Ever since the introduction of Opium in the colonial era, substance abuse has become an underlying problem that is often neglected. Eradication of this issue from the grassroots is the only solution to safeguard the population from the clutches of addiction. The only hope that lies in taking a progressive step towards this problem is the Narcotics, Drugs and Psychotropic Substances Act of 1985 (NDPS Act).
Many states are now batting for stringent measures for drug prevention. The NDPS Act is the Central Act and under its umbrella, states can form their own rules to enforce the Act. States like Orissa[1], Assam[2], Karnataka[3] and Maharashtra[4] have their Narcotics team investigating and arresting people consuming these substances.
Due to recent crackdowns on drug networks across the country, it is more pertinent than ever to understand the NDPS Act as informed citizens and assist the public authorities when such acts are committed around us.
Over the years, it has become necessary to rehabilitate people with issues of addiction to drugs and to identify and curb existing drug networks.
Under the NDPS Act, guilt is presumed until innocence is proven. Thus, any person facing charges under this Act will have the burden of proving innocence. This is laid down in Section 35 of the Act which pertains to Presumption of Culpable Mental State.
Section 8
This section prohibits certain operations pertaining to cultivation, production, manufacture, possession, consumption, export or import and shipping of narcotic drugs and psychotropic substances. The only exception with regard to these activities is for medical or scientific purposes. It is pertinent to establish possession to hold a person guilty. Therefore, we can conclude that the element of substantial proof is essential in terms of determining complaints under the NDPS Act.
Section 15 to 31
These sections lay down the punishment for various contraventions pertaining to poppy straw, coca plant, coca leaves, opium, cannabis plant and cannabis, manufactured drugs, psychotropic substances. It not only punishes consumption and possession but also for cultivation, shipment, criminal conspiracy, abetment, previous conviction, etc. The maximum punishment can be extended up to 20 years Rigorous Imprisonment for the highest degree of the offence with a fine of up to Rs. 2 lakhs. The minimum punishment prescribed 1 year rigorous imprisonment in terms of possession of small quantities.
Section 31A
This section has the provision of awarding death penalty who is convicted with the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit any of the offences under section 24 and 27A could be punished with Death Penalty.
Section 38
This section should be of grave importance to companies as it states that, when an offence is committed by a company, every person who at the time of the offence was in charge and was responsible to the company for the conduct of business of the company as well as the company shall be liable to be punished. The conducts of an employee shall become actionable against the company as well and vice-versa.
Commercial and Small Quantity
The Act has time and again made a distinction between small quantity and commercial quantity. The quantity in possession can indicate the extent of a person’s involvement in the drug networks. Thus, the punishment differs on the basis of the quantity in possession. Please refer to the table below for reference[5]:
The courts under this Act have the power to publish names, place of business, etc., of certain offenders. It is important to keep note of such publications in order to be more informed. Public authorities can get a lot of help, in reducing and eliminating criminals if the citizens are informed about the current state of affairs. It enables them to identify such activities and report them.
Safeguards and Immunities under the NDPS Act
- A person being searched has the right to request the search to be conducted in front of a Gazetted Officer or a Magistrate as per Section 50 of the Act with the exception that when a duty officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substances or controlled substances, the duty officer in such a case may proceed to search him under Section 100 of the Code of Criminal Procedure, 1973. The reasons for such belief need to be recorded and a copy of the same needs to be sent to the immediate superior within 72 hours.
- Gazetted Officers can authorize searches based on information in writing.
- If a person is arrested, he should be immediately informed of the grounds of his arrest. If such an arrest is made on the basis of a warrant issued by a magistrate, the person arrested or articles seized shall be presented before the Magistrate at the earliest.
- The act grants immunity from prosecution to addicts volunteering for treatment. The government and public authorities provide for establishments for rehabilitation of addicts. The immunity can be withdrawn if the addict does not undergo complete treatment.
- The act also grants immunity to officers acting in good faith from suits, prosecution and other legal proceedings.
- The government can also grant immunity to an offender in order to obtain evidence in a case.
The Way Ahead
The need of the hour is the effective implementation of the Act. The quality of drugs used for medicinal purposes should be earmarked and all other substances should be banned not just from consumption but as well as cultivation. A central data of offenders, drug networks and addicts should be maintained in public domain to ensure that they don’t re-establish themselves. The entire state machinery needs to be well co-ordinated in order to investigate clearly and beyond the lines of the state ensuring effective elimination. It is pertinent to distinguish synthetic and natural drugs under the act. Synthetic drugs are extremely dangerous in comparison and could lead to major fatalities. Thus, the first priority needs to be elimination of Synthetic drugs from the subcontinent. Studying drug patters can help exponentially in eradicating this problem.
How to file a Complaint under the NDPS Act:
While filing a complaint under the NDPS Act, there are certain things that should be kept in mind.
- Under this Act, guilt is presumed until innocence is proven. Thus, it is prudent to be absolutely certain of the crime committed.
- If you are in proximity of anyone who could be charged under the NDPS Act, inform the local police authorities by calling number 100.
- It is important to carefully remember all details that will be reproduced either in the FIR or the witness statement.
- Always keep a copy of your statement/FIR. Since the trials last a considerable amount of time and the witnesses/complainant are summoned at various stages of the trial, it is important to not miss out the details of the initial complaint/statement.
Drug Rehabilitation in India
- The Drug De-Addiction Programme (By the Govt. of India)
- Tulasi Healthcare
- Drug Dependence Treatment Centre
- Nashamukti Kendra
- Phoenix Foundation India
- Anatta Humanversity
- Arzoo Foundation
- AARIT Recovery Centre
- Amitha
- Punarjani
- Genesis Foundation
[1]https://www.livelaw.in/news-updates/orissa-hc-bats-for-no-tolerance-approach-in-ndps-cases-161841
[2]https://www.sentinelassam.com/guwahati-city/four-fold-rise-in-ndps-cases-in-one-decade-across-assam-495796
[3]https://www.deccanherald.com/state/top-karnataka-stories/net-cast-beyond-consumer-will-catch-drug-trade-kingpins-says-basavaraj-bommai-887094.html
[4]https://theprint.in/india/mumbai-had-82-of-maharashtras-drug-cases-in-2018-mostly-for-cannabis-consumption-study-says/499491/
[5] As per the Journal of Forensic Sciences and Criminal Investigation, An Overview of the Narcotics Drugs and Psychotropic Substances Act, 1985, Shweta Sharma (Raksha University), Kapil Kumar (Department of Forensic Sciences, Gujrat University), Gyanendra Singh (National Institute of Occupational Health)