CONSTITUTIONAL VALIDITY OF PROVISIONS UNDER THE NDPS ACT, 1985

This article is written by Smriti Sen of 9^th Semester of Shri Ramswaroop Memorial University, Lucknow, an intern under Legal Vidhiya

ABSTRACT

The Narcotic Drugs and Psychotropic Substances Act, 1985 is the primary law in India to deal with the prevention of misuse of narcotic drugs and psychotropic substances. This legislation was enacted under various international conventions for the control and regulation of operations concerning narcotic drugs and psychotropic substances. Over the years, NDPS Act has undergone several amendments, mirroring the changing dynamics of the drug-related challenge and the approach the nation adopts to address the problem. The legislation is very comprehensive, covering all activities from cultivation and production to distribution, possession, and consumption. It has also prescribed stringent penalties in order to deter offenders and demolish the networks engaged in illegal drug trade. Its stringent provisions have, however, often raised debate over the compatibility of these provisions with constitutional rights of equality, justice, fairness, and liberty. Few provisions of the NDPS Act are considered to have the potential to infringe on some fundamental rights guaranteed under the Indian Constitution. Thus, this article examines the constitutionality of the NDPS Act, especially in reference to the fundamental rights guaranteed by the Constitution of India. This article traces the background of the NDPS Act and the development of drug related policies in India. This article’s prime objective is to examine the relationship between the NDPS Act and the rights guaranteed by the Constitution including right to equality, right to life and personal liberty, and right to fair trial.

Keywords

Narcotic drugs, psychotropic substances, international conventions, constitutionality, fundamental rights, right to equality, right to life and personal liberty, right to a fair trial.

INTRODUCTION

The Narcotic Drugs and Psychotropic Substances Act is the main legislation of India to combat drug abuse and trafficking. This law was designed to curb the illegal production, processing, and use of narcotic and psychotropic drugs. It is a very strict measure with very severe punishment. However, the stringency of the NDPS Act often raises questions about its legality, considering the fundamental rights in the Constitution of India. Therefore, this article attempts to explore the legal aspects of the NDPS Act by examining the provisions of the NDPS Act on the right to equality, personal liberty, and fair trial. This article attempts to strike a balance between strict drug control and the rights of self-defence enshrined in the Constitution of India.

OBJECTIVE

The present article aims to examine the extent to which the provisions of the Act are consistent with the fundamental rights recognized by the Constitution of India. By analysing the judicial decisions and landmark judgements, the contradiction between the strict provisions of the NDPS Act and the Indian Constitution was further confirmed. The article seeks to clarify whether the Indian Constitution is adhered to by the NDPS Act as it stands or whether amendments are needed to safeguard the delicate balance of power between illicit drug use and the protection of fundamental rights.

HISTORICAL BACKGROUND OF THE NDPS ACT

Before the enactment of the Drugs Act, the control and administration of narcotic drugs in India was governed by various Acts. These acts were the Opium Act, 1857[1], the Opium Act, 1878[2], and the Dangerous Drugs Act, 1930[3]. These Acts were found to be insufficient to solve the complex problems and problems of drug trafficking and the increasing abuse of psychotropic drugs.

The 1961 Single Convention of Narcotic Drugs[4], along with the 1971 Convention on Psychotropic Substances[5] and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances[6], provided an international framework that India must follow. The Narcotic Drugs and Psychotropic Substances Act of 1985 was formulated with the objective of integrating and updating the current legislation concerning narcotic drugs, regulating and overseeing the trade in narcotic drugs and psychotropic substances, and additionally enabling the seizure of assets obtained from or utilized in unlawful activities.

The Act is a complete legislation providing the authorities with wide powers to control the drug-related offenses, prescribing stringent penalties, with provisions for treatment and rehabilitation of drug addicts. Therefore, the NDPS Act adopts a dual approach of crime prevention and social reform.

