The drug laws in India are governed by the Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS ACT”) which was brought into existence by the Indian Parliament on 14th November 1985. The objective of the Act was to curtail the possession, consumption, distribution, sale and import of the most addictive drugs known to mankind and further impose deterrent punishments for anyone who committed any offence under the act.
History and Nature of the NDPS Act
Before the NDPS ACT was passed by the Parliament, the laws relating to drugs could be traced way back to the Opium Act, 1857 which was followed by the Opium Act, 1878 and the Dangerous Drugs Act, 1930. The provisions under these statutes were not very regulated and contained meagre punishments for the offences relating to drugs, which continued for some time.
It was only until an International peace treaty called the Single Convention on Narcotic Drugs, 1961 which came into force, that various signatory countries to the convention i.e. the United States of America and the United Kingdom adopted a stricter approach towards curbing and getting control over the drugs menace in these countries.
With the rise in International standards and awareness, India observed the need to incorporate and adopt these measures in the form of substantial legislation that would serve the purpose holistically in the domestic sphere. Hence, the ‘National Drugs and Psychotropic Substances Act’ was born with its enactment by President Giani Zail Singh in 1985. The act is dichotomous as it deals with the trafficking of prohibited substances i.e. cultivation, manufacture, distribution as well as their consumption. The act classifies drugs into small, less than commercial and commercial and lists punishments based on this classification. The enactment includes substances obtained from nature such as Ganja (Marijuana) along with narcotic and psychotropic drugs.
Apart from the above, the Act also prohibits the consumption and financing of drugs and further protects the offenders who are guilty under the Act. Under the Act, the punishments imposed on the offenders are not restricted to the nature of drugs but the Act also contemplates the quantity seized from the offenders and the punishment for that may go up to 20 years of imprisonment or a fine of Rs. 2 Lakhs or both.
The Hon’ble Supreme Court of India in its Judgment titled “State of Rajasthan vs. Uday Lal”2, has made the following observations:
“Before analyzing the same, it is relevant to mention that in order to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, the Parliament enacted NDPS Act in the year 1985. This is a special Act and it has been enacted with a view to make stringent provisions for the control and regulation of operations relating to the narcotic drugs and psychotropic substances.”
Challenges and Criticism
The NDPS Act over the years has faced a lot of criticism for penalizing the repeat offenders by the death penalty in case the number of drugs exceeded a certain level, which was eventually made clear vide an amendment in the year 2014, whereby it was clarified that the applicability of death penalty is not mandatory. In addition, when the NDPS enactment came into play, special courts were constituted to adjudicate the offences under the Act, thereby reducing the burden on regular Sessions Courts in the Country. Despite the fact that the enactment was the need of the hour when it was drafted, it is not without its shortcomings.
In India, the procedure adopted by the criminal jurisprudence system holds the accused innocent until proven guilty as opposed to the provisions and spirit of the NDPS Act. Despite the fact that the NDPS Act was drafted in consonance with the International Principles, it is still contrary to the standard principles of Human rights as it particularly holds the accused guilty until proven innocent and puts the onus to prove their innocence on the individual accused. It is further to be understood that under the Act unless the contrary is proved, the courts will believe that the accused intentionally held the illicit drugs that were found in this possession.
In addition to being an enforceable substantive law, the Narcotic Drugs and Psychotropic Substances Act has also been responsible for creating awareness about the negative impact of drug use. The nodal agency that monitors the initiative taken by different organizations i.e. both public and private for spreading more awareness about the detrimental effects of drug use is known as the Department of Social Welfare. The Narcotic Control Bureau, being a central agency is responsible for monitoring the activities undertaken by other different law enforcement agencies and ensuring regular compliance with numerous international instruments that have been appended by India.
