both Magistrates and specially appointed officers of the Central and State Governments to issue search and arrest warrants. By utilizing this technology, it should be possible to respond to any information quickly and appropriately and avoid the need for a warrant to be issued. As a result, timely and effective responses to any information are guaranteed.
In most cases, punishment is meted out for acts that cause harm to others, such as murder and theft. Offences created by statute, such as those referred to in the NDPS Act, fall into the category of victimless crimes. An individual in possession of marijuana or drinking an opium-laced drink does not harm themselves or others. As a general rule, an offence comprises two elements: the specific act and the guilty mind or dishonest intention that led to the act.
The NDPS Act, however, eliminates the requirement of dishonest intention under Section 35 and directs the court to presuppose the presence of a culpable mental state for all offences under the Act. Thus, in a situation where possession is an offence under the Act, then there shall be involvement of conscious possession.
By virtue of the NDPS Act, a defendant is presumed to know the contents. According to Section 54 of the Act, if a person fails to account satisfactorily for the possession of narcotic drugs, psychotropic substances, or any other incriminating article, it will be presumed that he has committed an offence.
In the case of a second conviction, which may be limited to abetment or attempted committing an offence, Section 31-A provides for a mandatory death sentence, instead of a life sentence.
It is the belief of civil activists that the NDPS Act should be reviewed from the perspective of civil liberties due to its unduly harsh punishments such as the death penalty, virtual denial of bail, the presumption of intent and knowledge, in effect placing the burden of proof on the accused to prove their innocence.
Important sections under the NDPS Act
The following are the important sections under the NDPS Act:
According to Section 3 of the NDPS Act, the Central Government has the right to add or remove such substances or natural materials or salts or preparations of such substances or materials from the list of psychotropic substances. In a very simple manner, the government can do so at any given time simply by notifying in the official gazette without passing any legislation or amending the laws based on available information or a decision based on an international convention.
Section 7A and Section 7B:
The Central Government is empowered under Section 7A to form a fund called the National Fund for Control of Drug Abuse. Specifically, the fund is intended to be used to cover expenditures incurred in connection with the measures taken to combat illicit trafficking in narcotic drugs and psychotropic substances. Among the provisions of Section 7B, the Central Government must submit an annual report on the activities that are funded by this fund.
According to Section 8(c), It is unlawful for anyone to cultivate any coca plant or gather any Portion of coca plant, or cultivate the opium poppy or any cannabis plant or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance.
However, the following is an exception to the 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 State Of Uttaranchal vs Rajesh Kumar Gupta(2006), it was held that the exceptions must be judged on two criteria: first, whether the drugs are used for medicinal purposes, and second, whether they fall within the scope of the regulatory provisions contained in Chapters VI and VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985.
In Union of India & Anr vs Sajeev V. Deshphande (2014), the Court held that under Section 8(c), the prohibition would be attracted to drugs that are not mentioned in Schedule I to NDPS Rules but are mentioned in Schedule I to NDPS Act, and to the drugs intended for medicinal and scientific purposes, because they are prohibited by NDPS Act. It is not contemplated in the NDPS Act to write any rules prohibiting various activities that involve narcotic drugs and psychotropic substances. With regards to dealing with such substances, it merely involves the framing of rules that permit and regulate such activities. Under Section 8(c), certain activities are expressly prohibited (such as the import and export of narcotic drugs and psychotropic substances out of India in the present case). The rules adopted under the NDPS Act should not be interpreted in a manner that overrides the rights and obligations found in the parent act. Furthermore, the Court made it clear that just because narcotic drugs and psychotropic substances are being dealt with for medical or scientific purposes, it cannot itself lift the prohibition created under Section 8(c). The dealing must be done in accordance with the NDPS Act, Rules and Orders, in the manner and to the extent specified.
Various punishments are laid out in this section for the consumption of narcotic drugs or psychotropic substances, such as harsh imprisonment up to 1 year, or a fine that could reach twenty thousand rupees, or both, and upon consumption of a narcotic drug or psychotropic substance other than cocaine, diacetyl-morphine, or any other narcotic drugs or psychotropic substances, a prison term up to 6 months may be imposed, or a fine of Rs 10,000 may be imposed, or both.
In Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, the Court held that in order to satisfy Section 27, the following requirements must be met:
- An individual has been found in possession of any narcotic drug or psychotropic substance, even if the quantity is ‘small’;
- The possession of such goods should, therefore, be in violation of any provision of the Act, any rule or order made under it, or any permit issued thereunder; and
- Any such narcotics or psychotropic substances that were in his possession, were intended for his personal use and not for resale/distribution.
