SOCIOLOGY of LAW

Anomalies In NDPS Act

TABLE OF CONTENTS
1) Introduction.4
2)

Policy of the Act......6

3) Failures of the Act...7 4) Policy Option & Proposed Policy.......9

5)

References..12

Statement Of Problem

To analyze the problems and difficulties in Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Introduction:
Basic Features of the Narcotic Drugs and Psychotropic Substances Act, 1985 The NDPS Act 1985 sets out the statutory framework for drug law enforcement in India. The main elements of the control regime mandated by the Act are as follows:

a)

The cultivation, production, manufacture, possession, sale, purchase, transportation, warehousing, consumption, inter-State movement, transshipment and import and export of narcotic drugs and psychotropic substances is prohibited, except for medical or scientific purposes and in accordance with the terms and conditions of any license, permit or authorization given by the Government. (Section 8)

b)

The Central Government is empowered to regulate the cultivation production, manufacture, import, export, sale, consumption, use etc of narcotic drugs and psychotropic substances. (Section 9).

c)

State Governments are empowered to permit and regulate possession and inter-State movement of opium, poppy straw, the manufacture of medicinal opium and the cultivation of cannabis excluding hashish. (Section 10).

d)

All persons in India are prohibited from engaging in or controlling any trade whereby narcotic drugs or psychotropic substances are obtained outside India and supplied to any person outside India except with the previous authorisation of the Central Government and subject to such conditions as may be imposed by the Central Government. (Section 12).

e)

The Central Government is empowered to declare any substance, based on an assessment of its likely use in the manufacture of narcotics drugs and psychotropic substances as a controlled substance. (Section 9-A).

f)

Assets derived from drugs trafficking are liable to forfeiture (Chapter V-A).

g)

Both the Central Government and State Governments are empowered to appoint officers for the purposes of the Act. (Sections 4, 5 and 7).

. The NDPS Act is in effect a comprehensive code not only for the control and regulation of Narcotics Drugs and Psychotropic Substances; but also for the control of selected chemicals - commonly known as precursors - which can be used in the illicit manufacture of narcotic drugs and psychotropic substances, as well as for the investigation and forfeiture of drug related assets

The conventional drug policy as incorporated in the Narcotic Drugs and Psychotropic Substances Act, 1985 reflects a completely deterrent approach. The failure of the NDPS Act, 1985 in achieving its objects demands the adoption of a new policy.

The Policy Of The Act :

The present policy assumes that large number of convictions would result in the elimination of the drug problem and therefore aims at punishing anyone connected with the drug trade. The cultivator, seller and consumer of the drugs are treated at par and punished with stiff minimum mandatory sentences1. Section 2 brings non-addictive or soft drugs such as charas, bhang, ganja and marijuana within the purview of the Act along with addictive and hard drugs such as cocaine, hashish and psychotropic substances like crack and LSD. Offences relating to both are punished equally. The Act also greatly limits judicial discretion by confining it to the enhancement of punishments above the minimum mandatory sentence and fine prescribed. It further raises a presumption as to the mental element required to be proved for the offence and thereby shifts the burden of proof of the accused2. Confiscation of the property acquired through profits of the drug is also provided for.3

Failures Of The Act :

1

Ss 15-19 and 21 &23 of the Act use the words produces, cultivates (or manufactures), possesses,

sells, purchases, transports, imports inter state, exports inter state, or use, lumping everything under one offence and uniformly prescribing a minimum sentence of 10 years and a minimum fine of Rs.1 lakh.
2 3

Section 35 of the Act Ss , 60-62 of the Act

The primary failure of the act is that it fails to distinguish between a drug user and trafficker. S. 2 which excludes personal use from use and section 27 which allows possession in small quantity for the purpose of personal use have been nullified because the small quantity fixed by the government is absurdly small, barely sufficing for a single use. The basis for arriving at these quantities is not known. Ss. 39 and 64-A which deal with probation and immunity from prosecution of the drug user respectively are rendered impotent as they are dependent on section 27. The consequence of such policy is that once a user possesses more than this small quantity, he is considered a trafficker. Before the Act was enacted, Indians generally used soft drugs. Soft drugs being nonaddictive or very mildly addictive, their effects can be compared to that cigarette or alcohol abuse. The Act made a seller equally liable for selling either hard or soft drugs. The profit derived from selling hard drugs being substantially more for the same risk, the sellers switched to selling hard drugs and consequently, soft drug users were forced to use hard drugs and soon became hard drug addicts. This is the main reason for the sudden increase in the number or addicts after the Act came into force. The policy of the law is tackle the menace of drugs through draconian measures but the judiciary was not prepared to translate the intention of the legislature into action. Starting from Mohd. Giassuddin v. State of A.P.4, the Supreme Court stressed the importance of judicial discretion in sentencing. It therefore found the concept of sentencing a person to stiff minimum mandatory sentences somewhat abhorrent. As such, they resorted to frivolous excuses such a non-compliance of procedural grounds to acquit a person. Further, the shifting of the burden of proof on the accused by introducing a presumption as to the mental element results in denial of the right against possible self-incrimination by forcing the accused to hostile cross-examination. Another major failure of the NDPS Act is that is fails to recognize the vicious link between injection drug abuse and HIV infection. HIV can be spread only by 3 ways: 1. Sexual transmission; 2. From infected mother to her infant (perinatally) and 3. HIV inflected blood or human tissue products. HIV infection caused injection drug users because of the needle sharing falls under the third category. Drug injectors form the second largest and in developing countries, the fastest growing group of HIV injected
4

