OVERVIEW: THE NDPS ACT, 1985
In the most recent judgment of Hira Singh vs. Union of India 2020 case, the three-judge bench has overruled E. Micheal Raj vs. Intelligence Officer's decision, Narcotic Control Bureau 2008 case, which was comprised of Justice Arun Mishra, Justice Indira Banerjee and Justice M.R. Shah. The bench observed that while determining the small or commercial quantity, the weight of the one or two neutral substances has to be taken into consideration with the weight of the offending drugs.
The Narcotic Drugs and Psychotropic Substances Act, 1985 specifies the name of the drugs that a person who is the citizen of India can neither possess nor sell it and cannot even use it for production of any such drugs within the boundary of the country. However, the Act also specifies the quantity of the drug one cannot possess equal or more of it. The following are the name of the drugs with the quantity that is prescribed under the Act:
· Opium- 10 kg
· Morphine- 1 kg
· Heroine- 1 kg
· Codeine- 1 kg
· Thebaine- 1 kg
· Cocaine- 500 gram
· Hashish- 20 kg
· Any mixture with or without any neutral material of any of the above drug- 1500 grams
· LSD, LDS-25- 500gram
· THS- 500gram
· Methamphetamine- 1500gram
· Methaqualone- 1500gram
· Amphetamine- 1500gram
· Salts and preparation of the psychotropic substance mentioned- 1500 grams
Why the NDPS Act, 1985, was introduced?
In 1985, 106 States delegate participated in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance to which India was also a part[ii]. The main motive of this convention was to regulate the illicit production and transportation of the narcotic drugs and psychotropic substances and to bring to the notice the severe health issues that are caused after its consumption. Also, to eradicate the abuse of these drugs and to strengthen the legal aspect within the international and national boundaries of the state.
In India, the Narcotic Drugs and Psychotropic Substances Act was introduced to implement the provisions of the UN Convention and to implement stringent law against those who sell, produce, possess, and purchase. If a person is found guilty, they will be punished as per chapter 4 of the Act. However, the strictness of the punishment is based on the permissible small and commercial quantity of the narcotic and psychotropic substances in the Act.
What is the difference between the small quantity and the commercial quantity?
As per section 2 (vii-a) means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette whereas as per section 2 (xxii) of the Act small quantity means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.
The punishment related to the possession of the narcotic drugs and the psychotropic substances is related to the commercial and the smaller quantity described in Chapter 4 of the NDPS Act, 1985. The following are the punishment that is awarded to those who are found guilty:
· Quantity is more than smaller: the person will be punished with rigorous imprisonment, which may extend to a year or fine, which may extend to rs.10000 or both.
· Quantity more than commercial quantity: the person will be punished with rigorous imprisonment of not less than 10 years, and in some cases, it can increase to 20 years and also with a fine not less than Rs.1 lakh which may Rs.2 lakhs in some cases.
· Quantity more than smaller quantity but less than commercial quantity: the person will be punished with rigorous imprisonment, not less than a year, which may extend to 10 years and also with a fine not more than Rs.1 lakh.
However, the court, on its discretion, may ask for fine more than Rs.2 Lakhs from the offender. Also, as per section 37 of the Act, the accused will not be granted bail unless there is sufficient evidence to prove his innocence in the court of law. Until then, the offenses will be treated as cognizable and non-bailable.
What do you mean by narcotic drugs and psychotropic substances?
As per Merriam-Webster, narcotics means a drug that, in moderate doses, dulls the senses, relieves pain, and induces profound sleep but in excessive doses causes coma, stupor, or convulsion. For instance, cannabis, coca leaf, heroin, etc. The International Narcotics Control Board has listed 134 drugs in its yellow list for keeping a record of the export and import of the listed drugs, and all the signatories of the 1961 Convention have to limit the production, sell, purchase, etc. solely for medical and other scientific purposes.
