Narcotic Drugs and Psychotropic Substances (NDPS) Act

To combat drug misuse and outlaw its use, distribution, manufacturing, and trade, the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was enacted in 1985. Narcotic medicines cause drowsiness, whereas psychotropic substances affect the mind and alter it for the better. The NDPS Act was approved by the Indian Parliament on November 14th, 1985. In the practice of medicine, several substances have a position. As a result, the Act contains provisions for the growth of cannabis, poppies, and coca plants as well as the production of psychoactive compounds related to their growth.
Its main goal is to control the production, acquisition, distribution, and transportation of pharmaceuticals that are regarded as narcotics or psychotropics. This law makes it illegal to sell 200 psychoactive medications to walk-in clients. These medications can only be purchased with prescriptions. Since the law’s creation, numerous changes have been made to it. Furthermore, the NDPS does not distinguish between hard-core criminals engaged in this activity and drug consumers and traffickers. Without the approval of the relevant authorities, it is illegal for anybody to manufacture, produce, cultivate, possess, sell, buy, transport, store, or consume any drug or substance that is regarded as a narcotic or psychotropic. Thus, the purpose of this article is to draw attention to the NDPS Act’s requirements.

Overview of the Narcotic Drugs and Psychotropic Substances Act:

• Before the adoption of the NDPS Act, there was no formal regulation of drugs and narcotics in India, hence the regulation was primarily carried out through three acts of the Central Government: the Opium Act, 1857 (XIII), the Opium Act, 1878 (I), and the Dangerous Drugs Act, 1930. (II). 
• Cannabis smoking was described and regarded as a form of recreation on par with drinking alcohol throughout the Atharva Veda. Up until 1985, marijuana, hashish, and other cannabis derivatives including bhang were allowed in the nation.
• The UN Single Convention on Narcotic Drugs (1961), UN Convention on Psychotropic Substances (1971), and UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), all of which prescribe a variety of measures to achieve the dual goals of restricting the use of narcotics and psychotropic substances for medical and scientific purposes and preventing their abuse. 
• The Indian government is a signatory to all three of these conventions. When enacting the NDPS act and Article 47 of its Constitution, India took into consideration its responsibilities under the three UN drug agreements. The Act applies to the entire country of India, all Indian nationals residing abroad, as well as everyone traveling on ships and airplanes with an Indian registry.
• India was one of the first developing nations to create a National Drug Policy (NDP) in order to increase access to medications for those with little financial resources, despite the fact that pharmaceutical firms have steadily taken over the market through doctor’s prescriptions. The Indian government passed a drug price control order (DPCO) in 1963 to restrict medicine costs on the market. DPCO had minimal impact, although a lot of pharmaceutical companies left the
  nation. As a result, China began to replace India as the country of origin for some medications.
• DPCO underwent a significant reorganization in 2013. Due to the fact that there were no new investments made in 2013, DPCO was seen as more favorable to non-controlled products. Initial uses of opium and morphine for medical purposes during the American Civil War resulted in opiate addiction. Veterans of these wars who had taken part developed drug addictions, which resulted in the label “soldier’s illness.” Although hemp (marijuana) cultivation had been completely outlawed in 1937, various nations quickly realized they still needed it during the Second World War for essentials like rope and cordage.
• The Single Convention on Narcotic Drugs was opposed by the Indian government (1961). As a result, the convention agreed that India would have a 25-year grace period during which time it could solely use cannabis for research and medical purposes. India had a duty to cooperate with international delegations because of the politically sensitive nature of the situation. This compelled the Indian government to outlaw the drug’s pervasive use. As a result, the NDPS Act passed on November 14, 1985, effectively ended the use of all narcotic substances in India.

Aim and Objectives of the NDPS Act:

The NDPS was implemented in order to accomplish the following goals:

• The laws governing the use and possession of narcotic drugs should be updated and consolidated.
• To develop strict guidelines for the control, supervision, and management of illegal narcotic drug and psychoactive substance possession, sale, transportation, and use.
• To establish a procedure for forfeiting narcotics, psychotropic medications, and other elements generated from or utilized in the illegal drug trade.
• To create a system for carrying out the International Convention on Narcotic Drugs and Psychotropic Substances’ requirements, as well as for other related goals.

