Criminology
Socio Legislation and Crime
A Socio-Economic Analysis of the NDPS Act
Component - I (A)- Personal Details
Role Name Affiliation
Principal Investigator Prof (Dr.) G S Bajpai Registrar, National Law
University Delhi
Paper Coordinator Dr. Rangin Pallav Assistant Professor,
Tripathy National Law University,
Odisha
Content Writer/Author Neeraj Tiwari Assistant Professor,
National Law University,
Delhi
Content Reviewer Dr. Mrinal Satish Associate Professor,
National Law University,
Delhi
Component - I (B) Description of Module
Description of Module
Subject Name Criminology
Paper Name Social Legislation and Crime
Module ID 14
Module Name/Title A Socio-Economic Analysis of the NDPS Act
Pre-requisites General understanding of the international
conventions dealing with narcotic drugs and
psychotropic substance and the Indian legal regime
on narcotic drugs and psychotropic substance
Objectives To apprise the students of the development
of law on narcotics in India.
To inform about the International
Conventions on prevention of narcotic drugs
and psychotropic substance.
To explain the drug control mechanism
under the NDPS Act.
Keywords Narcotics, psychotropic substance, Narcotics
Control Bureau, Central Bureau of Narcotics,
Convention.
I. Introduction:
India has a very deep-rooted history of conventional drugs like ganja (cannabis) and
opium. Cannabis had traditional cultural use in most part of the country. These drugs
were socially accepted and they continue in a significant way in rural set up whereas
urban Indian population fall a prey to the dangerous drugs like heroin and
psychotropic substances.
In India, the regulation of narcotic drugs started quite early. Before independence, the
regulatory regime for narcotic drugs was spread over in various legislations but the
genesis of drug control laws can be traced back to the Opium Act of 1857. The initial
legislations (Opium Act, 1857 and Opium Act, 1878) were enacted for the purpose of
protecting business interests rather to protect society from drug abuse. Early studies
show that these legislations were used as instruments to protect the British monopoly
of Indian opium and to control the related activities like possession, sale, purchase,
transport etc. The intention of British ruler was to generate revenue by exporting
opium produced in India but it has adversely affected local people. (Dr. M. C.
Mehanathan, Law on Control of Narcotic Drugs and Psychotropic Substances in
India).
The Dangerous Drugs Act, 1930 was enacted with an aim to suppress the traffic and
abuse of dangerous drugs. The Act was passed to fulfil Indian obligation to the
Geneva Opium Convention, 1925. The Drugs and Cosmetics Act of 1940 was another
pre-independence legislation which was aimed to control manufacturing and
distribution of drug formulation containing narcotic drug or psychotropic substance.
These laws held the field even after independence.
The post-independence era witnessed new challenges. Many non-conventional drugs
(morphine, heroin, cocaine etc.) have started capturing the market. At the same time,
the geographical positioning between world’s two bigger illicit sources (Golden
Crescent and Golden Triangle) has also pushed the law makers to bring new regime to
deal with the menace of drug abuse. The then existing legal regime had many
deficiencies which made it difficult to tackle the illicit drug traffic and drug abuse
cases efficiently. While the narcotic cases were on the rise, the existing laws did not
have proper mechanism to deal with the same. The punishment provided in these laws
for drug offences was inadequate (The Dangerous Drugs Act, 1930 provides for a
maximum term of imprisonment of 3 year with or without fine and 4 year
imprisonment with or without fine for repeat offences). The issue of transit drug
trafficking was not addressed at all. In recent years, many new psychotropic
substances have appeared on the scene which were not adequately covered by these
legislations. Moreover, these laws were not in consonance with our obligation under
various International instruments. There was want for comprehensive mechanism to
deal with psychotropic substances in the manner as envisaged in the Convention on
Psychotropic Substances, 1971.
(Source: Annual Report, 2015, Narcotics Control Bureau, Ministry of Home Affairs)
Therefore, need has arisen to address these issues and revamp the entire legal
mechanism to deal with the growing instances of narcotics related activities. This has
led to the birth of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred as ‘NDPS Act’). The NDPS Act has replaced the two Opium Acts and the
Dangerous Drugs Act, 1930. The Drugs and Cosmetics Act continues to be in force.