Psychotropic substances are also known as psychoactive substances, are those drugs that affect the functioning of the brain. With its consumption, the mood, thoughts, feelings, or behavior is changed—for instance, marijuana, caffeine, etc. The Convention on Psychotropic Substances, 1971 established the framework for the international control of Psychotropic substances for limiting the abuse of these substances and making it available for medical and scientific purposes. One hundred forty-four listed Psychotropic substances is controlled by the 1971 convention.
What are the objectives and Purposes of enacting the NDPS Act, 1985?
During India's Pre-Independence period, India has participated in the 2nd International Opium Conference, where it has agreed to control the abuse and illicit export and import of dangerous drugs and then enacted the Dangerous Drugs Act, 1930. But this Act failed to control the abuse of drugs and illicit transportation because the punishment that is awarded to the offenders is imprisonment minimum of a year and maximum for 4 years with fine of Rs.1000.
The Dangerous Drugs Act, 1930, has only covered the narcotic drugs, and with the advancement in the science and new finds, the psychotropic substances were not introduced in the Act. The investigating officers were not given sufficient power to exercise their investigation. So, to cover all the deficiencies of the Act, the NDPS Act, 1985, came to light.
The objective and purpose of the Act are the following:
· With the enactment of the Act, as per section 3 of the Act, the Central Government is empowered to modify the psychotropic substances list after taking note of the significant abuse of such substances.
· As per section 6 and section 7 of the Act, the Central Government and the State Government are empowered for the formation of the NDPS committee, where the members of the committee will look after the efficient discharge of its function that is to control the abuse of narcotic drugs and psychotropic substances.
· The Act also established National fund for drug abuse the aim of the fund as per section 7A(2)[viii] are the following
1. Combating illicit traffic in narcotic drugs, psychotropic substances or controlled substances;
2. Controlling the abuse of narcotic drugs and psychoactive substances;
3. Identifying, treating, rehabilitating addicts;
4. Preventing drug abuse;
5. Educating the public against drug abuse;
6. Supplying drugs to addicts where such supply is a medical necessity.
· As per section 8A of the Act, if any person is prohibited who acquires, converts possesses or conceals that is owned or transferred knowingly that such property is derived from the offence committed under this Act. And the punishment is awarded to the offended as per section 27A of the Act where rigorous imprisonment, not less than three years and not more than 10 years with fine.
· The Act also specified the number of narcotic drugs and psychotropic substances under section 31 A, and even Judges on its discretion can award death penalty for those who are found guilty under section 16, 24, and 27A of the Act, which was amended in 2014.
The main objective of the NDPS Act, 1985, is to establish a healthy environment and to punish strictly those who try to infect the mind of an individual by supplying them such drugs by prohibiting its export and import nationally and internationally and solely use it for the advancement of medical science. Also, to rehabilitate those who are going through the problem of controlling the urge.
The Ministry of Social Justice and Empowerment Government of India has surveyed the National Drug Dependence Treatment Center, AIIMS, Delhi, in 2019. This survey was conducted to determine the number of drug addicts by surveying five lakhs individuals within the country.
The following are the number of potential users of the following drugs from the age group of 10 to 75 years of age:
· Alcohol- 16 crore users
· Cannabis- 1.3 crore users
· Opioid- 2.3 crore users
· Inhalant users- 77 lakh users
· Cocaine- 10.7 lakh users
Some other harmful drugs and substances are still provided in the country by the potential drug dealers. Although there is stringent punishment available for the providers and the users, yet identification of potential drug dealers is not made effectively. By taking the note of the users of the harmful drugs, the significant portion of the country is still affected and mainly the youngsters.
The NDPS Act, 1985, is enacted to control, regulate and prohibit the production, sell, export and import, usage, etc. in the public interest because its abuse can ultimately take away the life of an innocent. This Act has also been recently amended regarding the rewarding of the death penalty under section 31A, and it was made an optional punishment.
Lloyd Law College