All About The NDPS Act

Index 

1. Introduction 
2. Highlights Of The NDPS Act
3. Objectives Of NDPS Act
4. Important Terms Under NDPS Act
5. Penalties Under NDPS Act 
6. Benefits And Drawbacks Of NDPS Act 
7. Proposed Revisions To The NDPS Act 
8. Sections To Acknowledge Under NDPS Act 
9. Bail Regulations Under NDPS Act
10. Burden Of Proof: Culpable Mental State In NDPS Act
11. Conclusion 

Introduction 

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 was enacted to combat drug abuse by prohibiting the use, distribution, manufacture, and trade of narcotics and psychotropic substances. Narcotic drugs induce sleep, while psychotropic substances affect the mind positively. The Indian Parliament passed this legislation on 14 November 1985, recognizing the medicinal use of these substances. The Act allows for the cultivation of cannabis, poppy, and coca plants, and regulates the manufacture of psychotropic substances linked to the cultivation of these plants.

The primary aim of the NDPS Act is to oversee the production, possession, sale, and transportation of narcotics and psychotropic drugs. This legislation prohibits the sale of around 200 psychotropic substances without prescriptions, necessitating prescriptions for their acquisition. Since its inception, the law has undergone several amendments.

Moreover, the NDPS Act treats drug users, dealers, and serious offenders equally. It prohibits individuals from engaging in any activity related to narcotics or psychotropic substances without proper authorization, including manufacturing, cultivation, possession, sale, purchase, transportation, storage, or consumption. This article aims to outline the key provisions of the NDPS Act.

Highlights Of The NDPS Act

Before the enactment of the NDPS Act, India did not have statutory control over drugs and narcotics. Control was managed through three Central Government acts such as the Opium Act of 1857, the Opium Act of 1878, and the Dangerous Drugs Act of 1930. Cannabis and its derivatives were legally accepted and used for recreational purposes until 1985, with references to cannabis smoking found in ancient texts like the Atharva Veda.

The Indian government is part of three UN drug conventions. The Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971), and the Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). These conventions outline measures to limit the medical and scientific use of narcotics and psychotropic substances and prevent their abuse. India’s obligations under these conventions were considered when drafting the NDPS Act, in accordance with Article 47 of its Constitution. The Act applies to all Indian territory, citizens residing abroad, and individuals travelling on Indian-registered ships and aircraft.

India was among the first developing nations to establish a National Drug Policy (NDP) aimed at enhancing drug access for low-income populations. However, pharmaceutical companies have increasingly dominated the market through prescription sales. In 1963, the Indian government implemented a Drug Price Control Order (DPCO) to regulate drug prices, but it had minimal impact, resulting in several companies leaving the country and drug production shifting to China. A significant reform of the DPCO occurred in 2013, with a focus on non-controlled products due to a lack of new investments.

Initially, opium and morphine were used in medical preparations during the civil war, leading to narcotic addiction and the “soldier’s disease” diagnosis among war veterans. Despite the effective ban on hemp (marijuana) production in 1937, some governments realised its necessity for items like rope during the Second World War.

Initially, the Indian government resisted the Single Convention on Narcotic Drugs (1961). As a compromise, the convention granted India a 25-year grace period to allow cannabis exclusively for scientific and medical purposes, not for general use. Due to international pressure and political sensitivity, India had to comply with this regulation, leading to the implementation of the NDPS Act on 14 November 1985. This Act effectively banned all narcotic drugs in India with minimal resistance.

Objectives Of NDPS Act

The NDPS Act was enacted with the following aims:

1. To revise and consolidate laws concerning the use and possession of narcotic drugs.
2. To enforce strict measures for controlling, regulating, and overseeing the illegal possession, sale, transport, and consumption of narcotic drugs and psychotropic substances.
3. To establish procedures for confiscating narcotic drugs, psychotropic substances, and related properties used in illicit drug trafficking.
4. To create a framework for implementing the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, along with other related purposes.

Important Terms Under NDPS Act

Narcotics : The NDPS Act outlines the definitions of various terms in Section 2. While narcotics are typically known medically as sleep-inducing substances, the Act’s definition, as per Section 2 (xiv), includes coca leaf, cannabis (hemp), opium, poppy stems, their derivatives and substances notified by the government in its official gazette.

