LAWS LA WS PREVENTI NG DRUG ABUSE IN I NDIA
Drug abuse is a serious social problem. The drug abuse is growing and an ever increasing number of youth is becoming addicted. The smuggling of narcotic drugs and psychotropic substances into India, and illegal trafficking in such drugs and substances lave led to drug addiction among a sizeable section of the public, particularly the adolescents has assumed serous and alarming proportions in the recent years. Drug addiction threatens to kill the whole generation. No individual, family or community is safe where illicit drugs take control. Drugs may control the body and mind of individual consumers, the drug crop and drug cartels may control farmers, illicit trafficking and crime may control communities. Drugs destroy lives and communities, undermine sustainable human development and generate crime. Drugs affect all sectors of society; in particular, the young people.
India's approach towards Narcotic Drugs and Psychotropic Substances is 1
enshrined in Article 47 of the Constitution of India. Which mandates the government to prohibit the use and consumption of intoxicating drinks and drugs which are injurious to health. The right to health has been perhaps the least difficult area for the court in terms
17 The State shall regard the raising of the level of nutrition and the standard of living of i ts people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring a bout prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
of justifiability, but not in terms of enforceability. Article 47 of Directive principles of state policy provides for the duty of the state to improve public health. This Article is based on Gandhian principles. However, the court has always recognized the right to health as being an integral part of the right to life guaranteed by Article 21 of Indian constitution.in the case State of Punjab v Mohinder Singh, Singh , 2 the Supreme Court held that Right to health is a fundamental right guaranteed under Article 21 Article 253 3 of the Constitution empowers the Parliament to legislate for the purpose of discharging obligations under international conventions and foreign treaties. Accordingly, the Narcotics Drugs and Psychotropic Substances Act, 1985 was enacted in November, 1985, to give effect to the provisions of the existing UN Conventions. It contains stringent provisions for the control and regulation of narcotic drugs and psychotropic substances, and provides an essential framework and appropriate pr ovisions for administrative action.
The statutory control over narcotic drugs in India is exercised through a number of Central and State enactments. The Opium Act of 1857, Opium Act of 1878 and the Dangerous Drugs Act of 1930 were enacted a long time ago. However with the increase in drug abuse and illicit drug traffic certain deficiencies in the existing laws surfaced which made it necessary for the Parliament to enact a comprehensive legislation to
AIR 1997 SC 1225 1225 Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. 2 3
combat this challenge. For e.g. the Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of 3 years with or without fine and 4 years with or without fine for repeat offences. As a result of experience gained on account of India’s participation in various international conventions that are single convention on Narcotic drugs,1961, Convention on psychotropic substance 1971, Convention on illicit traffic in Narcotic Drugs and Psychotropic Psychotropic substance 1988 and realizing India’s obligation under Article 4
253 of the Universal Declaration of Human Rights 1948 and Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966 5 , which are reflect the concern of the international community for the protection of the individual's right to the enjoyment of the highest attainable standards of physical and mental health and the gravity of the problem and the need to enact laws in tune with times, the Narcotic Drugs and Psychotropic Substances Act of 1985 was passed by Indian Parliament as a comprehensive legislation on narcotics, providing for stringent and long term prison sentences and heavy fines for offenders. Offender under this Act includes the cultivator, supplier, and seller as well as the drug consumer 6.The amended Drugs and Cosmetics Act 2008 and Rules also provide for deterrent punishment and stringent control over manufacture, sale, and distribution of psychotropic substances. The amended Act provides that any drug deemed dee med to be adulterated or spurious when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to Everyone has the right to a standard of living adequate for the health and Well-being of himself and of his family. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the Highest attainable standard of physical and mental health. Supra, n.10
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grievous shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more. The fines realized in such cases will be paid to the relative of the deceased or the aggrieved person 7. Despite these harsh punishments, the crime is on rise. AN OVERVIEW OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT
The NDPS Act, 1985 is one of the harshest laws in the country. It prohibits cultivation, production, possession, sale, purchase, trade, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes under license. The NDPS Act 1985 sets out the statutory framework for drug law enforcement in India. The main elements of the control regime mandated by the Act are.
The Act prohibits the cultivation, production, manufacture, possession, sale , purchase, transportation, ware housing, consumption , interstate movement, transshipment and import and export of narcotic drugs and psychotropic substances except for medical or scientific purposes and in accordance with the terms and conditions of any license, permit or authorization given b y the government. 8
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Section 12, Drugs and cosmetic (amended) Act 2008 Section 8 of the Act
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The central government is empowered to regulate the cultivation, production, manufacture, import, export, sale, consumption, use etc. of narcotic drugs and psychotropic substances.
