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The Narcotic Drugs And Psychotropic Substances Act (Current Situation And Suggestion)

India has a large consumer base of different substance abusers. This has serious repercussions in terms of morbidity & mortality. In India, the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) provides the framework for drug abuse control in the country. Some anomalies of NDPS act are rectified by narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011. This paper critically reviews the initiatives taken so far to control drug abuse in our country.

INTRODUCTION

Drug abuse has become a universal and growing issue of concern to humanity. The illicit drugs have multiple consequences to health, society and economy. These consequences include health: mortality, morbidity, psychiatric and physical disorders; social: accidents, absenteeism, family disintegration, prostitution, organized crime etc.; and economic: finances spent on developing services, drain on national resources, loss of productivity, etc. [1]. This issue is complex and multifaceted requiring both health measures and efforts to control trafficking/smuggling and manufacture of illicit drugs. A reduction in the demand of drugs of addiction both legal and illegal is required. According to estimates made by the Ministry of Health and Family Welfare, at least 40 million people throughout the world regularly abuse drugs. In India too, the problem is increasing and it is estimated that 3 million people are alcohol and other drug abusers of which 5-6 lakhs are dependent, requiring medical treatment and rehabilitation. India is the biggest supplier of licit demand for opium required primarily for medicinal purposes. Besides this, India is located close to the major poppy growing areas of the world, with "Golden Crescent" on the Northwest and "Golden Triangle" on the North-East. These make India vulnerable to drug abuse particularly in poppy growing areas and along the transit/trafficking routes. The fast-changing social milieu, among other factors, is mainly contributing to the proliferation of drug abuse, both of traditional and of new psychoactive substances. The introduction of synthetic drugs and intravenous drug use leading to HIV/AIDS has added a new dimension to the problem, especially in the Northeast states of the country.

EXTENT OF DRUG ABUSE IN INDIA

In the National Survey on "The Extent, Pattern and Trends of Drug Abuse in India", conducted by Ray R (2004) [2] major findings were that alcohol, cannabis, opium and heroin were major drugs of abuse, The number of persons requiring treatment was large, drug abuse was seen in both rural and urban India and Injection Drug Use had been reported from various sites, including rural India. The duration of drug abuse was long with significant time gap between onset of drug use and treatment seeking. A large number of drug users engaged in unsafe sex practices. Congruence between treatment seeking and the extent of the problem in a given state was lacking with low enrollment in treatment.

LEGISLATIVE POLICY OF INDIAN PARLIAMENT ON DRUG ABUSE

India's approach towards Narcotic Drugs and Psychotropic Substances is enshrined in Article 47 of the Constitution of India which mandates that the "State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health". The statutory control over narcotic drugs was exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted long time ago. With passage of time and the developments in the field of illicit drug traffic and drug abuse at the national and international level, many deficiencies in the laws that have come into force under the aforesaid Acts. As a result to provide a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the then existing laws relating to narcotic drugs, make provisions for exercising effective control over psychotropic substances, make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances, the Narcotic Drugs and Psychotropic Substances Bill 1985 was enacted on 16th September, 1985, and the Act is popularly known as (NDPS Act). NDPS act is an act to consolidate and amend the law relating to narcotic drugs, to: 1. Make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. 2. Provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances. 3. Implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substance and for matters connected therewith.

International meetings and operations form the mechanism for different countries to work together towards specific targets and goals. More importantly, they provide an excellent opportunity for officials from India to develop one to one rapport and understanding with officials from other countries which is an invaluable asset for the country. As far as possible, India will participate in all international meetings and operations to which it is invited or to which it is a party. India will also take the initiative to identify emerging areas of concern for international drug control and organize meetings and seminars to discuss the issues and to initiate operations to address the areas of concern.

COMPONENTS OF ACT

The act as originally passed in 1985 was spread over six chapters comprising 83 sections. After being amended by the narcotic drugs and psychotropic substances (amendment act), 1988 with effect from 29-5-1989, the act now contains eight chapters.