In this way, the laws on drug abuse have been consolidated at one place.
II. International Instruments on Narcotic Drugs:
It will not be wrong to say that no country is untouched with the social threat posed
by drug trafficking and drug abuse. Entire world is facing the heat of drug trafficking
and drug abuse across boundaries. There are many efforts on nation level, regional
level and international level to deal with the issues of drug trafficking and drug abuse.
India is no exception to this. One of the objects with which the NDPS Act was
enacted was to respond to the Indian commitments under various international
conventions on narcotic drugs and psychotropic substance. In order to understand the
law in better perspective it becomes necessary to learn about the conventions and
treatise on narcotic drugs and psychotropic substance which have direct bearing on
our legal regime.
II.1. UN Single Convention on Narcotics Drugs, 1961:
The Economic and Social Council of the United Nations adopted this Single
Convention with the desire to replace all agreements, protocols and conventions
exclusively concerned with control of narcotic drugs and consolidate them in one
single instrument.
The objectives of the Convention are:
- To consolidate the existing international instruments on control of narcotic
drugs
- To simplify the control measures, and
- To control poppy straw.
Some of the measures adopted by the Convention are listed hereafter:
- The parties to the Convention are required to make the activities contrary
to the Convention as punishable offences under their domestic laws.
- The possession of drugs must not be allowed except under legal authority.
- The Convention draws special procedure for international trade in narcotic
drugs. The export of drug to any country must be done in accordance with
the laws and regulations of that country.
- The parties must seize and confiscate drugs, substances and equipments
used in or intended for the commission of any of the offences referred to in
article 36.
- The parties shall pay attention to take all practicable measures for the
prevention of abuse of drugs and for the early identification, treatment,
education, after-care, rehabilitation and social reintegration of the drug
addicts. (Article 21-39 of the Convention,
[Link]
The Single Convention was amended by a Protocol in 1971 to strengthen the
extradition provisions for the offences enumerated in Article 36 of the Convention.
II.2. Convention on Psychotropic Substances, 1971:
The preamble of the Convention clearly sets forth the objectives to be achieved. It
begins with the concern of public health and social problems resulting from the abuse
of psychotropic substances and call for determination from the parties to prevent and
combat abuse of such substances and the illicit traffic which gives rise to such
activities. The Convention restricts the use of psychotropic substances for medical and
scientific purposes only. (Preamble,
[Link]
Article 5 of the Convention requires limiting the manufacture, export, import,
distribution and stocks of or trade in, and use and possession of, substances mentioned
in Schedules II, III and IV to medical and scientific purposes. It is desirable that the
State Party should not allow the possession of substance mentioned in Schedule II, III
and IV except under legal authority.
Article 12 of the Convention deals with international trade in substances mentioned in
Schedule I and II. It requires State parties to take all practicable measures to prevent
the abuse of psychotropic substances. It further provides that State parties must
provide for separate import or export authorization to permit the export or import of
substances mentioned in Schedule I or II.
Article 20 of the Convention deals with measures against the abuse of psychotropic
substances. It requires that necessary steps should be taken by the State parties for the
early identification, treatment, education, after-care, rehabilitation and social
reintegration of the persons affected by drug abuse. Each Party shall make laws, rules
or regulations in pursuance of its obligation under the Convention and make all
actions contrary to such laws, rules or regulations as punishable offence.
([Link]
II.3. Convention on Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988:
The Preamble of the Convention reflects concerns of the member parties towards
The magnitude and rising trend in the illicit production of narcotic drugs and
psychotropic substances, and
The demand and traffic in narcotic drugs and psychotropic substances,
It poses a serious threat to the health and welfare of human beings which adversely
affect the economic, cultural and political foundations of society. (Preamble,
[Link]
The Convention aims at evolving timely and efficient mechanism to deal with
international drug traffickers. The idea is to promote co-operation among party states
by exchange of information on a world-wide basis.
