Drugs & Narcotics: Illegal Consumption in India

This article thoroughly analyses the various laws that govern drug consumption and its policing in India. India has various laws that seek to curtail drug abuse such as the NDPS Act, Drug Control Act, and Drug & Cosmetics Act. However, loopholes in these laws are manifold. The articl discusses these loopholes along with their inability to provide adequate rehabilitation methods.

Substance addiction is not an area which is new to India with nearly 3 million medication and drug addicts and a total of nearly ten suicides per day due to the repercussions of the said addiction. India is amongst the world’s  foremost drug pin nations with little access to rehabilitation centres for most such individuals. However, with the introduction of the Narcotic Drugs and Psychotropic Substances Act, (NDPS Act) in 1985, India took a step towards the eradicating this fast growing problem, which has been known to consume nations like Mexico and even the United States of America. With the help of this Act and its further amendments as per the needs of the society in 2001 and 2014, India has been very stringent on anti-drug petitions and has been persistent in the imposition of firm punishments for drug trafficking and drug endorsements. Furthermore, recourses for rehabilitation for addicts is also something that has been the focal point under this Act, to ensure the safe and secure life of individuals who may be suffering from this addiction with a promise of a better standard of life in the future.

Under Section 2(1){a} of the  Drugs (Control) Act, 1950, the definition of a drug dealer has been provided as given below:-

Dealer  means a person carrying on, either personally or through any other person, the business of selling any drugs, whether wholesale or retail.  

The NDPS Act, 1985 and Punishments

The NDPS Act, however, does not hold back on its vigilance and punishments related to illegal trafficking and distribution of drugs through denial and criminalization of the production, cultivation, possession, sale, use, purchase, import, export and the consumption of narcotic drugs and psychotropic substances. However, the only time the Act provides any leniency is when the drugs are to be used for any medical purposes or for scientific research, which is duly approved by the requisite authorities beforehand.

The NDPS Act further appeared to conceive strict punishments for drug trafficking, to expand implementation  powers and to implement international conventions, which India is associated with and also to direct psychotropic substances and regulate their usage. This is a predominantly reformatory statute since it primarily furnishes the regulation of drugs. This statute also provides for capital punishment, which can be granted as a form of punishment under the Act directly. The amendment of 2014 further held that the decision to grant capital punishment lies at the discretion of the court and it instead stipulates 30 years of detainment as a substitute for capital punishment.

With a specific end goal to supplement the NDPS Act, the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act came into existence in 1988. It contains provisions relating to the preventive detention of any and each person who is associated with or accused of drug trafficking.

Drug Law Enforcement Agencies In India

Following are the primary drug enforcement agencies in India:

• The Narcotics Control Division
• The Central Bureau of Narcotics (CBN)
• The Narcotic Control Bureau (NCB )
• Other Agencies like the Directorate of Revenue Intelligence, Central Bureau of Investigation, Customs Commission, Border Security Force.

Legislative Policies In India In Drug Related Matters

The legislative policies over drug related matters are broad and many and are thus, covered within the following three Central Acts:

• The Narcotic Drugs and Psychotropic Substances Act, 1985.
• Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
• Drugs and Cosmetics Act, 1940.

Narcotic Drugs And Psychotropic Substances Act, 1985

India is a member of the three United Nations drug convention which is, The 1971 Convention on Psychotropic Substances (1971 Convention), The 1961 Single Convention on Narcotic Drugs (1961 Convention), and The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Convention).

Thus, officially it can be said that the NDPS Act had been instituted with a specific purpose, which was to provide for adequate penalties for more stringent powers and a strengthened enforcement system for drug trafficking along with the ability to execute international conventions, to which India is a member while also developing much needed control over psychotropic substances and their illicit uses. Till date, there have been three amendments to this Act i.e. in 1989, 2001 and currently, in 2014, all made with the purpose of handling the issue of drug trafficking in a more effective and vigilant manner.

This Act mandatorily prohibits the production, cultivation, sale, possession, trade, purchase, use, consumption and import or export of psychotropic substances as well as narcotic drugs except for those which are used for scientific or medicinal purposes, as given under the law.

