By Seeba Ramzani. N ~ Dr. Ambedkar Law University School Of Excellence In Law

ABSTRACT:

India has a larger consumer base of various drug substances which has bought serious repercussion in terms of morbidity and mortality. This paper critically reviews the initiative measures taken by the government so far to control the drug abuse in India through various statutory provisions ensuring efficiency of Law with the division of power and responsibility between Centre and State by the competent authorities. This paper also explains the Legislative intent of The Narcotic Drugs and Psychotropic Substances Act, 1985 and the special provisions relating to the immunity granted by the government to the offender in certain situations.

HIGHLIGHTS:  Special provisions relating to NDPS Act, Legislative intent, immunity to the offender.

Introduction

Globalization and liberalization of Economy have aggravated the global phenomenon in increasing Drug abuse and Drug Trafficking. India has been a vulnerable transmit point in International Traffic in Narcotic Drugs. The propensity of categorizing drug trafficking as a white-collar crime as it threatens the Social and Legal fiber of the Country. They dawn problems with the range equal to terrorism, both synergically causing problems to Law and Order.

The Narcotic Drugs and Psychotropic Substances Act, 1985 was one such initiative brought forth by the Government of India as preventive measures, where the Act provides deterrent punishment for drug trafficking as a crime. A subsequent amendment has been made to wipe out the anomalies and to further enhance the law with the changes in the contemporary world. The Narcotic Drugs and Psychotropic Substances Act, 1985 was initiated to make a stringent framework for control and regulation relating to certain Drug Substances. Those drugs are included under Section 2 of the Act, are like cannabis, coca leaf, ganja, coca plant and which does not include any preparation contains more than 0.2 per cent of morphine, opium poppy, medical opium, poppy straw. Whereas the charas mixed with or without any substance of neutral material. As there is no percentage of concentration of resin is prescribed for charas under which is extracted from the cannabis plant is permitted by the government by section 14 of the Act for the cultivation for industrial purpose, obtaining seeds or fibers[1].

Special Provisions Relating to Cannabis/Charas/Hashish Oil

The cannabis plant is prohibited for cultivating for the production of ganja or the possession or consumption, purchase, sale, transport, warehouse, import, export interstate of ganja any purpose other than Medical, scientific purpose. Section 2(iii) b of NDPS Act, ganja is the flowering or fruiting tops of the cannabis plant excluding the seeds and leaves when it’s not accompanied by the top of the cannabis plant.

According to Modi‘s Medical Jurisprudence and Toxicology, 972 editions vide page 693 Bhang, siddhi, Patti or cannabis Sativa consist of dried leaves and fruiting roots. In contrast, ganja has rusty green colour and characteristic odour and consist of the flowerings of fruiting tops of female plant coated with resin[2]. Bhang does not fall under the view of cannabis leaves when not accompanied by the top, and the possession of the same is not punishable. Once the possession of the contraband is established, the burden of proof shifts on the accused to establish that he had no knowledge at the same, mere knowledge does not constitute the possession unless some dominion is established.

Drug abuse becomes a universally growing issue related to humanity. Those drugs have varied consequences to society, economy, and health from mortality to morbidity. According to the estimates made by the ministry of health and family welfare, for about 40 million people throughout the world are regular consumers of drugs. In India its nearly 3 million people are alcohol addicts .other drugs abusers are of 5-6 lakhs dependent. India is the biggest supplier of drug as it is located near to the major poppy-growing areas of the world with the golden triangles. This makes India vulnerable to drug abuses in poppy-growing regions.

Drug users are increased by 30% in India in last decade, and the UN report estimates that 271 million people use all sort of Drugs and suffers from such disorder which has increased the death rate with 5,85,000 people died in 2017. (India Today)[3]

The Issue of Drug Trafficking in India

India is the home for almost six crore Alcoholic addicts, i.e. more than the Population of 172 Nations. People with such condition requires medical attention, but only less than 3% of people get treatment. The Government has initiated to deal with drug trafficking issues, constituted Narco-coordination Centre in November 2016, and they have discussed the large scale heroin trafficking with neighbouring countries.

The New Psychotropic Substances (NPS) are either pure or prepared form that is not controlled by the united nation drug convention but which may pose a public health threat. These NPS have the same effects as a substance under International Control such as heroin, cannabis, cocaine. Drug Abuse is a significant threat to society as it affects the present generation who once involved in it finds it difficult to overcome. Such impact will not only brings social issues to the families but also to the communities at large like, Drug abusers engage in unsafe sex practices and lack of enrollment in treatments.

Legislative Intent of Indian Parliament on Drug Abuses

The Constitution of India under Article 47 enshrined that “The state shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating dirking’s and drugs which are injurious to health.”

The Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted by taking into account India’s obligations under three United Nations Drug convention. In pursuance of these conventions, the said Act has given the power to enforce various Central and State Law and control of selected chemicals known as precursors which can be used in the illicit manufacture of narcotic drugs. There is well division of powers and responsibility for regulation in both licit and illicit activities which has created Statutory Authorities such as Narcotic Commissioner with the Competent Authority and Administrators. The agencies of the Centre and State has been empowered to enforce the provisions of this Act.

The Narcotic Drugs & Psychotropic Substance Consultative Committee

The Central Government may constitute by notification in the Official Gazette, an advisory committee to be called as The Narcotics Drugs and Psychotropic Substances Consultative Committee.  The members of The Committee may be appointed by the Central Government and have the power to regulate its procedure. If needed, they can constitute one or more sub Committees. To meet the Expenditure incurred in connection with the measurement taken to compact Illicit Trafficking of Narcotic Drugs and Psychotropic Substances, The Central Government Constituted a Fund named “National Fund for Control of Drug Abuse”.

