IMG_20160123_004329

In this article, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University, Visakhapatnam, writes about the drug policy followed by India. The article focuses chiefly on the NDPS Act which was introduced in 1985 and then subsequently amended three times in 1989, 2001, and 2014. This article also highlights the significant aspects of the NDPS Act in a concise manner.

Drug abuse is a social evil. It destroys vitals not only of the society but also adversely affects the economic growth of the country…..” Y K Sabarwal, Former Chief Justice of India (2006)

The problem of use and abuse of drugs is not new to our country. For the uninitiated, the British Empire, to be more precise, The British East India Company used to export opium from Bengal, Malwa, and Benaras region to China as long back as the 1800s. The Chinese government, to fight the problem of opium addiction and abuse passed edicts, banning the export of opium to China. As a result, the infamous Opium War took place, and the British imposed their wishes on the Great Asian Dynasty in the name of free trade.

Fast forward two centuries, and this time, our country is dealing with the issue of drug abuse. India’s response to the problem of drug abuse flows on different currents of traditional and modern society. There is widespread availability, but also stringent enforcement of anti-drugs policies. We tolerate the use of drugs (I’m sure everybody had a bhang thandai on Holi!!) and also prohibit it. We produce drugs for medical use, but there is a lack of medical aid for opium addicts. India’s drug policies are based on the supply and demand control. The country’s large pharmaceutical industry is very much inclined towards the illicit manufacturing of drugs. Some parts of the country report startling rate of drug abuse making harm reduction and health vital policy considerations while the stringent drug control laws (criminalization of drug use; even capital punishment in some cases) conform strictly to the prohibitions that are in place.

As early as 1930 itself, the Dangerous Drugs Act was enacted to control and regulate drugs derived from poppies, hemp, and coca. Through this act, the cultivation, sale, possession, manufacture, and trade of drugs obtained through these products mentioned above was licensed, and unlicensed activities were penalized.[1] The provisions of the Dangerous Drugs Act, 1930 are still relevant in the present context, especially regarding the statutory definition of hemp, coca and opium and their byproducts, and the category of manufactured drugs. The Drugs and Cosmetics Act of 1940[2] was also introduced for regulating the medical use of drugs such as cannabis and opium, but nonetheless, the Dangerous Drugs Act stood strong. Post-independence, when the Constitution was adopted, all laws came under the purview of the Constitution and some obstacles were faced by the anti-drugs laws on the grounds that they were against the freedom of trade and occupation of the cultivators. The cases, however, were ineffectual as the Courts took the support of India’s international anti-drugs commitments to justify the restrictions.[3]

The prohibition became more stringed when Courts and the Legislature started taking the support of Article 47 of the Constitution to restrict the use of drugs. Article 47 states that the State shall endeavor to prohibit the use of drugs except for medicinal purposes.

Current Legal Framework

  • Narcotic Drugs and Psychotropic Substances Act, 1985

India is a signatory to three of United Nation’s drug conventions. The first being the 1961 Single Convention on Narcotic drugs, the second being the 1971 Convention on Psychotropic Substances and the last being the 1988 Convention against Illicit trafficking Narcotic Drugs and Psychotropic substances. The domestic legislation was enacted after almost 25 years of signing the 1961 convention when the grace period for abolishing the non-medical use of drugs expired under the 1961 Convention.[4] The 1985 Act was passed in a hurry without any discussion, and it replaced the 1930 act of Dangerous Drugs Act, but the Drugs and Cosmetics Act, 1940 remained and still continues to apply.[5] The Act of 1985 has been amended three times in 1989, 2001 and then a couple of years ago in 2014. The amendments will be discussed further. The NDPS Act places a restriction upon cultivation, production, sale, purchase, possession, use, consumption, import, and export of narcotic drugs and psychotropic substances except when they are used for a scientific purpose or medical use.[6]

Three classes of substances are covered under the NDPS Act-

  1. Narcotic drugs covered under the 1961 Convention.
  2. Psychotropic substances, and those substances which are covered under the 1971 Convention.
  3. Controlled substances[7] that are used to manufacture drugs or psychotropic substances.

Narcotic drugs include-

  • Coca Plant- Leaf or other derivatives including cocaine. It also includes any preparation which contains 0.1% cocaine.
  • Opium- This category includes poppy straw, poppy plant, opium poppy juice, and any preparation having 0.2% morphine. Derivatives of opium include morphine, heroin, thebaine, etc.
  • Cannabis- Resin (Charas and Hashish), plant, fruit tops and flowering of the plant (Ganja), or any mixture of Ganja, Charas and Hashish are all included in this category. It is important to note that cannabis leaves i.e. bhang is excluded from this category and is regulated by the state laws.

The NDPS Act lays down the procedure to be followed in case any search or seizure is to be done. Procedure for arresting a person in relation to an offense In the NDPS Act is also provided for.[8] But the norms of investigation and permissibility of evidence are interpreted in such a way that they are prejudicial to the cause of the accused.[9] It can be said that the NDPS Act is essentially a punitive and punishing statute, it also contains a regulatory framework. The Act gives authority to the Central and the State government to frame rules in relation to drug-use activities.[10] The regulatory framework also paves a way for supply of opium, to registered users, for medicative purposes.[11]

Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act was introduced in 1988 as a supplementary to the NDPS Act.

