Drug Substance Abuse and Role of the Judiciary

Drug substance abuse has become a worldwide phenomenon. About 190 million

people all over the world consume one drug or the other. This growing problem is

affecting almost every country but its extent varies from region to region. Illicit

drug abuse has some serious consequences such as mental, physical, social,

financial, and family violence. The problem of drug abuse has produced drastic

costs to all the societies.

There is a worldwide consensus that misuse of narcotics and psychoactive

substances is rising and India is no exception. The problem is more serious in the

South Asian region. According to a UN report, 1 million heroin addicts are

registered in India, and unofficially, there are as many as 5 million . According to a

World Drug Report, out of 81,802 treatment seekers in India in 2004–2005, 61.3%

reported use of opioids, 15.5% cannabis, 4.1% sedatives, 1.5% cocaine, 0.2%

amphetamines, and 0.9% solvents . The problem of drug substance abuse is not of

a recent origin. But now it has reached a very high magnitude, due to many factors

such as economic, social, and health. The problem is more arduous since India is

the sole licensed international exporter of raw opium. It is both consumer and

exporter of these drugs. India also acts as the primary transit point, as it is flanked

by heroin producing Golden Crescent (Iran, Afghanistan, and Pakistan). Moreover,

charas and hashish producing areas of Himachal Pradesh and opium and poppy

husk producing areas of Rajasthan and Madhya Pradesh also add to this problem.

What is most worrisome is the youth of India is now trapped in the chains of this

menace. However, there is wide variation across states in terms of substance abuse.

A study revealed larger proportions of teens in West Bengal and Andhra Pradesh

use 60 % of gateway drugs in comparison to Uttar Pradesh and Haryana 35 %. The

present study attempts to analyze the problem in the Indian context with special

consideration of Punjab state.

The first and national wide survey in 2004 found that opiate use in Punjab was

much higher than average in the country. It was then home to 56 % of Indian

opium users. Situation in Punjab is quite worrisome and needs urgent attention.

The bane of drug abuse in Punjab has acquired the proportions of a pestilence that

has shaken the entire society in the state. It is observed that in Punjab “drug abuse”

is a raging epidemic, especially among the young. Throughout the border state of

Punjab, whether in villages or cities, drugs have become a scourge. India has one

of the world’s youngest populations, a factor that is expected to power future

economic growth, yet Punjab is already a reminder of the demographic risks of a

glut of young people. An overwhelming majority of addicts are between the ages

of 15 and 35. We can hear the most devastating stories in the villages of Punjab.
Proximity to the IndoPak border is a bane for all the cities, villages near it .There

are various underlying reasons for drug substance abuse in Punjab, such as porous

borders, international networks, nexus with government agencies, lack of political

will and lacunas in the existing laws. Punjab's geographical location makes it

particularly susceptible to both drug trafficking and addiction The farmers of

Punjab, who used to feed the entire nation (and the state that was referred to as the

breadbasket of India) , are trapped in the shackles of drug abuse now. Punjab has

become the hub of the highest number of drug cases registered in India under the

NDPS Act.

To tackle the menace of drugs, the NDPS Act1985 came into existence in

pursuance to the United Nations Drug Convention Art 4 (a) of the 1961, 1971 and

1988 Convention. Henceforth the act, as it stands today, is a product of three

conventions. The Act seeks to achieve a) deterrence of drug users and b )

rehabilitation of drug users.

The NDPS act aims to make “stringent provisions for the control and regulation of

operations relating to narcotic drugs and psychotropic substances .” Stringent

provisions are inculcated in the Act through strict liability clause i.e. intention is
not taken into consideration and the burden of proof falls on the shoulder of

purported and provisions of bail are very rigid.

The law makes a clear distinction between individual drug consumers and drug

traffickers. While the former can be diverted to rehabilitation and later are subject

to strict penal provisions. However, the Act has failed at achieving its twin

objectives. The Act itself has been a topic of contention. Its inadequate formulation

and ambiguity have failed in achieving the above-said goals which are established

by legislative mandate. Sec35 and 54 that are strict liability provisions in the Act

apply unanimously across all kinds of drug cases irrespective of the small,

intermediate, and commercial quantity specified in the schedule of the Act . By

merely focusing on possession , it fails to differentiate between different kinds of

crimes (drug consumption, unauthorized possession, peddling, transportation, and

trafficking, etc.) and offenders (first time, individual, drug addicts and, trafficking

units). Thus due to its inadequate conceptualization, the addicts with small

quantities find themselves mired into the cobweb criminal justice system. .Sec 39

and Sec 64 A seek to provide immunity to these addicts but these provisions have

been blatantly and arbitrarily ignored. These addicts are then sent to jails instead of

rehab centers by the judges. There are no uniform sentencing guidelines

concerning the law mentioned above as well. The present study is thus conducted

to assess the prevalence and pattern of drug substance abuse in India and Punjab its
nature and extent via closer scrutiny under the NDPS Act. The arbitrary use of

discretion and lack of sentencing guidelines is the framework that the researcher

would also engage in.