AIR 1977 SC 26.

cases. The reasons for needle-sharing are complex and interlinked. The main reason is short supply of needles and equipment. Also equipment removed from abusers by police during searches is destroyed. Further possession of equipment contaminated with heroin may be used as evidence against suppliers and so suppliers insist on abusers to use drugs on the site leading the use of the same equipment by all his customers. Another important factor is the behavioural pattern among needle shares and their relationships. Therefore the policy must also aim at changing these high-risk behavioural patterns. The Act gave enormous powers to the investigating officers with only few steps in procedure to be followed carefully. This law mandated severe punishments leaving little discretion to the courts in awarding punishment, if a man is found guilty. The courts came up with the maxim of strict proof of severe punishment and looked into all technical aspects before awarding punishments. The NDPS Act, 1985 was, therefore amended to rationalize the punishment with quantum of the drug seized and to do away the misuse of the provisions by the enforcement agencies. One the key features of the NDPS Act is stringent bail provisions. Courts cannot grant bail to those accused of offences under section 19, 24 or 27A and for offences involving commercial quantities. The term commercial quantity applies only to drugs and not precursors under the NDPS Act. If precursor chemicals are seized in large quantities from a person, the strict bail provisions u/s 37 of the NDPS Act, 1985 do not apply. There is a need to include offences under section 25A in section 37 of the NDPS Act, 1985. Section 52A of the NDPS Act provides for the pre-trial disposal of the narcotic drugs and psychotropic substances but not of controlled substances. Precursors chemicals are useful to the society and their early disposal avoids deterioration, minimizes wastage and contributes to the exchequer. Hence pre-trial disposal should be made applicable to controlled substances as well. If the accused are acquitted in the trial, the sale proceeds can be returned to the owner in lieu of the seized substance. Often, vehicles are seized along with drugs or precursors. Section 52A which deals with pre-trial disposal does not apply to vehicles and as a result, vehicle keeps lying with the enforcement agency for years till the case is disposed. The vehicle not only 8

depreciates in the interim but it also costs money to store it. Therefore, section 52A may be made applicable for seized conveyances as well. The sale proceeds of the vehicle may be released to the owner if the court finally releases the vehicle.

Policy Options :
9

First we could legalise only the soft drugs while adopting a policy similar to the present one with respect to hard drugs. The second option would be to conditionally legalise hard drugs as well. The third option is to legalise all drugs unconditionally and allowing the market forces to operate. The first and the third options would not work because in the former case the evils associated with hard drugs would still persist and in the latter case while drug trafficking, manufactured and cultivation could be controlled, the menace and incidence of drug abuse would greatly increase.

Proposed Policy :
The second option is considered more viable. The proposed policy measures would include complete legalization of soft drugs while maintaining a state monopoly over hard drugs. Under this scheme soft drugs will be placed on par with tobacco or alcohol so that for manufacture, cultivation and sale. Licences will be required besides their being freely available in the market. Promotion of advertisements highlighting the effects of the use of soft drugs and regulation on the advertisements which promote drugs will serve the objective of educating and deterring youth from the use of soft drugs. With respect to hard drugs legalization would be done conditionally and placed under state control. A board concerned with the welfare of hard drug addicts will be established. Every hard drug addict will have to register himself with the board which guarantees his anonymity. Each registered addict will be issued a magnetically coded card which apart from containing details as to name, identification marks etc, shall also contain type, quantity, and frequency of dosage of the drug of addiction as determined 10

medically at the time of registration. The state shall also set up centers where hard drugs are given to registered addicts at reasonable prices. The quality of the drug shall be assured. Each center shall have a Counsellor and detoxification unit attached to itself and any addict can voluntarily approach the detoxification unit for rehabilitation. The State shall also undertake advertising campaigns encouraging hard drug addicts to register themselves and opt for detoxification.

References
11

1. google.co.in 2. http://narcoticsindia.nic.in/NDPSACT.htm

12