This article is written by Mannat Kapoor of 2nd Semester of Asian Law College, Noida, an intern under Legal Vidhiya
ABSTRACT
The principal law in India prohibiting drug misuse and trafficking is the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. The Act, which prohibits the creation, distribution, sale, and consumption of substances, covers the entirety of India and its registered boats. Substances are classified as either narcotic drugs or psychotropic substances. There are provisions for increased penalties for repeat offenders, and sentences range in severity from jail time to fines. The Narcotics Control Bureau (NCB), which was established by the Act, would oversee enforcement across the nation.
To handle changing issues and discrepancies in the law, the NDPS Act has undergone multiple revisions since it was passed. Changes to the law that have affected fines, terminology, and procedural issues have been made most notably in 1989, 2001, 2014, and 2021. In 2021, an update was made to correct earlier errors; in 2014, terminology and penalties were revised.
With an emphasis on the revisions that have established the NDPS Act’s current framework, this article looks at the historical background, sanctions, and criticisms of the legislation. In order to bring the Act’s enforcement practices, harm reduction, and rehabilitation into line with contemporary drug policy concepts, it addresses the ongoing discussions about the Act’s effectiveness, fairness, and need for more reforms.
KEYWORDS
NDPS, TRAFFICKING, AMENDMENTS, NCB, DRUG POLICY, PSYCHOTROPIC SUBSTANCES
INTRODUCTION
In response to the urgent problems of drug abuse and trafficking, India passed the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. This extensive regulation, which takes its cues from previous opium laws, classes drugs according to their propensity for misuse and their therapeutic worth, in accordance with international agreements. To improve its provisions over time and address legal ambiguities and update penalties, revisions were made in 1989, 2001, 2014, and 2021. Prolonged detention for numerous non-bailable[1] charges has resulted from the NDPS Act’s harsh penalties and apparent inadequacies in differentiating between traffickers and users. In order to address the complexity of drug-related concerns in India, critics call for policies that promote rehabilitation in addition to punitive measures. In an effort to address India’s drug problem, the Narcotics and Psychotropic Substances (NDPS) Act was introduced in 1985. With the authority to supervise the NDPS Act’s execution as well as the other international conventions relating to it, the Act creates the Narcotics Control Bureau as the supreme drug law enforcement body. Narcotic and psychotropic substance manufacturing, distribution, acquisition, transportation, and use are all forbidden. All of India is covered by the act, as are ships and airplanes with Indian registrations. The principal aim of the NDPS Act is to restrict the production, distribution, sale, transit, and use of narcotics and psychotropic drugs. Preventing abuse and reducing drug-related offenses are the objectives. Substances are divided into two primary categories under the act: psychotropic substances (which include synthetic drugs and some medications) and narcotic drugs (which include opium and cannabis). The potential for abuse and injury informs these categorizations. For offenses involving narcotic drugs and psychiatric substances, the NDPS Act stipulates harsh punishments. Depending on the type and seriousness of the offense, sentences can vary from one year to twenty years in jail. Even heavier penalties, up to and including the death penalty in some situations, may be meted out to repeat offenders. Property owned by someone convicted of drug-related offenses under the act may be seized, frozen, and forfeited by the government. Narcotics Control Bureau (NCB)[2]: Created in 1986 in accordance with the NDPS Act, the NCB is the central institution in charge of directing national drug law enforcement initiatives. To stop drug misuse and trafficking, it works with several offices, ministries, and law enforcement organizations. Since the NDPS Act does not provide for the granting of bail for any charge, it may be difficult for those who have been arrested for drug-related offenses to get bail during court proceedings. Because of the strict character of the law, convicted individuals under the NDPS Act are not eligible for sentence termination, remission, or commuting. The NDPS Act is critical to safeguarding public health and safety because it regulates prohibited substances and imposes harsh penalties on those who misuse or traffic in them. It is a vital tool in India’s war on drug-related issues. This article explores the evolution of the NDPS Act, its amendments, criticisms, and the ongoing discourse surrounding its enforcement, highlighting the imperative for nuanced reforms that reflect contemporary societal needs and enhance effectiveness in combating drug offenses.
HISTORY
One of India’s most important pieces of legislation to address drug misuse and trafficking is the Narcotic Drugs and Psychotropic Substances (NDPS) Act. This legislation, which took the place of the previous Opium Acts in 1985, was designed to deal with the nation’s mounting drug misuse and illegal trafficking problem.