NDPS Amendments

  1. 1989

The NDPS Act went through its first change in the year 1989. Very harsh punishments were introduced, like the mandatory minimum imprisonment of 10 years, a bar on suspension, restriction on bail, trial by special court, forfeiture of property, and mandatory death penalty in some cases of repeated offense. After these amendments, people caught even with small amount of drugs had to go through long imprisonments and very hefty fines, until and unless the person could prove that it was for his own personal use.

  1. 2001

Due to the criticism faced by the 1989 amendment because of its irregular sentencing policies, the 2001 amendment was passed. According to the 2001 amendment, the penal provisions were upgraded, and penalties were imposed based on the quantity of the drugs. Three categories regarding the quantity were made- small,[12] commercial,[13] and intermediate. The threshold was provided through a Central Government notification in October 2001.[14]

  1. 2014

The NDPS Act was again amended in the year 2014, and from May 2014, the amendments came into force. The main features of the latest amendments are-

  • A new category of essential narcotic drugs[15] was created which the Central Government can regulate uniformly throughout the nation.
  • The objective of the law was widened with the promotion of narcotic drugs and psychotropic substance for scientific and medical use but also prohibiting illicit use.
  • Including the terms “management” of drug dependence and “recognition and approval” of treatment centers, thus allowing for the establishment of legally binding treatment standards and evidence-based medical interventions.
  • The death penalty was made discretionary for repeated offense.

  • Significant Aspects of the NDPS Act
  1. Quantity Based Sentencing- under the NDPS Act, sentencing of punishment is based on the substance and its quantity found. The government has also cleared the fact that when the quantity of the seized product is to be calculated, the weight of the product will be given prime consideration instead of the pure drug content of the product.[16]
  2. Death Penalty- the harshness of the NDPS Act is very evident from the fact that death penalty has also been included as a form of punishment under the Act. Courts can award death sentence in the case of certain repeated offense (such as manufacture, production, import, export, possession, and transportation) involving large quantities of drugs.[17] The death penalty was made mandatory through the 1989 amendment, but the rage of offenses in which death penalty could be awarded was narrowed down in 2001. Through the 2014 amendment, the death penalty was made discretionary and an alternative punishment of 30 years of imprisonment was introduced.
  3. Treatment for Drug Dependence- the NDPS Act supports treatment for people who use drugs both as an ‘alternative’ to, and independent of criminal measures. Several provisions stipulated under the Act depenalise consumption and offenses involving small quantities of drugs and encourage treatment seeking. The treatment aspects under the NDPS Act has come distinct features-
  • Sec 4(2) (d) and 7A states that treatment of drug addict is one of the measures for which the Central Government should create funds.
  • Sec 64A states that drug dependent people who are charged with an offense involving small quantities of drugs or consumption can go for treatment and will be exempted from prosecution.
  • Sec 39 says that instead of awarding sentences, the courts can divert drug dependent people convicted for consumption or an offense involving a small quantity of drugs, to a recognized medical facility for detoxification.
  • Sec 71, 76 (2) (f), and 78 (2) (b) contains provisions that the Central or the State government can set up and regulate centres for identification, care, and treatment of drug dependent people.

The evil of drug abuse not only creates shackles on the very idea of a better life but it also acts as an impediment to the growth of the country. The legal framework which is present to counter the abuse of drugs is based on a solid foundation. A lot more can be achieved by just efficiently implementing the existing laws and streamlining the procedure.

[1] . The Dangerous Drugs Act, 1930 (Act 2 of 1930). See sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14

[2] The Drugs and Cosmetics Act, 1940 (Act 23 of 1940)

[3] Balley Singh v State of Uttar Pradeshand Ors AIR 1967 Al 341, where the Allahabad High Court cites a decision of the Supreme Court of India dated 17/2/1956, where a challenge to the Opium Acts and the Dangerous Drugs Act on the grounds of Article 14 (right to equality before law) and Article 19(1)(g) (right to freedom of trade and occupation) was rejected.

[4] Charles, M., Bewley-Taylor, D. & Neidpath, A. (October 2005),Drug policy in India: Compounding harm?, The Beckley Foundation Drug Policy Programme, Briefing Paper Ten, http://reformdrugpolicy.com/wp-content/uploads/2011/10/Drug-Policy-in-India-CompoundingHarm.pdf

[5] See: Section 80, NDPS Act

[6] ibid

[7] Section 2 (viid), NDPS Act

[8] Sections 41, 42, 43 and 50, NDPS Act

[9] Raj Kumar Karwal v Union of India (1990) 2 SCC 409 and Kanhaiyalal v Union of India (2008) 4 SCC 668. In both the cases, the Indian Supreme Court, in a departure from the settled position on the law on evidence, made confessions to drug law enforcement officers admissible as evidence

[10] Subjects on which the central government can make rules are delineated in sections 9 and 76 while the state governments’ powers are laid down in section 10 and 78 of the NDPS Act

[11] Section 10 (1)(a)(vi), NDPS Act.

[12] Section 2(xxiiia), NDPS Act

[13] Section 2(xxiiia), NDPS Act

[14] Notification S.O 1055(E), dated 19th October 2001 published in the Gazette of India, Extra.,Pt II, Sec 3(ii), dated 19 October 2001

[15] Section 2 (viiia), NDPS Act

[16] Notification through S.O.2941 (E), dated 18 November 2009

[17] Section 31A, NDPS Act

1 COMMENT

LEAVE A REPLY

Please enter your comment!
Please enter your name here