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State governments are empowered to permit and regulate possession and interstate movement of opium, poppy straw, the manufacture of medical of medicinal opium and the cultivation of cannabis excluding hashish 10
The central government is empowered to declare any substances, based on an assessment of its likely use in the manufacture of narcotic drugs and psychotropic substances as a controlled substance. 11 Given India’s size and the federal nature of polity, a number of agencies both at
the center and the states have been empowered to enforce the provisions of the Act. These agencies include the department of customs and central excise, the Directorate of Revenue Intelligence, the Central Bureau of Narcotics and the central Bureau of Investigation and the central level and state police and Excise departments at the state level. The Union Ministries of social Justice and Empowerment and Health are responsible for the demand, reduction aspects of drug law enforcement which broadly covers health- care and the de-addiction, rehabilitation and social re-integration of addicts.12 Chapter IV (15 to 40) of the Act deals with prohibition of offences and penalties related to cultivation, production, transportation, selling, and purchasing of poppy Section 9 of the Act Section 10 of the Act Section 9 A of the Act Malik, Commentaries on Narcotic Drugs and Psychotropic Substances Act, 1985. Law publishers (India) pvt. Ltd, 2012, p.5
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straw13, coca plant 14 , coca leaves15, prepared opium 16, opium poppy 17 , opium18, cannabis 19
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plant and cannabis . All these offences are triable by special courts and the punishments prescribed range from imprisonment from 10 to 20 years for first offences, of fences, to 15 to 30 years for any subsequent offences together with monetary fines. In addition to persons directly involved in trafficking narcotic drugs and psychotropic substances, any person who finances trafficking or harbors ha rbors a person in trafficking or abets, a bets, or is a party to a criminal conspiracy. Including a criminal conspiracy to commit an offence outside India, is also liable to the same scale of punishments. The most important mandate of this Act is that it provides punishment for the 21
consumption of any kind of narcotic drugs and psychotropic substances. The earlier provisions of this Section made possession of small quantity of any narcotic drug or psychotropic substance, which is proved to have ha ve been intended for personal pe rsonal consumption and not for sale and distribution or consumes any narcotic drug or psychotropic substance punishable under the Act.
. Section 2 (xviii) of the Act defines “poppy straw" as all parts (except the seeds) of the opium poppy after harvesting whet her in their original form or cut, crushed or powdered and whether or not juice has been extracted t herefrom. Section 2(vi) (a) the Act defines "Coca plant" as the plant of any species of the genus Erythroxylon. Section 2(vi)(a) defines “coca leaf means” as th e leaf of the coca plant except of a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed Section 2(xi)(b) defines “prepared opium” as any product of opium by any series of operations designed to transform opium int o an extract suitable for smoking and the dross or other residue remaining after opium is smoked section 2 (xvii)of the Act defines "opium poppy" as the plant of the species Papaver somniferous L.; and the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of the the Act section 2 (xv) of the Act defines “opium" “opium" as the coagulated juice of the opium poppy, S.2,(xv) Section 2 (iv) of the Act defines “cannabis plant" as any plant of the genus cannabis. Section 2 2 (iii) defines Cannabis(hemp) as charas that that is the separated resin, obtained from cannabis plant and ganja , that is, the flowering or fruiting tops of the cannabis plant. Section 27 of the Act. 13
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But the new provision clearly stipulates that whoever consumes any narcotic drug or psychotropic substance shall be punishable. Thus, the provision of small quantity for personal consumption has been completely deleted and substituted by b y provision of mere consumption. Punishment varies accordingly to consumption. In the case Alpesh kumar v. State of Rajasthan 22, the accused was caught for illegally possessing two cigarettes containing 500 ml.gm of heroin, the accuse argued that it was for his personal 23
consumption but interpreting section 27 r/w S.8 of the Act the supreme court held that the accused was guilty. Prior to 2001, in cases pertaining to drug users, the Supreme Court, took into account the actual drug content in calculating quantity and not the entire quantity 24
seized . After the 2001 notification, the penalties were determined by the quantity of drugs involved, but the NDPS Act did not provide any guidance of ascertaining the quantity of narcotic drugs or psychotropic substances. In 2008, the Supreme Court in E. Michael Raj v Intelligence Officer 25, Narcotic Control Bureau held that “ in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substances is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the AIR 2004 SC 952 Section 27 states that Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,- (a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may e xtend to one year, or with fine which may extend to twenty thousand rupees; or with both; and (b) Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both. Hussain v State of Kerala (2000)8 SCC 139; Ouseph v State of Kerala [2001, SC; reported in (2004) 4 SCC 446] (2008) 5 SCC 161
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purposes of determining whether it would constitute small quantity or commercial quantity.”