The NDPS Act covers three wide classes of substances, which are:

1. Psychotropic Substances or those provided within the 1971 Convention along with psychoactive substances, for example, ketamine, which is not yet grouped under the three international conventions.
2. Narcotic Drugs, which are the ones given under the 1961 Convention.
3. All Controlled Substances which have been used for making psychotropic substances or narcotic drugs.

NDPS Amendments, 2014

The NDPS Act had been amended in early 2014 for the third time and certain new provisions were inserted within the Act from 1 May 2014. The main highlights of these new changes are as follows:

• It created a different class of essential narcotic drugs, that can be directly regulated by the central government.
• It widened the goal of the law from comprising of unlawful use to the promotion of the scientific and medical use of psychotropic substances and narcotic drugs with regards to the rule of balance within the control and accessibility of narcotic drugs that supports the international drug control treaties of the world.
• The inclusion of the phrase recognition and approval of the treatment centre along with the management of drug dependence which provides for the foundation of lawfully binding treatment standards and evidence completely based on medical interventions.
• It made capital punishment optional for a subsequent offense including the specific amount of drugs under section 31A. The court now has other alternatives for the imposition of detainment or imprisonment for a term of 30 years under this section.
• The increased punishment from a maximum of 6 months imprisonment to 1 year of imprisonment for small quantity offenses as well.
• The authorization of the private sector and their inclusion in the processing of concentrated poppy straw and opium.
• The raising of the ranks of the officers who have been approved to conduct the arrest and search permit holders for affirmed NDPS violations.
• A much more detailed provision for relinquishment of the property of people summoned over charges of drug trafficking etc.

Punishment for Offenses

The NDPS Act does not provide for any leniency in drug related offences as it considers them to be highly serious and  dangerous in nature and thus, the punishments for them are very strict within this Act. Furthermore, the offenses under this Act are cognizable and non-bailable.

The quantum of sentence and fine differs with the offense. For most of the offenses, the punishment completely relies upon the quantity of drug included which could be a little amount, more than a little, however, not as much as the business amount or business amount of drugs which is dealt in. Commercial and small amounts are notified for each drug nevertheless.

Under this Act, criminal conspiracy, abetment and even attempt to carry out an offense draw the same punishment as the offense itself. The habitual or repeat of such offenses attracts one  and half times the punishment and capital punishment as well in some cases.

Because the punishments provided within this Act can be rigid and inflexible, a few procedural safeguards have been provided within this Act. A few immunities are additionally accessible under the Act.

Offences And Penalties

Offenses	Penalty	Sections of the Act
Cultivation of coca plants or opium, cannabis without license	Punishment: Rigorous imprisonment-up to 10 years + fine up to Rs.1 lakh	Opium “ 18(c) Cannabis “ 20 Coca-16
The embezzlement of opium by licensed farmer	Rigorous imprisonment of up to 10 to 20 years + fine Rs.1 to 2 lakhs (regardless of the quantity)	19
The manufacture, production, sale, possession, transport, purchase, import/export inter- state, or use of psychotropic substances and narcotic drugs.	For a small quantity of drugs, the punishment is still a rigorous imprisonment for up to 6 months or a fine of Rs.10,000 or both. More than a little quantity but less than business quantity would result in rigorous imprisonment for up to 10 years + fine up to Rs.1 Lakhs. And commercial/Business quantity would attract rigorous imprisonment of 10 to 20 years + a fine Rs.1 to 2 Lakhs.	Prepared opium-17 Opium “ 18 Cannabis “ 20 Manufactured drugs or their preparations-21 Psychotropic substances -22
The import or export or transhipment of psychotropic substances narcotic drugs.	Same as above	23
External dealings in NDPS-i.e. controlling and engaging in trade wherein drugs are supplied to an individual outside India and drugs are also obtained from outside India.	Rigorous imprisonment 10 to 20 years + a fine of Rs. 1 to 2 lakhs (Regardless of the quantity)	24
Knowingly allowing ones  premises to be used for committing an offense	Same as for the offense	25
Violations pertaining to controlled substances (precursors).	Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs	25A
Financing traffic and harbouring offenders	Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs	27A
Attempts, abetment and criminal conspiracy	Same as for the offense	Attempts-28 Abetment and criminal conspiracy “ 29
Preparation to commit an offense	Half the punishment for the offense	30
Repeat offense	In most of the cases, the punishment is One and half times the penalty for the offense. And death penalty in some cases.	31 Death “ 31A
Consumption of drugs	Morphine, cocaine, heroin -Punishment is Rigorous imprisonment up to 1 year or fine up to Rs.20,000 or both. And for consumption of some other drugs- Imprisonment up to 6 months or fine up to Rs.10, 000 or both. And there is immunity from the legal proceedings provided to addicts if he/she volunteering for treatment.	27 Immunity “ 64A
Punishment for violations not elsewhere specified	Imprisonment for up to six months or fine or both.	32

