Drugs Addiction Concerns and the Law to Deal with it

18-09-2020

Image courtesy: Windward Way Recovery

A. INDIA'S APPROACH TOWARDS NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

The recent death of a shining multi-talented star, Sushant Singh Rajput and the probe opening the pandora box of usage of drugs by Bollywood-Indian Film Industry started different debate from different corners of Bollywood on India's approach to Narcotics Drugs and Psychotropic Substances. The term 'Narcotics' is derived from a Greek word. It referred to anything that dulled the senses or relieved the pain.

Section 2 (xiv) of the NDPS Act, 1985 provides:

“narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;

Section 2 (xxiii) of the NDPS Act, 1985 provides:

(xxiii) “Psychotropic substance” means 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 specified in the Schedule;

Section 2 (xxiiia) of the NDPS Act, 1985 provides:

(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;

Narcotic Drugs and Psychotropic Substances have several medical and scientific uses. However, they can be and are also abused and trafficked.

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 same principle of preventing the use of drugs except for medicinal use was also adopted in the three international conventions on drug-related matters, viz., (a) Single Convention on Narcotic Drugs, 1961 The Preamble includes the following:

Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes,

Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,

Conscious of their duty to prevent and combat this evil,

(b) Convention on Psychotropic Substances, 1971 and

Noting with concern the public health and social problems resulting from the abuse of certain psychotropic substances,

Determined to prevent and combat abuse of such substances and the illicit traffic to which it gives rise,

Considering that rigorous measures are necessary to restrict the use of such substances to legitimate purposes,

Recognizing that the use of psychotropic substances for medical and scientific purposes is indispensable and that their availability for such purposes should not be unduly restricted

(c) The UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

India has signed and ratified these three conventions. India’s commitment to the prevention of drug abuse and trafficking predates the coming into force of the three conventions.

The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 was framed taking into account India’s obligations under the three UN drug Conventions as well as Article 47 of the Constitution. This Act prohibits, except for medical or scientific purposes, the manufacture, production, trade, use, etc. of narcotic drugs and psychotropic substances. We also have NDPS Rules of the Central Government and the State NDPS Rules framed by each State Government under the same Act. These are enforced by the Central or concerned State Government.

B. ENFORCEMENT AGENCIES

 The organization headed by the Narcotics Commissioner appointed by Central Government under section 4 of the NDPS Act is known as the Central Bureau of Narcotics (CBN). There is also a National Drugs and Psychotropic Substance Consultative Committee constituted under Section 6 of the NDPS Act. The Committee consists of a Chairman and such other members, not exceeding twenty, as may be appointed by the Central Government. Another authority called the Narcotics Control Bureau was created through a notification under Section 4 of the Act. Each of these authorities has specified functions.

The Narcotics Control Bureau works under the Ministry of Home Affairs (MHA), coordinates actions by various functionaries (Central and State) under the NDPS Act.

VARIOUS AGENCIES

HEADINGS	DETAILS
DRUG LAW ENFORCEMENT	Central Government 1. Narcotics Control Bureau 2. Central Bureau of Narcotics 3. Directorate General of Revenue Intelligence 4. Commissionerates of Customs 5. Commissionerates of Central Excise 6. Coast Guard State Governments Vary from State to State, usually: 1. State Police 2. State Excise Officers
IDENTIFICATION AND DESTRUCTION OF ILLICIT OPIUM AND CANNABIS CROPS	Satellite survey of suspected areas Central Economic Intelligence Bureau (CEIB) coordinates the survey and shares the information with NCB and CBN  Central Government 1. Narcotics Control Bureau, MHA, GOI 2. Central Bureau of Narcotics, Gwalior, DoR, GOI State Governments Vary from State to State, usually: 1. State Police 2. State Excise Officers
PREVENTIVE EDUCATION	Ministry of Social Justice and Empowerment
CONTROL ON SALE, USE, CONSUMPTION, MOVEMENT, ETC. OF NARCOTIC DRUGS	State Governments usually through their State Excise Departments
CONTROL ON IMPORT AND EXPORT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES AND PRECURSORS	Central Bureau of Narcotics, Gwalior
ACCESS TO MORPHINE / OPIOIDS FOR CANCER/PAIN RELIEF AND PALLIATIVE CARE	Ministry of Health & F. W., Government of India, Health Department of States, State Drug Controllers, and Chief Controller of Factories

C. NARCOTIC DRUG: POPPY

Illegal cultivation of opium poppy (Papaver sominiferum) and cannabis (Cannabis sativa) are offences under the NDPS Act. The policy is to allow the import of poppy seeds from any country provided it has originated in any of the countries authorised internationally to grow opium poppy for export and that it has been legitimately cultivated. No import will be allowed from countries where opium poppy is not legitimately cultivated. All contracts for import of poppy seeds will be compulsorily registered with the Narcotics Commissioner. Before registering such contracts, the Narcotics Commissioner shall satisfy that the country from which the poppy seeds are proposed to be imported legally cultivates opium poppy and can produce the quantity of seeds which are sought to be imported.

Section 10 of the NDPS Act, 1985 read with section 8 of the Act empowers the State Governments to licence cultivation of cannabis for medical and scientific purposes.

D. BHANG & LAWS REGARDING ITS SALE AND CONSUMPTION

Bhang is a preparation made from cannabis leaves consumed in parts of India on some festivals. As it is not made from cannabis resin or from flowering tops, it is not covered under the NDPS Act, 1985, the production and sale of Bhang are permitted by many State Governments.

