Drug Trafficking
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This article is written by Artha Shyam, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Introduction

Over the last few decades, drug consumption has become one of the biggest problems faced by millions of youngsters and adults. While there are hundreds of reasons why one would use drugs, we can’t ignore the fact that millions of youth are wiped out from society because of drug trafficking and drug peddling. Currently in India, we have two examples before us one is the famous case of Bollywood actor Sushant Singh Rajput, in which his girlfriend and actress Rhea Chakraborthy was alleged to have drugged him and the second one is the case of Shah Rukh Khan’s son Aryan Khan, wherein he is accused of possessing, consuming, and distributing drugs. So in the making of all these types of events in India, here is an attempt through this article to introduce you to all the laws in India related to drugs and poisons. I hope it will help you understand the legal and illegal sides of using drugs.

So if you have ever been sick or ill then you must be familiar with one kind of drug that is medicines, medicines are the legal form of drugs. So when a doctor prescribes any medicines you can consume them legally. It is essential for the health of human beings. Another category of drugs is cigarettes and alcohol, even though they use and consumption of these are not promoted or encouraged, once you attain legal age you can consume them. So when one hears the words ‘drug abuse’ or ‘drug addict’ it means the usage of illegal or abusive drugs.

Drugs refer to “a habit-forming substance or chemical substance, which directly affects brain, consciousness, nervous system and the whole body function and has the potential of misuse. The frequent use of drugs is dangerous to the human body and at worst it can cause death. Most important is that it is considered anti-social and against the laws of India. 

Some types of illicit and illegitimate drugs are:

  • Ganja,
  • Heroine,
  • Cocaine,
  • LSD,
  • Morphin,
  • Cannabis,
  • Opium,
  • Marijuana,
  • Crystal meth.

The cause of drug abuse may differ. Some of them are economic, social, physiological causes and mainly among them are peer pressure, especially in the case of youngsters who are influenced to use them because of the bad elements in the society in which they are living.

As per the WHO definition “A drug is some element or result or goods created that is destined to be used to alter or investigate physiological systems or cure unhealthy states for the benefit of the receiver.” 

“All medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on the human body for the purpose of repelling insects like mosquitoes” The Drugs and Cosmetics Act of 1940.

A poison is a substance that causes harm to your body. It can be consumed, inhaled, infused, or absorbed via the skin. Poison is defined by the World Health Organization (WHO) as “a chemical that when brought into the living human being or brought into touch with any part, will produce ill effect or death by affecting the entire system or the action or two together”. 

Indian laws which are related to drugs and poisons

The Poison Act (1919)

In 1958, it was modified, and in 1960, it was quashed. It regulates the granting of licences and the selling of poisons at both the wholesale and retail levels. It also manages import, sale, and possession of any specific poisons and extends to the whole of India.

The Drugs And Cosmetic Act (1940)

This Act was amended in 1964, and very recently in 2008. It deals with “the import, manufacture, distribution, and sale of all kinds of drugs (allopathic, ayurvedic, unani, siddha, etc.) and cosmetics”. As per the Act, “every patented or proprietary medicinal preparation should display on the label of the container, either the exact formula or a list of the ingredients”. The modified Act has increased the severity of penalties for a variety of offences, including the selling of counterfeit medications, drug and cosmetic adulteration, hazardous pollution, and so on.

Provisions of the Act

  1. Import of Drugs.
  2. Manufacturing of Drugs.
  3. Sale of Drugs.
  4. Labelling and Packaging – all the general and specific labelling and packaging specified to all classes of Drugs and Cosmetics should be as per provisions made under the act.

Classes of Drugs prohibited to import:

  • Misbranded Drugs.
  • Drugs of Substandard Quality.
  • Dugs claiming to cure diseases specified in Schedule – J.
  • Adulterated Drugs.
  • Spurious Drugs.
  • Drugs that are forbidden in their originating country of manufacturing, sale, or distribution, except for the purposes of testing, evaluation, and analysis.
                    OFFENCES            PENALTIES
Import of spurious or adulterated drug or drug during which involves risk to human beings or animals or drug not having therapeutic values.Three years imprisonment and 5000 fine on just conviction5 years imprisonment or 1000 fine or both for a subsequent conviction
Contravention of provision 6 months imprisonment or 500 rupees fine or both for the first conviction1-year imprisonment or 1000 rupees fine for a subsequent offence.

