This article is written by Himanshu Mishra, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction

Drugs And Psychotropic substances usage remains to be ubiquitous while a wide range of substances being abused across the world. India has a vast number of a consumer base who are mostly abusers. This poses to be a serious repercussion in terms of morbidity & mortality. Narcotic Drugs and Psychotropic Substances Act (NDPS) of 1985 provides for the control and regulation of operations relating to narcotic drugs and psychotropic substances throughout the country. Some anomalies of the NDPS act are rectified by Narcotic Drugs and Psychotropic Substance (Amendment) Bill 2011. The judicial system in India, which governs the usage of Narcotic Drugs and Psychotropic Substance, has rendered a complicated yet a well-placed consideration in India, as the requirement concerning the usage of drugs and psychotropic substances fall within the ambit of medicinal purpose as the country obliges to the frameworks of UN conventions. As India remains one of the signatories of ‘The UN Single Convention on Narcotics Drugs -1961’, likewise ‘The Convention on Psychotropic Substances- 1971’ and also ‘The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988’. These conventions collectively prescribe on a various array of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same. On a global aspect, the control on the administrative and the legislative setup in the Narcotics field has been set forth by various countries, similar to India as per the aforementioned attributes that fall in accordance to UN conventions. 

Need for the legislation

India’s perspective in tackling the growing concern of Narcotics and Psychotropic Substances could be effectively enshrined from Article 47 of Indian Constitution which mandates over the fact that: “State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are Injurious to health”.

Statuary control with regards to narcotic drugs has been exercised by India via numerous Central as well as State enactments. In case the principal attributes of Central Acts, composed majorly on, opium Act of 1857 & 1878 and the Dangerous drugs Act 1930 which were subjected to enactment over a long time ago. With the growing passage of time followed with developments in the field of illicit drug traffic and drug abuse under National/ International level with several deficiencies within laws that were force effective as per the Acts that have been embarked till date. With regards to the legislation acts in proceeding with comprehensive legislation, Narcotic Drugs and Psychotropic substances inter alia shall provide consolidated effect followed by amending existing laws pertaining to narcotic drugs. Thus the legislation further facilitates in exercising effective control over psychotropic substances, via creating provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances, the Narcotic Drugs and Psychotropic Substances Bill 1985 which is popularly addressed as NDPS Act. 

Authorities and officers

The Central Government has taken several measures to combat the abusive usage of illicit traffic of Narcotic drugs. They are as follows:

• Subjecting to Provision of Act, as the Central body takes consolidated measures thereby deeming all the necessary/ expedient for the sake of combating as well as to prevent the abusive utilization of narcotic drugs and psychotropic constituents followed by illicit traffic, thereby narrowing their usage only for scientific investigation or usage. 
• In particular and devoid of prejudicing on an overall generality on sub-section and its provision. The measures which Centralized body might take under sub-section inclusive of measures with regards to all/ any of the following particulars namely: 

1. Coordination of set of actions via several officers, state-level bodies as well as other authorities who are falling within the act or under any sort of act for the time being under effect and with connection over the set of enforcement of a provision of such Act
2. Obligations abiding by international conventions.
3. Assistance with concerned authorities with abroad connections as well as international organizations that are in the view of facilitating collaborative coordination as well as universal action over prevention as well as suppression over illicit trafficking on narcotic drugs as well as psychotropic substances. 

Provisions under the law for the appointment of authorities

• Sub-section (3) of Section 4 of the Narcotic Drugs And Psychotropic Substances Act, 1985: The Central Government shall appoint a Narcotics Commissioner and may also appoint such other officers with such designations.
• Sub-section (1) of Section 7 of the Narcotic Drugs And Psychotropic Substances Act, 1985: The State Government may appoint such officers with such designations.

Central bureau of narcotics

Central Bureau of Narcotics, Gwalior is the nodal authority that regulates import and export of Narcotics and Psychotropic substances under the Ministry of Finance in India. It’s headquarter is located at Gwalior. The divisions are situated at Jaipur, Chennai, Mumbai, Lucknow, Kolkata. The responsibilities are:

1. Supervision over licit cultivation of poppy in India.
2. Investigation of cases under the NDPS Act, 1985 and filing of a complaint in the Court.
3. Action for tracing and freezing of illegally acquired property.
4. Issue of licenses for the manufacture of synthetic narcotic drugs.

Narcotics control bureau

It is the National Nodal Agency on drug law enforcement in India. It is responsible for fighting drug trafficking and the abuse of illegal substances. It’s headquarter is located in Delhi. Zonal units are located at Kolkata, Jodhpur, Guwahati, Jammu, Chennai, Bengaluru, Mumbai, Ahmedabad, Delhi, Patna, Lucknow, and Indore. The Zonal units are in charge of collecting and analyzing the data related to seizures of narcotic drugs in close cooperation with the Customs, State Police and other law enforcement agencies.

