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Written by: Hridya Harikumar
Introduction
A drug is a habit-forming substance or chemical that is harmful to the human body and, in some cases, fatal. The government thus forbids it through a number of Acts and regulations. The NDPS Act of 1985, also known as the Narcotic Drugs and Psychotropic Substances Act of 1985, is the main law that regulates the production, formulation, distribution, consumption, and possession of any addictive drugs and substances.
The NDPS Act was introduced on August 23, 1985, and was signed into law by the President on September 16, 1985. The Act came to force on November 14, 1985, with the goal of controlling drug abuse, prohibiting its illegal or unsanctioned manufacture, distribution, and consumption, as well as prohibiting the illegal trade or trafficking in hazardous substances classified as narcotics or psychotropics by the Act. It has enacted stringent provisions and penalties for controlling and regulating operations involving such substances.
A brief history of the NDPS Act
Before 1985, neither the possession of drugs nor their use was prohibited by law. At that time, different social mores and beliefs were prevalent. The Opium Act, of 1857, the Opium Act, of 1878, the Dangerous Drugs Act, and a few other regulations, such as the Regulation of Psychoactive Substances, were some of the central and state laws in India that exercised statutory control over various narcotic drugs prior to the passage of the NDPS Act. The NDPS Act of 1985 consolidated and amended all of these drug laws and regulations.
India has ratified the Single Convention on Narcotic Drugs of the United Nations (UN), the Convention on Psychotropic Substances of 1971, and the 1988 Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Single Convention on Narcotic Drugs, an international agreement drafted in 1961, is thought to have played a role in the enactment of the NDPS Act. The Indian government initially opposed the treaty, but later felt compelled to work with international delegations because of its deteriorating economic situation and drug wars. It resulted in the passing of the NDPS Act, which made all narcotic drugs illegal in India. According to Article 47 of the Indian Constitution, the state must make an effort to outlaw drugs and alcoholic beverages that are harmful to one's health. Article 47 of the Indian Constitution and India's treaty obligations under the three UN drug conventions were thus taken into account when the NDPS Act was passed.
The NDPS Act, 1985
The Narcotic Drugs and Psychotropic Substances Act, or NDPS Act, was passed in India in 1985 to combat drug abuse and trafficking. It establishes a legal framework for the regulation of the production, sale, and use of narcotic drugs and psychotropic substances in India.
Narcotic substances are drugs that cause drowsiness, such as synthetic narcotics like cannabis, cocaine, and coca, as well as drugs derived from plants like opium, heroin, codeine, etc. Psychotropic substances are those that have an impact on the brain and alter mood or consciousness. Examples of psychotropic substances covered by the Act include LSD, phencyclidine, amphetamines, barbiturates, MDMA, etc.
The Act has its application in all Indian states and union territories. This also applies to all Indian citizens living outside of India, as well as all persons aboard ships and aircraft registered in India.
The main goal of the Act is to control the manufacture, possession, and trade of narcotics and psychotropic substances, and it prohibits the use of over 200 substances.
Composition of the Act
The NDPS Act of 1985 contains six chapters and 83 sections.
The first chapter serves as an introduction to and definition of various types of narcotic drugs and psychotropic substances. It also addresses the central government's authority to exclude or include any other substances from the Act's list. (Sections 1-3)
Chapter II establishes the relevant authorities and officers defined by the Act, as well as certain guidelines for the central government to follow when appointing the Narcotics Commissioner, establishing the Narcotic Drugs and Psychotropic Substances Consultative Committee, and funding the National Fund for Control of Drug Abuse. (Sections 4–7)
The prohibition, regulation, and control of such substances are addressed in Chapter III. It also prohibits any citizen from cultivating or producing these substances, as well as any form of interstate or international smuggling of these substances. (Sections 8–14)
Chapter IV deals with offenses and the penalties for them. (Sections 15–40)
Chapter V explains the investigation and prosecution procedures and establishes guidelines for the same. There is another chapter, Chapter V A, which deals with the forfeiture of illegally acquired property. (Sections 41–68)
Chapter VI contains miscellaneous provisions. (Sections 69–83)
Punishments
The NDPS Act imposes severe penalties on anyone who violates the Act's provisions based on the amount of the prohibited substance possessed. The severity of the punishment is determined by the gravity of the offense. The violation is punishable by either strict imprisonment, or fine, or both. Offenses and punishments are explained in Chapter IV of the NDPS Act.