The Drugs and Cosmetics Rules (1945)

This is supplementary legislation to the Drugs and Cosmetics Act, 1940 and is concerned mainly with the standard quality of drugs, apart from exercising control over the “manufacture, sale, and distribution, of Drugs and Cosmetics”. In order to assist the progress of the statement of results from examination or experiment of drug samples to assess their characteristics, the Central Drugs Laboratory was established in 1962. Individual states have started Drugs Control Laboratories. Substandard or fraudulent drugs are punishable with harsh penalties if they are manufactured, stocked, or sold. The requirements for conducting clinical studies for newer medicines have been tightened.

According to the Drugs and Cosmetics Rules, drugs are divided into the following Schedules:

  • Schedule C and C1—Biological products, e.g. serums and vaccines.
  • Schedule D– Non-medicinal substances, such as condensed or powdered milk, oats, spices and sauces, and so on.
  • Schedule E1—In the Ayurvedic (including Siddha) and Unani systems of medicine, a list of toxic drugs is maintained.
  • Schedule G—Chemotherapeutic agents for cancer, antihis-taminics, and hypoglycemic agents.
  • Schedule H and L—Injectables, antibiotics, antibacterials and other prescription drugs.
  • Schedule J— AIDS, cancer, cataract, congenital malformations, deafness, blindness, hydrocoele, hernia, piles, leukoderma, stammering, paralysis, and other diseases and ailments that a drug may not purport to prevent or cure or make claims to prevent or cure, such as AIDS, cancer, cataract, congenital malformations, deafness, blindness, hydrocoele, hernia, piles, leukoderma,
  • Schedule O— Disinfectant fluids must adhere to certain guidelines.
  • Schedule S—Standards to be followed with regard to cosmetics and allied products.
  • Schedule X drugs— Amphetamines and other stimulants, as well as barbiturates and other sedatives.

The Pharmacy Act (1948)

This act provides for the regulation of the pharmacy profession as well as the establishment of the Pharmacy Council of India, which oversees pharmacy education across the country.

Each state bears its pharmacy councils for the enrolment of pharmacists. The purpose of this act is to ensure that each state has its State Pharmacy Councils for the registration of pharmacists and to admit only registered pharmacists to compound, make or dispense from some medicine on the prescription of a registered person trained in medical science. 

The Drugs Control Act (1950)

This Act regulates the supply and disposal of drugs, and in addition to guiding the maker or business owner to fix the maximum price for each drug.

The Drugs and Magic Remedies Act (1954)

The Drugs Magic Remedies (Objectionable Advertisements) Act of 1954 is a piece of legislation enacted in 1954. It went into effect on April 1, 1955.

This Act controls advertisements of Drugs in India. It outlaws the advertising of drugs and remedies that purport to have magical characteristics and makes it a criminal offence to do so.

The Narcotics Drugs and Psychotropic Substance Act (1985)

The Narcotics Drugs and Psychotropic Substances (NDPS) Act  was enacted “to consolidate and reform legislation pertaining to narcotic drugs, as well as to provide strict measures for the control and regulation of Narcotic Drugs and Psychotropic Substances activities.” 

The legislation makes it illegal “to produce, manufacture, cultivate, own, sell, transfer, purchase, or consume any Narcotic Drugs and Psychotropic Substances”. The term “narcotic” in the legal sense is quite different from the one used in the medical context which denotes a sleep-inducing agent. Legally, a narcotic drug could be an opiate (a true narcotic), cannabis (a non -narcotic), or cocaine (the very antithesis of a narcotic, since it is a stimulant). Mind-altering drugs such as LSD, phencyclidine, amphetamines, barbiturates, methaqualone, benzodiazepines, mescaline, psilocybin, and designer compounds are referred to as “psychotropic substances” (MDMA, DMT, etc.).

Initially, there were no Special Courts however, by an amendment in 1989, now the Government can establish Special Courts. and there will be one single Judge who has powers to take cognizance of all the offences under the NDPS Act. 