Important Definitions:

1. Narcotics:

 In Section 2 of the NDPS Act, certain terminology used in the act is defined. Narcotics are defined in a completely different way in the law than they are when used as a sleep aid. Coca leaf, cannabis (hemp), opium, poppy stems, derivatives/concentrates of any of these substances, and additional substances announced by the government in its official gazette are all considered narcotic drugs under Section 2(xiv) of the Act. In line with S.O. 1350 (E) dated 13.3.2019, along with the currently notified manufactured drugs, a few modifications to substances, salts, and preparations thereof have also been declared manufactured drugs. Narcotics are chemicals that make the senses less effective and relieve pain. In the past, the term “narcotics” was used to refer to all types of drugs, but it is now more commonly used to refer to heroin, its derivatives, and its semi-synthetic forms. These medicines are referred to as opioids as well. Heroin and prescription medications like Vicodin, codeine, morphine, and others are a couple of examples. The term “drugs” is also frequently used to describe opioid painkillers. Their main function is to treat severe pain that other painkillers are unable to appropriately manage. They can be quite helpful in the treatment of pain, provided that they are used cautiously and under the direct supervision of a healthcare professional.

2. Psychotropic Substances

any chemical that alters the mind is referred to as a “psychotropic substance.” Any substance that is listed as a psychotropic substance in the Schedule of the NDPS Act, whether it be natural or synthetic, or any of its natural derivatives, is referred to as a “psychotropic substance” in Section 2(xxiii). For instance, ketamine, alprazolam, diazepam, methaqualone, and amphetamine.

Punishments under the NDPS Act:

The NDPS Act specifies a range of punishments based on the number of narcotics found. The harshness of the punishment will vary depending on the offense. If the narcotics were used for personal use, the punishment can be lessened. In response to changes, it now categorizes punishment into three groups based on the number of drugs found and gives judges discretion
over the harshness of the sentence. 

• In the case of cannabis, sanctions for the cultivation of the plant may include hard imprisonment for up to ten years, in addition to a fine that may be as high as Rs 1 lakh.
• Additionally, depending on the quantity recovered, those who cultivate, manufacture, possess, sell, buy, transport, and traffic illegal cannabis may face legal or criminal penalties. As a result, being detained for possessing a “little quantity” of marijuana carries a harsh prison sentence of up to one year and a fine of up to Rs 10,000.
• If the amount is larger than a small quantity but less than a commercial quantity, the offender might receive a harsh 10-year prison sentence and a fine of up to Rs 1 lakh. 
• Cannabis used in commercial amounts will result in strict incarceration for a term that must not be less than 10 years but may reach 20 years. Along with the court’s authority to impose fines of more than two lakh rupees, a fine of not less than one lakh rupees and up to two lakh rupees may also be imposed. 
• A “small quantity” of cannabis, according to the Department of Revenue, is one kilogram or less, whereas a “commercial quantity” would be 20 kilograms or more.
• Additionally, Section 27 of the Act addresses penalties for consuming narcotic drugs and psychoactive substances. It states that if cocaine, morphine, diacetylmorphine, or any other narcotic drug or psychoactive substance is consumed, the penalty is either a year in jail or a fine of up to 20,000 rupees.
• Any other substance for which there is no established punishment will result in a punishment of up to six months in jail and/or a fine of up to Rs 10,000. 
• The Act mandates severe penalties for repeat violators, including fines up to one and a half times the maximum fine and jail terms up to one and a half times the maximum period of imprisonment. Depending on the number of drugs confiscated, repeat offenders may also receive a death sentence if they are proven guilty of a related offense.
• According to Section 28 of the Act, the punishment for committing an offense under the NDPS Act may even be the same as the punishment for the offense itself. A comparable clause in Section 25 states that anyone who intentionally allows an offense to be committed on their property by another person would receive the same penalty as if they had committed the offense themselves. Due to the seriousness of the offense, the NDPS Act was amended in 1989 to make
  all sentences non-commutable, with the exception of those for drug ingestion.

Amendments to the NDPS Act:

1. Narcotic Drugs and Psychotropic Substances (Amendment) Act,1988 (2 of 1989), 1989: The NDPS Act has undergone a significant revision that includes harsher guidelines and the insertion of Section 27A for financing illegal activity. Production, possession, sale, purchase, transit, warehousing, and anyone detained under section 27A is all considered to be involved in trafficking illicit narcotics.
2. Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001: This updated law aims to rationalize sentences by improving their objectivity. Addicts could now negotiate the law more easily, and bail was also liberalized.
3. Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014: The NDPS Amendment 2014 went into effect on May 1st, 2014. The NDPS Act’s Section 71 outlines how drug cases should be handled, including the regulations for treatment facilities. The Act’s high-level offenses were subject to harsher penalties as a result of the earlier changes, which also made drug use illegal. Morphine producers just need a single license from the relevant State Drugs Controller, as opposed to the previous process that required numerous permits with various validity periods and lengthy stages. The amendment prevented state-by-state disagreement by achieving uniform regulation across the nation. Patients now have easier access to a number of necessary drugs that are utilized in pharmaceutical formulations, including morphine, fentanyl, and methadone. As a compromise, the death penalty was changed to a specific 30-year term for repeat offenders found guilty of trafficking substantial amounts of drugs. The maximum punishment for “small amount” offences has now been increased from 6 months to 1 year as a result of this revision.
4. Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021:
   The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021 was presented in the Lok Sabha on December 6, 2021. The Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021 will be replaced by it. The bill amends the Narcotic Drugs and Psychotropic Substances Act, 1985 to fix a drafting error. The Act describes the laws and standards governing specific activities involving narcotic and psychotropic substances (such as their production, transportation, and consumption). When the Act was revised in 2014, the definition of unlawful activity was altered. The language in this section, which still makes reference to the preceding clause number about the penalties for funding such illegal actions, was not changed. There is a new clause added to the section on penalties in the Bill.

