Drug Abuse

1. INTRODUCTION

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.[1] In light of this statutory control over narcotic drugs are exercised.

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 combat this challenge. Some deficiencies are as follows:

1. The schemes of penalties under those Acts were not sufficient to meet the challenge of well organized gangs of smugglers. 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.

2. Since the enactment of those Acts a vast body of international law in the field of narcotics control has evolved. For e.g. the Article 25 of the Universal Declaration of Human Rights 1948 and Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966, 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. The other International Conventions which prompted the legislation were the Single Convention on the Narcotic Drugs1961, the Protocol amending the said Convention and the Convention on Psychotropic Substances 1971. The Government of India being party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by these Acts.

3. During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to the governments across the world. There was no comprehensive legislation in India to deal with the psychotropic substances as envisaged in the Convention on Psychotropic Substances 1971 to which India is a party to.

Therefore, as is evident from its Preamble, the Act was enacted as to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide deterrent punishments, including forfeiture of property derived from the used in illicit traffic of such drugs.[2]

The Narcotic Drugs and Psychotropic Substances Act came into effect on 16 September 1985. Chapter IV of the Act defines the offences under the Act and penalties therefore. The punishments prescribed are very severe and in some cases the minimum punishment is 10 years with fine extending to 2 lakhs and above. It is thus an Act 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 conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.[3]

2. MAJOR OFFENCES UNDER THE NDPS

The offences and penalties are contained in Chapter IV of the NDPS from Sections 15-40. These offences and their corresponding punishments are explained as follows:

Section 15: Punishment for contravention in relation to poppy straw.

15. Punishment for contravention in relation to poppy straw. Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted there under, produce, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to ten thousand rupees or both.

(b)where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

BRIEF EXPLANATION

The Section was inserted by the 2001 Amendment. This Section provides punishment for contravention in relation to poppy straw. Punishment is for production, possession, transport, import and export inter State, sale, purchase, use or omission to warehouse poppy straw or removal or doing any act in respect of warehoused poppy straw. The term ‘poppy straw’ is defined under Section 2 (xviii) of the NDPS. The definition is as follows:

‘All parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from.’

The term ‘opium poppy’ is defined in Section 2 (xvii) as follows:

(a) The plant of the species Papaver somniferum L[4]; and

(b) The plant of any other species of Papaver from which opium or any phenanthrene alkaloid[5] can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.

Production is defined under Section 2 (xxii). Production means separation of opium, poppy straw, coca leaves or cannabis from the plants from which they are obtained.

The term ‘possession’ is not defined anywhere in the Act. In the Dictionary of English Law by Earl Jowitt ‘possession’ is defined as the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world or against all the world except certain persons. Therefore, there are 3 requisites of possession.

First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by an intention. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed. This definition was accepted by the House of Lords in ‘Warner v. Metropolitan Police Commissioner[6] which has also been followed with approval by the Supreme Court of India in Inder Sain v. State of Punjab.[7] It was held that possession meant conscious possession. In Lakhvinder Singh v. State of Haryana[8] it was held that a person can be held responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that the said person had the knowledge of the existence of the contraband on the said premises.

The next offence that is punishable under this Section is transport of poppy straw. The expression ‘to transport’ has been defined in clause (xxix) of Section 2. It means to take from one place to another within the same State or Union Territory. In Megha v. The Empress[9], a licensed cultivator of opium took opium from Hoshiarpur to Jullundur District where he sold it to a licensed vendor. It was held that in taking the opium from one district to another, the cultivator must necessarily have transported the opium and as under the rules only a farmer, licensed vendor or a wholesale licensed vendor could transport opium, the cultivator was liable to be punished under Section 9 of the Opium Act. In Govind Ram v. Emperor[10] , a person under a false name consigned contraband in bags of maize to Kanpur where it was detected on search in his presence, it was held that it was transported within the meaning of the Act. Thus, it was held that a boat temporarily anchored is in transit and as such under transport from one place to another.[11]

The next type of offence of import inter-state and export interstate of poppy straw. Clause (xxiv) of Section2 defines import interstate as bringing into a State or Union territory in India from another State or Union Territory in India. This offence is constituted by bringing the opium into the territory in question. In Superintendent and Remembrancer of Legal Affairs, Bengal v. Ludur Chandra Das[12] it was held that if the goods once came across the territory in question, if they came for and on account of the accused with his consent, by procurement itself the offence of import is complete. The possession of a consignment knowing that it contains the contraband item itself amounts to possession.[13] Export inter-state is defined in Section 2 (xxvii) means to take out of a State or Union Territory in India to another State or Union Territory in India. An unlawful possession of opium, with the intention of eventually exporting it, does not amount to exporting opium.[14]

Apart from this, sale purchase and use are punished. Thus, it is the duty of the owner of the warehouse owners to deposit all such poppy straw as is legally imported inter-State and is intended for export inter-State or export from India, to regulate the safe custody of such poppy straw warehoused and the removal of such poppy straw for sale or export inter-State or export from India.

