This Article is written by Akshma Gupta (currently pursuing my B.A, LLB degree from the University of Petroleum & Energy Studies, Dehradun)
There are two kinds of crime:
- Traditional crimes which affect individual persons. This includes murder, assault, theft etc.
- White collar crimes which affect the public at large. This includes smuggling, adulterations, hoardings, illicit trafficking, sale of narcotic drugs etc. These crimes are illegal acts committed by unlawful means with the person to obtain personal gain or profit.
Before the enactment of the Narcotic Drugs and psychotropic substances Act, 1985, the control of narcotic drugs was in the hands of central and state enactments. These acts were:
- The Opium Act, 1857
- The Opium Act, 1878
- The Dangerous Drugs Act, 1930.
India is a signatory to 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. These conventions prescribe different forms of control that aims to achieve the objective of limiting the use of narcotic drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of narcotics and psychotropic substances. The administration and legislative system which deals with narcotics are set up in accordance with UN conventions.
1985, NDPS Act is the principal legislation which deals with narcotic and psychotropic substances. This act provides a stringent framework for the punishment of offences that are related to the illicit use of narcotics and psychotropics.
In the case, State of Rajasthan v. Udai Lal, the supreme court of India held that “to Consolidate and reform the narcotics law, establish strict rules for the control and regulation of acts related to narcotic drugs and psychotropic substances, foresee the confiscation of assets due to illicit drug trafficking or their use in the field of drugs and psychotropic substances. Substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, Parliament passed the NDPS Act in 1985. This is a special law and was promulgated to establish strict rules for the control and regulation of operations related to narcotic drugs and substances. psychotropic.”[i]
Alcohol is not included under this act and the reasons for the same is the acceptance of alcohol by the society. The government also earn high revenue on sale of alcohol. The prevalence of locally made and illegal non-distilled forms of alcohol is very high in society and there may be differences in the clinical course of alcohol addiction compared to other drugs such as opium that have been included in NDPS.
Section 15-40 of the act deals with offences and punishments. Certain activities has been identified under this act that are against the social norms and such activities are included under the category of offences. These activities are forbidden by law as it harms physical and mental health of an individual.Punishment includes forfeiture of property which is derived from the illicit trafficking of narcotics and psychotropic substances and in some cases of repeat offender the punishment is death penalty.
When the NDPS Act was in its infancy, cases involving the crimes outlined in the Act were handled by traditional session courts. However, this exacerbated the problem of legal overload that plagued Indian courts for decades. To address this problem, with an amendment to the NDPS Act in 1989, the Government of India paved the way for the establishment of special courts to deal with statutory offenses. Sec. 36 of the Act authorizes the government to establish as many special courts as it deems appropriate to resolve disputes expeditiously. The Special Court consists of a single judge who is appointed with the consent of the President of the corresponding Superior Court and must be a titular judge of first instance or an additional judge of first instance at the time of his appointment. A special court has the same powers as the magistrate when referring cases to it. The Special Court is empowered to take cognizance of a crime under the law based on a report presented to it by the competent police authority or a complaint from the central or state government officials who are authorized to present such complaints. While special courts have played a central role in the effective implementation of the NDPS law, they have been unable to develop effective strategies to address the systemic challenges facing courts across the country. In 1986 the Narcotics Control Bureau was constituted under NDPS Act, 1985.The Narcotics Control Bureau or NCB is a central intelligence and law enforcement agency of India under the Ministry of the Interior of the Government of India. The agency’s task is to combat drug trafficking and the use of illegal substances in accordance with the provisions of the Law on Narcotic Drugs and Psychopharmaceuticals.[ii]
Section 27 A Of the NDPS Act states “Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viii a) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”[iii]
In 2014, a major change was made to the NDPS Act to allow better medical access to narcotics. Because regulation under the NDPS was very strict, even though it was a leading manufacturer of morphine, an opioid pain reliever used as a pain reliever, it was hard to come by even for hospitals. The 2014 amendment essentially removed and centralized state barriers to the transportation and approval of drugs in the “essential narcotics” category. It did so by introducing a provision first in Section 2 that defines essential narcotics, and then in Section 9 that allows the manufacture, possession, transportation, interstate import, export, sale, purchase, consumption and use of essential narcotics. With the change to include the definition of essential narcotics, the old Section 2 (viii) a, which was the catalog of offenses, was rewritten into Section 2 (viii) b, and Essential Narcotics were defined in Section 2(viii) a. The drafters missed amending the provisions of section 27A. This omission was noticed in 2016 in a judgement where the accused sought bail before the special judge of west Tripura in Agartala by citing the omission in drafting and this case was referred to the Tripura High Court. In 2021 the Tripura High Court has declared section 27A as inoperable.Section 27A was made inoperable as the wording of the provision establishes that the offenses listed in Section 2 (viii) subclause i-v are punishable under Section 27A. However, with the 2014 amendment, Section 2 (viii a) subclause i-v, which is supposed to be the catalog of criminal offenses, no longer exists.
Section 37[iv], which is framed in Chapter IV of the NDPS Act, analyses the aspect of cognizable crimes and non-bailable offences. This section is a tool developed by Parliament to review the threat due to flooding of dangerous drugs in the market and a sine qua non for granting bail to the accused under the NDPS Act.
It was observed by the Apex Court in State of Kerala v. Rajesh that, ― “The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with non−obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.”[v]
The Narcotics and Psychotropic Substances Act of 1985 was enacted with the objective of controlling and regulating the transportation, use or consumption of these illegal substances. The central government and the respective state governments have succeeded in introducing regulations related to the law to increase its positive impact on society. Criminals identified under the law also had the possibility of a fair trial in accordance with the principles of natural justice. The right of appeal against the decision of the arbitral tribunal is also provided.The significance of this law in the current scenario is that we hear a lot about the use of drugs and other illegal substances these days. Even the government has made a bold decision to ban all the drugs like HANS, KHAINI, etc. But people continue to consume these deadly substances and they are still available the market. Without public participation on these issues, the authorities cannot act. People can carry out certain awareness programs and periodic inspections in places where they suspect the regular use of such products.
[i] State of Rajasthan v. Udai Lal (2008) 11 SCC 408.
[ii]http://www.narcoticsindia.nic.in/.
[iii] https://legislative.gov.in/sites/default/files/A1985-61.pdf.
[iv] https://legislative.gov.in/sites/default/files/A1985-61.pdf.
[v] State of Kerala v. Rajesh; AIR 2020 SC 721.