KEY PROVISIONS OF THE NDPS ACT

The key provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 are as follows:

1. Title, Extent, and Commencement (Section 1)[7]

• Short Title and Commencement: This Act may be called the Narcotic Drugs and Psychotropic Substances Act, 1985. It extends to the whole of India and it came into force on 14th November, 1985.
• Extent: The Act is applicable throughout India.

2. Definitions (Section 2)

• The Act defines various terms such as “cannabis,” “coca derivative,” “manufactured drug,” “opium,” “poppy straw,” “psychotropic substance”, “illicit traffic”, etc.
• “Narcotic drug” is defined under section 2 (xiv) of the NDPS Act, 1985[8] as coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs; 
• “Psychotropic substance” is defined under section 2 (xxiii) of the NDPS Act, 1985[9] 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 specified in the Schedule.

3. Authorities and Officers (Sections 4-7)

• Central Government: Section 4 of the NDPS Act, 1985[10] enables the Central Government to declare, by notification in the Official Gazette, the production, manufacture, import, export, transport, sale, possession, use, or consumption of narcotic drugs and psychotropic substances, and coordination of activities by different officers, State Governments, and other authorities, as well as the implementation of all international conventions.
• Narcotics Control Bureau: This is the advisory committee that the Central Government constitutes under Section 6 of the NDPS Act, 1985[11]. It deals with the trafficking of drugs and abuse of illicit substances.

4. Prohibition, Control, and Regulation (Sections 8-14)

• The Act prohibits the cultivation of coca plant or  any part of the coca plant, harvesting, producing, manufacturing, possession, sale, purchase, transportation, storage, use, consumption, inter-state import, inter-state export, import into India, export from India or transportation of narcotic drugs and psychotropic drugs.
• The Act also clearly states the controlled substances and under what conditions they may be produced or supplied. The Controlled Substances are regulated through licenses, permits, or authorizations by the government.

5. Offences and Penalties (Sections 15-40)

• The punishments provided under the Act vary depending on the amount of substance or the purpose involved, which is either small, commercial, or intermediate.
  • Small Quantity: According to Section 2 (xxiiia) of the NDPS Act, 1985[12], “small quantity” in the case of narcotic drugs and psychotropic substances means an amount less than the amount specified by the Central Government in the Gazette.
  • The punishment for a “small quantity” is rigorous imprisonment for a term which may extend to one year, or a fine not exceeding ten thousand rupees, or both.
  • Commercial Quantity: According to Section 2 (viia) of the NDPS Act, 1985[13], “commercial quantity” in the case of narcotic drugs and psychotropic drugs means a quantity greater than the quantity specified in the Official Gazette by the Central Government.
  • The punishment for “commercial quantity” is rigorous imprisonment for not less than ten years, which may extend to twenty years, and a fine of not less than one lakh rupees, which may extend to two lakh rupees.
• Death Penalty: The law provides the death sentence for those repeat offenders who are involved in large-scale trafficking of considerable quantities of narcotic drugs and psychotropic substances.
• Abetment and Criminal Conspiracy: Abetment and criminal conspiracy to commit, and attempts at committing, any offence under this Act are punishable as if the offence had been committed.

6. Enforcement and Implementation (Sections 41-68)

• Powers of Officers: It grants powers to search, seize, and arrest without warrant or authorization, powers of stop and search conveyances.
• Procedure for Search and Seizure: Particular procedures are provided which are to be followed for search, seizure, and arrest in order to avoid its abuse.
• Trial and Prosecution: Special courts shall be established for the purpose of conducting speedy trials for offenses under the Act.
• Bail Provisions: The provision enunciated for bail is stringent, with limited scope for granting bail.

7. Forfeiture of Property (Sections 68A-68Z)

• Property Associated with Drug Offenses could be forfeited to the government if associated with drug trafficking or offenses under the Act.
• It spells out the detailed procedure for declaring and managing the forfeited property, inclusive of powers to freeze, seize, or forfeit properties.

