This article is written by Nimish Mundra, a student of B.Com. LL. B(Hons.) at Institute of Law, Nirma University. In this article, the author describes the forfeiture of illegally acquired drugs under Narcotic Drugs and Psychotropic Substances, 1985.

Introduction

The world has seen huge developments over the last few years, in a way or not these developments affect our lifestyle in a manner. Sometimes, one can see the US leading the race of economic development while Australia faced a huge environmental loss by the bushfires, we also see countries like China and Japan inventing some new gadgets and discoveries contributing their best towards the technology.   

If we talk about the various dynamics in India, then there are not few but many things that have absolutely developed particularly with respect to the Indian society and culture. The time when India was simply seen as a hub for cheap labour is gone, reputed lawyers, eminent judges and great scholars is now the new face of India. So, when we talk about modern India, a very big change that the people has adopted here is the change in the lifestyle of the people. And with this modern lifestyle, a crucial part of our population is quite often found engaged in illegal acts such as drugs, increase in the no. of consumers in the illegal market of marijuana and the list is endless. Almost every day we see that in some or the other part of the country, people are found having illegal possession of drugs and chemicals. Hence, this article is written basically to deal with the certain concepts and terminologies associated with drugs and also briefs the various offences related to the possession of drugs as well as the various legal provisions or rules/regulations existing in India against these offences.    

Background of Drugs in India

Pablo Escobar, Nicky Barnes, Frank Lucas and the list goes on when we have to talk about as to how was this market operated. These are some names which have for quite a very big period of time have ruled in the drugs market, often known as ‘DRUG LORDS’, these are the people who have not only been a problem to the governments of various nations but also to the international police, they have been a very big danger while they operate the large illegal drug markets all over the world. 

So, the same goes with India too. India is a very large hub for the drug market in the world, when it comes to drug lords, India is no less, names such as Tiger Memon, Vicky Goswami and Tifal Nau Khez are some of the names who are on top of the blacklist. The increasing consumption of drugs is a very big issue for the Indian government to deal with. There are various possible reasons for a person to use drugs such as mental illness, end of relationship, financial burdens, career pressure and the most common which one might have heard of is the relaxation. Over the time, India has observed a drastic change in the lifestyle of its citizens, the consumption of alcohol and drugs is the new trending thing for the people of India and especially the youth of the nation. Drugs which are popularly known as ganja, cocaine, opium and heroin is increasingly becoming an addiction among the youth. Punjab leads the race with 75% the youth is drug-addicted, while states such as Mumbai and Hyderabad have also shown an increase in the usage of illegal drugs and the main concern here is the lack of awareness as well as the easy access to the drugs. Some or the other day we see news where a raid has been conducted and drugs were found in huge quantity.

Legal Provisions associated with Drugs in India

For dealing with the offences related to the activities of the drug in India, there exists the Narcotic Drugs and Psychotropic Substances Act, 1985 or popularly known as the NDPS Act.

Before we talk about the various laws associated with the drugs in India, we must first learn about the concepts which are necessary if we have to study about the drugs like:

1. Drug trafficking: As per United Nations Office on drugs and crime (UNODC), drug trafficking is basically a global unlawful trade which involves cultivation, manufacturing, distributing and selling of substances which are in contrary to the drug prohibition laws. UNODC as an authority monitors such kind of activities and also research on the various illegal market so that they could have a better strategy to control these kinds of unlawful activities. UNODC also publishes an annual World Drug Report which shows a detailed description of the activities related to drugs all over the world such as the route which is maximum used by the buyers and sellers for purchasing and selling the drugs, which part of the world is the most involved in these kinds of practices, etc. A study shows that the main heroin trafficking routes which link Afghanistan to the large markets of Russia and Western Europe are the Balkan and northern routes. 
2. Drug cartels: A cartel is a pool of various independent organisations, basically cartels are formed to lower the competition existing in the market, it happens through controlling the production and distribution of a particular product or service. The main motive of drug cartels is to easily operate the illegal market without coming in the eyes of the police, by this the drug cartels are able to earn huge profits as they can have a good control over the drugs supply in the market and they are also able to fix the prices of the drugs. Drug cartels are properly organised, they have a very good efficiency as well as they are well-financed.