Possession of any small amount of narcotic drugs or psychotropic substances can result in imprisonment for up to six months or a fine of up to Rs. 10,000, or both. If the quantity of drugs or psychotropic substances is greater than small but less than commercial, the punishment is rigorous imprisonment for up to ten years and a fine of up to one lakh rupees. If the quantity is commercial or greater, the penalty is rigorous imprisonment for up to 20 years and a fine of up to Rs. 2 lakhs.
The production, manufacture, cultivation, or storage of any narcotic drugs or psychotropic substances is punishable by imprisonment for up to ten years and a fine of up to one lakh rupees. If the offense is committed with the intent to sell or distribute the drug, the penalty is rigorous imprisonment for a term of up to 20 years and a fine of up to Rs 2 lakh.
A fine of up to Rs 2 lakh and rigorous imprisonment for a term of up to 20 years can be imposed for the sale, purchase, or any other form of trade or commerce in narcotic drugs or psychotropic substances. Transporting such substances can result in up to 10 years of imprisonment and a fine of Rs. 1 lakh.
Any person who knowingly finances any activity connected to the trafficking of narcotic drugs or psychotropic substances, whether directly or indirectly, or harbors any offender involved in such activities, can be punished with up to 10 years in prison and a fine of Rs. 1 lakh.
Anyone who commits an offense under the NDPS Act, 1985 after previously being convicted of a similar offense faces rigorous imprisonment for a term of up to 30 years and a fine of up to Rs. 2 lakhs. Second-time offenders may face punishment that is up to one and a half times that of the first offense. Similarly, the fine would be increased by one and a half times for repeat offenders.
Anyone who abets or conspires to commit an offense under the NDPS Act, 1985, can be punished with the same penalty as the offense itself.
The NDPS Act of 1985 also provides for the confiscation of any property found to be associated with any of the Act's offenses.
Amendments to the Act
In response to the changing nature of drug trafficking and abuse in the country, the NDPS Act has undergone several amendments and changes. In 1989, the Act was amended for the first time.
The Narcotic Drug and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), established capital punishment for certain offenses under the NDPS Act, of 1985. Repeat offenses, financing unlawful traffic, harboring offenders, etc. were examples of such offenses.
A number of modifications to the Act were made by the Narcotic Drug and Psychotropic Substances (Amendment) Act of 2001. It introduced the ideas of "controlled substances" and "prevention detention." Additionally, it implemented mandatory minimum sentences for a number of NDPS Act offenses. And furthermore, it provided for the creation of special courts to ensure that cases brought under the NDPS Act, 1985 are tried quickly.
The term "essential narcotic drugs" was first used in the Narcotic Drug and Psychotropic Substances (Amendment) Act of 2014, which also provided for its regulation. A National Fund for the Control of Drug Abuse was also to be established in order to support and finance drug abuse prevention and treatment programs.
In the year 2021, the NDPS Act was recently amended. The Narcotic Drug and Psychotropic Substances (Amendment) Act of 2021 brought about a number of changes. It pioneered the concept of "small quantity" for drugs like cannabis and heroin. The amendment reduced the punishment for possession of small amounts of such drugs. It also allowed for the use of technology in drug-related investigations and prosecution.
Major drawbacks of the Act
The criminal justice system in India follows the principle of "presumption of innocence," which holds the accused innocent until proven guilty. But in the NDPS Act, there is a concept known as "presumption of culpable mind," which states that an accused is guilty until proven innocent (Section 35). Section 54 states that unless the contrary is proven, the court will assume that the accused was in a culpable mental state and will proceed with the prosecution. The Act follows the principle of "arrest first, then investigate."
One of the Act's major flaws is the ambiguity in the definition of "small quantity," which causes confusion among law enforcement agencies and the general public.
Drug-related offenses receive severe punishments even if the gravity of the offense is lower, resulting in disproportionate punishment for minor offenses. The NDPS Act has been heavily criticized for punishing repeat offenders with the death penalty when the amount of drugs crosses a certain limit, as outlined in the controversial Amendment Act of 2001, which was later repudiated by the Amendment Act of 2014, which clarified that the death penalty is not mandatory and that there are other alternative punishments.