Narcotics were traditionally seen as substances that dull senses and alleviate discomfort, encompassing various drugs. However, the term now mainly refers to heroin, its derivatives, and semi-synthetic versions, often called opioids. Examples include prescription medications like Vicodin, codeine, and morphine.

These drugs are commonly known as opioid pain relievers and are used to manage severe pain that other pain relievers may not effectively treat. When used cautiously and under medical supervision, they can be valuable in pain management.

Psychotropic substances: The term “psychotropic substances” pertains to substances that alter the mind. As defined in Section 2(xxiii) of the NDPS Act, psychotropic substances include natural or synthetic substances, their derivatives, or any preparations listed in the Schedule of the Act. Examples of such substances include Amphetamine, Methaqualone, Diazepam, Alprazolam, Ketamine, among others.

Penalties Under NDPS Act

The NDPS Act determines punishment based on the quantity of drugs seized, with severity varying according to the offence. Lesser penalties may apply if the drugs were for personal use. Recent amendments categorise punishment into three levels based on the amount of drugs seized, while also granting judicial discretion in determining the severity of punishment. 

For cannabis-related offences, penalties for cultivation may include up to ten years of rigorous imprisonment and a fine of up to Rs 1 lakh.

Individuals involved in the production, manufacturing, possession, sale, purchase, transportation, and trafficking of illegal cannabis are subject to varying punishments based on the quantity seized. 

Possessing a small quantity of cannabis can lead to up to one year of rigorous imprisonment and a fine of up to Rs 10,000. For quantities greater than a small quantity but less than a commercial quantity, the offender may face up to 10 years in prison and a fine of up to Rs 1 lakh. Commercial quantities of cannabis can result in rigorous imprisonment for 10 to 20 years, along with fines ranging from one lakh rupees to more than two lakh rupees, as determined by the court. The Department of Revenue defines a “small quantity” of cannabis as less than 1 kg, while a “commercial quantity” is 20 kg or more.

Section 27 of the Act outlines penalties for drug consumption. It states that for drugs like cocaine, morphine, diacetylmorphine, or other specified narcotic drugs or psychotropic substances, the punishment can be imprisonment for up to one year or a fine of up to twenty thousand rupees. For using any other unspecified drug, the penalty may include up to six months in prison and a fine of up to Rs 10,000.

The Act imposes harsher penalties for repeat offenders, with potential imprisonment up to one and a half times the maximum term and a fine up to one and a half times the maximum amount. Repeat offenders may even face the death penalty if found guilty of the same offence again, depending on the quantity of drugs involved.

An offence under the NDPS Act can lead to the same punishment as the actual offence under Section 28 of the Act. Section 25 also stipulates that anyone knowingly allowing an offence on their premises will face the same penalty as if they committed the offence themselves. An amendment to the Act in 1989 made sentences under the NDPS Act non-commutable, except for drug consumption offences, due to their seriousness.

Benefits And Drawbacks Of NDPS Act

One of the notable aspects of this act is its flexibility in adding or removing narcotics and psychotropic substances from the controlled list without the need for formal legislative procedures. Changes can be implemented through readily available information or official gazette publications. Additionally, the establishment of the Narcotics Control Bureau by the Central Government plays a crucial role in nationwide drug law enforcement coordination, serving as a central hub for intelligence collection and dissemination, and acting in accordance with Section 4, subparagraph 3 of the act’s provisions.

The act grants authority to Magistrates and specially designated officers from both the Central and State Governments to issue search and arrest warrants. Leveraging this capability, rapid and suitable responses to information can be achieved, potentially circumventing the necessity for warrant issuance and ensuring prompt and efficient responses to all information received.

Typically, legal penalties are imposed for actions causing harm to others, such as murder or theft. However, offences outlined in statutes like the NDPS Act are considered victimless crimes. Possessing marijuana or consuming opium, for instance, doesn’t directly harm individuals or others. Normally, an offence involves both a specific action and a guilty or dishonest intention. Yet, the NDPS Act departs from this norm by assuming a culpable mental state for all its offences under Section 35, removing the need to prove dishonest intent. This means that conscious possession is assumed in cases where possession constitutes an offence under the Act.

Under the NDPS Act, a defendant is assumed to be aware of the contents of substances in their possession. Section 54 of the Act states that if someone cannot provide a satisfactory explanation for possessing narcotics, psychotropic substances, or other incriminating items, it will be presumed that they committed an offence.