In order to carry out the obligations under the Convention, Article 3 requires the
Member parties to take necessary measures in their domestic law and make following
a criminal offence when committed intentionally. These are
The possession, production, manufacture, extraction; preparation, offering,
offering for sale, sale, purchase, distribution, transport, importation or
exportation of any narcotic drug or any psychotropic substance contrary to the
provisions of the 1961 Convention.
The cultivation of opium poppy, coca bush or cannabis plant for the purpose
of the production of narcotic drugs contrary to the provisions of the 1961
Convention.
The manufacture, transport or distribution of equipment, materials, knowing
that they are to be used in or for the illicit cultivation, production or
manufacture of narcotic drugs or psychotropic substances.
([Link]
Article 3 further requires that the Member parties must ensure that their domestic
courts or other competent authorities keep in mind the severity of the offences related
to narcotic drugs and psychotropic substance while considering the possibility of early
release or parole of persons convicted of such offences.
Article 5 of the Convention extensively provide for establishment of jurisdiction over
the offences, confiscation of proceeds derived from offences, narcotic drugs and
psychotropic substances, materials and equipment or other instrumentalities used in or
intended for use in any manner in such offences.
Extradition of fugitives, appropriate use of controlled delivery at the international
level, prevention of illicit cultivation of narcotic or psychotropic substances,
eradication of plants containing narcotic or psychotropic substances, mutual legal
assistance among parties in matters of investigations, prosecutions and judicial
proceedings in relation to narcotic drugs and psychotropic substance related offences
are some of the other notable steps taken under the Convention.
II.4. SAARC Convention on Narcotic Drugs and Psychotropic Substances, 1990:
The seeds of this Convention were sown at the Islamabad Summit in 1988 where the
Member States of SAARC expressed grave concern over the growing magnitude and
the serious effect of drug abuse and drug trafficking and discussed the possibility of
having a Regional mechanism to deal with drug abuse and drug trafficking.
([Link]
and-psychotropic-substances)
The Convention will not only strengthen the co-operation and enhance the measures
at the regional level but also advance to achieve the promises made in the Single
Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances,
1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988 more effectively.
The SAARC Convention has borrowed many provisions from the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
1988. Provisions on establishing jurisdiction, extradition, confiscation of proceeds of
offence, drug, material, equipments used or intended for use in such offences, mutual
legal assistance, controlled delivery etc. are parallel to the UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
III. Overview of NDPS Act, 1985:
The NDPS Act was enacted keeping in view the constitutional obligation as reflected
in Article 47 of the Constitution which requires State to prohibit the consumption of
intoxicating drinks and of drugs which are injurious to health except for medicinal
purposes.
The use of narcotic drugs only for medicinal purposes has also been highlighted in the
three international conventions relating to drug viz. the UN Single Convention on
Narcotics Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the
Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
As India has signed and ratified these Conventions, it becomes obligatory on our part
to prohibit the manufacture, production, trade, use, etc. of narcotic drugs and
psychotropic substances except for medical or scientific purposes. The NDPS Act was
prepared to fulfil the obligations and achieve the ends enumerated in these
Conventions.
The preamble of NDPS Act sets out the goals to be achieved in clear terms. It
provides not only for regulation and control of transactions relating to narcotic drugs
and psychotropic substances but also for forfeiture of property derived from or used in
illicit traffic in narcotic drugs and psychotropic substances. Various provisions of the
Act aim to realize Indian obligation under different international conventions relating
to narcotic drugs and psychotropic substances. Unlike its predecessors, the NDPS Act
has widened the scope of law by conferring enforcement powers on various central
and state law enforcement agencies. (See Preamble, [Link]
ACT/1985/The%20Narcotic%20Drugs%20and%20Psychotropic%20Substances%20
Act,%[Link])
Time to time the NDPS Act was amended to further strengthen the law. So far, the
Act has undergone three amendments since its inception. The first amendment came
in the year 1989 with an idea to provide deterrent punishments for drug trafficking
offences and to make the bail law more stringent. Some of the key amendments
provided for are following:
- Non-suspension, remission and commutation of sentences awarded under
the Act;
- Pre-trial disposal of seized drugs;
- Mandatory death sentence on second time conviction for specified
offences involving specified quantities of drugs;
- Offences to be cognizable and noni-bailable in nature;
- Tracing, seizing and forfeiture of property of drug offenders
Later amendments which have come in the year 2001 and 2014 were more focused on
rationalising the sentence structure and liberalising the bail provisions for drug
traffickers and drug addicts. These amendments have brought deterrent punishment
for drug traffickers whereas reformative approach has been adopted for drug addicts
by affording less severe punishments for them.
