This Article is written by Aditya Kohli (BA.LLB(Hons.) 3rdyear from Dharmashastra National Law University, Jabalpur, M.P.)
Introduction
If we look at the recent events, we can see that NCB[1] is again in the spotlight. Primarily, because in a well-planned and coordinated manner, the NCB raided the cruise ship in Mumbai, where they arrested Aryan Khan and a few others for drug abuse. This is not the first time that NCB has performed with great enthusiasm. We also saw NCB investigating drug activities in the case of Sushant Singh Rajput’s death in 2020. Also, the NCB exposed Bollywood’s drugs connection. In this article, we will not only talk about NCB but will also talk about the law which empowers NCB to act. NCB is licensed to work under the NDPS[2] Act, 1985.
History of drug laws in India
If we look in Indian history, we find that drugs like charas, cannabis have been used for medical purposes for a long time in India. But if we talk about who is responsible for drug abuse in India, the answer is our neighbouring countries. Because our India has located at a place where a golden crescent forms in the western part of India, in which countries like Afghanistan, Iran and Pakistan are the amplest illegal drug suppliers in the world. The massive influx of drugs from these countries comes to India through the Indo-Pak border, for this reason, we can see that narcotics remains a more intense problem in Punjab. On the other hand, on the east side of India, where we get to see a Golden Triangle, which includes countries like Myanmar, Laos and Thailand. These three countries are the biggest suppliers of opium, and at the same time, Nepal also contributes a little at times. Drugs are cultivated in these areas, and these drugs come to India from these places.
If we talk about drug laws, then we have only NDPS Act till now. However, before the NDPS Act, we have had other laws made to prevent and control the use of drugs. So, the laws we have had ‘The opium act of 1857, which was the first legislation against drugs, the opium act of 1878 and the dangerous drugs act of 1930. These three laws are repealed at present and have been replaced by the NDPS act of 1985.
Aim and Objective of NDPS act, 1985
This act has primarily two aims and objectives. First, ‘to prohibit drug trafficking’, then preventing trafficking includes many things such as (to stop cultivation, manufacture, distribution, sale and purchase of drugs). The second objective is ‘ to the prohibition of consumption of drug’.If we talk about India, we have already told you that such drugs have been used for medical purposes in India for a long time. Similarly, the NDPS Act states that the use of these drugs regulated by the government for medical or scientific purposes is legal and not a wrongful use. But if you use these drugs for illegal purposes, you will be liable to punishment under NDPS Act, 1985.
Important Offences and Punishment Under the NDPS Act, 1985?
If we talk about the important provisions under the NDPS Act, if someone is prosecuted under the NDPS Act, it will depend on what kind of drug you have and the quantity of the drug. Although, the NDPS act has its schedule, which describes the three categories of drugs quantities. Which is something like this:
- Small Quantity
- Less than commercial quantity
- Commercial quantity.
Therefore, if you are found with drugs under the above categories, your punishment will depend on the number of drugs. Also, there is no equivalent quantity has been mentioned under the NDPS act, such as 1 kilogram of drugs falls under the category of small doses. Here different quantities have been provided for each drug, which you can see in the table below.
| Drugs | Small Quantity | Commercial Quantity |
| Charas | 100 Grams | 1 KG |
| Cocaine | 2 Grams | 100 Grams |
| Ganja | 1 KG | 20 KG |
| Heroine | 5 Grams | 250 Grams |
| LSD | 2 Milligrams | 100 Milligrams |
| Morphine | 5 Grams | 250 Grams |
| Opium | 25 Grams | 2.5 KG |
Hence, on the basis of such a table, punishment and prosecution are done according to different quantities under the NDPS act, 1985.
| Small Quantity | Less than Commercial Quantity | Commercial Quantity |
| 1 year imprisonment/ Fine up to 10 thousand rupees. | Up to 10 years Imprisonment/ Fine up to 1 lakhs rupee. | Imprisonment 10 to 20 years/ Fine 1 Lakhs to 2 Lakhs rupees. |
[1]Section 8 states Prohibition of certain operations: No person shall-
- Cultivate any coca plant or gather any portion of coca plant; or
- Cultivate the Opium poppy or any cannabis; or
- Produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import India, export from India or transship any narcotic drug or psychotropic substance,
Except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and, in a case, where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorizations:
Provided that, and subject to the other provisions of this act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]
Hence, under this section accused will be punished based on the quantity of drugs.