8. Miscellaneous Provisions (Sections 69-83)

• Protection of Action Taken in Good Faith: No legal proceedings shall be instituted against any officer, acting in good faith, anything contained in this Act.
• International Cooperation: This Act has also made provisions for mutual assistance and cooperation with foreign countries in matters relating to combating illicit traffic in narcotic drugs and psychotropic substances. Provisions relating to the extradition of accused persons to and from foreign countries are also included.
• Treatment and Rehabilitation: The steps toward treating and rehabilitating drug addicts have included setting up rehabilitation centres. The addicts who come forward for treatment are granted immunity from prosecution provided certain conditions are fulfilled.

CHALLENGES TO THE CONSTITUTIONAL VALIDITY OF THE NDPS ACT

1. Right to Equality and the NDPS Act

Article 14 of the Indian Constitution[14] ensures that all people in India are equal before the law and enjoy equal protection of the laws. It is an important right that ensures that no one is discriminated against because of their race, religion, nationality, gender, or place of birth. The Narcotic Drugs and Psychotropic Substances Act 1985, which aims to control and regulate certain businesses dealing with narcotic drugs and psychotropic substances, may be challenged under Article 14 on arbitrariness and discrimination grounds.

i. Strict Conditions of Bail

• Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985[15] imposes strict conditions for granting bail. It is stated that the public prosecutor must be given time to object to the bail application and the court must also be convinced that there are sufficient reasons to believe the defendant is innocent and unlikely to commit a crime while on release. These conditions make it much more difficult for defendants to obtain bail compared to other serious crimes.
• In the case of Union of India v. Sanjeev V. Deshpande (2014)[16], the Supreme Court tested the constitutionality of these stringent bail conditions under Section 37. The Court upheld the provisions but said the conditions imposed must not be abused to deny bail unfairly

ii. Disparity in Penalties & Sentencing

• The Act provides for harsh penalties without proportionate regard to the quantum or type of drug. For instance, small quantities of some drugs may be punished disproportionately, rising to irrational classification.
• The case of E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau (2008)[17] discussed the concept of “commercial quantity” and how to calculate the weight of narcotics in question. Therefore, the Supreme Court ruled that when determining the quantity of “small” or “commercial products”, not only the content of the pure drug but also the total weight of the mixture containing the narcotic drug should be taken into account. This interpretation has been criticized for imposing large penalties for small amounts of actual drug, thus leading to problems of proportionality and equity.
• Section 31A therefore, states that when the convicted individual is a repeat offender and is sentenced to death in a process wherein one or more than one of the described offences resulted in death, then it becomes extreme and arbitrary, especially when the offences differ in degree.
• One of the major drawbacks with regard to the punishment under the NDPS Act is that the quantum of punishment is often not proportionate to the quantity or nature of the drug involved, leading to criticism that it fails to distinguish between minor and major offenders.

2. Right to Life and Personal Liberty and the NDPS Act

Article 21 of the Indian Constitution[18] protects life and liberty of all persons – “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The validity of the Narcotic Drugs and Psychotropic Substances Act, 1985, can be challenged on the ground of its violation of Article 21 on the following points-

i. Severe Punishments and Proportionality

• The NDPS Act provides for severe penalties, including long-term imprisonment and death penalty, for certain offences. It may be said that these sentences are disproportionate to the crime and thus, violate the principle of proportionality under Article 21.
• Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985[19] lays down the penalty of death for a repeat offender in case of certain offenses relating to commercial quantity of narcotics. In the case of Mohd. Sahabuddin v. State of Assam, (2012)[20], the Supreme Court of India tested the constitutionality of death penalty for repeat offenders under Section 31A of the NDPS Act. The court said that the requirement to pay fine for this offense is a violation of Article 14 (right to equality) and Article 21 (right to life) of the Constitution of India. The court said that the decision must be taken into account and, if possible, self-evaluated, so that the decision is fair, balanced and equal to the crime.