Important Sections under the NDPS Act:

1. Section-3

The Central Government has the authority to add or remove such substances, natural materials, salts, or preparations of such substances, materials, or substances from the list of psychotropic substances, as stated in Section 3 of the NDPS Act. The government can easily implement this at any moment by alerting the public in the official gazette without adopting any legislation or altering the law in accordance with the information at hand or a decision made in accordance with an international convention.

2. Section 7A and 7B

Section 7A gives the Central Government the authority to establish the National Fund for Control of Drug Abuse. The fund is specifically meant to be used to pay for costs associated with the actions taken to combat the illicit trafficking of narcotic narcotics and psychotropic substances. Section 7B includes a requirement for the Central Government to submit an annual report on the projects it funds.

3. Section 8(c)

Any cultivation of the coca plant, the opium poppy, the cannabis plant, or the production, manufacture, possession, sale, purchase, transportation, storage, use, or consumption of any narcotic drug or psychoactive substance is prohibited under Section 8(c). It is also illegal to import into India, export from India, or tranship any narcotic drug or psychoactive substance.  The following, however, is an exception to the rule: In accordance with and to the extent permitted by the provisions of this Act or the rules or orders established thereunder, and for medical or scientific purposes.

4. Section 27

The consumption of any narcotic drug or psychotropic substance other than cocaine, diacetyl-morphine, or any other narcotic drug or psychotropic substance may result in a prison term of up to six months, a fine of Rs 10,000, or both. Various penalties are set forth in this section for the consumption of narcotic drugs or psychotropic substances, including harsh imprisonment of up to one year, a fine that may reach twenty thousand rupees, or both.

5. Section 36A

A clause in Section 36A of the NDPS Act called ‘non-obstante’ empowers the Special Court to hear cases punishable by imprisonment for more than three years. This provision is intended to ensure speedy trials. Following are some of the features:

• To expedite the prosecution of crimes, the government may establish Special Courts under the NDPS Act.
• It will be installed in a specific place or areas after being announced in the
  official gazette.
• A court of session shall be deemed to exist in the Special Court.
• The government will appoint the Special Court’s only judge, who will have the approval of the Chief Justice of the High Court. A judge must first be a sessions judge or additional sessions judge in order to be eligible for appointment as a Special Court judge.
• All offences punishable by a sentence of imprisonment of more than three years may be tried by a Special Court under the NDPS Act.
• A Special Court will decide if there was an offence by looking over a police record, a complaint made by a state official, or a complaint made by a central official.
• The Special Court has been given the ability to try an accused person who has also been charged with crimes under the Code of Criminal Procedure, 1973 in addition to charges under the NDPS Act (CrPC).
• The provisions of the CrPC, particularly those relating to bail and bonds, will govern proceedings before a Special Court.
• The person prosecuting the case in a Special Court is regarded as a public prosecutor.

6. Section 41

According to Section 41 of the Act, magistrates and specially appointed Gazetted officers of the central excise department, narcotics department, customs department, revenue intelligence unit, or any other department of the state are both able to issue search warrants. As a result, while getting information, actions can be conducted quickly and successfully.

7. Section 50

According to Section 50 of the NDPS Act, a person may request that a magistrate or gazetted officer perform a search, and the officer may hold the individual until the magistrate arrives. However, if the officer has reason to believe that the person cannot be taken to the closest constituted officer or magistrate without running the risk of the person being found in possession of any illegal drugs or psychoactive substances, he may proceed to search the person in accordance with Section 100 of the Code of Criminal Procedure, 1973. A copy of the search warrant, which must be given to his immediate supervisor within 72 hours, must include the justifications for this belief.