In Anil Kumar v. State of Punjab (2017), the Court stated that if a person who is already imprisoned is convicted of a subsequent criminal offence, the prison term would normally begin when the person has served the original sentence. A court can only run the sentence concurrently with an earlier sentence if it is appropriate, considering the specific facts of the case. It is necessary that the court exercise such discretion in accordance with sound judicial principles and not mechanically. It depends on the nature of the offence/offences and the facts and circumstances of each case as to whether the discretion is to be exercised in directing sentences to run concurrently.
A clause in Section 36A of the NDPS Act called ‘non-obstante’ empowers the Special Court to hear cases punishable by imprisonment for more than three years. This provision is intended to ensure speedy trials. Following are some of the features:
- Under the NDPS Act, the government can set up Special Courts to speed up the prosecution of offences.
- Through a notification to the official gazette, it will be set up in particular areas or areas.
- The Special Court shall be considered to be a Court of Session.
- There shall be one judge of the Special Court, who will be appointed by the government with the concurrence of the Chief Justice of the High Court. To qualify for appointment as a Special Court judge, a judge must first be a sessions judge or additional sessions judge.
- Under the NDPS Act, all of the offences punishable with a term of imprisonment over three years can be tried by a Special Court.
- By reviewing a police report or a complaint made by a state official or a central official, a Special Court will determine whether there was an offence.
- Besides the offenses under the NDPS Act, the Special Court has also been empowered with the authority to try an accused who has also been accused of other criminal offences under the Code of Criminal Procedure, 1973 (CrPC).
- Proceedings before a Special Court will be governed by the provisions of the CrPC, including those pertaining to bail and bonds.
- In the case of a Special Court, the person prosecuting the case shall be considered a public prosecutor.
In Section 41 of the Act, magistrates have the authority to issue search warrants as well as specially designated Gazetted officers of the central excise department, narcotics department, customs department, revenue intelligence unit, or any other department of the state. As a result, actions can be taken promptly as well as effectively when receiving information.
Section 50 of the NDPS Act provides that a person can request a search be conducted by a magistrate or gazetted officer and that the officer can detain the person until the magistrate is brought in. It is, however, possible for the officer to proceed to search the person pursuant to Section 100 of the Code of Criminal Procedure, 1973 if he has reason to believe that the person cannot be taken to the nearest constituted officer or magistrate without the likelihood of the person being found in possession of any narcotic drugs or psychotropic substances. The search warrant shall state the reasons for such belief, and a copy thereof shall be sent to his immediate supervisor within 72 hours.
This is an appreciable initiative on the part of the government whereby addicts are offered a chance to seek medical treatment and for which they are not liable. In order to make use of Section 64A, an addict must be charged under Section 27 of the NDPS Act or with an offence involving a small number of narcotic drugs or psychotropic substances. Moreover, he shall seek voluntary medical treatment for de-addiction; if he undergoes medical treatment for de-addiction, he will not be indicted under the provisions of section 27 or under any other provision for offences involving a small number of narcotics or psychotropic substances. However, if the addict doesn’t receive complete treatment to overcome the addiction, this immunity can be lost.
Bail under the NDPS Act
As a matter of law, it is well established that a liberal approach in the area of narcotics and psychotropic substances is inappropriate. The Supreme Court has laid down parameters in its various judgments through which it has been provided as to what is required to be considered when the accused is seeking bail for an offence under the NDPS Act.
The Apex Court in the case of Union of India v. Ram Samujh and Ors. (1999) observed that
“….It should be borne in mind that in a murder case, the accused murders one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death−blow on several innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely.”
Accordingly, bail is treated differently in narcotics cases than it is in general. Generally, bail is a rule and jail belongs to the exception category, whereas, in cases of NDPS, jail belongs to the rule category and bail belongs to the exception category. It should be noted that Section 37 of the NDPS Act deals with the issue of cognizable and non-bailable offences. In Section 27 of the NDPS Act, it is stated that all offences punishable under the Act are cognizable and that no person accused of an offence punishable under the Act will be released on bail or his bail unless certain conditions are met. This section applies to offences under Section 19 or Section 24 or Section 27A and also to offences that involve commercial quantity.
The following conditions must be met before bail can be granted under the Act:
- The accused has reasonable grounds to believe that he is not guilty of the offence.
- The fact is that if bail is granted, the defendant is unlikely to commit any crime while out on bail.
In another case of State of Kerala v. Rajesh, the Apex Court observed that,
“The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with a non−obstante clause.”
Under said section, the operative part is in the negative form which prescribes that no person accused of commission of an offence under the Act is entitled to an extension of bail unless both of the following conditions are met:
- The prosecution must have a chance to object to the application.
- The decision can only be made if the court is satisfied that there are reasonable grounds to believe that he is not guilty of the offence.