The Act has been criticized for being punitive rather than reformative. Those who are addicted to drugs face harsh punishment and are not rehabilitated.
Moreover, the Act imposes various restrictions on the granting of bail, which equates to denial and ensures years of imprisonment. Unless there are reasonable grounds to believe that the accused is innocent, the accused is not released.
There are also hurdles in enforcing the Act, such as difficulty in checking narcotic drug transportation, difficulty in locating the source, trial delays, and so on.
Important cases
The Supreme Court of India and various High Courts across the country have pronounced numerous judgments in matters related to the NDPS Act, 1985.
1. State of Punjab v. Baldev Singh (1999) [1]
In this case, the Hon’ble Supreme Court held that owing to Section 37 of the NDPS Act, all the offenses committed under the Act were cognizable and non-bailable. The Court also established stringent conditions for granting bail to those charged under the NDPS Act.
2. Mahesh Laxmanbhai Patel v. State of Gujarat (2002) [2]
The judge, in this case, acknowledged the prosecution's evidence and determined that the accused's possession of 6 grams of brown sugar and his involvement in offenses punishable by Sections 8(c) and 21 of the NDPS Act were established beyond a reasonable doubt. Furthermore, it was emphasized that compliance with the provisions of Sections 52 and 57 was not required and would not invalidate the prosecution even if it was substantial.
3. Madan Lal and Ors. v. State of Himachal Pradesh (2003) [3]
It was decided that once the possession of substances prohibited by the NDPS Act was established, conscious possession would be presumed. The person claiming otherwise would have to prove that it was an unconscious possession. Sections 35 and 54 of the Act formally recognise the position.
2. Noor Aga v. State of Punjab and Ors. (2008) [4]
In this case, the Supreme Court held that Sections 35 and 54, which impose a reverse burden on the accused, are constitutional. The standard of proof required by the accused to prove his innocence is lower than that required by the prosecution. The Court upheld the principle of the presumption of culpable mental state.
3. State of Kerala v. Rajesh (2020) [5]
In this case, the Apex Court ruled that, in addition to the restrictions set forth in Section 439 of the CrPC, the restrictions outlined in Section 37 of the NDPS Act would also apply to the use of the power to grant bail. According to Section 37 of the NDPS Act, no one may be enlarged on bail under the Act unless the prosecution has been given a chance to object and the court has determined that there are reasonable grounds for the accused's innocence.
4. Gurudev Singh v. State of Punjab (2021) [6]
In this case, it was acknowledged that the quantity of narcotics recovered is a pertinent factor that may be taken into account for the imposition of a more severe punishment than that required by the NDPS Act, 1985. The Hon'ble Supreme Court additionally pointed out that the Court has broad discretion to impose sentences of imprisonment between 10 and 20 years and that, in addition, the Court may take into account any other factors that it deems appropriate in addition to those listed in Section 32B(a) to (f) of the Act while imposing such sentences.
Conclusion
The NDPS Act is an extensive piece of legislation that provides for the regulation of narcotic drugs and psychotropic substances and punishments for drug-related offenses. It imposes strict penalties for drug-related offenses. Every citizen has a duty to abstain from engaging in any activity involving narcotic drugs and psychotropic substances and to report any such activity to the authorities, as soon as it is discovered.
The evolution of the NDPS Act reflects the changing nature of drug trafficking and abuse in India and the government’s efforts in addressing them. Even though the Act is strong and stringent legislation, there is still a need for effective implementation and rehabilitation measures to compact the problem. The Act has various drawbacks that need to be addressed in order to meet its purpose. It is the duty of the government to ensure that the Act is implemented in a fair and effective manner.
References
Bare Act, Narcotic Drugs and Psychotropic Substances Act, 1985
End notes
[1] State of Punjab v. Baldev Singh, (1999) 6 SCC 172
[2] Mahesh Laxmanbhai Patel v. State of Gujarat, (2002) 4 GLR 3127
[3] Madan Lal and Ors. v. State of Himachal Pradesh (2003) 7 SCC 465
[4] Noor Aga v. State of Punjab and Ors. (2008), INSC 1067 (9 July 2008) 570 SC
[5] State of Kerala v. Rajesh, AIR 2020 SC 721
[6] Gurudev Singh v. State of Punjab, Criminal Appeal No. 375 of 2021, LL 2021 SC 196
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