Pre-NDPS Era: India had several laws controlling drugs prior to the NDPS Act. Two of these laws, the Opium Acts of 1857 and 1878, mainly controlled the production, trade, and use of opium. Still, more extensive laws were required in light of the 20th century’s explosion in synthetic medicines and psychoactive chemicals.
Enactment of NDPS Act: Indian lawmakers responded to the nation’s growing drug problem by passing the NDPS Act in 1985. In order to reduce drug misuse worldwide, it was in line with international agreements like the 1971 Convention on Psychotropic Substances and the 1961 Single Convention on Narcotic Drugs.
Drugs are divided into different schedules under the NDPS Act according to their potential for abuse and their medicinal value. It makes a distinction between ‘psychotropic substances’ (like LSD, MDMA, and methamphetamine) and ‘narcotic drugs’ (like heroin, opium, and cannabis).
Goals and Clauses: The NDPS Act’s main goals are as follows.
managing the import, export, use, possession, sale, purchase, transportation, warehousing, manufacture, and manufacture of narcotic medicines and psychotropic substances.
bolstering the capabilities of law enforcement organizations to tackle drug trafficking and associated crimes.
giving those impacted by drug misuse care and rehabilitation.
According to their potential for misuse and medicinal value, medicines are divided into three schedules under the Act:
Schedule I: Consists of substances that are extremely addictive and have no known medical purpose, such as heroin, LSD, MDMA (Ecstasy), and so on.
Substances included in Schedule II include cocaine, methamphetamine, morphine, and other substances with acknowledged medical benefits but a high potential for misuse.
Codeine, buprenorphine, and other medications with limited medical value are included in Schedule III.
Legal Interpretations and revisions: To meet new issues and problems, the NDPS Act has undergone a number of revisions. Its execution has also been affected by a number of court rulings, which guarantee a balance between the protection of individual rights and punitive actions.
India is still working with other nations and international organizations to disrupt worldwide drug trafficking networks. An important component of India’s efforts to meet its international obligations under numerous drug control treaties is the NDPS Act.
AMENDMENTS
In order to combat the rising use and introduction of psychotropic substances into the nation, the government at the time felt compelled to pass legislation updating and consolidating existing laws. Consequently, the NDPS Act came into being and was followed by amendments in 1989, 2001, 2014 and 2021. The 2016 Finance Act also made amendments to the aforementioned act.
AMENDMENT OF 1989: India’s drug laws were substantially tightened in 1989 with the Narcotic Drugs and Psychotropic Substances (NDPS) Act revision, which imposed harsher penalties for both drug possession and trafficking. It placed a strong emphasis on more severe penalties for large-scale trafficking enterprises and increased law enforcement agencies’ authority for improved monitoring and prosecution. Furthermore, the amendment placed harsh penalties for repeat offenders and permitted the seizure and confiscation of property connected to drug crimes.
Despite being intended to upend drug trafficking networks, the amendment was criticized for possibly aggravating human rights violations and jail overpopulation. The amendment, seen as a whole, strengthened the legal position against drug-related offenses and raised questions about its wider ramifications.
AMENDMENT OF 2001: A major overhaul of India’s drug control strategy was brought about by the 2001 revision to the Narcotic Drugs and Psychotropic Substances (NDPS) Act. To more successfully discourage drug-related crimes, it strengthened the penalties for drug trafficking, including tougher jail terms and greater fines. Furthermore, the amendment addressed new and emerging drugs by extending the definitions of drug trafficking to include a wider range of substances and behaviors. It made it possible for specialized teams to be established and improved collaboration between law enforcement authorities.
Targeting the financial drivers of drug-related crimes, the amendment also strengthened the regulations regarding the seizure of property associated with drug trafficking. Aiming to strike a balance between punitive measures and efforts to address the underlying causes of addiction, it recognized the value of rehabilitation and placed an emphasis on support for the treatment and de-addiction of offenders. In general, the 2001 amendment sought to establish a more thorough and potent legal framework for India’s fight against drug misuse and trafficking.
AMENDMENT OF 2014: The objective of the 2014 alteration to India’s Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985 was to modernize and simplify the country’s current legal framework pertaining to these substances. Rearranging and renumbering sections and clauses within the NDPS Act to more clearly define and specify various types of drugs and offenses was one of the major modifications brought about by this revision.
The Influence of Section 2(viiia)
Overview: In order to list essential medications under the NDPS Act, Section 2(viiia) was introduced. The purpose of this section was to demarcate substances under rigorous regulation because of the possibility of abuse or misuse from those with valid pharmacological[3] purposes.