Guadalajara Cartel, one of the biggest drug cartels of the world was formed by the Miguel Ángel Félix Gallardo also known as ‘Godfather’ of the drug market in the world started this in the 1980s. The Sinoloa Cartel, Tijuana Cartel, Juárez Cartel, and Gulf Cartel are also some of the big cartels which operate in different parts of the globe.

The NDPS Act, 1985

This Act was formed to strengthen and amend the various laws which will deal with the various offences related to the drug activities in India. The NDPS Act considers the various drug offences as serious in nature and punishment for same are stiff in nature. The scale for penalties and punishments of drugs mainly depends upon the type of offences but one of the criteria for certain offences is the quantity of drugs seized. Section 2 of the NDPS Act provides us with various definition of which some of the following terms are described such as:

1. Addict: A person who is dependent on any narcotic drug and psychotropic substances. 
2. Conveyance: It means a conveyance of any description whatsoever and includes any aircraft, vehicle or vessel.
3. Central Government factories: these are the factories owned by the Central govt. or such factories which are held by any such company in which the Central govt. is a majority stakeholder. 

Freezing, Seizure and Forfeiting Property Substances as mentioned under NDPS Act, 1985

Offences or acts related to drugs are mainly directed toward earning of profits, the illegal drug sellers have a certain price on which they sell the drugs and by that price these sellers are able to earn huge profits. Some sellers are associated with an organisation or we call them ‘agents’ while those who are not linked to any of the organisation which means they sell drugs on their own are known as ‘independent sellers’.  

Chapter V-A specifically talks about the forfeiture of illegally acquired property. But before talking about the procedural aspect of seizing the illegally acquired property, as mentioned earlier that the quantity of various kinds of drugs seized has a vital role in deciding the penalty and punishment for the same.

Chapter IV of the Act states the offences and penalties. 

Section 17 is the punishment for contravention in relation to prepared opium: This section particularly deals with the offence where it is associated with prepared opium. It states that any person who manufactures, possesses, sells and other activities as mentioned in the Section shall be punishable:

1. With a term extending to one year or a fine of ₹10,000 or with both where the quantity of the drug is small; 
2. With a term extending to ten years and a fine extending to ₹1 lakh in a case where quantity of drugs is less than commercial quantity but is greater than small quantity; 
3. Where the quantity so seized is commercial in quantity, then the punishment shall not be less than ten years which may extend to twenty years with a fine of at least ₹1,00,000 which might extend to ₹2,00,000.

The proviso clause states that the Court in such case may impose a fine which can be more than ₹2,00,000 as required in the judgment.   

In the case of Bhanwar Singh and Anr. V. State of Rajasthan (1989), the police at the police station Masuda was informed that the two persons who are accused in the case were going from Bhilwara (Rajasthan) to Masuda on a scooter and they had possession of opium. Upon receiving the information, police immediately went to a spot where they could catch them, when they saw the scooter bearing the no. which they had received they stopped them and enquired to which both the accused tried to fled off but somehow police was able to catch them and they both were carrying a total of 9 kgs and 530 grams of opium. 

The Court, in this case, convicted both the accused and sentenced them to a punishment of ten years along with a fine of ₹1,00,000 under Section 17 of the NDPS Act, 1985. 

Section 18 states the punishment for contravention related to opium poppy and opium: This section deals with the activities as stated in the section associated with opium such as cultivating opium poppy, manufacturing, possessing, etc. shall be punishable:

1. With a term extending to one year or a fine of ₹10,000 or with both where the quantity of the drug is small; or
2.  Where the quantity so seized is commercial in quantity, then the punishment shall not be less than ten years which may extend to twenty years with a fine of at least ₹1,00,000 which might extend to ₹2,00,000. Provided that where the Court has reasons as per the judgment may impose a fine which can be more than ₹2,00,000.
3. In any other cases, a punishment of imprisonment which can extend to ten years and a fine extending to ₹1,00,000.

A judgment given by the Apex Court namely Shanti Lal v. State of Madhya Pradesh (2007), the facts are briefly as follows- A secret information was received by the station house officer situated in Ratangarh that the accused namely Shantilal was a resident in a village in M.P. and was carrying a narcotic drug and was coming to Rajasthan. The information was sent to the respective police officials and at 7 a.m. in the morning the police caught the accused from his field and 7 kgs and 60 gm of opium was found in possession by him. The accused was arrested for having the unlawful possession of the opium. 