CHAPTER I

Section 2 of the act defines 36 terms [sub sections (i) to (xxix), (viia-d), (viiia), (xxiiia), and (xxviiia)]. Some of the important definitions under this act include:

1. "Addict" as a person who has dependence on any narcotic drugs or psychotropic substance.

2. "Narcotic drug" as coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.

3. "Psychotropic substance" as any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances (n=110).

4. "Controlled substance" means any substance with possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any international convention. The Central Government has so far notified Acetic Anhydride, N Acetylanthranilic acid and Pseudoephedrine as controlled substances.

CHAPTER II

Section 4 authorizes the central government to take measures necessary to prevent and combat drug abuse and illicit trafficking, including identification, treatment, education, aftercare, rehabilitation and social reintegration of addicts. Subsection 3 of section 4 also authorizes the central government to constitute an authority or hierarchy of authorities for the purposes and objectives mentioned in details in the different subsections. Section 6 empowers the central government to constitute an advisory committee called "The Narcotic Drugs and Psychotropic substances Consultative committee" to tender advice on matters referred to it. This chapter was added by the 1989 amendment to constitute a fund to be called the "National Fund for Control of Drug Abuse" with government and public contributions and also with the sale of proceeds of forfeited property derived from or used in illicit traffic with action predicated on criminal conviction.

CHAPTER III

The act empowers Central Government to permit and regulate by rules (i) the sale of opium and opium derivatives from the Central Government Factories for export from India or sale to State Government or manufacturing chemists; (ii) the manufacture of manufactured drugs, not including manufacture of medicinal opium or any other preparation containing manufactured drug from materials which the maker is lawfully entitled to possess. The State Government may by rules permit and regulate (i) the cultivation of cannabis plant, production, manufacture, possession, transport, import inter-State, export inter State, sale, purchase and consumption of cannabis (Except Charas); (ii) The manufacture of medicinal opium or any preparation containing the manufactured drug from materials which the maker is lawfully entitled to process; (iii) the sale of opium and opium derivatives from the Central Government Factories for export from India or sale to State Government or manufacturing chemists; (iv) the manufacture and possession, of prepared opium from opium lawfully possessed by an addict registered with the State Government on medical advice for his personal consumption.

CHAPTER IV

The Act sets out the penalties for offences under the Act. These offences are essentially related to violations of the various prohibitions imposed under the Act on the cultivation, production, manufacture, distribution, sale, import and export etc. of narcotic drugs and psychotropic substances. All these offences are triable by Special Courts and the punishments prescribed range from imprisonment from 10 to 20 years for first offences to 15 to 30 years for any subsequent offences together with monitory fines.

The Act was amended in May 1989 to mandate the death penalty for second offences relating to contraventions involving more than certain quantities of specified narcotic drugs and psychotropic substances.

The Act, however, makes a distinction between possession for personal consumption and trafficking, the punishment for the former being limited to between six months and one year only. The application of this provision is subject to the qualification that the quantity of the drug involved in the offence should be a small quantity as specified by the Central Government under the Act.

Punishment for consumption of any narcotic drug or psychotropic substance like cocaine, morphine, diacetyl morphine or any other narcotic drug or any psychotropic substance specified by Central Government by Gazette Notification is rigorous imprisonment for a term up to one year or fine up to 20,000 rupees or both. Punishment for consumption of any narcotic drug or psychotropic substance other than mentioned is rigorous imprisonment for a term up to six months or fine up to 10,000 rupees or both. For second and each subsequent offence, punishment is rigorous imprisonment for a term, which may extend to one half of the maximum term of imprisonment and also fine up to one half of the maximum amount of fine.

CHAPTER V

The Act sets out the powers as well as the procedures for the investigation of offences under the Act. A new amendment was introduced into the Act in May 1989 to provide for the investigation, freezing, seizure and forfeiture of property derived from or acquired through illicit trafficking in narcotic drugs and psychotropic substances. This Chapter prohibits any person from holding any property derived from drugs trafficking and authorizes officers empowered under the Act to investigate, identify and seize such property.

CHAPTER VI

Under section 70 central and state governments should have regard to international conventions while making rules. Section 71 of this act, empowers government to establish centers for identification, treatment, education, after care, rehabilitation, social reintegration of addicts and for supply, of any narcotic drugs and psychotropic substance (as prescribed by concerned Government) to the addicts registered with government and to others where such supply is a medical necessity.

POSITIVE ASPECTS OF NDPS ACT

(1) An interesting feature of the act is that the procedure of addition and deletion from the lists of manufactured drugs (narcotic drugs) and psychotropic substances have been made very simple. No formal bill or amendment is required for the purpose, and the government has been empowered to do such changes through simple notifications in the official gazette on the basis of available information or a decision under any international convention.

(2) In terms of subsection 3 of section 4, the Narcotics Control Bureau was set up by the Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally. The NCB basically functions as national coordinator international liaison and as the nodal point for the collection and dissemination of intelligence and assures coordinated implementation within the parameters of a broad national strategy.

(3) The Narcotic Drugs and Psychotropic substances Consultative committee makes significant contributions in shaping and developing a national policy and strategy and also in matters of amendments under section 2.b and 3 for scheduling addition or deletion of drugs and substances for legal regulation and control. The committee also provides valuable inputs for India's contribution to the molding of international policy and programs.

(4) A reassessment of the Act in 2001 resulted in amendments relating to the length of imprisonment and the quantity and type of drug seized. This ensured that, where traditional drugs are concerned, only individuals with large quantities of cannabis can be arrested for drug trafficking and face imprisonment. Further changes in the law in 2002 created two categories that are based on quantity seized. These were defined as small quantities and commercial quantities.

(5) Section 31A states that any person convicted by a competent court of criminal jurisdiction outside India under any corresponding law shall be dealt with as if he has been convicted by a court in India. Thus, international criminals are also dealt with effectively.

(6) An addict convicted under section 27 may be released on probation under section 39 after signing a bond with or without sureties, for detoxification or deaddiction from a hospital or an institution maintained or recognized by the Government. The conviction would stand and the sentence remains in abeyance to enable him to report back on successful completion of deaddiction treatment within one year. The court may direct the release of the offender after successful completion of deaddiction treatment and abstaining from the commission of any offence under Chapter IV for three years. On failure to do so, he would have to serve the sentence.

(7) The power to issue search and arrest warrants, has in terms of Section 41 been vested both in Magistrates as well as in specially designated (Gazetted) officers of the Central and State Governments. This is designed to ensure both timely and effective action in response to any information and to obviate the need for judicial satisfaction each time a warrant is required to be issued.

(8) Under section 64 A, any addict, who is charged with an offence punishable under section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognized by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or any other section for offences involving small quantity of narcotic drugs and psychotropic substances. This immunity may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

(9) Chapter V-A, was introduced into the Act in May 1989 to provide for the investigation, freezing, seizure and forfeiture of property derived from or acquired through illicit trafficking in narcotic drugs and psychotropic substances.

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (AMENDMENT) BILL, 2011

During the implementation of NDPS Act, some anomalies have been noticed. Accordingly, the Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011 aims at rectifying those anomalies and also making certain further changes to strengthen the provisions of the Act. Salient features of the Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011

i. Defining "Central Government Factories" [new entry in Section 2]: Even though the term "Central Government Factories" is mentioned in certain Sections of the Act, till now it has not been defined in the Act. It is proposed to define "Central Government Factories" on the lines of the definition of "Government Company" under the Companies Act, so as to allow the Central Government the flexibility to restructure the Government Opium and Alkaloid Works without diluting the control over them.

ii. Changing the definition of "commercial quantity" and "small quantity" [Section 2 (viia) & (xxiiia)]: NDPS Act follows a graded system of punishment - the quantum of punishment varies depending on whether the quantity of drug involved in a case is "small" or "commercial" or more than "small" but less than "commercial". It has been held by the Hon'ble Supreme Court that while determining whether the quantum of drug involved in a particular case is small/ commercial, etc., it is the pure drug content and not the quantity of drug seized, which has to be taken onto account. Since the drug is almost never seized in the pure form and "small" and "commercial" quantities have been notified for preparations also, it is proposed to empower the government to notify quantities in respect of preparations of drugs and psychotropic substances also.

iii. Rationalizing the punishment for consumption of morphine, cocaine and heroin [Section 27]: Presently, the consumption of these drugs involves a maximum punishment of 1 year while trafficking of small quantities of the same attracts maximum punishment of 6 months only. This anomaly is proposed to be rectified, by reducing the maximum punishment for consumption of drugs to 6 months.

iv. Repeat offences under the NDPS Act invite a punishment of one- and one-half times (1.5 times) of the punishment for the first offence. However, this provision has been erroneously worded as "one-half" of the penalty for the first offence, instead of "one- and one-half times". This anomaly is proposed to be rectified.

v. While section 52A of the Act provides for disposal of drugs during trial after due certification of the inventories of the same by the competent Magistrate, it does not do so for "precursors" used in the manufacture of drugs, which are also liable for seizure under the Act or for conveyances seized. The amendment proposes to allow for pre-trial disposal of precursors and conveyances also.

vi. Presently, no time limit is prescribed for the investigating officer to look into the illegally acquired properties of trafficking and report the same to the Competent Authority. Consequently, financial investigations in drug cases have been receiving low priority. It is proposed to make it mandatory for the investigating officer to make a report of the illegally acquired properties of the person involved in drug trafficking, to the jurisdictional competent authority within one hundred and eighty days of the arrest or seizure.

vii. The Hon'ble Supreme Court has interpreted the present provisions of Chapter VA (including Section 68B) and held that it is necessary to establish a direct nexus between the properties sought to be forfeited and the offence committed. It is nearly impossible to prove such a nexus as the drug traffickers do not keep records of the drugs they sell and the manner in which they invest the sale proceeds. It is, therefore, proposed to define properties belonging to traffickers, their relatives and associates, the source of which cannot be proved and the property of equivalent value, as illegally acquired properties by amending section 68B clause (g).

viii. Insertion of Explanation to Section 68H regarding validity of notice: Section 68H deals with the issue of a notice for forfeiture of property. As stated above, the Hon'ble Supreme Court has held that it is necessary to establish a direct nexus between the properties sought to be forfeited and the offence committed, which is not practically possible. In order to address this situation, it is proposed to insert an "Explanation" to section 68H stating that the notice for forfeiture would not be invalid merely on the ground of failure to establish a nexus between the property sought to be forfeited and any activity in contravention of the provisions of this Act.

ix. Legal basis for measures to manage injecting drug users to minimize risk to HIV, measures such as "needle-syringe exchange" and "oral substitution" are followed. These measures aim at management of addicts and cannot be strictly called "treatment". It is proposed to include the word "management" in section 71 so as to provide a firm legal basis to such measures.

COMMENTS ON THE PROPOSED NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE (AMENDMENT) BILL, 2011

The NDPS (Amendment) Bill, 2011 seeks to modify a number of provisions of the Act, which will affect penalties that people who use and are dependent on drugs will be subject to. In addition, the proposed changes have an important bearing on access to treatment and care for drug users. Some specific comments on amending clauses:

(1) Amending clause 5, modification in Section 27 "Punishment for consumption of any narcotic drug or psychotropic substance":

The Bill seeks to standardize the punishment for consumption of narcotic drugs and psychotropic substances to a maximum of 6 months imprisonment and/or fine which may extend to Rs 10,000. Under the existing Act, punishment for consumption of certain drugs like cocaine, morphine and heroin is up to 1 year imprisonment and/or fine of Rs 20,000. While the proposed move is a welcome step as Persons who use drugs, need support and assistance. Punishment is not an appropriate sanction to drug dependence. It has to be understood that once a person becomes dependent on drugs, she/he cannot give up without medical help. Punishing a patient is not only inappropriate but also unhelpful and unjust.

(2) Amending clause 15, Section 71(1) "Power of Government to establish centres for identification, treatment, etc. of addicts":

Proposed insertion of the term "management", after the words "treatment, identification" is a welcome step as it is a more accurate description of clinical care for drug dependence. There is an urgent need to increase the number of government institutions providing drug dependence treatment as well as to regulate private facilities purporting to provide such services. The suggested language change will help address both concerns.

SUGGESTIONS FOR AMENDING OTHER PROVISIONS OF THE ACT

(1) Availability of opiates for medical use: Under Section 10 (1) (a) (v) of the NDPS Act, the purchase, sale, use and consumption of morphine (a cheap and effective opioid used for alleviation of pain) is vested with the State Governments. Different States have different regulatory procedures and agencies. Moreover, in some States, multiple licenses are required to possess, transport, distribute, sell, purchase, use and consume morphine. Morphine has therefore, remained virtually inaccessible. There is an urgent need to simplify the regulatory procedure and vest it within a single, preferably Central government agency such as the Narcotics Commissioner.

(2) Immunity for treatment seekers: Under Section 64A of the existing Act, drug dependent persons who opt for medical treatment are entitled to relief from prosecution, provided the charge is that of consumption or involves a minor quantity of drugs. The application of this clause has been fraught with ambiguities. Immunity has not been granted to most drug dependent persons, on one or other technical grounds. These include insistence on proof of addiction, plea of guilt and waiting for framing of charge. This has resulted in undermining the legislative intent of the section, which is to discourage criminalization of drug dependent persons and encourage treatment seeking. Section 64A requires urgent legislative attention and reform.

(3) Mandatory capital punishment: Section 31A of the NDPS Act prescribes a mandatory death sentence for certain drug offences upon subsequent conviction. The death sentence is mandatory in that there is no punishment laid down in Section 31A other than death and the alternative of sentencing the repeat offender under Section 31 is foreclosed by the non obstante clause in Section 31A. But in 1983 the Supreme Court of India declared mandatory capital punishment as unconstitutional. In a recent decision, [6]. the Bombay High Court applied the same principle and held Section 31A of the NDPS Act to be violative of Article 21 of the Indian Constitution. The NDPS (Amendment) Bill, 2011 ignores the basis of invalidity of Section 31A as pointed out by the Constitutional Court. The Government has neither abolished nor amended Section 31A in the NDPS (Amendment) Bill, despite the findings of the Hon'ble Bombay High Court and Hon'ble Supreme Court in Toofan's Singhs Case on its constitutional validity, and This disregard of judicial orders merits attention of the Standing Committee.

2021 AMENDMENTS (PROPOSED CHANGES)

Currently, under Section 27 of the NDPS Act, possession of small quantities for personal consumption of drugs is a punishable offence, and can attract a fine of Rs. 10,000/- and imprisonment of six months or both. The Union ministry has recommended decriminalizing of possession of small quantities of drugs for personal use. The ministry suggested that the NDPS Act be amended to treat the consumer of drugs as victims who ought to be referred for rehabilitation and de-addiction, and not as criminals to be sentenced to jail. The proposal under discussion sought to replace the word "consumption" with "other than personal consumption (in small quantity)" and also sought to replace the word "addict" with "person with substance use disorder". The reason for this change was to help the courts take a more lenient view on people caught with small quantities, and to more strongly emphasize the difference between possession of drugs for personal consumption and possession of drugs for commercial use. Advocates of the proposal state that drug decriminalization is an important step towards achieving a rational drug policy that puts science and public health before punishment and incarceration. The proposal also suggests that mandatory treatment for de-addiction for 30 days for any person who has been found to have consumed or be in possession to consume drugs.

CONCLUSIONS

• The last 27 years have seen rapid growth in the combat against drug dependence especially the areas of policy formulation and growth of infrastructure. This is commendable. What now remains to be seen is the effectiveness and impact of the various measures initiated. It is imperative to have evaluation and subsequent modifications of plans and policies based on effective research.

• We should examine the root cause of the problem.

• Relying only on law-enforcing agencies, however hard they are at work to address the problem, is not going to solve it.

• Civil society and governments will have to work together to create an enabling environment to address the issue.

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