III.1. Narcotics Drugs and Psychotropic Substance Amendment Act, 2014
The Amending Act has brought some vital changes in the NDPS Act. It introduced a
new category of drug namely ‘essential narcotic drugs’ which allows Central
Government to list out drugs for medical and scientific use. Drugs falling in this
category will be governed by single set of rules across the country. Prior to the
amendment, each state used to have its own regulation to deal with these drugs. This
has also relaxed the complexities involved in acquiring licence for using these drugs.
Now institutions willing to use these drugs would require a single licence. These
changes were aimed to simplify access to essential narcotic drugs for the purposes of
pain relief and palliative care.
([Link]
Amendment%20Act%20-%[Link])
The amending act also abolished mandatory death sentence in case of a repeat
offence. Now the courts are given discretion to impose as an alternate 30 years of
imprisonment for repeat offence. The provisions for forfeiture of property of drug
traffickers were further strengthened by this amendment act.
The amendment act has brought clarification regarding the confusion between
considering pure drug content in the quantity seized and the entire quantity of drug
seized in the matter of sentencing. It was established that the legislative intent is to
take the entire quantity of drug seized for determining the quantum of punishment.
The 2014 Amendment Act introduced the concept of ‘essential narcotic drug’ to be
used for terminally ill cancer patients. A new psycho-active substance referred as
mephedrone was newly included in the list of psychotropic substances immediately
after the amendment. ([Link]
psychotropic-substances-amendment-bill-2011-1988/)
But the NDPS Act is not free from criticism and the major criticism of the Act is that it
contains draconian provisions. The inhumane approach towards the drug addicts
under the Act has also gained attention of many activists. The stringent bail
provisions, mandatory death sentence is some offences and reverse onus clause are
some of the instances for rendering this Act harsh.
The Supreme Court in Noor Aga vs. State of Punjab [(2008) 16 SCC 417] commented
on this Act in the following terms:
“The provisions of the Act and the punishment prescribed therein being
indisputably stringent flowing from elements such as a heightened standard for
bail, absence of any provision for remissions, specific provisions for grant of
minimum sentence, enabling provisions granting power to the Court to impose
fine of more than maximum punishment of Rs.2,00,000/- as also the
presumption of guilt emerging from possession of Narcotic Drugs and
Psychotropic substances, the extent of burden to prove the foundational facts
on the prosecution, i.e., `proof beyond all reasonable doubt' would be more
onerous.”
But the Court has cautioned that the human rights and dignity of the individual as
provided under the UN Declaration of Human Rights must not lose sight of while
giving effect to the legislative object and intent under international conventions
dealing with narcotic drugs and psychotropic substance. The Court insisted upon
conscientious compliance of the provisions of the Act for the purpose of upholding
the democratic values. [Noor Aga, para 82]
III.2. Drug Control Mechanism under the Act:
To control drug abuse and drug trafficking, the Act has envisaged various regulatory
mechanisms. Both Central Government and State Governments are conferred with
powers under the Act to establish institutions and authorities to regulate these
activities and also to investigate and forfeit drug related properties. The Act provides
for following measures:
A. The Act prohibits all type of cultivation, production, manufacture, possession,
sale, purchase, transportation, warehousing, consumption, inter-State
movement, transhipment and import and export of narcotic drugs and
psychotropic substances except for medical or scientific purposes. Even such
activities for medical or scientific purposes will be carried out in accordance
with the terms and conditions of any licence, permit or authorization given by
the Government.