Research problem

The scholarship on the efficacy of laws and its failure in achieving rehabilitation and deterrence

has been dealt with. But scholars have failed to investigate the lack of clarity and decipherability

in criminal sentencing policy of India under the NDPS Act 1985. Judicial interventions are

lacking in the conception of rehabilitation and deterrence, which are established legislative

mandates. The addicts who need rehab are sent to jails turning them into hardcore addicts and

traffickers.

. The addicts are viewed as criminals by the police, prosecution, and courts, instead of viewing it

as a public health concern.

I am arguing that the flawed sentencing policy in India concerning drug laws warrant

reformulation.

Research question

1. Whether there is a uniform sentencing policy in India?

2. Whether there is a rational policy of sentencing under the NDPS Act?

2.1 What are the shortcomings under the sentencing policy of the NDPS Act?
 2.2 Whether the absence of proper sentencing policy under the NDPS Act has

been responsible for diluting its objective ?

2.3. Which changes can be incorporated under the NDPS Act to achieve its

objective?

Hypothesis

The objectives of the NDPS Act are not met without a uniform structured sentencing policy.

Methodology

This work is a primarily qualitative study, however, quantitative data has also been utilized to
have an insight of the problem. The primary sources of understanding the drug related law is
Narcotic Drugs and Psychotropic Substances Act, 1985 that consolidates and amends the law
relating to narcotic drugs, and makes stringent provisions for the control and regulation of
operations relating to narcotic drugs and psychotropic substances..

The Misuse of Drugs Act,1971 that too makes provision with respect to dangerous or otherwise
harmful drugs and related matters, and for purposes connected therewith.

And to learn about structured sentencing policy ,Coroners and Justice Act 2009 of UK ..

The Researcher will also examine the international conventions to which India is a signatory for

a better analysis of the research question — enlisting them as.

● The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances of 1988.

● The Convention on Psychotropic Substances of 1971.

● Single Convention on Narcotic Drugs, 1961as amended by 1972 protocol.

Analysis of existing data and reports of UNODC, Vidhi Central Legal Policy, Narcotics Central

Bureau, National Surveys, and Reports by PGIMER, Parliamentary debates, UK Drug Policy

will be analysed in realising the problem.

For the qualitative data, analysis information is gathered from the field visit made to the Central

Jail of Amritsar and Rehabilitation Centre for a preliminary inquiry. The responses from SP and

HOD have helped in leading the research in this area.

Table of contents

● List of statutes

● List of cases

❖ Chapter 1 Introduction

1.1 Introduction

1.2 Research problem

1.3 Research question

1.4 Methodology

❖ Chapter 2 -History of Drug Abuse Problem In India

❖ Chapter 3- Theories of punishment and sentencing policy.

❖ Chapter 4 – Sentencing policy under NDPS Act,1985

❖ Chapter 5 -Sentencing policy of United Kingdom

❖ Chapter 6 - Recommendations & Conclusion

● Bibliography
Bibliography

I Statutory laws

● The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

1988

● The Drugs and Cosmetics Act, 1940

● The Narcotic Drugs and Psychotropic Substances Act, 1985

II International Conventions

● The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances of 1988.

● The Convention on Psychotropic Substances of 1971.

● Single Convention on Narcotic Drugs, 1961as amended by 1972 protocol.

III Books and Journals

❖ BOOKS

● DR M C MEHANARHAN, LAW ON CONTROL OF NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES IN INDIA (3rd ed.)