ii. Presumptive Provisions

• Sections 35 and 54 of the NDPS Act deal with presumptive provisions as to the mental state of the accused and possession of illicit substances. This in effect shifts the burden of proof onto the accused, thus weakening the right to a fair trial and the principle of presumption of innocence.

iii. Bail Conditions

• Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 states that bail can only be issued if the court is certain that the accused is not guilty of crimes involving a death or imprisonment sentence. This places a heavy burden on the defendant even at the beginning of the trial. It is believed that this defeats the purpose of the presumption of innocence, and has a particular impact on individuals prosecuted for bail, and possibly results in a stay of pretrial detention.
• In Harjit Singh v. State of Punjab, (2011)[21], the strict guidelines for bail under Section 37 of the NDPS Act were brought before the Supreme Court. The court held that strict conditions must be provided for bail considering the serious nature of offenses under the Act, but these provisions should not be applied unthinkingly. The Court also emphasized on the need to prevent the rejection of bail from becoming arbitrary, which would help to preserve a balance between strict drug control laws and fundamental rights to equality and personal freedom.

3. Right of Fair Trial and the NDPS Act

One of the most basic institutions of the Indian legal system enshrines the right to a fair trial under Article 21 of the Constitution of India, guaranteeing everybody the right to life and liberty. The NDPS Act, 1985, is an act bringing control over drug trafficking and abusive consumption; however, it encompasses a number of provisions objected to as potentially violating this very fundamental right under Article 21.

i. Presumption of Guilt

• Under Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985[22], the court assumes that the accused had a requisite mental state unless otherwise proven. Section 54 allows for a presumption of possession if one is found with illicit drugs, unless one proves to the contrary. The provisions thus considerably shift the burden of proof from the prosecution to the defence, violating the very principle of “innocent until proven guilty.”
• In the case of Narcotic Control Bureau v. Kishan Lal and Ors., 1991[23], the constitutionality of Articles 35 and 54 was questioned because these provisions violated the right to due process and a fair trial. While the Supreme Court accepted the lawfulness of these provisions, it reiterated that the exercise of discretion should not interfere with fundamental principles of justice. It held that the presumption of committing an offense under Article 35 must be implemented carefully and in accordance with the principles of justice.

ii. Confessions to Officers

• Statements before officers of the Narcotics Control Bureau are admissible as confessions under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985.[24]
• The Supreme Court in Tofan Singh v. State of Tamil Nadu (2020)[25] has held that such confessions are inadmissible in criminal cases as they are made to persons who are not police officers and are therefore subject to Article 20 (3) of the Constitution which prohibits self-incrimination. The said decision is important as it strengthens the protection process and emphasizes the right to justice so that the strictness of the provisions of the NDPS Act does not affect the law of the accused.

iii. Search and seizure

• The NDPS Act has provided for certain procedures of search, seizure, and arrest. In the case of State of Punjab v. Baldev Singh (1999)[26], the petitioners, Baldev Singh and others, challenged the conviction on the ground that they were not informed about their right to be searched in the presence of a gazetted officer or a magistrate under Section 50 before the search. This judgment delivered by the Supreme Court of India has gone long to hold that the compliance of Section 50 is to be strict. It ruled that search is illegal if an accused is not informed about his right to be searched in front of a gazetted officer or a magistrate.
• The court in the above decision further provided that the evidence gathered as a consequence of an illegal search would not be admissible in the court. The reason is that the violation of Section 50 infringes not only the fundamental rights of the accused under Article 14, Right to Equality, but also under Article 21, Right to Life and Personal Liberty, of the Indian Constitution.

CONCLUSION

The Narcotic Drugs and Psychotropic Substances Act, 1985 is one of India’s main laws to combat drug abuse and trafficking. The strict provisions of the law reflect India’s efforts to combat the growing problem of narcotic drugs and psychotropic substances. Nonetheless, because of its inflexibility, it has also been simple to contest the validity of the fundamental rights that the Indian Constitution upholds.