B. The Act prohibits not only intentional conversion or transfer of property
derived from any offence under the Act but also punishes concealment of any
information pertaining to such property which is knowingly acquired,
possessed or used in any offence under the Act.
C. The Act permits forfeiture of assets derived from drugs trafficking.
D. The Central Government is empowered to regulate and permit the cultivation,
production, manufacture, import, export, sale, consumption, use etc. of
narcotic drugs and psychotropic substances.
E. 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.
F. To control inter-country drug trafficking the Act prohibits and punishes every
act of 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 authorization of the Central
Government.
G. 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’.
H. The Act makes all offences cognizable and non-bailable. (Basic Features of
Narcotic Drugs and Psychotropic Substances Act, 1985,
[Link])
III.3. Drug Law Enforcement Agencies under the Act:
The NDPS Act is administered by the Department of Revenue under the Ministry of
Finance. The Narcotics Control Bureau, under the Ministry of Home Affairs (MHA),
coordinates actions by various functionaries (Central and State) under the NDPS Act.
([Link]
The Central Government is entrusted with the duty to take necessary measures to
combat abuse of narcotic drugs and psychotropic substance. The Central Government
has created some statutory authorities to perform its functions under the Act.
The Narcotics Commissioner has been appointed under section 5 of the Act with an
aim to exercise powers and perform functions to supervise the cultivation and
production of opium poppy. The Central Bureau of Narcotics (CBN) is headed by the
Narcotics Commissioner. The CBN has other responsibilities like:
(Source: [Link]
The Central Government has constituted the Narcotics Control Bureau to exercise the
powers and functions of the Central Government for taking steps to implement the
obligations under various conventions, improve co-ordination among various
authorities and facilitate foreign authorities in prevention and suppression of illicit
traffic of narcotic drugs and psychotropic substance.
Section 6 of the NDPS Act envisages setting up of an advisory committee known as
‘Narcotic Drug and Psychotropic Substance Consultative Committee’. The
Committee was constituted by the Central Government in 1988 with the following
mandates:
III.4. Key offences and punishments under the NDPS Act:
The NDPS Act is among those social legislations which prescribes stringent
punishments. The quantum of sentence varies with the nature of offence and in most
cases, it is determined depending upon the quantity of drug involved. In the matter of
sentencing the Act departs from the usual sentencing scheme and does not make
distinction between abetment, conspiracy and attempt to commit any offence. The Act
prescribes similar punishments for all these acts. The Act makes preparation
punishable and provides for half of the punishment prescribed for that offence. The
repeat offences are dealt with more seriously and in some cases, repeat offenders are
punished with death sentence. The Act makes possession of drugs an offence similar
to sale, purchase and production thereof. Following chart gives a bird eye view of
offences and punishments:
Offences Penalty Sections
Opium - 18(c)
Cultivation of opium, cannabis or coca plants Rigorous imprisonment-up to 10
Cannabis - 20
without license years + fine up to Rs.1 lakh
Coca-16
Embezzlement of opium by licensed farmer Rigorous imprisonment -10 to 20 19
years + fine Rs. 1 to 2 lakhs
(regardless of the quantity)
Small quantity - Rigorous
imprisonment up to 6 months or Prepared opium-
fine up to Rs. 10,000 or both. 17 Opium – 18
Production, manufacture, possession, sale, More than small quantity but less Cannabis - 20
purchase, transport, import inter- state, export than commercial quantity - Manufactured
inter-state or use of narcotic drugs and Rigorous imprisonment. up to 10 drugs or their
psychotropic substances years + fine up to Rs. 1 Lakhs. preparations-21
Commercial quantity - Rigorous Psychotropic
imprisonment 10 to 20 years + substances -22
fine Rs. 1 to 2 Lakhs
Import, export or transhipment of narcotic
Same as above 23
drugs and psychotropic substances
External dealings in NDPS-i.e. engaging in
Rigorous imprisonment 10 to 20
or controlling trade whereby drugs are
years + fine of Rs. 1 to 2 lakhs 24
obtained from outside India and supplied to a
(Regardless of the quantity)
person outside India
Knowingly allowing one's premises to be
Same as for the offence 25
used for committing an offence
Violations pertaining to controlled substances Rigorous imprisonment up to 10
25A
(precursors) years + fine Rs. 1 to 2 lakhs
Rigorous imprisonment 10 to 20
Financing traffic and harbouring offenders 27A
years + fine Rs. 1 to 2 lakhs
Attempts-28
Abetment and
Attempts, abetment and criminal conspiracy Same as for the offence
criminal
conspiracy - 29
Half the punishment for the
Preparation to commit an offence 30
offence
One and half times the
Repeat offence punishment for the offence. Death 31 Death - 31A
penalty in some cases.