Examples within the Indian Judiciary

• In February 2012, the  Chandigarh district court sentenced Paramjit Singh, who had been discovered with 10 kg of heroin in 2007, to death. In 1998, he had been captured with 1.02 kg of heroin as well and thus Capital Punishment was duly imposed.
• In February 2008, the Ahmedabad sessions court sentenced Omkarnath Kak, who had been found with 28 kg of charas in 2003, to death. In 1988, Kak had previously been captured for having 40kg of charas as well.
• In December 2007, a Mumbai special court announced the death sentence to Ghulam Malik, found with 142 kg of hashish in 2004. Approximately 1.8 kg of hashish had been recuperated from Malik on a prior event as well.

Immunity within Drug Related Offences

• All such officers who act in the in the discharge of their duties in good faith under the Act are duly  exempted from legal proceedings, suits and other prosecution under Section 69 of the Act.
• Any addict who has been accused with consumption of drugs under section 27 or with any offence, which includes even a tiny quantity, will be exempted or protected from any prosecution if they volunteer for dead-diction. This exception might be withdrawn if the addict does not undertake complete treatment as given under section 64A.
• Offenders under the  State or Central governments can delegate immunity to a wrongdoer in order to get his evidence in any important case. Such an immunity is only allowed by the government and not by any court as provided under section 64.
• Any minor who commits an offence (individual less than 18 years old) shall be secured by the Juvenile Persons (Care and Protection) Act. This Act seeks to cure and rehabilitate these juveniles instead of punishing them under the respective Acts. It prevails over any other Act with regard to any individual underneath the age of 18. Subsequently, such persons cannot be prosecuted under the NDPS Act either.

Loopholes within the Act

India’s  primary statute on drug trafficking is still not  free from the many loopholes which leave certain aspects within the law ambiguous to the parties involved. These have been summarised below:

• The Act has no reasonable distinction between the definition of an addict and a consumer. The definitions which have been tried so far are neither backed by law nor by ethics.
• The Act constantly makes use of terms such as use, possession, and consumption but still neglects to inform and educate about what they truly mean.
• Further, the non-appearance of any political initiative in the setting up of machinery sanctioned to enforce and regulate rehabilitation acts as an impediment too. Furthermore, the scarcity of the related institutions in charge of training the judicial machinery, the insufficient rehabilitation facilities and other similar factors have advanced the inadequacy of the law to deal with the widespread drug menace in India.
• Moreover, the ineffectual enforcement of the statute and the deficiency in rehabilitative organizations in the country has only added to the many shortcomings within the Act.
• Further, the stringent rules and the strictness of the NDPS Act is revealed by the provision for granting capital punishment in instances of repeated offenses, similar to the manufacture, production, transportation, possession and import/export of drugs.
• Moreover, there is a huge lack in the amount of data and statistics pertaining to drug addiction, which in no way whatsoever arises simply from the absence of substance abuse.
• The provisions of criminalizing the utilization of drugs, punishing the possession of drugs for individual utilize, imposing the death penalty and other different aspects of the enactment are far harsher than those specified in the UN drug control convention.

Conclusion

The NDPS Act has undertaken several viable measures for the prevention and punishment for all drug related offences and drug trafficking, however there still needs to be more provisions for reformation as far as this Act and its provisions are concerned. Despite the fact that illuminating presences and society’s  representatives can be brought within to recommend and evaluate changes in the drug policy, these measures have not yet been put into utilization and a thorough inspection of the provisions of the Act reiterate the fact that the punishments are deemed to be more cruel with little chance of reformative action or rehabilitation. The transformation of the NDPS Act itself is the principal walk to be taken if the Government genuinely tries to reaffirm its dedication towards eradicating India’s  growing drug problem.

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