Although there have been instances where judicial review has favoured the legality of the provisions, some significant rulings have established the general rule that, even though the NDPS Act’s strict provisions serve a valuable purpose, their application should be harmonized with the protection of fundamental rights. 

REFERENCES

1. https://www.indiacode.nic.in/bitstream/123456789/18974/1/narcotic-drugs-and-psychotropic-substances-act-1985.pdf
2. https://blog.ipleaders.in/indian-is-one-of-the-many-countries-in-the-world-who-still-provide-the-death-penalty-for-certain-heinous-crimes-by-applying-the-rarest-of-the-rare-principle/#:~:text=The%20NDPS%20Act%20fails%20to,21%20of%20the%20Indian%20Constitution.
3. https://blog.ipleaders.in/mandatory-death-penalty-ndps-act-not/
4. https://www.livelaw.in/pdf_upload/813-balwinder-singh-binda-v-narcotics-control-bureau-22-sep-2023-499754.pdf
5. https://www.legalserviceindia.com/legal/article-7527-analysis-of-legality-of-ndps-amendment-act-2021.html
6. https://www.ndtv.com/india-news/plea-in-supreme-court-challenges-validity-of-certain-sections-of-anti-drugs-law-ndps-act-2589920

---

[1] Opium Act, 1857, No. 13, Acts of Parliament, 1857 (India)

[2] Opium Act, 1878, No. 1, Acts of Parliament, 1878 (India)

[3] Dangerous Drugs Act, 1930, No. 2, Acts of Parliament, 1930 (India)

[4] Single Convention of Narcotic Drugs, 1961, United Nations Office on Drugs and Crime https://www.unodc.org/pdf/convention_1961_en.pdf

[5] Convention on Psychotropic Substances, 1971, United Nations Office on Drugs and Crime https://www.unodc.org/pdf/convention_1971_en.pdf

[6] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, United Nations Office on Drugs and Crime https://www.unodc.org/pdf/convention_1988_en.pdf

[7] Narcotic drugs and Psychotropic substances Act, 1985, § 1, No. 61, Acts of Parliament, 1985 (India)

[8] Narcotic Drugs and Psychotropic Substances Act, 1985, § 2 (xiv), No. 61, Acts of Parliament, 1985 (India)

[9] Narcotic Drugs and Psychotropic Substances Act, 1985, § 2 (xxiii), No. 61, Acts of Parliament, 1985 (India)

[10] Narcotic drugs and Psychotropic substances Act, 1985, § 4, No. 61, Acts of Parliament, 1985 (India)

[11] Narcotic drugs and Psychotropic substances Act, 1985, § 6, No. 61, Acts of Parliament, 1985 (India)

[12] Narcotic Drugs and Psychotropic Substances Act, 1985, § 2 (xxiiia), No. 61, Acts of Parliament, 1985 (India)

[13] Narcotic Drugs and Psychotropic Substances Act, 1985, § 2 (viia), No. 61, Acts of Parliament, 1985 (India)

[14] INDIA CONST. art. 14

[15] Narcotic drugs and Psychotropic substances Act, 1985, § 37, No. 61, Acts of Parliament, 1985 (India)

[16] (2014) 13 SCC 1

[17] (2008) 5 SCC 161

[18] INDIA CONST. art. 21

[19] Narcotic drugs and Psychotropic substances Act, 1985, § 31A, No. 61, Acts of Parliament, 1985 (India)

[20] (2012) 13 SCC 491

[21] (2011) 4 SCC 441

[22] Narcotic drugs and Psychotropic substances Act, 1985, § 35, No. 61, Acts of Parliament, 1985 (India)

[23] 1991 (1) SCC 705

[24] Narcotic drugs and Psychotropic substances Act, 1985, § 67, No. 61, Acts of Parliament, 1985 (India)

[25] (2013) 16 SCC 31

[26] (1999) 6 SCC. 172

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.