Analysis of the NDPS Act 1985

26 Jun 2021  Read 610 Views

With the Bollywood drug case linked to the death of Sushant Singh Rajput has been the talk of the talk since 2020, with big personalities from the industry like Deepika Padukone, Sara Ali Khan, Shraddha Kapoor being summoned by the Narcotics Control Bureau, let’s talk about the Narcotics Drugs and Psychotropic Substance Act of 1985. 

Crimes are generally of two types. First, the traditional crimes affecting individuals like murder, theft or assault. Second, the White-Collar Crimes or Socio-Economic Crimes affecting the public at large, like smuggling, hoarding, trafficking and sale of narcotic drugs and psychotropic substances. The main purpose behind these crimes is to obtain money, property or personal gain. Such crimes are often committed by organised gangs having influences and connections.

The threat of drug abuse cannot be overlooked, which is rising in India, causing a lot of problems in the society like increased mortality rate, increased psychiatric problems. The reason behind the increased use of drugs was that there was no specific enactment to prevent the use of such drugs other than the central acts – the Opium Act 1857 and the Dangerous Drugs Act 1930. However, on 14th November 1985, the Narcotic Drugs and Psychotropic Substances Act came into force. Drugs have also become a way of funding the terrorist activities. These views should be taken into consideration while making amendments to the Narcotic Drugs, Psychotropic Substance Act.

Genesis and Development of Drug Trafficking in India

  1. The Genesis and Development of Drug Trafficking scenario are closely connected with the geographical location of India which has a huge inflow of heroin and hash from the Indo-Pak border, originating from the “Golden Cresent” comprising of Iran, Pakistan and Afghanistan which is considered to be one of the major illicit drug supplying regions of the world.

  2. On the North Eastern region of the country is what is known as the “Golden Triangle” consisting of Burma, Laos and Thailand which is also one of the largest sources of illicit opium in the world. Nepal is a traditional source of cannabis.

  3. Prior to the enactment of the Act, the statutory control over narcotic drugs was exercised through a number of Central and State enactment in India.

Salient Features of the Act

The Act prohibits the usage, production, cultivation, possession or trafficking of any type of narcotic and psychotropics drugs. This act covers a wide area of operation and applies to every citizen, living in or outside India, as well as people working on aircrafts and ships who are registered in India. A list of approximately 237 substances is included under the Act.

Narcotic substances include

  • Plant based products like opium, heroin and codeine.

  • Synthetic narcotics like cannabis, cocaine and coca.

Psychotropic substances include

  • Any substance that has an affect on the brains which results in mood alterations or alteration in consciousness.

The NDPS Act consists of 5 chapters, with each chapter dealing with a specific subject with respect to the statute

  • First chapter discusses the preliminary chapter, introducing and defining the types of narcotic drugs and psychotropic substances. This chapter highlights that the Central Government is vested with the power to omit or include other substances to the list under the NDPS Act.

  • Second chapter includes the relevant Authorities and Officers that have been introduced under the Act. It also lays down the guidelines for the Central Government for 

  1. The appointment of Narcotics Commissioner

  2. Setting up of Narcotic Drugs and Psychotropic Substances Consultative Committee and 

  3. Funding the National Fund for Control of Drug Abuse.

  • Third chapter consists of the Prohibition, Regulation and Control of the above-mentioned substances. It prevents the cultivation, production of coca plant, opium poppy, cannabis plant by any citizen. Any form of Inter-State or International Smuggling of these substances are prohibited as well. 

  • Fourth chapter deals with the offences and lays down the penalties. It describes the various possible crimes and describes the punishment durations associated with it, for example punishment for possession of such substances, cultivation or preparation, smuggling of these substances.

  • Fifth chapter talks about the procedure of how to deal with the cases and set the guidelines for the officers.

Objective

The NDPS Act was enacted to amend the laws relating to narcotics drugs and to make strict provisions for the control and regulations of operations related to narcotic drugs and psychotropic substances.

  • To provide for the loss of property resulting from, used in, illicit trafficking of drugs and substances.

  • To implement the provisions of the international conventions.

  • For matters connected herewith.

Amendment to the Act

The NDPS Act has been amended thrice till date. The first amendment was in the year 1988, followed by the amendment in 2001 and lastly the amendment in 2014. The 2014 amendment introduced new provisions and regulations for the use of narcotics drugs and psychotropic substances. The NDPS Act 2014 transferred the power to regulate possession, purchase, sale, transport, import, export or consumption of narcotic drugs and poppy straw from the State Government to the Central Government. The essential narcotic drugs include codeinone, fentanyl, morphine, methadone, codeine.

Major Shortcomings of the Act

The Act is considered to be a failure by many due to

  • Delay in the trials

  • Bail laws, which provide bail to the rich while keeping the poor in prison

  • Failure of the investigating agencies to present prosecution cases according to the set procedure

The Act presupposes the guilt of the accused, reversing the onus of proving the innocence. Section 35 presumes that the accused had the intent, motive and knowledge of his actions. Section 54 of the Act goes a further step and states that if the contrary is not proved, it shall be presumed that the accuse was in possession of the illicit drugs that were seized from him.

The restrictions imposed on the grant of bail under the Act amounts to denial and ensures years of imprisonment. Section 37(1) of the Act states that an accused is not to be released on bail unless the court has a reasonable ground to believe that the said accused is not guilty. 

Moreover, Section 31A of the Act prescribed mandatory death sentence for the offender upon conviction. However, the Supreme Court of India in 1983, declared mandatory capital punishment as unconstitutional.

Punishment

If a person is found in possession of banned drugs, the Act lays down rigorous imprisonment and fine or both. The NDPS amendment removed the mandatory death sentence for repeated conviction of drugs in large quantities, which gives the court discretion to use the alternative sentence of 30 years imprisonment. Also, punishment for carrying small quantity was increased the from 6 months to 1 years of imprisonment due to the amendment.

Drug

Small Quantity(gms)

Punishment

Commercial Quantity (Kg)

Punishment

Amphetamine

2 gm

Maximum of 1 year of imprisonment or fine up to Rs 10,000 or both

50 gms

Imprisonment for a term of 20 years which may extend to 30 years and a fine of Rs 1 lac which may increase to 2 lacs.

Charas

100 gm

1 kg

Coca leaf

100 gm

2kg

Cocaine

2 gm

100 gm

Ganja

1 Kg

20 kg

Heroin

5 gm

250 gm

LSD

2 mg

100 mg

Methadone

2 gm

50 gm

Morphine

5 gm

250 gm

Opium

25 gm

2.5 kg

Since drug abuse is a habitual problem, the Act imposes a strict punishment on the repeat offenders. The punishment for second time offenders can be up to one and a half time more than the punishment for the first offence. Hence, the punishment can range from 1 year of imprisonment to 30 years of imprisonment depending on the gravity of the crime. Similarly, fine would be one and half times more for the second time offenders. 

Conclusion

Even though India has a strong legislation, it fails to have a control over the drug trafficking as the cases of drug abuse are increasing day by day. The main reason behind this is the improper implementation of the laws. Hence, amendments with addition of new drug substances and their derivatives are needed to be done from time to time. Maintenance of drug data of the addicts should be maintained and regulated by establishing agencies and organizations.

About the Author: Antalina Guha | 29 Post(s)

Antalina Guha, is in the  5th year of B.A. LL.B course in Ajeenkya DY Patil University, with a core interest in Intellectual Property Rights and Criminal law.

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