In the instance of a second conviction, which could involve abetment or attempted commission of an offence, Section 31-A mandates a death sentence instead of a life term.

Civil activists argue that the NDPS Act’s stringent penalties, such as the death penalty, limited access to bail, and the presumption of intent and knowledge, unfairly shift the burden of proof onto the accused, leading to concerns about civil liberties. Therefore, they advocate for a review of the act from this perspective.

Proposed Revisions To The NDPS Act

1. The NDPS Act underwent a significant amendment in 1989, introducing stricter provisions and incorporating new sections, notably Section 27A which addresses the financing of illicit drug trafficking. Activities constituting illicit trafficking encompass production, possession, sale, purchase, transportation, and warehousing, with individuals falling under the purview of Section 27A if implicated in such activities.
2. The 2001 amendment to the Narcotic Drugs And Psychotropic Substances Act aimed to streamline sentencing by introducing greater objectivity. This revised law made navigation easier for addicts and also relaxed bail conditions.
3. The NDPS Amendment Act of 2014, effective from May 1, 2014, brought significant changes. Section 71 outlined guidelines for handling drug cases and treatment facilities. Previous amendments focused on stricter penalties for high-level offences and criminalising drug consumption. The bureaucratic process for morphine producers was simplified to require only a single license from the State Drugs Controller instead of multiple licenses with varying validity periods. This unified regulation aimed to prevent inter-state conflicts and improve accessibility to essential narcotics like morphine, fentanyl, and methadone for medical purposes. The death penalty for repeat drug trafficking convictions was replaced with a 30-year sentence, and the maximum penalty for “small quantity” offences was increased from 6 months to 1 year.
4. The Narcotic Drugs and Psychotropic Substances (Amendment) Bill of 2021 was introduced in the Lok Sabha on December 6, 2021, with the intention of replacing the Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance of 2021. The bill rectifies a drafting error within the Narcotic Drugs and Psychotropic Substances Act of 1985. This act governs regulations regarding various operations like manufacturing, transportation, and usage of narcotic and psychotropic substances. In 2014, the definition of illicit activities underwent changes during an amendment to the Act. However, a particular section related to penalties, which referred to the previous clause number for punishment concerning financing illicit activities, remained unchanged. The Bill addresses this issue by introducing a new clause number within the penalty section.

Sections To Acknowledge Under NDPS Act 

Section 3 of the NDPS Act grants the Central Government the authority to add or remove substances, natural materials, salts, or preparations from the list of psychotropic substances. This can be done swiftly by publishing a notification in the official gazette, without the need for legislative amendments, relying on available information or international convention decisions.

Section 7A grants the Central Government the authority to establish the National Fund for Control of Drug Abuse, aimed at financing efforts to counter illicit trafficking in narcotic drugs and psychotropic substances. Additionally, under Section 7B, the Central Government is required to present an annual report detailing the activities funded through this fund.

Section 8(c) prohibits the cultivation of coca plants, gathering any part of coca plants, cultivating opium poppies or cannabis plants, as well as the production, manufacture, possession, sale, purchase, transportation, warehousing, use, consumption, importation across state lines, exportation across state lines, importation into India, exportation from India, or transshipment of any narcotic drug or psychotropic substance. However, this prohibition does not apply to activities conducted for medical or scientific purposes, provided they are carried out in accordance with the provisions of the Act, or the rules and orders established under it.

Section 27 specifies penalties for consuming narcotic drugs or psychotropic substances, including imprisonment of up to one year, a fine of up to twenty thousand rupees, or both. For consuming substances other than cocaine, diacetyl-morphine, or any similar substances, the penalty may include imprisonment for up to six months, a fine of up to Rs 10,000, or both.

Section 36A of the NDPS Act contains a “non-obstante” clause that grants Special Courts the authority to adjudicate cases involving imprisonment for over three years, with the aim of expediting trials. Key aspects of this provision include the government’s ability to establish Special Courts to accelerate the prosecution process. These courts will be designated in specific areas through an official gazette notification and will be recognized as Courts of Session. The government, in consultation with the Chief Justice of the High Court, appoints a single judge for the Special Court, who must initially hold the position of a sessions judge or additional sessions judge. The Special Court has jurisdiction to try all offences under the NDPS Act carrying a prison term exceeding three years. It evaluates police reports or complaints from state or central officials to ascertain the occurrence of an offence. In addition to offences under the NDPS Act, the Special Court can also try individuals accused of other criminal offences under the Code of Criminal Procedure, 1973 (CrPC). The procedures in the Special Court, including matters related to bail and bonds, will follow the guidelines outlined in the CrPC. The prosecutor in a Special Court is designated as a public prosecutor.