There are certain procedural safeguards under NDPS Act, like Panchnama, Seizure report, Seal report, Proper arrest report….etc. One of the key features of the NDPS Act is, not only is the consumption of drugs an offence, but possession of drugs is an offence, as well.  So that is to say you have kept illegal drugs in your house, but you don’t consume them, you will still be punished under sections of the NDPS Act. The consumption of Drugs is punishable under “Section 27 of NDPS Act”. 

One more important thing to understand in the NDPS Act is, your punishment will depend on the quantity of drugs involved in the case. The NDPS Act categorises drug quantity into 2 types. One is a Small Quantity and the other one is Commercial Quantity. If you have Small Quantity drugs your punishment will be of a lesser degree and if you have Commercial Quantity your punishment will be higher. To know what is Small Quantity and Commercial Quantity, NDPS Act itself provides details of the Quantity of each drug. They are given below as a Table.

     DRUGS SMALL QUANTITY 
PUNISHMENT

COMMERCIALQUANTITY

PUNISHMENT
INTERMEDIATE(in between smaller and commercial quantity)
Heroin    5g


Maximum of 1year rigorous imprisonment, a fine upto 10,000 or both.
  250g


Rigorous imprisonment from 10 years (min) to 20 years (max) and a fine from 1 lakh to 2 lakh



A ten-year prison sentence and a fine of up to one lakh rupees are possible penalties.
Opium     25g  2.5g
Morphine       5g250g
Ganja(cannabis)    1kg20kg
Charas (cannabis and resin)    100g  1kg
Coca leaf  100g  2kg
Cocaine    2g  100g
AmphetAmine  2g  50g 
LSD  2mg  100g

Your punishment will range anywhere from 6 months to rigorous imprisonment of 20 years. Another feature of the NDPS Act is Section 31A which prescribes the death penalty, for repeated offences or certain rare cases. 

There are also some special provisions for addicted persons prescribed under the NDPS Act. As stated above, the consumption of drugs is an offence under Section 27 of the NDPS Act. However,  if the accused person wishes to undergo a de-addiction programme and expresses his intent “to undergo some de-addiction programme then he will be immune. Section 64A of NDPS Act provides “immunity from prosecution to addicts volunteering for treatment.

Narcotics Control Bureau

Narcotics Control Bureau was established in 1986 as per the NDPS Act, it is the apex body that regulates drug trafficking in India. The headquarters of NCB is at New Delhi, and the zonal office is in Mumbai, Kolkata, Chennai and Varanasi.  

Other legal bodies which govern drug abuse are:

  1. Narcotics Control Division.
  2. Central Bureau of Narcotics.
  3. Narcotic Control Bureau.
  4. Directorate of Revenue Intelligence.
  5. Central Bureau of Investigation.
  6. Customs Commission.
  7. Border Security Force.
  8. Police.

Drugs Price Control Order (DCPO)

The Government of India issued the Drugs Price Control Order, 1995, to regulate drug prices under Section 3 of the Essential Commodities Act, 1955. The order includes, among other things, a list of price-controlled pharmaceuticals, procedures for fixing drug prices, methods of implementing prices set by the government, penalties for enforcing DCPO provisions, and authorities conferred in NPPA. The Drugs Price Control Order (DCPO) 2013 was notified later.