The Court confirmed the ten years of imprisonment and a payment of ₹1,00,000 

Section 20 of the NDPS Act states that contravention in relation to cannabis plant and cannabis: The Section states that any person without a valid license cultivates any cannabis plant, produces, possesses and any other activities as mentioned in the Section shall be liable for punishment of imprisonment up to ten years and with a fine extending to ₹1,00,000 and where: (a) small quantity is seized, the punishment may extend to one year or with a fine of ₹10,000 or with a fine or both; or (b) the quantity is more than the small quantity and more than the commercial quantity, the punishment may be an imprisonment of up to ten years and with a fine which extends to ₹1,00,000; (c) the quantity seized is commercial in nature, the punishment shall be a minimum of ten years along with a fine extending to ₹2,00,000. 

In the case of Raj Kumar v. State (2013), the accused was found with a possession of total 4 kgs and 35 gm of charas and was given a punishment of rigorous imprisonment of ten years along with a fine of ₹1,00,000. The case was put before the Delhi High Court for reducing the punishment to which the judge in the case did not agree and disposed of the appeal.

Section 21 of the NDPS Act states that contravention in relation to manufactured drugs and preparations: A person without having a valid license is found out to be involved in any kind of activities as mentioned in the sections such as importing/exporting inter-State, manufacturing, possessing, etc. shall be punishable:

1. With a rigorous imprisonment up to one year or with a fine extending to ₹10,000 or both where the person is found with small quantity of the drug;
2. With a rigorous imprisonment up to ten years and with a fine extending to ₹1,00,000 where the quantity so found is more than the small quantity but less than commercial quantity;
3. Where the quantity so seized is commercial in quantity, then the punishment shall not be less than ten years which may extend to twenty years with a fine of at least ₹1,00,000 which might extend to ₹2,00,000.

The proviso clause states that the Court in such case may impose a fine which can be more than ₹2,00,000 as required in the judgment.   

In the case of Vikas Sagar v. State of Himachal Pradesh (2019), the accused was a 22-year-old student and was addicted to drugs. The police checked the accused on 25-08-2019 and found carrying Diacetylmorphine (heroin). The petitioner was arrested and was also involved in a serious crime and applied for bail. The petitioner argued that it would be of no use if he would be put behind the bars and also stated that he was in no position to do any further act like tampering the evidence. The Court here gave the judgment which was likely in the favour of the petitioner by considering that the accused was only 22-year-old and could reform and hence bail was granted to him. 

Section 22 establishes punishment for contravention in relation to psychotropic substances: This section particularly deals with the offence where it is associated with psychotropic substances. It states that any person who manufactures, possesses, sells and other activities as mentioned in the Section shall be punishable:

1. With a term extending to one year or a fine of ₹10,000 or with both where the contravention is small in quantity; 
2. With a term extending to ten years and a fine extending to ₹1 lakh in a case where the contravention is in quantity where drugs so seized is less than commercial quantity but is greater than small quantity; 
3. Where the contravention so involved is commercial in quantity, then the punishment shall not be less than ten years which may extend to twenty years with a fine of at least ₹1,00,000 which might extend to ₹2,00,000.

The proviso clause states that the Court in such case may impose a fine which can be more than ₹2,00,000 as required in the judgment.    

Chapter VA of the NDPS Act, 1985

This chapter starts with Section 68A that tells about that in what situations this chapter will be applicable and ends at 68Z that speaks about releasing the property in certain cases. We shall be dealing with this chapter in a very brief manner which covers the crucial topics and concepts mentioned.

Section 68A talks about as to on whom the provisions of the chapter would be applicable such as every person who has been convicted of an offence as mentioned under this Act, every person who has a relation with the person convicted under this Act, etc. 

Section 68B provides us with various definitions which have been used in this Act like ‘associate’ can be an individual who keeps accounts/record of a person whose property is liable to be forfeited, ‘freezing’ means that prohibition of transfer, conversion, disposition of property on a temporary basis, ‘illegally acquired drugs’ means that any property acquired, by such person despite of the fact that the Act came into existence or not, in whole or in part out of any income, the source cannot be proved, ‘property’ means any asset of every description, whether corporeal or incorporeal, tangible or intangible, etc. providing claim to the title in such assets and many such other terms are given.