By the amendment in 1989 Section 31A was inserted in the NDPS Act which imposes mandatory death penalty for certain repeat crimes involving a large quantity of drugs. The death sentence is mandatory in that there is no punishment laid down in Section 31A other than death. In June 2010, An NGO the Lawyers Collective challenged this provision in Indian Harm Reduction Network v Union of India
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on grounds of
infringing fundamental rights under Articles 21 (protection of life and liberty) and 14 (equal protection of law) of the Constitution of India. It also questioned the appropriateness of a death sentence for drug trafficking, which does not involve killing or taking of human life and is merely an economic offence. Section 64A of the NDPS Act provides immunity from prosecution to addicts27 volunteering for treatment, if they are charged with consumption or offences involving small quantity. This provision is in keeping with International Drug Conventions that encourage alternatives to penal sanctions where the offence is of a minor nature or where the offender is dependent on drugs her/himself.
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The Act has been amended twice; in 1989 and 2001. The first amendments in 1989 leaned towards greater stringency by introducing mandatory minimum sentences of 10 years, restrictions on bail
and
mandatory
capital
punishment
for repeat
AIR 2013 SC 562 Section 2 (i) defines „ addict ‟ as „a person who has dependence on any narcotic drug or psychotropic Substance‟. Article 36 (1) (b), Single Convention on Narcotic Drugs, 1961, as amended by the Protocol Amending the Single Convention on Narcotic Drugs, 1972, https://www.unodc.org, accessed on 14.9.2014
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offenders. Following the amendments, persons caught with small amounts of drugs faced long prison sentences, without the possibility of release on bail. Courts criticized the harsh and disproportionate sentencing structure, which led to a fresh set of reforms in 2001 to rationalize punishment on the basis of whether the quantity of drugs involved is “small” “commercial” or “intermediate” and provide some leniency towards drug offenders who also use drugs.
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Though the NDPS Act provides for stringent provisions for curbing drug abuse and illicit trafficking of narcotic drugs and psychotropic substances, the Act has certain defects, for example Patients with severe pain in India are not able to get opioid medicines for pain relief because the state NDPS Rules make it difficult for hospitals to store and dispense opioids. Hospitals have to obtain licenses for stocking, import, export, transport etc, each license requiring concurrence from different departments (Excise, Drugs Control, Health administration). These licenses need to be valid at the same time, though often the validity period of a license is as short as a month. By the time the institution gets a second license, often the first would have expired validity. On the other hand,though the NDPS Act allows medical use of narcotic drugs and psychotropic substances, stringent regulations and onerous licensing procedures together with controls under the Drugs and Cosmetics Act, 1940 have impeded access to opiates for millions of patients.
The Narcotic Drugs and Psychotropic Substances act Ignoring Health; Infringing Rights , (Feb 12, 2014) http://www.lawyerscollective.org, a ccessed on 14.9.2014 http://www.lawyerscollective.org,
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In order to rectify these disabilities of the Act, recently on February 2014 the loksabha has passed the NDPS (amendment) Bill. The amendments make important, path breaking changes for medical access to narcotic drugs by removing barriers that date back to 1985, when the Act was first introduced. The amendments also include provisions to improve treatment and care for people dependent on drugs, moving away from abstinence oriented services to treating drug dependence 30 as a chronic, yet 31
manageable condition. This will now change as Parliament has adopted a new category of “essential narcotic drugs” in section 2(viiia) of the Act – – a list, which the Central Government can notify on the basis of expediency in medical practice. Drugs identified as essential will be subject to Government Rules, which will apply uniformly throughout the country, bringing to an end the unwieldy and inept practice of obtaining multiple State licenses for possession, transport, purchase, sale, distribution, use and consumption. And the amendments broaden the object of the NDPS Act from containing illicit use to also promoting the medical and scientific use of narcotic drugs and psychotropic substances It is true that the efficacious provisions of the Act are worth for curtailing the illicit trafficking of narcotic drugs and drug abuse but when we consider the changing life style of people and growing demand for narcotic drugs for medicinal purposes these provisions are inadequate and needs to be amended. And more than adopting a punitive
Drug dependence is the body's physical need, or addiction, to a specific agent. There is therefore virtually no difference be tween dependency and addiction. Over the long term, this dependence results in physical harm, behavior problems, and association with people who also abuse drugs, https://www.google.co.in, accessed on 15.9.2014 Lawyers collective Parliament passes the NDPS (Amendment) Bill, 2014: many gains; some losses, http://www.lawyerscollective.org, http://www.lawyerscollective.o rg, a ccessed on 15.9.2014
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approach to the drug users the anti- drug laws should adopt means to rehabilitate them and make them useful citizens to the country.