Keep in mind that it is not the case that someone uses drugs, and later they stop or quit using drugs. It usually turns out to be a habitual offender. In the case of a habitual offender, the offender would have got 1.5 times more punishment than a usual offender, and this fact is kept in mind by the court while awarding the sentence. Even the death penalty has been mentioned under the NDPS Act. Although in many cases in India, courts have already given death sentences to criminals who have been found guilty in drugs cases.[2]Punishment for contravention in relation to cannabis plant and cannabis. [3]Punishment for illegal import into India, export from India or transport of narcotic drugs and psychotropic substances. Hence, these are some of the important provisions, which are strictly followed under the NDPS Act, 1985.
Provisions for Bail under the NDPS Act, 1985.
If someone is arrested under the NDPS Act, he does not get bail readily under this Act because the provisions of this Act are entirely different from the general provisions. If a request for bail is filed under CrPC, the principle is that the court should take a liberal approach while considering the request for bail so that the accused can get bail effortlessly. Whereas in the NDPS Act, the principle is that the court should not take a lenient view while awarding the sentence in the request for bail. This is one of the reasons why bail is not easily available under the NDPS Act, 1985.NDPS Act Jurisprudence of law is the exact opposite of ordinary jurisprudence of law because, in general jurisprudence, the principle is ‘innocent until proven guilty’ whereas, under the NDPS Act, the principle of jurisprudence is ‘guilty till proven guilty. Therefore, the laws of the NDPS Act work very differently, so it is hard to grant bail under this Act.
[4]Section 37 of the Act states that ‘offences under the NDPS Act are “cognizable” and “non-bailable”. Here “cognizable” means that the officer may arrest any person without a warrant, and “non-bailable” means that the officer has no power under this Act to grant bail to an accused unless the accused wants to bail and produced the accused before the magistrate.
Two grounds are required to be fulfilled while applying for bail under the NDPS Act. First, you have to prove on reasonable grounds that the accused is not guilty, and secondly, after getting bail, the accused will have to promise that he will not commit the crime again. These are two significant grounds that you have to prove in court. If you want to bail, the court may or may not grant you bail at its discretion.
Safeguards under the NDPS Act, 1985.
As we have seen, the provisions of bail and punishment under the NDPS Act are followed very strictly. Namely, the officer or agencies have a lot of power under this act, as much power means using the power not adequately. Hence, we also need safeguards so that the officers or agencies do not misuse their power. Therefore, there are certain safeguards provisions under the NDPS Act and general criminal law that protect an ordinary citizen. Under the NDPS Act, if an officer arrests a citizen, the officer has to prepare a detailed report of that person’s arrest. Like where is he arrested, why has he been arrested, etc. The officer has to give that report to his superior officer to maintain the checks and balance system.
[5]Right of accused to demand search before a magistrate instead of a police officer.Because it may happen that when the police officer goes to search the house of the offender, it is possible that the officer himself may keep the drug in his home and prepare a false case against the offender, so this section is made to avoid such incident.[6]The police officers will keep the confiscated material from the house of the offender along with a sealed cover which will later be used for verification in court. These are some of the safeguard’s provisions under the NDPS Act.
Conclusion
We saw in this article that in India the NDPS Act law is used for drug matters. At the same time, we have also seen its punishment and the very stringent provisions used in drug cases. It is also difficult to get bail in drug cases, and the court also does not take a liberal view in favour of the offender. Therefore, do not use or allow the drugs themselves as it is against the law and is harmful to the human body.
[1]Section 8 under the NDPS act, 1985.
[2]Section 20 under the NDPS act, 1985.
[3]Section 23 under the NDPS act, 1985.
[4] Section 37 of the NDPS Act, 1985
[5] Section 50 of the NDPS ACT, 1985
[6] Section 55 of the NDPS ACT, 1985
[1] Narcotics Control Bureau
[2] Narcotics Drugs and Psychotropics Substances Act, 1985.