8. Section 64A

This is a commendable gesture on the part of the government, giving drug addicts the opportunity to receive treatment without being held responsible. An addict must be charged under Section 27 of the NDPS Act or with a crime involving a minor amount of narcotics or psychoactive substances in order to use Section 64A. Additionally, he must seek voluntary medical treatment for addiction; if he does so, he will not be charged with a crime under section 27 or any other provision for offenses involving a minor amount of drugs or psychoactive substances. This immunity, however, may be lost if the addict doesn’t receive thorough therapy to end their addiction.

Bails under the Narcotic Drugs and Psychotropic Substances Act:

In terms of law, it has long been recognized that a lax approach to opioids and psychoactive drugs is wrong. When an accused person requests bail for an offense under the NDPS Act, certain criteria set forth by the Supreme Court in its various judgments must be taken into account. As a result, bail is handled differently in drug cases than it is in other situations. In general, jail is an exception to the rule and bail is a rule, however, in cases involving NDPS, jail is an exception to the rule and bail is a rule. The NDPS Act’s Section 37 addresses the topic of cognizable and non-bailable offenses, it should be mentioned. No person accused of an offense punishable under the NDPS Act will be released on bail or his bail unless certain conditions are met, according to Section 27 of the NDPS Act, which states that all offenses punishable under the Act are cognizable. Provision 19 or Section 24 or Section 27A, as well as other offenses, are covered by this section.
Before being granted bail under the Act, the following requirements must be satisfied:

• The accused has solid reasons to think he is innocent of the crime.
• The truth is that if bail is granted, it is improbable that the defendant will commit any crimes while free on it.

If either of these requirements is not met, bail cannot be granted. The important thing to remember is that Section 37 of the NDPS Act takes precedence over Section 439 of the Code of Criminal Procedure, 1973 (CrPC) when there is a conflict between the two.

Presumption of culpable mental state in the NDPS Act:

The “Presumption of Innocence,” a cornerstone of criminal law, holds that an accused person is innocent until and unless proven guilty. This indicates that the party accusing you has the burden of proof. The NDPS Act’s Section 35 addresses the assumption of an accused’s culpable mental state. This suggests that the prosecution will move on since the court will assume that the accused is in such a mental state. “In this part, a culpable mental state encompasses intention, motive, knowledge of a fact, and belief in, or cause to believe in, a fact,” reads the explanation under this provision. Accordingly, the NDPS Act mandates that a person accused to demonstrate that he did not carry out the unlawful act.

Conscious Possession of Drugs under NDPS Act:

The phrase “conscious possession” is not used explicitly in the NDPS Act, but it has been defined in a number of court rulings based on the particular needs and circumstances of each case. The following is stated in Section 35 of the NDPS Act:

• The Court will presume that the accused was in a guilty state of mind when the accused commits the felony charged under this Act, but the defendant may refute this presumption with proof to the contrary. The phrase “culpable state of mind” in this context refers to intent, motivation, knowledge of a fact, as well as a belief in or justification for a fact.
• For the purposes of this section, a fact is only considered proven if the court is of the opinion that it exists beyond a reasonable doubt, not only if its existence may be shown by a preponderance of the evidence. From the foregoing, it may be inferred that conscious possession refers to having both a physical and a mental state of possession when in possession of an illicit substance.
• The elements of “Actus Reus” and “Mens Rea,” as defined by criminal law, are crucial components of a criminal offence. Similarly, under the NDPS Act, the physical and mental possession of narcotics are crucial factors to constitute an offence.
• The courts have ruled time and time again that in order to be considered in possession of illegal substances or psychoactive chemicals, there must also be mental control. The court went so far as to say that depending on the context, the word “possession” can indicate a variety of different things. Therefore, it may be inferred that the word “conscious possession” is ambiguous and should be used in accordance with its context and with some caution.

Conclusion:

India’s drug problem is considerably worse than it seems. Ganja, charas, and other psychoactive drugs were utilized in ancient India for psychotherapy, pain treatment, and other therapeutic purposes. Prior to 1985, there was no law in India that made drug possession or use illegal. Now, it’s crucial to remember that the NDPS Act has various provisions that outline harsh penalties. For more serious offenses, the right to bail cannot be granted, as stated in Section 37. This statute was more stringent than the Unlawful Activities (Prevention) Act of 1976 (UAPA), and as a result, the courts tended to be unwilling to release offenders on bond.
Many laws are made to address societal issues, but when they are applied incorrectly, they can have harsh consequences. When laws are increasingly restrictive, draconian legislation is more likely to appear. The NDPS has the potential to be abused even more given how stringent it is. The courts must therefore make sure that the law is not used as a weapon and that justice is served to all societal groups.