The punishment varies in terms of quantities mentioned in the Section. Small quantity is defined under Section 2 (xxiiia) means any quantity less than the quantity specified by the Central Government. Commercial quantity is defined under Section 2 (viia) as any quantity greater than the quantity specified by the Central Government. Court may impose a fine exceeding the amount prescribed by the statute by stating reasons in the judgment.

Section 16: Punishment for contravention in relation to coca plant and coca leaves

16. Punishment for contravention in relation to coca plant and coca leaves.

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter- State, exports inter-State or uses coca leaves, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

This Section provides punishment in relation to coca plant and coca leaves. Coca plant under Section 2 (vii) means plant of any species of the genre Erythroxylon. Coca leaf is defined under Section 2(vi) as the leaf of the coca plant except a leaf from which all ecgonine, cocaine and other ecgonine alkaloids have been removed. The punishment is same as Section 15.

Section 17: Punishment for contravention in relation to prepared opium

17. Punishment for contravention in relation to prepared opium. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to ten thousand rupees or both.

(b)where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

Prepared opium is an opium derivative. Under Section 2 (xvi) (b) prepared opium is any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked. The word ‘prepared’ designates a completed or manufactured article. Therefore, articles in the process of preparation are not included. Opium water collected from the washing of the opium pipes is not a mixture of such water. It is a dross or residue of the smoked opium.[15] Examples of prepared opium are Pyaungchi, Beinsi and Beinchi.[16]

The punishment varies in terms of quantities mentioned in the Section. Small quantity is defined under Section 2 (xxiiia) means any quantity less than the quantity specified by the Central Government. Commercial quantity is defined under Section 2 (viia) as any quantity greater than the quantity specified by the Central Government. Court may impose a fine exceeding the amount prescribed by the statute by stating reasons in the judgment.

Section 18: Punishment for contravention in relation to opium poppy and opium

18. Punishment for contravention in relation to opium poppy and opium.

Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted there under cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to ten thousand rupees or both.

(b)where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

This Section provides punishment for the contravention to any provision of the act, condition of license granted under the Act, cultivation, production, manufacture, possession, sale, purchase, transport, import export interstate or use of Opium. Opium poppy is defined under Section 2(xvii). Opium is defined under Section 2(xv) as the coagulated juice of the opium poppy or any mixture, with or without any neutral material, of the coagulated juice of the opium poppy but does not include any preparation containing not more than 0.2 percent of morphine.

Section 19: Punishment for embezzlement of opium by cultivator

19. Punishment for embezzlement of opium by cultivator. Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

Under this Section, punishment is provided for the embezzlement by cultivator of opium cultivated on account of the Central Government. Under Section 9, the Central Government may, by rules permit and regulate the cultivation of poppy. Under Rule 5 of the NDPS Rules, such cultivation is allowed only in the tracts notified by the Central Government from time to time and in accordance with the conditions of a licence issued by the District Opium Officer under Rule 8. Thus, the cultivation of opium poppy is absolutely prohibited in view of Section 8 of the Act except on account of Central Government. The leading case under this Section is State v. Ram Chandra.[17] The accused was booked under Section 8 read with Section 19 of the Act. However, since on that day the officer who carried out the search did not have the power to do so, it was held that the accused was not guilty.

Section 20: Punishment for contravention in relation to cannabis plant and cannabis

20. Punishment for contravention in relation to cannabis plant and cannabis.

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,–

(i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;

(ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

This Section makes it punishable to cultivate, in contravention to the provisions laid under the Act, any cannabis plant, which is any plant of the genus cannabis.[18] In the absence of any notification as contemplated by Section 8, cultivation of cannabis plant for the purpose of production of ganja or for its use in any of the forms mentioned in the Section such as produce, manufacture possesses, sell, purchase, transport, import and export inter State because the cultivation of cannabis plant cannot be assumed to be merely for the production of ganja as referred under Section 8. But if it is solely for ganja then it is punishable. The exception is the absence of any notification under Section 8.

Thus, depending upon the quantity of contraband involved in the offence under Section 20 of the Act and with the newly introduced definition of small quantity and commercial quantity, the legislature classified the offences providing proportionate punishment depending upon the quantity of contraband involved in the offence.

Case: Manjee v. State of Rajasthan 1996 Cri LJ 3787

In this case, it was held that though ‘Bhang’ is excluded from the definition of cannabis under the NDPS Act yet it fall within the definition of cannabis plants and as such its cultivation is punishable under Section 20 (a) read with 20 (b) (i) of the Act.