Whoever is so licenced to produce Bhang shall be allowed to produce it from the leaves of the wildly grown cannabis plants only.

They shall not use the flowering tops or the resin produced from the plants. If anyone is found mixing with Bhang any part of flowering tops or the resin produced from the cannabis plants, he shall be punishable under relevant provisions of the NDPS Act, 1985 and if he happens to be a licensee, his license shall also be cancelled.

Section 14 of the NDPS Act empowers the government to, by general or special order, permit the cultivation of cannabis exclusively for horticultural and industrial purposes.

E. COCO

Section 9 of the NDPS Act empowers the Central Government to licence cultivation of coca bush for medical and scientific purposes.

The Central Government has so far not licenced cultivation of coca plant in India.

The Central Government will continue with this policy and will consider licencing such cultivation only for research purposes.

Section 2(1) (iii) cannabis (hemp) means

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink, prepared therefrom;

F. WHO MAY ARREST?

Under Section 41 of the NDPS Act, the following are authorised to issue warrant:

(a) A Metropolitan Magistrate or a

(b) Magistrate of the first class or

(c) Any Magistrate of the second class specially empowered by the State Government in this behalf

The concerned magistrate may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of the NDPS Act is kept or concealed.

Section 42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer, not below the rank of sub-inspector:

Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

G. THE PREVENTION OF ILLICIT TRAFFIC IN NDPS ACT

Wherever necessary, the Prevention of Illicit Traffic in NDPS (PITNDPS) Act may be used to secure preventive detention of the major drug traffickers.  An Act to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith.

Peddlers sell drugs to addicts and often carry a small number of drugs at a time. Many of them are also addicts themselves and peddle drugs to earn for meeting their own requirement of drugs. Peddlers are the final link in the chain from manufacturer to addicts. They are large in number and spread throughout the country.

Section 32B. Factors to be taken into account for imposing higher than the minimum punishment.—Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:—

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence;

(d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities;

(e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.

PENALTIES UNDER THE NDPS ACT

S.NO	OFFENCES	PENALTY	SECTION OF THE ACT
1.	Produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw shall be punishable	(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, 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.	Section 15
2.	cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves shall be punishable	rigorous imprisonment for a term which may extend to ten years or with fine which may extend to one lakh rupees	Section 16
3.	manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable	where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; or where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; or where the contravention involves commercial quantity, 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.	Section 17
4.	cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable	where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; where the contravention involves commercial quantity, 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 which may extend to two lakh rupees: in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.	Section 18
5.	Embezzlement of opium by a licensed farmer	Rigorous imprisonment -10 to 20 years + fine Rs. 1 to 2 lakhs (regardless of the quantity)	Section 19
6.	Production, manufacture, possession, sale, purchase, transport, import inter-state, export inter-state or use of narcotic drugs and psychotropic substances	Small quantity - Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both.   More than small quantity but less than commercial quantity - Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity - Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 Lakhs	Cannabis - Section 20       Manufactured drugs or their preparations- Section 21   Psychotropic substances - Section 22
7.	Illegal Import, export or transhipment of narcotic drugs and psychotropic substances	Small quantity - Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantity but less than commercial quantity - Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity - Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 Lakhs	Section 23
8.	External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside India	Rigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)	Section 24
9.	Knowingly allowing one's premises to be used for committing an offence	Rigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)	Section 25
10.	Violations pertaining to controlled substances (precursors)	Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs	Section 25A
11.	If the holder of any licence, permit or authorisation granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf	omits, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made thereunder; fails to produce without any reasonable cause such licence, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf; keeps any accounts or makes any statement which is false or which he knows or has reasons to believe to be incorrect; or wilfully and knowingly does any act in breach of any of the conditions of licence, permit or authorisation for which a penalty is not prescribed elsewhere in this Act, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.	Section 26
12.	Whoever consumes any narcotic drug or psychotropic substance shall be punishable	where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.	Section 27 and Immunity can be granted under   64
13.	Financing traffic and harbouring offenders	Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs	Section 27A
14.	Attempts, abetment and criminal conspiracy	Shall be punishable with the punishment provided for the offence	Attempts-28   Abetment and criminal conspiracy – 29
15.	Preparation to commit an offence	Half the punishment for the offence	Section 30
16.	Enhanced punishment for offences after a previous conviction	If any person who has been convicted of the commission, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under this Act is subsequently convicted for an offence punishable under this Act with the same amount of punishment shall be punished for the second and every subsequent offence with rigorous imprisonment for a term which may extend to one-half of the maximum term of imprisonment and also be liable to fine which shall extend to one-half of the maximum amount of fine. Where the person referred to in sub-section (1) is liable to be punished with a minimum term of imprisonment and to a minimum amount of fine, the minimum punishment for such person shall be one-half of the minimum term of imprisonment and one-half of the minimum amount of fine:	Sections 31
17.	Punishment for violations not elsewhere specified	Imprisonment up to six months or fine or both	Section 32

 

LEGAL RESEARCHER OF THE ARTICLE
KAANCHI AHUJA
Legal Intern at INDIAN LAW WATCH 
IV Year student of BA. LL.B.(Hons)  
Ideal Institute of Management and Technology 
(affiliated to Guru Gobind Singh Indraprastha University [GGSIPU]), 
Delhi

REFERENCES:

1. National Policy on Drugs and Psychotropic Substances.
2. NDPS Act, 1985