Cocaine, morphine, heroin -
Rigorous imprisonment up to 1
year or fine up to Rs. 20,000 or
both. Other drugs- Imprisonment 27 Immunity -
Consumption of drugs
up to 6 months or fine up to Rs. 64A
10,000 or both. Addicts
volunteering for treatment enjoy
immunity from prosecution
Punishment for violations not elsewhere Imprisonment up to six months or
32
specified fine or both
(Source: Department of Revenue, Ministry of Finance)
IV. Recent data on Drug Abuse and Drug Trafficking:
The year 2014 has witnessed highest number of arrests for drug related offences in
preceding five years. A steep growth is noticed in the numbers of prosecution and
conviction in drug related offences. The prosecution jumped by 50 percent from the
last year while the rate of conviction has seen growth by 127 percent.
The Annual Report of Narcotics Control Bureau of India reveals that the most number
of seizures made in the year 2014 pertain to three drugs: cannabis (5,510 cases),
heroin (4,467 cases) and cannabis resin (2,247 cases). The cannabis seizure in 2014
has marked an increase by 20 percent from the preceding year. India has seen a slight
decrease in seizure and quantity of heroin in 2014 as against the seizure and quantity
of heroin in 2013. Similarly, the trend of decrease was also noted in opium cases
which fall by 24.3 percent in 2014.
As per the Report, during 2015 illicit Opium poppy cultivation spread over 3461 acres
were destroyed all over the country. The destruction of illicit cultivation of opium
poppy prevents the probable production of heroin. Under the NDPS Act as well as
under the UN Drug Control Conventions, the cultivation of cannabis is illegal. To
further achieve this goal, illicit cannabis cultivation detected on area around 818 acres
were destroyed in 2015. (Annual Report 2015 at p. 20 available at:
[Link]
[Link])
V. Summary:
The preceding discussion highlights the passage of drug control regime in India. It
also reveals that the inception of NDPS Act was to strengthen Indian commitment to
control drug abuse and drug trafficking under various international conventions. The
NDPS Act provides various mechanisms for controlling these activities. Establishing
NCB, CBN like authorities, enhanced regulatory and monitoring measures, strict
punishment scheme, provision for rehabilitation of drug addicts are some of the
notable steps taken under the Act. The geographical positioning of India between
Golden Crescent and Golden Triangle makes its position vulnerable to drug
trafficking. It is reflected in the data quoted above. It is also seen from the data that
both instances of drug abuse and number of apprehension under the Act are on rise.
Hence it may be concluded that even though the Act encompasses various draconian
provisions to deal with the evil of drug abuse but the ground reality has shown
opposite picture and still efforts are needed to make society free from drug abuse and
to create better rehabilitation atmosphere for drug addicts.
References:
Narcotic Control Bureau, Annual Report, 2015,
[Link]
[Link]
‘Punishment for Offences’, Department of Revenue, Ministry of Finance,
[Link]
Central Bureau of Narcotics, [Link]
Basic Features of Narcotic Drugs and Psychotropic Substances Act, 1985,
[Link]
NDPS (Amendment) Act, 2014
[Link]
Amendment%20Act%20-%[Link]
PRS Legislative Research, [Link]
drugs-and-psychotropic-substances-amendment-bill-2011-1988/
Single Convention on Narcotic Drugs, 1961
Convention on Psychotropic Substances, 1971
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988
SAARC Convention on Narcotic Drugs and Psychotropic Substances, 1993