In Section 20 cases the prosecution must establish by cogent and reliable evidence that the accused was in exclusive possession of the contraband article and when the evidence was lacking to this effect the accused is entitled to acquittal.[19] In Wessel Van Beelan v. State of Goa[20] it was held that possession of even small quantity is an offence under Section 20 of the Act and the charge is required to be framed under Section 20 and not under Section 27. Under Section 27, when small quantity is recovered from the accused then the accused has to prove that it was for his personal consumption.

Cannabis under Section 2 (iii) means charas which is the the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and includes liquid hashish, ganja which is the flowering or fruiting tops of the cannabis plant, and includes any drink or mixture of charas or ganja.

Section 21: Punishment for contravention in relation to manufactured drugs and preparations

Punishment for contravention in relation to manufactured drugs and preparations. Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted there under manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to ten thousand rupees or both.

(b)where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

Manufactured drugs as under Section 2 (xi) means all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate or any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug. Heroin being an opium is thus a manufactured drug.[21]

Preparation is defined under Section 2 (xx). It means any one or more such drugs or substances in dosage form or any solution or mixture in whatever physical state containing one or more such drugs or substances.

Section 22: Punishment for contravention in relating to psychotropic substances

22. Punishment for contravention in relation to psychotropic substances.

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State, or uses any psychotropic substance shall be punishable-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to six months, or with fine which may extend to ten thousand rupees or both.

(b)where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

COMMENTS

This Section was included in the NDPS Act via the 2001 amendment. It punishes contravention of any provision of the Act or any rule or order made, for manufacturing, possessing, sale, purchase, transport and imports and exports inter State any psychotropic substance. If it is for a small quantity, the punishment shall be rigorous imprisonment for a term which may extend to 6 months or with fine which may extend to ten thousand rupees or both. It shall be 10 years and a fine which may extend to one lakh rupees if contravention involves quantity lesser than commercial quantity. It is 20 years and a fine which may extend up to 2 lakh rupees in case the contravention involves commercial quantity. The different drugs and their commercial and small quantity are as follows:

Drug

Small Quantity

Commercial Quantity

Amphetamine

2 grams

50 grams

Buprenorphine

1gram

20 grams

Charas/Hashish

100 grams

1 kg

Cocaine

2 grams

100 grams

Codeine

10 grams

1 kg

Diazepam

20 grams

500 grams

Ganja

1 kg

20 kg

Heroin

5 grams

250 grams

MDMA

0.5 gram

10 grams

Methamphetamine

2 grams

50 grams

Methaqualone

20 grams

500grams

Morphine

5 grams

250 grams

Poppy straw

1 kg

50 kg

Section 23: Punishment for illegal import into India, export from India or transshipment of narcotic drugs and psychotropic substances

This Section provides for punishment for illegal import into India, export from India or transshipment of narcotic drugs and psychotropic substances. The punishment may be rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees. Court can also impose fine exceeding two lakh rupees for which the reasons have to be recorded in the judgment.

Section 24: Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12

Under Section 12, no person shall engage in or control any trade whereby a narcotic drug or psychotropic substance is obtained outside India and supplied to any person outside India save with the previous authorization of the Central Government and subject to such conditions as may be imposed by that Government in this behalf. Any contravention of that Section is punished under Section 12.

Section 25: Punishment for allowing premises etc. to be used for commission of an offence

Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees The crux of this offence lies in knowingly permitting, the use of any place or conveyance for commission of any offence under the Act. The insertion of the word ‘knowingly’ is to avoid constructing the statute vaguely. Thus mens rea is an ingredient of the offence. However, under Section 35 of the Act court shall presume the culpable state of the accused in any prosecution for an offence under the Act. In Raghunath Singh v. State of Madhya Pradesh[22], it was held that the words ‘knowing’ or ‘knowingly’ are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established.

Section 26: Punishment for certain acts by licensee or his servants

This Section provides punishment for certain acts by licensee under the Act or his servant. This includes:

(a) Omission, without any reasonable cause, to maintain accounts or to submit any return in accordance with the provisions of this Act, or any rule made there under,

(b) Failure to produce without any reasonable cause such licence, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf;

(c) Keeping any accounts or makes any statement which is false or which he knows or has reason to believe to be incorrect; or

(d) Willfully and knowingly does any act in breach of any of the conditions of licence, permit or authorisation for which a penalty is not prescribed elsewhere in this Act.

It is thus well settled that a licensee is responsible for the act of his employee done within the scope of his authority although contrary to the instructions of the licensee.[23]

Section 27: Punishment for consumption of any narcotic drug or psychotropic substance

The earlier provisions of this Section made possession of small quantity of any narcotic drug or psychotropic substance, which is proved to have been intended for personal consumption and not for sale and distribution or consumes any narcotic drug or psychotropic substance punishable under the Act. 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 provision of mere consumption.

Punishment vari