Implications: By penalizing offenses specified in Section 2(viiia) of the NDPS Act, Section 27A was unintentionally made confusing and abnormal by the alteration.
Anomaly with Section 27A’s initial Intent: Section 27A’s initial intent was to punish offenses using chemicals that were specified under subclauses i–v of Section 2(viiia).
Impact of Amendment: The 2014 change renumbered and rearranged the sections, making Section 27A inapplicable since the subclauses that were previously mentioned were transferred to a new section, Section 2(viiib). This created a space where the classification of offenses under the NDPS Act was no longer consistent with Section 27A.
Overview of Section 27A and Legal Provisions: The intent of Section 27A of the NDPS Act is to punish severely anyone who finances or houses anyone involved in illegal operations involving narcotic narcotics and psychotropic substances.
Penalties: Those convicted under Section 27A may be fined up to two lakh rupees and imprisoned for a maximum of 10 to 20 years. If the case’s circumstances warrant it, the court may impose a larger fine.
The 2014 Amendment’s effects
Renumbering Issue: Section 27A could no longer properly sanction offenders as originally intended since Section 2(viiia) offenses were renumbered to Section 2(viiib).
Legal Challenge: Because of the inconsistency between the terms of Section 27A and the reorganized sections under the NDPS Act, this generated a legal anomaly where the applicability of the section was questioned.
AMENDMENT OF 2021: Constitutional Concerns and Retroactive Validation
The goal of the 2021 amendment was to address the legislative oddity that the 2014 amendment had produced.
Effect Retroactively: The 2014 modifications were validated in retrospect, and the amendment became operative on May 1st of that year.
Concerns about the Constitution: brought up questions about the Indian Constitution’s Article 20(1), which forbids applying laws retroactively to create new crimes or stiffen existing ones.
The Justification of the Government
Amendment for Clarification: The administration contended that the amendment for 2021 was merely clarifying and not substantial. Rather than retroactively creating new offenses or sanctions, its goal was to fix a technical error.
Legal Defense: cited earlier cases in which legislative oversights were addressed retroactively through clarifying amendments that did not increase penalties.
PUNISHMENTS
Offenses involving Cannabis:
Possession: Small Quantity: A fine of up to Rs 10,000 and a year in jail are the penalties.
A fine of up to Rs 1 lakh and a maximum of 10 years in prison apply to quantities greater than small but less than commercial.
Commercial Quantity: A fine set by the court plus ten to twenty years in prison.
Manufacturing, cultivating, possessing, selling, purchasing, transporting, or trafficking are all punishable by quantity, with heavier penalties applied to more.
Additional Psychotropic and Narcotic Substances
Consumption: Up to Rs 20,000 in fines or a year in prison.
Repeat offenders: Increasing fines and jail terms of up to 1.5 times the maximum duration permitted are in store.
Overarching Guidelines:
Provisions 25 and 28 for helping, abetting, or tolerating violations carry penalties equivalent to those for the actual offense.
Particular Instructions:
Due to the seriousness of drug-related offenses, amendments in 1989 rendered the majority of penalties non-commutable[4].
CRITICISM OF NDPS ACT, 1985
Strict Penalties: The NDPS Act is criticized for its harsh penalties, which are harsh in comparison to minor drug activities.
Non-Bailable Offenses: Many NDPS Act offenses are not subject to bail, which results in extended detention and prison overcrowding, raising concerns about fair legal processes.
Lack of Differentiation: The NDPS Act is accused for failing to distinguish between traffickers and small-scale users, penalizing addicts rather than placing a strong emphasis on recovery.
Effect on Vulnerable Populations: Low-income drug users and vulnerable communities are disproportionately affected by strict enforcement.
Rehabilitation Isn’t Received Enough Attention: It’s been said that punishing drug addicts rather than providing rehabilitation and harm reduction is a bad idea.
Difficulties in Implementation: The intricacy of the drug trade, corruption, and the challenges of prosecuting high-level traffickers impede the enforcement of the NDPS Act.
Wrong Drug Policy: Demands a comprehensive approach to drug policy that goes beyond law enforcement and concentrates on treatment, harm reduction, and prevention in addition to legal measures.
International Pressure: International treaties have an impact on India’s drug laws; critics call for greater latitude in adjusting regulations to suit regional requirements.
Reforms in Sentencing Are Needed: Proponents[5] demand that the NDPS Act be amended to take into account each case’s unique circumstances and available alternatives to jail.