To deal with its inadequacies, a bill to amend the NDPS Act was passed by the parliament in 2014. The amendment aims to bring the Act in line with changing trends and current International standards as opposed to when it was enacted. The amendment also includes provisions to improve treatment and care for people dependent on drugs, moving away from abstinence oriented services to treating drug dependence as a chronic, yet manageable condition. The highlight however is the inclusion of certain ‘essential drugs’ which pave the way for a progressive mindset. Although the amendment opens the way for private sector involvement in the processing of opium and concentrated poppy straw, it remains silent on the issue of marijuana that has been generating smoke in large sections of the International community.3
Sections invoking Punishments under the NDPS Act
Some of the provisions under the NDPS Act are invoked more than the others, however, the following provisions have been enunciated with the objective of penalizing the accused under the Act. The quantum of punishment can be described in terms of the quantity of drugs possessed by the accused, which are divided into three categories i.e. small, less than commercial and commercial quantities and the accused is sentenced to punishment accordingly. Some of the penal sections under the Act are as follows:
1. “Section 8 clearly prohibits the cultivation of opium, poppy, coca or cannabis plants and the production, manufacture, distribution including warehousing, transport, purchasing and selling of prohibited drugs and psychotropic substances. It also prohibits their financing as well as consumption and harbouring offenders guilty under the Act.
2. According to Section 19, any farmer who cultivates opium in accordance with a license but embezzles, shall be punished with rigorous imprisonment for a term ranging between 10 and 20 years and shall also be liable to pay a fine ranging between Rs. 1 and 2 lakh rupees.
3. As per Section 23, any person who engages in illegal import/ export/ transhipment of narcotic drugs/psychotropic substances shall have to face punishment ranging between rigorous imprisonment for 1 to 20 years and fines ranging between Rs. 10,000 and Rs. 2 lakh based on the quantity of the prohibited substance.4
Stringent Provisions of Bail
The Provisions regarding bail are dealt with under section 27 of the NDPS Act, the relevant extracts of the section are reproduced herewith:
“[37. Offences to be cognizable and non-bailable –
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 3 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.]”5
It is to be noted that the Courts in India including the apex Court i.e. the Supreme Court of India have made observations in a catena of judgments that the approach towards the matter of the Narcotic Drugs and Psychotropic Substances Act cannot be dealt with in a liberal manner and the Hon’ble Supreme Court has further laid down broad parameters to be followed whenever an accused of offences under the NDPS Act approaches a court of law with an application seeking bail.
The Hon’ble Supreme Court in the case titled “Union of India v. Ram Samujh and Ors”6 (1999) 9 SCC 429, has made the following observations:
“It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.”
The Provisions relating to bail come within the ambit of Chapter IV of the NDPS Act, which discusses the aspect of offences being cognizable and non-bailable. The reason for Section 37 being a negative provision is so that it keeps a check on the crimes encircling around the drugs flooding the market and the legislatures have made it mandatory for grant of bail to the accused under the NDPS Act.
The Hon’ble Supreme Court of India while passing a recent judgment in the case titled “State of Kerala v. Rajesh”, AIR 2020 SC 721 has observed:
“The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates”7
Therefore to summarise the law relating to the rigour of Section 37 of the NDPS ACT, it can be pointed out as follows:
a) The limitations on granting bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
b) In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738].8
Challenges in the Indian Society
Our Indian criminal jurisprudence is privy to two types of crimes that are committed by the individual i.e. traditional crimes which affect a particular individual like murder, theft, assault, dacoity, and white-collar crimes or socio-economic crimes which affect the public at large like smuggling, illicit trafficking, cheating and crimes relating to drugs.
Amongst the two, white-collar crimes have more recently come into existence with the advancement of technology and more awareness amongst the society, hence their operations happen on a much large scale and affects the entire society. The purpose of committing such crimes are primarily money, property, any personal or business gain. These type of crimes are more organised and encompasses an entire cartel or gang which operates together and there is a need to curb the menace.
These issues are being dealt with in a more regulated mechanism than before for the betterment of the society and country at large, hence the Stringent and strictness of the NDPS Act succumbs the accused to be scot-free. Under the Code of Criminal Procedure, 1973, an accused can take shelter under Section 438, which grants a pre-arrest bail in case the accused has an apprehension of being arrested. Whereas under the NDPS Act, there is no provision for a pre-arrest bail and as discussed above, even the verbiage of Section 37 causes detrimental to anyone applying for bail under the Act. The Act has always been under scrutiny for putting the onus of innocence on the accused and that might be the reason anyone arrested by the Narcotics control bureau is subject to a thorough enquiry before being let go. Therefore, the provisions of the NDPS are understandably peculiar yet imperative to curb this drug menace.