The Central Government shall apply the fund after appropriation made by the Parliament by law or by grants therein will be credited to the fund[4].

The Opium Act 1878, The Dangerous Drugs Act 1930, was the first significant step by the Government of India to prevent drug trafficking. Later the Narcotic Drug and Psychotropic Substances Act, 1985 was brought to remove the deficiency found in the above Law.

The Perspective View of Imposing Higher Punishment under the Act

The provisions of this act specify the factors to be  taken into account for imposing severer punishments or fines than minimum sentences in certain circumstances mentioned under 32-B [5] wherein, the offender holding any public office through which he has taken advantages of committing an offence or in any instance, a minor is affected or used for the commission of the offence or in any situation; such offence is committed in any educational institution or in the place of social activities or when the offender belongs to any International Criminal group or the fact that the offender is involved in other illegal activities.

The Statutory Provisions indicates that the decisions to impose severer punishments than the minimum are not limited to the factors mentioned in 32B, it’s the discretion of the Court to decide whether it fits or not. For instance, A Person found in possession of Manufactured Drugs, The Quantity of which is equivalent to the Commercial quantity. The punishment of such offence as per Section 21(1) is not less than ten years, which may extend even to 20 years. If the manufactured drugs are 20 times more than commercial quantity, then the Court may impose severer punishments, then the minimum mentioned.

In view of the foregoing provisions, such decisions can be cross-examined by the Higher Courts as to whether the consideration of section 32-B taken into point.[6]

Exemptions Granted to the Offenders of Drug Trafficking

  1. Intent to Grant Immunity to Addicts from Prosecution for Volunteering to Treatment

Section 64-A of NDPS Act, 1985, any addict who is charged under the offence punishable with section 27 or offence involving even small quantity of drugs. If he voluntarily seeks to undergo medical treatment for de-addiction from the hospital, he shall not be liable to be prosecuted under section 27. This impunity is not applicable for the larger consumptions of drugs, but it is difficult to establish the material to prove that they have involved in small quantity.[7]

  1. Power to Tender Immunity from Prosecution 64(1) for Extracting the Evidence

Central and State Government may tender immunity from prosecution for any offence under the Act with the view to obtain the evidence of any person appearing to have directly or indirectly connected with the provision of the Act and it is not the power of the Court under this provision.[8]

The limitation on the exercise of such power is twofold: The Central and State Government must form an opinion that it is necessary to grant immunity to such person from extracting the information and the reason has to be recorded in writing. Secondly, the power under 64(1) is conditional. The person granted the immunity must disclose true and whole facts relating to the prosecution. If such condition is not fulfilled, then the immunity granted will be withdrawn by the Government.

  1. Death Penalty for Drug Crimes Have Changed Over Time

Death penalty for certain offence after previous conviction under 31A[9]  was first amended in 2001. However, after 13 years another amendment in 2014 made it optional to award death sentence for any person who attempts or commits the offence punishable under section 19, 24 & 27.  It was in 2011 when Mumbai High Court Division Bench declared 31A of NDPS Act which imposes the death penalty as unconstitutional.[10]

Suggestions

Manufacture of Opium for Medical purpose is well known. Despite special provisions given to the recognized medical institution[11], procuring such drugs for Medical treatments are laborious as of the stringent provisions of The Narcotic and Psychotropic Substances Act, 1985. Section 41 of Chapter IV prescribes certain limits for manufacturers of drugs for medical purpose. Advance notice has to be made for cessation and recommencement of manufacture in one month’s notice in writing to the authority as of section 43. The law has to be amended for the availability of medical drugs through flexible laws.

Conclusion

The Government has constantly been amending the law to eradicate the drug abuse, which has arisen in varied Dimensions. In 2019, amendment order, clause 4(1) of the order prohibits the manufacture, trade, commerce, possession and consumption of controlled substances in Schedule A. It has also been amended to include online sale such as social media, websites[12]. We need to re-enforce the policies relating to narcotic case and offences of socio-economic offence in general. This goal can be achieved by the speedy trial with the help of enhanced technological development. The immunity granted under section 64 is given only by the Government and not by the Court. The money from drug trafficking creates distractive issues in the money supply of India. To elucidate such crime against the illicit trafficking, the provisions of this Act is so stringent and positive as it takes into account the rehabilitation of drug addicts to brings them out from such spill of addiction by either providing the immunity or by rigorous punishment under the said Act.

Citations/References


  • [1] The Narcotic and Psychotropic Substances Act, 1985, pg 72.
  • [2] Dharma Chand vs state of Rajasthan, 1995(4) crimes at p. 554(Raj).
  • [3] From indiatoday.in.
  • [4] Ins.by Act No.2 of 1989 section 4(w.e.f.29th may, 1989).
  • [5] Ins.by Act No.9 of 2001, section 14(w.e.f.2nd October, 2001).
  • [6] Rafiq Qureshi v. Narcotic Control Bureau Eastern Zonal Unit, 2019 Cri.L.J.2912 at pp.2915, 2916 (S.C).
  • [7]  Section 64-A substituted by Act 9 of 2001, s. 30 (w.e. 2-10-2001).
  • [8] Vipin Kumar v. Union of India, 2000 Cr.L.J. 1555 at pp. 1559, 1560 (Delhi).
  • [9] Ins.by Act No 2 of 1989, section 2 (w.e.f.29th may, 1989).
  • [10] Indianexpress.com
  • [11] Section 52-N of chapter VB of the NDPS Act 1985.
  • [12] Ministry of Finance by notification on 13th March 2019 amendment.

A Purview on Challenging Dimensions of Narcotics Abuses Under the NDPS Act, 1985

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