It is not possible to grant bail if either of these conditions is not met. The pertinent point to note is that, when there is a conflict between Section 37 of the NDPS Act and Section 439 of the Code of Criminal Procedure, 1973 (CrPC), Section 37 of the NDPS Act prevails.
In the case of [email protected] v. the State of Rajasthan S.B (2019)., the Court noted that Section 37 of the NDPS Act is titled ‘offences to be cognizable and non-bailable. The section, however, begins with a non-obtante clause that states that whatever offences are punishable under the Act will be cognizable. The legislation does not prohibit bail for every crime. There are also offences under other laws discussed in Schedule I of the CrPC. In Part II of the First Schedule, item No.3 stipulates that if the offence in question is punishable with imprisonment for less than three years under other law, it is bailable and non-cognizable.
Under Section 21 of the NDPS Act, the offence of possession of a small quantity of Ganja (up to 1 kg) can result in a six-month prison sentence and a fine. The offence is cognizable by virtue of Section 37(1) of the NDPS Act, however as stated in Item No.3 in the list (in Part II of the First Schedule), the offence is bailable.
In the case of Rhea Chakraborty v. The Union of India and Ors. (2020), the Supreme Court took precedents from the State of Punjab v. Baldev Singh (1999). According to the Court, Section 37 of the Punjab Incarceration Act makes all offences under the Act to be cognizable offences and non-bailable offences as well as provides stringent conditions for the grant of bail. Relying on the same, Justice Kotwal noted that “the situation has not changed since 1999 when these observations were made by the Hon’ble Supreme Court”. These observations are therefore applicable to today’s scenario with greater force, which is why the Hon’ble Supreme Court’s ruling in Baldev Singh is binding and all offences under the NDPS Act are non-bailable.
Amendments to the NDPS Act
The following were the amendments made to the Act:
Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989) 1989:
A major amendment to the NDPS Act has been made, providing stricter provisions and the addition of sections for financing illicit traffic under Section 27A. Trafficking in illicit substances includes production, possession, sale, purchase, transportation, warehousing, and anyone booked under section 27A.
Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001:
The purpose of this amended act is to rationalize sentencing by making it more objective. The law was now easier for addicts to navigate, and bail was liberalized as well.
Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014:
On May 1, 2014, the NDPS Amendment 2014 came into effect. Section 71 of the NDPS act describes how drug cases should be handled, including treatment facility rules. As part of the previous amendments, high-level offences under the Act were penalized more severely along with criminalizing the consumption of drugs. In contrast to the earlier procedure which required long steps and multiple licenses of different validity periods, morphine producers only need a single license from the respective State Drugs Controller.
As a result of the amendment, a uniform regulation was achieved across the country, preventing state-by-state conflict. Several essential narcotics that are used in pharmaceutical preparations, such as morphine, fentanyl, and methadone, have been made more accessible to patients. As a compromise, the death penalty for repeat criminal convictions for trafficking large amounts of drugs was reduced to a discrete 30-year sentence. After this amendment, the maximum penalty for “small quantity” offences has been raised from 6 months to 1 year.
The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021:
As of December 6, 2021, the Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021 was introduced in the Lok Sabha. The purpose behind it is to replace the Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021. A drafting error has been corrected in the Narcotic Drugs and Psychotropic Substances Act, 1985 through the bill. The Act outlines the rules and regulations relating to certain operations (such as manufacture, transport, and consumption of these substances) relating to narcotic substances and psychotropic substances.
The definition of illicit activities was changed in 2014 when the Act was amended. This section was not amended, and it continued to refer to the earlier clause number about punishment for financing such illicit activities. A new clause number is added to the section on penalties in the Bill.
Presumption of culpable mental state under the NDPS Act
In criminal law, there is a fundamental principle known as the ‘Presumption of Innocence’, which states that an accused is innocent until proven guilty. This fundamental principle is derived from the maxim “Semper necessitas probandi incumbitei qui agit”. This means that the burden of proof lies with the person who is charging you. Section 35 of the NDPS Act deals with the presumption of the culpable mental state of an accused. This implies that the court will presume that the accused has such a mental state to proceed with the prosecution.
Under this section, an explanation is given stating “In this section culpable mental state includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.” The NDPS Act, therefore, requires a person charged with an offence to rebut the presumption against him and show that he has not committed the act constituting an offence.
The Supreme Court of India in Naresh Kumar alias Nitu v. State of Himachal Pradesh held that the presumption of guilt under Section 35, and the requirement of satisfactory explanations of possession under Section 54, are rebuttable. Nonetheless, the prosecution remains responsible for proving the charges beyond any reasonable doubt. Specifically, Section 35(2) states that a fact can be regarded as proved if it is established beyond a reasonable doubt and not by the preponderance of the probabilities.