Indian Penal Code (IPC), 1860

  • Section 176: Failure to provide notice or information to a public servant by a person who is legally obligated to do so. Doctors are required to report all cases of homicidal poisoning to the police; if they do not, they will be prosecuted.
  • Section 193: False evidence is punishable. False information about a poisoning instance is penalised by law.
  • Section 201: It is a capital offence to cause the deletion of evidence of an offence or to provide false information to a screen offender.
  • Section 202: Intentional failure to report an offence by a person who is obligated to do so. Intentional concealment of facts concerning a poisoning case treated by him is punishable.
  • Section 272: Adulteration of food or drink intended for sale. 
  • Section 273: Sale of noxious food or drink.
  • Section 274: Adulteration of drugs.
  • Section 275: Sale of adulterated drugs.
  • Section 276: Sale of drug as a different drug or preparation.
  • Section 284: Negligent conduct with respect to poisonous substances.
  • Section 299: Culpable homicide that was caused through the consumption of poisonous substances.
  • Section 300:  Murder caused by using poisonous substances.
  • Section 302: Punishment for murder.
  • Section 306: Abetment of suicide.
  • Section 307: Attempt to murder.
  • Section 309: Attempt to commit suicide.
  • Section 304 A: Causing death by negligence.
  • Section 324: Voluntarily causing hurt by dangerous weapons or means.
  • Section 326: Voluntarily bring about severe hurt by dangerous weapons or other resources.
  • Section 326 A: Causing grievous hurt by the use of acid.
  • Section 326 B: Throwing or attempting to throw acid.
  • Section 328: Causing harm to others using poison, etc., with the aim to commit an offence.

The Criminal Procedure Code (CrPC), 1973

Section 39:  Public to give information of certain offences. Everyone who is aware of the commission or intention to commit an offence shall inform the nearest police station or nearest magistrate.

Section 40: Duty of person in law enforcement working in connection with matters or business to be taken care of in a village to form a certain report. 

Section 175: Power to summon persons- police officers in charge of the police station or other police officers have the power to summon the person who has committed the offence.

The Indian Evidence Act (IEA), 1872

The Indian Evidence Act (IEA), Section 32, Clause 1, “allows a doctor to record a dying declaration when the patient’s death is imminent and the arrival of the magistrate is delayed.”

Supreme Court guidelines to prevent acid attacks

  1. Over the counter, the sale of acid is completely banned except that the sellers keep up a register to record the sale of acid that will hold the details of the individual to whom acid is sold and the quantity of acid sold. The record/register is going to register the address of the person to whom it was sold.
  2. The seller or the pharmacist can only give the acid to the buyer if he/she shows any ID card issued by the government which includes the correct address of that person. And he /she should also mention the proper reason for purchasing the acid.
  3. The seller must inform about all stocks of acid before the concerned magistrate within 15 days to
  4. Acid shall not be sold to people who have not attained the legal age.
  5. Fine may be imposed on sellers who do not declare the acid stocked before the concerned sub-divisional magistrate. The fine is upto 50,000/-.
  6. The concerned sub-divisional magistrate may impose a fine upto 50,000/- on any person who commits a breach of any of the directions mentioned above.

The following guidelines should be followed by educational institutions, research laboratories, hospitals, government departments, and departments of public sector organisations that are required to preserve and store acid:

  1. They should maintain and produce a register that keeps the information about acid stock before the concerned Magistrate.
  2. A person will be tasked with keeping the acid and keeping it safe in their area.
  3. The acid will be stored under the supervision of this person, and students or staff leaving the laboratories/storage space where the acid is used will be subjected to mandatory inspection.

Conclusion

In India, we have a situation of illicit and illegal use of drugs. We have deaddiction programs, drug peddling and trafficking issues as well. The circumstances we are living in are becoming more dangerous day by day. Metropolitan cities have become the drug hubs of the Nation. Instead of asking why people are getting addicted or why India is becoming a drug hub we all should ask ourselves how we should stop this. We have miscellaneous acts and laws to control the drug menace. It is valuable for not only doctors and pharmacists but each and every citizen to recognize the drugs prescribed by the doctors.  Its awareness can help us refrain or stay away from negligence due to our ignorance of these rules and in addition to specifying prudent medico-legal viewpoints that have connections with drugs and poisons. We all must follow the rules and regulations provided to us by laws and statutes. As we all know the proverb “Prevention is Better than Cure”, so let’s prevent the abuse of drugs and poisons before it erodes us completely.

References

  1. https://www.casemine.com/judgement/in/581180112713e17947973c99
  2. https://www.rfppl.co.in/subscription/upload_pdf/jfct3_4984.pdf
  3. https://forensicyard.com/various-indian-acts-on-poisoning-and-drugs/ 
  4. https://forensicfield.blog/indian-law-related-to-poisons-and-drugs/ 
  5. https://www.brainkart.com/article/Indian-Statutes-on-Drugs-Poisons_30973/

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