Section 41 grants magistrates and specifically designated Gazetted officers from various departments like central excise, narcotics, customs, revenue intelligence, or state departments the power to issue search warrants. This enables swift and efficient action upon receiving information.

Under Section 50 of the NDPS Act, individuals can request a search by a magistrate or gazetted officer, who can detain them until the magistrate arrives. Alternatively, if the officer believes the person cannot be taken to the nearest officer or magistrate without risk of them concealing drugs, they can proceed with the search under Section 100 of the Code of Criminal Procedure, 1973. The search warrant must cite the reasons for this belief, and a copy must be sent to the officer’s immediate supervisor within 72 hours.

Section 64A is a commendable government initiative that allows addicts to receive medical treatment without facing legal repercussions. To qualify under this section, an addict must be charged under Section 27 of the NDPS Act or for an offence involving a small quantity of drugs. They must voluntarily seek medical treatment for addiction; if they complete the treatment, they will not face charges under Section 27 or any related provision. However, failing to complete the treatment may result in losing this immunity.

Bail Regulations Under NDPS Act 

The Supreme Court has set specific guidelines in its judgments regarding bail applications for offences under the NDPS Act. These guidelines outline the considerations necessary when an accused individual seeks bail.

In narcotics cases, the approach to bail differs significantly from general cases. Normally, bail is considered a right, with incarceration being an exception. However, in NDPS cases, incarceration is the norm, and bail is the exception. 

Section 37 of the NDPS Act addresses the issue of cognizable and non-bailable offences. Section 27 of the NDPS Act specifies that all offences under the Act are cognizable, and bail is not granted unless specific conditions are met. This provision applies to offences outlined in Sections 19, 24, and 27A, as well as those involving commercial quantities.

Before bail can be granted under the Act, certain conditions must be satisfied:

1. The accused must have reasonable grounds to believe in their innocence.
2. Granting bail should not pose a risk of the defendant committing further crimes while released on bail.

Burden Of Proof: Culpable Mental State In NDPS Act

The NDPS Act addresses the presumption of the accused’s culpable mental state, a key aspect in criminal law’s “Presumption of Innocence” principle. This principle, derived from the maxim “Semper necessitas probandi incumbit ei qui agit,” places the burden of proof on the accuser. Section 35 of the NDPS Act establishes that the court presumes the accused possesses a culpable mental state necessary for prosecution, including intention, motive, knowledge of facts, or belief in or reason to believe a fact. To counter this presumption, the accused must demonstrate their innocence and show they did not commit the alleged offence.

While the NDPS Act does not explicitly mention “conscious possession,” judicial interpretations have evolved this concept based on individual case needs and circumstances. However, the defendant can present evidence to counter this presumption and demonstrate they lacked a culpable mental state regarding the charged offence.

For the purpose of this section, a fact is considered proven only when the court is convinced beyond a reasonable doubt, not merely by a preponderance of evidence. Based on this, conscious possession implies simultaneously having both a mental state of possession and physical possession of the illegal substance. In criminal law, the concepts of ‘Actus Reus’ (the physical act) and ‘Mens Rea’ (the mental state) are crucial elements of a criminal offence. Likewise, under the NDPS Act, both physical and mental possession of drugs are key elements required to establish an offence.

Conclusion 

The drug issue in India is more severe than commonly acknowledged. Historically, substances like ganja and charas were utilised for medicinal and therapeutic purposes without legal repercussions until 1985. However, the NDPS Act now imposes severe penalties, including restrictions on bail for serious offences as outlined in Section 37. This Act, compared to the Unlawful Activities (Prevention) Act, 1976 (UAPA), is stricter, leading to cautiousness from courts in granting bail.

Many laws are designed to address societal issues, but when abused, they can turn oppressive. Stricter laws often lead to draconian measures. The NDPS Act, due to its severity, can be prone to misuse. Hence, it’s crucial for the Courts to prevent its misuse and ensure fair justice for all in society.