Furthermore, in Noor Aga v. State of Punjab and Ors (2008), the Apex Court held that Sections 35 and 54 impose a reverse burden on the accused, and thus, are constitutional. The standard of proof required by the accused to prove his innocence is lower than that required by the prosecution.
Conscious possession of drugs under the NDPS Act
There is no explicit mention of the term ‘conscious possession’ in the NDPS Act, yet various judicial judgments have developed it in light of the needs and circumstances of the individual case. Section 35 of the NDPS act states the following:
- In the event of a prosecution for a felony under this Act, the Court shall presume the presence of a culpable state of mind of the accused, but the defendant may counter with evidence that he was not in a culpable state of mind concerning the offence charged. Herein, the term culpable state of mind encompasses intention, motive, and knowledge of a fact, as well as a belief in or reason for believing a fact.
- A fact is regarded as proved for purposes of this section only when the court is of the opinion that it exists beyond a reasonable doubt and not just when its existence of it can be demonstrated by a preponderance of the evidence.
From the foregoing, it can be concluded that conscious possession means having a mental state of possession at the same time as having physical possession of the illegal substance. Under criminal law, the elements of ‘Actus Reus’ and ‘Mens Rea’ are essential elements of a criminal offence. Similarly, under the NDPS Act, the physical and mental possession of drugs are essential elements to constitute an offence.
‘Conscious’ refers to a deliberate or intended state of mind. In Gunwantlal v. the State of M.P., it was pointed out that possession in a given instance need not necessarily be physical, but maybe constructive such that the person who physically holds it, shall be subject to such power or control. ‘Possession’ refers to the right to possess. As stated in Sullivan v Earl of Caithness, wherein a person kept his firearm in his mother’s apartment, which was in a safer environment than his own home, he should be considered to be in possession of that firearm. Upon establishing possession, the person claiming that it was not conscious possession must demonstrate its nature, since his knowledge of how he came to be in possession enables him to do so. Section 35 of the Act provides statutory recognition to this position based on the legal presumption. In accordance with Section 54, it is also possible to draw a presumption of guilt based on the evidence that is in possession of illicit objects.
There have been numerous judicial pronouncements made concerning the said term. All of them are interconnected but vary according to facts and circumstances. In the case of Dharampal Singh v. the State of Punjab (2010), it was discovered that the co-accused was driving a car that contained 65 kilograms of opium. It was acknowledged by the court that the automobile was not a public conveyance, therefore it could not be said that the passenger was in conscious possession of the recovered substance. Further, it was stated that once possession is established, the court may presume that the accused possessed a culpable state of mind and the offence was committed.
It should also be noted that in Solabkhan Gandhkhan Pathan v. the State of Gujarat (2003), there were issues of validity of conscious possession when the accuser was simply a travelling passenger on an autorickshaw as well as carrying illicit drugs with him. The court, however, upheld the validity of conscious possession. It was ruled that the suspect did not possess either physical possession or the preconceived notion or motive to commit the offence under the prescribed statutory provision. The accused was acquitted. The court concluded that both physical and mental possession was necessary for an offence to occur under the NDPS Act.
Further, in Madan Lal and Anr v. State of Himachal Pradesh (2003), the court held that the same act would not be considered a criminal offence under Section 20 of the NDPS Act until physical possession is coupled with a mental state of mind, and the possession is taken without cognizance of the nature of the possession.
Therefore, the courts have repeatedly held that physical possession must be coupled with mental control over illicit drugs or psychoactive ingredients. In addition, the court even stated that the expression ‘possession’ has a multitude of different meanings, depending on the context in which it is used. It can, therefore, be deduced that the term ‘conscious possession’ is subjective and therefore needs to be handled accordingly and with some caution in various case scenarios.
The drug problem in India is much worse than it appears. In ancient India, ganja, charas, and other psychoactive substances were used for healing, pain relief, and even psychotherapy. India had no law criminalizing possession or use of drugs prior to 1985. Now, it is important to note that the NDPS Act contains several provisions that specify serious punishments. For example, according to Section 37, the right to bail cannot be granted for more serious offences. Compared to the Unlawful Activities (Prevention) Act, 1976 (UAPA), this legislation was more draconian and the courts tended to be hesitant to release people on bail as a result.
Numerous laws are intended to solve societal problems, however, when they are misused, they can become brutal. It is more likely for draconian legislation to emerge when the legislation becomes more stringent. In light of its strict nature, the NDPS has the potential to be misused even more. Therefore, the Courts are required to ensure the law does not become weaponized and justice is administered to all segments of society.