The Central Government of India was bestowed with the authority to appoint a Narcotics Commissioner and also to appoint other such officers with such designations as it might think fit for purpose under sub-section (3)4 of Section (4)5 of the Narcotic Drugs And Psychotropic Substances Act, 1985.

The Narcotics Commissioner might either by himself or through officers, who are subordinate to him, shall exercise all powers or carry out functions which are entrusted to him by the Central Government. The roles of the Commissioner are: 

• Coordination of actions by various officers, State Governments and other authorities under the principal Act, the Customs Act, 1962, the Drugs and Cosmetics Act, 1940.
• Implementation of the obligations in respect of counter-measures against illicit traffic under various international conventions.
• Assistance to the concerned authorities in foreign countries and concerned international organizations in connection with prevention and suppression of illicit traffic in narcotic drugs and psychotropic substances.
• Superintendence of the cultivation of the opium poppy and production of opium.

The officers who are appointed as per the sub-section (1) are subjected to general control as well direction on Central Government or being directed by Government and also of the Board or by other officers/ authority.

Narcotics control bureau, Chennai zonal unit

Narcotics Control Bureau in Chennai is one of the Zonal Units of Narcotics Control Bureau. They have conducted virtual campaigns through social media platforms such as Facebook, WhatsApp to observe the International Day against Drug Abuse and Illicit Trafficking which falls on 26th June. It is a welcoming fact that the authorities are actively involved in creating awareness among people even during this Corona lockdown. This office has even organized a programme with the theme ‘Say No to Drugs and Yes to Life’ and called for entries so as to involve school students and youngsters in fun-based learning activities.

Hierarchy Chart

The following lists a set of NDPS act and sections under which the following penalties and offences are being indicated in the below table. 

Table 1. Penalty and Offences under NDPS Act, 1985

Offences	Penalty	Sections
Opium Cultivation, cannabis/ coca plants with no proper license	Penalty of a rigorous imprisonment-ranging to a total of 10 + years with a fine ranging about  Rs. 1 lakh.	Opium – 18(c) Cannabis – 20 Coca – 16
Embezzlement of opium by a  licensed farmer	Rigorous imprisonment -10 to 20 years + fine Rs. 1 – 2 lakhs. (Irrespective of quantity used)	19
Production, followed by manufacturing, possession, sales, purchasing or transporting, import/ export interstate, or utilization of NDPS	Small/ meagre in quantity – Rigorous imprisonment ranging to a total of 6 months with a fine ranging to over Rs. 10,000 or both. More than a small quantity however less than the stipulated commercial quantity will be subjected to rigorous imprisonment. Ranging up to a total of 10 + years with a fine ranging to over Rs. 1 Lakhs. In the case of Commercial quantity there is a Rigorous imprisonment to about 10 to 20 years along with a total fine of Rs. 1-2 Lakhs.	17 (Prepared opium-; 18 (Opium – Cannabis) 20 (Manufactured drugs/ its preparations) 21 22 (Psychotropic substances -)
Import, export/ transshipment of NDPS	Same as above.	23
External dealings over NDPS-i.e. engaging /controlling trade whereby drugs are procured externally and supplied in India via person outside of India	Subjected to rigorous imprisonment covering 1-2 decades of fine ranging to about Rs. 1-2 lakhs. (Irrespective of quantity)	24
Facilitate a person with one’s premises (with one’s knowledge) (abusive usage for committing any kind of offence	Same as for the offence.	25
Violations pertaining to controlled substances (precursors)	Rigorous imprisonment ranging more than a decade along with an overall fine ranging to about Rs. 1 to 2 lakhs.	25A
Financing traffic and harboring offenders	Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs.	27A
Abetment, Attempts, as well as  criminal conspiracy	Similar to that of offence.	Attempts – 28 Abetment and criminal conspiracy – 29
Preparation on committing an offence	Half the punishment as disclosed in the case of offence.	30
Repeat offence	Represents 1 ½ times its punishment defined with regards to offence. Death penalty for certain cases.	31 Death – 31A
Consumption of drugs	Self-Administering Cocaine, heroin, morphine, – They were subjected with rigorous imprisonment to about 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment would range over 6 months with a fine ranging to over Rs. 10,000 or both. Addicts volunteering over treatment enjoying immunity from the prosecution.	27 Immunity – 64A
Punishment against one’s violations not elsewhere specified	Imprisonment ranging over six months or fine or both.	32

Limitations and allowance in usage of drugs usage for personal and commercial aspects 

In the case of several offences which are embarked in the NDPS Act, the punishment appears to be dependent on the overall quantity of drug and its usage in smaller quantities. These designated drugs, which fall under NDPS category are utilized more than small but lesser than the designated commercial requirement or on par with commercial requirement. Some of the drugs, which are being used under commercial and personal quantities with designated ranges, are showcased below. 

