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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.

Establishment of specialized courts

When the NDPS Act was in its infancy, cases pertaining to the offences delineated in the Act were dealt with by conventional Sessions Courts. However, this further exacerbated the problem of judicial overburden which has plagued Indian courts for decades. In order to remedy this problem, the Government of India vide an amendment to the NDPS Act in 1989 paved the way for the establishment of specialized courts to deal with offences set out in the Act. Sec. 36 of the Act empowers the government to set up as many Special Courts as it deems fit for the expeditious resolution of disputes. The Special Court consists of a single judge who is appointed with the concurrence of the Chief Justice of the concerned High Court and who must be a sitting Sessions Judge or Additional Sessions Judge at the time of his appointment. A Special Court has the same powers as the Magistrate when cases are forwarded to it. The Special Court is empowered to take cognizance of any offence under the Act on the basis of a report submitted to it by the relevant police authority or any complaint made by officers in the central or state government who are authorized to make such complaints. Even though Special Courts have played a pivotal role in the effective implementation of the NDPS Act, they have not been able to develop efficacious strategies for grappling with the systemic challenges that are faced by courts across the country. For example, even though Mumbai has 8 Special Courts, most cases come up for trial only after 2-3 years.

An overview of key offences and 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, less than commercial and commercial. As a result, the punishment may be as low as rigorous imprisonment for one year if the drugs found are in small quantity and as high as 20 years imprisonment for a large quantity of drugs. The amount of small and commercial quantity is specified by the Central Government. The quantity for some common drugs is as follows:
A. Amphetamine: small quantity – 2 grams, commercial quantity – 50 grams.
B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.
C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.
D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.
E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.
F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.
G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg.
Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or cannabis plants as well as the production, manufacture, distribution including warehousing, transport, purchasing and selling of prohibited drugs and psychotropic substances. It also prohibits their financing as well as consumption and harboring offenders guilty under the Act. As per Sec. 19, any farmer who cultivates opium in accordance with a license but embezzles it shall be punished with rigorous imprisonment for a term ranging between 10 and 20 years and shall also be liable to pay a fine ranging between Rs. 1 and 2 lakh rupees. The production, manufacture, possession, sale, purchase, transport, import and export among states or use of narcotic drugs and psychotropic substances such as poppy straw, prepared opium, opium poppy, cannabis, etc shall result in:
a. In case of small quantity, rigorous imprisonment up to one year with/ without fine up to Rs. 10,000;
b. In case the quantity is between small and commercial, rigorous imprisonment up to 10 years and fine up to Rs. 1 lakh; and
c. In cases involving commercial quantity, rigorous imprisonment between 10-20 years and fine ranging between Rs. 1 and 2 lakh rupees.
However, if the contravention pertains to ganja, the punishment would be significantly less i.e. rigorous imprisonment for a term which may extend up to 5 years and fine up to Rs. 50,000. In all the aforementioned cases, the court can increase the fine by recording the reasons for the same in the judgment.
As per Sec. 23, any person who engages in illegal import/ export/ transshipment of narcotic drugs/psychotropic substances shall have to face punishment ranging between rigorous imprisonment for 1 to 20 years and fine ranging between Rs. 10,000 and Rs. 2 lakh based on the quantity of the prohibited substance. Sec. 24 clearly states that any person who engages in external dealings in contravention of the Act shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging between 1-2 lakh rupees. Any person who knowingly allows his premises to be used for the commission of any offence under the Act shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging between 1 and 2 lakh rupees. Any person financing illicit traffic or harboring an offender shall also face the same punishment. In case a person consumes a narcotic drug or psychotropic substance; the punishment would vary depending on the substance consumed. If the substance consumed is cocaine, morphine or diacetyl-morphine, then the punishment would be rigorous imprisonment up to 1 year with or without fine up to Rs. 20,000. If the accused consumes any other substance, he would have to face rigorous imprisonment up to six months with or without fine up to Rs. 10,000. The court is empowered to send any person who is imprisoned for consumption of drugs to an appropriate medical centre for seeking necessary treatment. Agencies seizing the drugs are 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.

Punishment for repeat offences

As drug abuse is often a habitual problem for those who engage in it, the Act imposes a far stricter punishment on repeat offenders. Broadly speaking, the punishment for repeat offences can be up to one and half times the quantum of punishment for the first offence. As a result, the punishment would vary from 1.5 years of rigorous imprisonment to 30 years of rigorous imprisonment depending on the gravity of the offence. Similarly, the quantum of fine for a subsequent conviction would also be up to one and half times the fine for the first offence. One provision pertaining to punishments for second convictions which has been hotly debated pertained to the death penalty embodied in Sec. 31A of the Act. Before the 2014 amendment, the Act provided for a mandatory death sentence if the quantity of drugs involved in an offence committed after the first conviction exceeded a certain threshold. For example, the threshold is 10 kg in case of Opium and 1 kg in case of Morphine and Heroin. However, in a move that was widely hailed by the human rights community, the 2014 amendment made it abundantly clear that the death penalty can be imposed as a substitute for the other punishments that have been set out in the Act for a repeat offender; its application isn’t mandatory. Many experts have repeatedly argued for the complete removal of the death penalty from the NDPS Act. The penalty seeks to take life, the argument goes, for an offence that doesn’t result in the taking of life. Presently, reports indicate that drug control laws in 32 countries provide for the death penalty in rare cases. However, a closer inspection of drug markets in these countries shows that the death penalty has not acted as a sufficient deterrent for preventing the surreptitious practices that these laws seek to control.