● PHILIP REICHEL, HANDBOOK OF TRANSNATIONAL CRIME & JUSTICE

● C. K. BOYLE & M. J. ALLEN, SENTENCING LAW AND PRACTICE

● 3, ROGER HOPKINS BURKE, AN INTRODUCTION TO CRIMINOLOGICAL THEORY (2005)

● 3, DEBASIS BAGCHI, NARCOTIC DRUGS AND SUBSTANCE ABUSE

● 3, LEON RADZINOWIEZ & MARVIN E. WOLFANG, CRIME AND JUSTICE (1971)

● J.C ARORA, COMPENDIUM ON DECISIONS OF THE SC AND HC ON NDPS ACT 1985-1990

(1991)

● J. A. SHARPE, JUDICIAL PUNISHMENT IN ENGLAND (1990)

 ● C. RONALD HUFF & ARYE RATTNER & EDWARD SAGARIN, CONVICTED BUT INNOCENT:

WRONGFUL CONVICTION AND PUBLIC POLICY (1996)

● BRANDON L. GARRETT, CONVICTING THE INNOCENT WHERE CRIMINAL PROSECUTION GO

WRONG (2011)

● SUSAN EASTON & CHRISTINE PIPER, SENTENCING AND PUNISHMENT THE QUEST FOR

JUSTICE (3rd ed. 2013)

● R. P. KATARIA, LAW RELATING TO NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

IN INDIA (3rd ed. 2014)

❖ JOURNALS

● INDIAN BAR REVIEW

● STUDENT BAR REVIEW ( STUDENT ADVOCATE)

● CRIMINAL LAW JOURNAL

● LAWYERS COLLECTIVE

IV Research paper

● Susan Wherley and Subhankar Chatterjee, "India’s Growing Problem of Injecting Drug

Misuse", 350, BMJ.1, 1-4 (2015).

● S.V. Joga Rao, "Drug Addiction: Penal Policy", 34, ILI.275, 275-276 (1992).

● Sandeep Chawla and Thomas Pietschamnn, Drug Trafficking as a Transnational Crime,

160 (Philip Reichel, 2005).

● Dr Pradeep Singh, Drug Addiction: Etiology and Legal Regime, 34, IBR.51 (2007).

● Rumani Saikia Phukan, "Drug Problem: The Government's Survey in Punjab and Delhi"

(Sep 26, 2019, 9.00 AM), https://www.mapsofindia.com/my-india/government/drug-

problem-the-governments-survey-in-punjab-and-delhi.
● Richa Gautam, "The UN and Drug Abuse Control: A Critique", 9, SBR.108, 108-

111(1997).

● Mukul, "India: Hidden Cost of Heroin Control", 35, EPW, 2190(1997).

https://nij.ojp.gov/topics/articles/five-things-about-deterrence.

● Latest view of sentencing policy concerning the judgement of the Hon'ble supreme court

and high court, Maharashtra judicial academy, (Sep. 27,2019,10:05 PM ),

http://mja.gov.in/Site/Home/Index.aspx.

● Julian V Roberts & Umar Azmeh & Kartikeya Tripathi,Structured Sentencing In England

And Wales: Recent Developments And Lessons For India,23 NLSR.27,28(2011).

● R.Nirupma, Need For Sentencing Policy In India, (Sep 27, 2019, 10:04 PM,),

http://www.mcrg.ac.in/

● Five Things About Deterrence, (Sep, 27,2019,10;05 PM), https://nij.ojp.gov/topics/articles/five-

things-about-deterrence

● Dr Anju Vali Tikoo, Individualisation of Punishment,Just Desert and Indian Supreme

Court Decisions:Some Reflections,2 ILJLR,20,20(2017)

● P.S Seema,Suspension off sentence under the NDPS Act-A Harness on the judiciary,31

IB Sentencing Guidelines:India, the law library of congress, (Oct 22,2019,10:05 AM),

https://www.loc.gov/law/help/sentencing-guidelines/india.php

● Dame Ruth Runciman,Sentencing Drug Users,(Oct22,2019 ,10:05 AM),

https://www.ukdpc.org.uk/wp-content/uploads/Article%20-%20Sentencing%20drug

%20users.pdf

V Case Laws
 ● Bachan Singh v. the State of Punjab, (1980) 2 S.C.C. 684, para. 165
● Soman v. State of Kerala, (2013) 11 S.C.C. 382, para. 13.
● State of Punjab v. Prem Sagar & Ors., (2008) 7 S.C.C. 550, para. 2
● Sunil Dutt Sharma v. State (Govt of NCT of Delhi) AIR,2013 SC (Cri)2342

VI Reports

● Reports of UNODC,

● Vidhi Central Legal Policy

● UK drug policy

● Narcotics Central Bureau, National Surveys, and

● Reports by PGIMER,

● parliamentary debates