Allowance of drug categories within the stipulated and commercial limits

Medical use of drugs and law

Despite their abusive usage, these drugs are efficacious for treatment of several ailments. For instance, NDPS facilitates medical use of NDPS. However, morphine and other forms of opiates remain unavailable for patients as a result of strict restrictions as well as penalties. Until the current legislative acts governing drug abuse, rules pertaining to possession as well as usage of morphine as well as other medical opiates were being framed as a result of state governments, which meant medical providers are exercised to obtain multiple licenses over multiple agencies. Availability did not however improve even after the central government proposed a simplified procedure to morphine procurement in 1998. Despite the heated questions from Palliative care groups with regards to India’s approach with regards to Production as well as supply of morphine for developed nations, whilst patients back home are devoid of its accessibility. The problem was then finally addressed via legislative amendments in the year 2014, which has eliminated onerous state licenses over essential narcotic medicines and its approval for uniform regulations. 

Special provisions

There are some special provisions given by the Government for medical and scientific use. S.O.1181(E).- In exercise of the powers conferred by clause (viii a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby notifies for medical and scientific use, the following narcotic drugs to be essential narcotic drugs, namely:

1. Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice.
2. 1 phenethyl-4-N –propionyl anilino-piperidine (the international-non-proprietary name of which is Fentanyl) and its salts and preparations, admixtures, extracts or other substances containing any of these drugs.
3. 4:4-diphenyl-6-dimethylamino-heptanone-3 (otherwise known as 6-dimethylamino 4: 4-diphenyl-3- heptanone and as Methadone) and its salts such as (Adanon, Algolysin, Amidone, Amdosan, Butalgin, Depridol, Diaminon, Dianone, Dolphin, Dol amid, Dolphin, Doriexol, Heptanol, Heptanal, Hoechst, 10820, Detalgine, Mecodin, Mepection, Mephenon, Miadone, Moheptal, Physeptone, Psysopeptone, Polamidon, Simoron, Tumanon and the like) and preparations, admixtures, extracts or other substances containing any of these drugs.
4. Morphine and its salts and all preparations containing more than 0.2 per cent of Morphine.
5. Dihydroxy Codeinone (commonly known as ‘Oxy-codone and Hydroxycodeinone), its salts (such as Eucodal, Boncodal, Dinarcon, Hydrolaudin, Nucoda, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its esters and preparations, admixtures, extracts or other substances containing any of these drugs.

Criminalization of drugs justified

As it appears highly obvious over the fact that abusive usage/ consumption of drugs is regarded illegal and will subsequently result in imprisonment over a minimal term of 6 months to over one to decade time, on the basis of the (type of) substance consumed (See Table 1). The categorization of an individual’s possession of small quantity intended for personal consumption” was done away with in 20017 and presently, with possession of smaller amounts luring uniform punishment, which is irrespective of one’s intent. Rather the criminalization was not meant only for serious offenders, or restrictions over grant of bail have also been applied for cases pertaining to consumption/ possession of meager quantities of drugs. Clarifications from the court on such people were further subjected to charges with offences involving small quantities of drugs to have right for getting bail. However, neither police nor the people who are using drugs seemingly appear to be well-aware of law, via witnessing a series of indiscriminate raids and arrests, with special emphasis on street users which appeared to be quite not uncommon in today’s scenario. From the rendered official crime statistics which happen to not reveal what proportion of drug law were being arrested as convictions being conducted against users/ low-level offenders (involving small quantity offences) which are in opposition to ‘traffickers’ (involving larger quantities of drugs). Since the law itself does not distinguish between possession for personal use and possession with intent to sell for profit, it is difficult to comment authoritatively on whether enforcement is targeted at ‘users’ or ‘traffickers’. 

Endnotes

1. Narcotic drugs and Psychotropic Substance (Amendment) Bill 2011.
2. Article 47 of Indian constitution.
3. Drugs, N., & Act, P. S. (1985). Narcotic Drugs and Psychotropic Substances Act (As amended up to date). Ministry of Law & Justice, Government of India.
4. Section (4) of NDPS Act, 1985.
5. 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.
6. See: https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences.
7. Section 2 (viiia), NDPS Act.
8. Tandon, T., & Collective, L. (2015). Drug policy in India. IDPC briefing paper, February.

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