Section 68C talks about the prohibition of holding illegally acquired property which states that (1) it is unlawful when a person holds any kind of illegally acquired property or through any other person on his behalf; (2) such property shall be forfeited to the Central Govt. 

Section 68D identifies as to who are the competent authorities in such cases, any Commissioner of Customs or Commissioner of Central Excise has the valid authority.

Section 68E talks about identification of illegally acquired property. Sub-section (1) states that any officer who has power under section 53 upon receiving information has sufficient reasons to believe that an offence can take place as mentioned under this Act shall proceed by taking proper steps; Sub-section (2) states the steps mentioned above can be inclusive of any kind of inquiry, investigation, etc.; Sub-section (3) states that any kind of inquiry as mentioned in sub-section (2) shall be carried out by a person as mentioned under sub-section (1) acting as per the guidelines or directions.

Section 68F states seizure or freezing of illegally acquired property: 

Sub-section (1) states that if there are sufficient reasons to believe that illegally acquired property has been found out by the process as mentioned in the Section 68E, such kind of property shall be subjected to concealment, transfer or shall be managed in a certain manner where the result would be the forfeiture of such property. 

Sub-section (2) establishes the confirmation of the order for taking action in sub-section (1) shall be from a competent authority.

Section 68G describes as to how the properties so forfeited has to be managed:

Sub-section (1) tells that the Central govt. may appoint an officer who is not below the rank of a Joint Secretary to take the role of an administrator.

Sub-section (2) states that the Administrator so appointed shall be receiving and managing the seized property in a prescribed manner subjected to certain conditions. 

Sub-section (3) says that the Administrator shall also take certain steps as to dispose the property to the Central govt.

Section 68H provides a notice for the forfeiture of the property:   

Sub-section (1) describes that if from the report made by the officer regarding the case provides sufficient grounds for the competent authority to believe that the property so forfeited is illegally acquired property, then a notice may be served to the person caught with such property to call within 30 days and he must share his information such as various sources of income, the evidence on which he relies and other information which the authority believes to be crucial shall be considered. 

Sub-section (2) tells that a copy of the notice as mentioned above shall be given to the person. 

The proviso clause of the sub-section (2) says that if upon serving the notice the person does not appear within 30 days then the competent authority may proceed to record a finding under this sub-section ex parte from the evidences available. 

The remaining sections deals with the further procedure to be adopted by the competent authorities. 

Some Landmark Judgments Under the NDPS Act

1. In a verdict given in the case of Joginder Singh v. State of Himachal Pradesh by the Himachal Pradesh High Court, the Court acquitted the accused as the official was unable to comply with Section 50 of the NDPS Act. The accused in this case was carrying a bag on his right shoulder and when enquired by the police as to what he was carrying in the bag, he tried to run away from the spot but afterwards he was caught by the police. The substance present in the bag was found out to be charas of a total quantity of 1.470 kgs. The prosecution has failed to prove the guilt of the accused and the competent authorities did not complied with Sec. 50 of the Act; hence the Court acquitted the accused. 
2. In the case of State of Punjab v. Rakesh Kumar (2018), the accused was found in possession of ‘manufactured drugs’ as mentioned in Section 21 and 22 of the Act, however the Punjab High Court in the case stated that the ‘manufactured drugs’ must be considered as a part of Drugs and Cosmetics Act, 1940. The State aggrieved by the decision approached the Supreme Court and the Apex Court held that the decision given by the High Court was indefensible, the Supreme Court also stated that Drugs and Cosmetics Act, 1940 deals with the medicinal or therapeutic usage of drugs while in the present instance, the accused was found in possession of drugs in a bulk quantity to which Section 80 of the NDPS Act will be applicable and set aside the order of the High Court and further ordered that the accused shall be taken into custody. 

Conclusion

Thus, we all have looked upon certain terms which are used in the offences related to the drugs as well as we also have seen various provisions and rules associated with the offences related to drugs in this article and how the Courts or the legal system works in such cases.

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: