Drug Regulations in India
In recent years, drug addiction has emerged in many ways across society, and substances like cannabis and opium being used for spiritual and medical purposes in India escalates the problem. Since this problem is inextricably linked with other crimes, such as organized crime, human trafficking, and money laundering, as well as health concerns such as HIV -AIDS, it is far more serious than other social ills.
As evidence of the extent of the problem, according to the statistics published by the National Crime Records Bureau (NCRB) in 2020 and 2019, 1.3 million kgs and 1.1 million kgs drugs and narcotics were seized respectively, and IDUs (intravenous drug users) number rose to about 88,000 and 100,000 respectively in Punjab and Uttar Pradesh. And with the recent Bollywood buzz about drugs and narcotics, it becomes necessary to know our country’s drug laws.
How did the Drug Law come into being?
India’s drug control laws date back to the Opium Act of 1857. Following this, the Opium Act of 18786 and the Dangerous Drugs Act of 19306 were passed. A majority of these laws were designed to regulate and monitor the use of specific drugs within limited contexts; furthermore, the punishments were relatively mild.
In the post-World War II era, countries began taking steps to adopt human rights instruments in an effort to protect individual dignity and rights. As a consequence, several international instruments, including the 1961 Single Convention on Narcotic Drugs and, more significantly, the 1971 Convention on Psychotropic Substances, recognized the need to enact regulatory regimes and systems to combat drug abuse.
To ensure compliance with international standards concerning narcotics control and to ensure compliance with the goals of these international treaties, the Indian government passed the National Drugs, and Psychotropic Substances Act, 1985. This statute is generally considered a prohibitionist law that deals with two kinds of crimes: trafficking in prohibited substances, i.e. the cultivation, manufacturing, distribution, and sale of contraband, and consumption.
NDPS cases are heard in which court?
When the NDPS Act was in its infancy, conventional Sessions Courts handled cases pertaining to the crimes outlined in the Act which further aggravated the problem of judicial overburden.
Therefore, the Indian Government amended the NDPS Act in 1989 to enable specialized courts to handle offenses outlined in the NDPS Act. With the concurrence of the Chief Justice, one of the sitting or Additional Sessions Judges of the High Court is appointed to serve on the Special Court. Police reports or complaints from government officials can be used as the basis for filing a case before the Special Court.
Despite the important role played by Special Courts in the implementation of the NDPS Act, the courts have been unable to design effective strategies to address the systemic issues arising from the act.
What are the Offenses and punishments?
According to the NDPS Act, sentences are determined by the quantity of drugs found, which falls into three categories: small, less than commercial, and commercial. As a result, for small quantities of drugs, a year of rigorous imprisonment may be the punishment, whereas large quantities may result in 20 years of imprisonment. Amounts for small and commercial quantities are determined by the government which is available on the official government sites.
Specifically, Section 8 of the Act prohibits the cultivation, manufacture, distribution, and purchase, and sale of substances like opium, poppy, coca, and cannabis, as well as the warehousing, transport, and storage of these prohibited drugs. In addition, it prohibits their financing, consumption, and harboring of offenders.
Can someone cultivate and sell it?
Licensed farmers can cultivate in for some specific purposes but Section 19 mentions, that if any farmer cultivating opium on a licensed basis embezzles it shall be punished with rigorous imprisonment or a fine. All the detailed offenses are also available on government sites, and usually, the punishment is high for other narcotics and psychotropics compared to a common drug named ‘Ganja’ for which the punishment is significantly less.
Also, under Section 23, any person who engages in importing, exporting, or transshipping narcotic drugs/psychotropic substances will be sentenced to jail or to a fine, and Sec. 24 clearly states that anyone engaging in external dealings that violates the Act shall be punished with imprisonment or fine both of which are dependent on the amount of substances.
What if I allow my friends to consume at my place but not myself?
In the event that any person knowingly allows his premises to be used for the commission of an offense under the Act, such acts will be punishable. The same punishment applies to anyone who finances illicit traffic or harbors an offender. In the event that someone consumes narcotic drugs or psychotropic substances, the punishment would depend on what kind of substance is consumed.
What happens with the seized drugs?
The agencies seizing the drugs are required to destroy them appropriately in the prescribed manner. Furthermore, if the accused is found to have any illegal property, the government will be required to forfeit it. Such proceeds will be put into the National Fund for Control of Drug Abuse to assist drug addicts in treatment and to promote initiatives for drug control.
What if someone repeats the offense?
As drug abuse is often a habitual problem for those who engage in it, the Act imposes a far stricter punishment on repeat offenders. Broadly speaking, the punishment and the fine for repeat offenses can be up to one and half times the quantum of punishment for the first offense. As a result, the punishment would vary from 1.5 years of rigorous imprisonment to 30 years of rigorous imprisonment depending on the gravity of the offense.
Are there any provisions for the death penalty or they are rumors?
Sec. 31A of the Act, which addresses punishments for second convictions, has been hotly debated. The 2014 amendment introduced a mandatory death sentence for drug offenses committed after a first conviction if the quantity of drugs involved exceeded a threshold.
A move that was praised by the human rights community in 2014 clarified that the death penalty is an option that can replace the punishments imposed by the Act for a repeat offender; it is not mandatory.
Several experts have repeatedly advocated for the complete removal of the death penalty from the NDPS Act. The argument goes that the penalty seeks to take lives for an offense that does not result in death.
Currently, reports indicate that 32 countries have laws providing for the death penalty in very rare circumstances. Nevertheless, a closer inspection of drug markets in these countries reveals that the death penalty has not deterred the illicit practices that these laws seek to prevent.
What if I’m innocent? Are there any safeguards for me?
Yes, as provisions in the NDPS act grant law enforcement agencies extensive powers to clamp down on malpractices related to drug abuse, it is also intended to create adequate safeguards to prevent innocent civilians from being unnecessarily harassed.
As well, Section 100 of the CRPC stipulates that if any police officer wishes to search a person for anything suspicious, they must do so only in the presence of at least two respectable inhabitants of that locality, or panchas. After that, the accused must be provided a statement containing the details of the search and seizure, as well as the signature of the pancha.
An accused may be searched in front of a magistrate or gazetted official under section 50 of the Act21. According to the Supreme Court in State of Punjab V. Balbir Singh 1994 AIR 1872, the police officer must notify the accused about this right out of necessity. As a last resort, Sec. 58 penalizes people for false complaints.
What if a Hospital needs some psychotropic drug for medicinal purposes?
In spite of the fact that the Act allows for exceptions in all relevant places for the use of scientific and medical drugs, it is alarming to note that it has undermined the ability of healthcare institutions to access essential narcotic medications.
Traditionally, this problem has been caused by the requirement that these institutions obtain licenses from a variety of regulatory agencies that address excise, drug control, health administration, etc.
The red-tapism involved in granting licenses coupled with their short tenure makes it extremely difficult for medical institutions to maintain enough drugs to ease terminally ill patient’s pain.
By virtue of the 2014 amendment, it is sought to implement a single-window clearance system that would grant the recognition of a Recognized Medical Institution (RMI) to every hospital that requires these drugs.
It proposes to create a category of drugs called Essential Narcotic Drugs that would be largely regulated by the central government. Hopefully, these provisions will simplify the process of acquiring licenses and help strike the right balance between ‘availability’ and ‘control’.
Is there any system for the rehabilitation of drug addicts?
Unfortunately, there has been a lot of criticism of the law for its poor treatment of drug users who need special care and treatment.
Rather than establish a robust framework for reducing their demand for drugs, the law, according to the argument, focuses only on reducing their supply and not on reducing their supply in the long run.
As a result of this concern, the 2014 amendment seeks to strengthen provisions pertaining to the establishment and operation of centers for identifying and treating addicts. By amending the law, the appropriate government agencies can now accredit treatment centers to manage drug dependency.
What agencies are responsible for the provisions of NDPS?
A nodal agency, the Department of Social Welfare, is assigned the task of monitoring the activities of various public and private organizations aimed at spreading greater awareness of the deleterious effects of drug abuse.
The Narcotics Control Bureau (NCB) oversees the activities of various law enforcement agencies and ensures compliance with several international instruments India has signed.
The Ministry of Welfare is responsible for disseminating information about drug abuse, forming coalitions of various stakeholders to fight the problem at its root, and undertaking campaigns at local, state, and national levels. The agency is also responsible for providing medical assistance to drug addicts and for implementing systems for identifying drug users early on so that appropriate measures can be taken.
Last but not least, the Ministry of Finance investigates cases dealing with drug trafficking, money laundering, and related crimes.
Is the law lacking in any way?
Every policy and law are subject to imperfection and NDPS is no exception. Section 35 of the Act assumes the guilt of the accused, placing the burden of proving innocence on the accused. Unless the contrary is proven, it is assumed that the accused intentionally held the illicit drugs found in his possession.
This notion contrasts sharply with the conviction that an accused is innocent until proven guilty, which is the pillar on which most Indian statutes rest. Drug users, addicts, petty peddlers, and seasoned traffickers are not adequately distinguished in the Act.
It also fails to make a meaningful distinction between hard and soft drugs which is why many drug users resort to hard drugs because, in most cases, the punishments they face do not differ substantially from those handed down to those who use soft drugs.
According to reports, many criminal gangs have taken advantage of such legal weaknesses to the fullest extent and formed close ties with law enforcement agencies. Hence, it would not be incorrect to say that the law has numerous shortcomings.
The views expressed in this article are the author's own.