Procedural safeguards in the NDPS Act

Since the NDPS Act gives extensive powers to law enforcement agencies to clamp down on malpractices connected with drug abuse, it also seeks to put in place adequate safeguards to prevent innocent civilians from being unnecessarily harassed. Any person making an arrest or seizure under the Act is, therefore, required to make an extensive report containing all relevant details which must be sent to his immediate superior. Similarly, Sec. 100 of the CRPC states that any police officer who wishes to search any person who is believed to be concealing something suspicious must do so only in the presence of at least 2 respectable inhabitants of that locality known as panchas. Thereafter, a statement containing the details of the search and seizure, with the signature of the panchas, must be given to the accused of his perusal. Sec. 55 of the NDPS Act imposes an obligation on the police officer seizing the prohibited substances to keep them in safe custody. They must contain the seal of the officer seizing them as well as the officer-in-charge of the police station. Sec. 50 of the Act gives the accused the right to be searched in the presence of the magistrate or a gazetted officer. This right has been upheld by the Supreme Court in the case of State of Punjab V. Balbir Singh 1994 AIR 1872 where it was held that the police officer must, of necessity, inform the accused about this right. Finally, Sec. 58 imposes strict punishments on people making vexatious or frivolous complaints.

Access to medicinal drugs

Even though the Act carves out exceptions in all relevant places for allowing the use of drugs for scientific or medical purposes, it is dismaying to note that the Act has significantly undermined the ability of healthcare institutions to gain access to essential narcotic drugs for the benefit of their patients. This problem is primarily attributed to the fact that the Act requires these institutions to obtain licenses from a plethora of regulatory agencies that deal with issues related to excise, drug control, health administration, etc. The red-tapes involved in the grant of licenses coupled with their short tenure makes it very difficult for medical institutions to maintain large amounts of drugs that are often the only solution for lessening the pain of terminally ill patients. In order to circumvent this problem, the 2014 amendment seeks to put in place a single window clearance system in accordance with which every hospital which is in need of these drugs would be granted the status of a Recognized Medical Institution (RMI). It seeks to create a special category of drugs called Essential Narcotic Drugs whose use would be largely regulated by the central government. These provisions, it is hoped, will help in streamlining conflicting provisions that grapple with the acquisition of licenses and will go a long way in striking the right balance between ‘availability’ and ‘control’.

Rehabilitation of drug addicts

Another area in which the law has been heavily criticized pertains to the limited importance that it attaches to the health of drug users who require special care and treatment. The law only focuses on reducing the supply of drugs; the argument goes, and not on putting in place a robust framework for reducing their demand which would be a more sustainable solution in the long run. In order to address this concern, the 2014 amendment seeks to strengthen existing provisions pertaining to the establishment and working of centres for the identification and treatment of addicts. The amendment focuses on the management of drug dependents and paves the way for the accreditation of treatment centres by relevant government authorities. Treatment centres need to adopt global best practices and harm reduction techniques in order to deal with this problem in a systematic and holistic manner.

Agencies responsible for effective administration of the law

The Department of Social Welfare has been declared as the nodal agency that monitors the initiatives undertaken by various organizations, public and private, for spreading greater awareness about the deleterious effects of drug abuse. A central agency, known as the Narcotics Control Bureau, is tasked with the responsibility of overseeing the activities undertaken by various law enforcement agencies and to ensure constant compliance with various international instruments that India has signed. The Ministry of Welfare is responsible for taking appropriate steps to prevent the occurrence of circumstances that result in this menace. More specifically, it is responsible for disseminating information about drug abuse, undertaking drives at the local, state and national level to spread greater awareness and to form a broad coalition of various stakeholders to attack the problem at its root. It is also responsible for providing medical assistance to drug addicts and to put in place systems for identifying drug users at an early stage in order to take corrective measures. Finally, the Ministry of Finance looks into cases grappling with drug trafficking, money laundering and other offences which are closely linked with drug abuse.

Major shortcomings of the law
The Act, vide Sec. 35, presupposes 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 notion that an accused is innocent until proven guilty which is the pillar upon which the edifice of most statutes in India rests. It is widely believed that the Act does not make adequate distinctions 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 users 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. Reports indicate that many criminal gangs have exploited these shortcomings in the law to the fullest extent possible and have formed a close nexus with law enforcement agencies. It would, therefore, not be incorrect to say that the law has created more problems than it has solved.

 

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