CONCLUSION
Yes, certainly! The main piece of law in India that addresses drug abuse and trafficking is the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. In an effort to improve penalties, define terms, and address procedural concerns, the Act has undergone multiple revisions since it was passed in 1989, 2001, 2014, and 2021. Noteworthy, the 2014 modification corrected inconsistent language in Section 27A, but because it applied retroactively, it provoked constitutional difficulties.
The NDPS Act has drawn criticism for its severe punishments, inability to distinguish between minor users and traffickers, and non-bailable offenses that result in prolonged incarceration[6]. Reforms that address difficulties in enforcement and implementation and give priority to rehabilitation in addition to punitive measures are advocated by critics.
In conclusion, while continuing talks underscore the necessity for well-balanced amendments that take into account changing cultural viewpoints and improve the Act’s efficiency and equity in battling drug offenses in India, the Act remains crucial in tackling drug-related concerns.
REFERENCES
- Bajaj, R. (2014). A Detailed Analysis of the National Drugs and Psychotropic Substances Act. [online] ipleaders. Available at: https://blog.ipleaders.in/a-detailed-analysis-of-the-national-drugs-and-psychotropic-substances-act/.
- legalserviceindia.com. (n.d.). Analysis Of Legality Of NDPS (Amendment) Act, 2021. [online] Available at: https://www.legalserviceindia.com/legal/article-7527-analysis-of-legality-of-ndps-amendment-act-2021.html [Accessed 19 Jul. 2024].
- pwonlyias.com. (2023). NDPS Act Full Form, Narcotic Drugs And Psychotropic Substances Act. [online] Available at: https://pwonlyias.com/ndps-act-full-form/ [Accessed 19 Jul. 2024].
- Garg, R. (2020). Offences and punishments under the Narcotic Drugs and Psychotropic Substances Act, 1985. [online] ipleaders. Available at: https://blog.ipleaders.in/offences-punishments-ndps-act-1985/ [Accessed 19 Jul. 2024].
- Mahawar, S. (2022). NDPS Act : Narcotic Drugs and Psychotropic Substances Act, 1985. [online] ipleaders. Available at: https://blog.ipleaders.in/ndps-act-narcotic-drugs-and-psychotropic-substances-act-1985/#Punishment_under_the_NDPS_Act [Accessed 19 Jul. 2024].
- The Indian Express. (2021). NDPS Act: a drafting error, its implications, and an amendment. [online] Available at: https://indianexpress.com/article/explained/ndps-act-narcotic-drugs-access-7673341/.
- Anon, (n.d.). A Brief History and Analysis of the NDPS Act – Lex Insider. [online] Available at: https://lexinsider.com/a-brief-history-and-analysis-of-the-ndps-act/.
- Parmar, A., Venkata Lakshmi Narasimha and Nath, S. (2023). National Drug Laws, Policies, and Programs in India: A Narrative Review. p.025371762311705-025371762311705. Doi: HTTPs://doi.org/10.1177/02537176231170534.
- Balhara, Y.P.S., Sarkar, S. and Singh, S. (2022). Medical Use, Decriminalization, and Legalization of Narcotic Drugs and Psychotropic Substances—What Does It Mean and What Is Its Current Status in India? Indian Journal of Psychological Medicine, p.025371762211384. Doi: HTTPs://doi.org/10.1177/02537176221138496.
- Network, L.I. (2021). Overview of Narcotics Drugs Psychotropic Substances Act, 1985. [online] LAW INSIDER INDIA- INSIGHT OF LAW (SUPREME COURT, HIGH COURT AND JUDICIARY. Available at: https://www.lawinsider.in/columns/overview-of-narcotics-drugs-psychotropic-substances-act-1985 [Accessed 19 Jul. 2024].
[1] Lawctopus. Bailable and non-bailable offences under CrPC. Available at: https://lawctopus.com/clatalogue/clat-ug/bailable-and-non-bailable-offences-under-crpc/ [Accessed: 5 August 2024].
[2] Wikipedia contributors. Narcotics Control Bureau. Available at: https://en.wikipedia.org/wiki/Narcotics_Control_Bureau [Accessed: 5 August 2024].
[3]Merriam-Webster. Pharmacology. Available at: https://www.merriam-webster.com/dictionary/pharmacology [Accessed: 5 August 2024].
[4]Law Insider. Non-commutable. Available at: https://www.lawinsider.com/dictionary/non-commutable [Accessed: 5 August 2024].
[5]Dictionary.com. Proponent. Available at: https://www.dictionary.com/browse/proponent [Accessed: 5 August 2024].
[6] Supra Note 3
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