NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 A Commentary by...
NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985
A Commentary by RUSSELL PINTO, DIRECTOR, SNEHDHAN, BOMBAY
Drug abuse has been prevalent in India from the beginning of Indian history.
But nobody took it serious as it generally did not produce devastating large scale
destruction. In the sixties, with the arrival of the 'hippy culture' to India, the problem
of drug abuse began to assume greater proportions, though perhaps to a lesser
degree than in the United Sates. But, the scene took a dramatic turn in the beginning
of the eighties with the arrival of the now-famous brown-sugar or smack. Drug
abuse began to spread rapidly, especially in the cities, and the number of addicts
multiplied in leaps and bounds, threatening the future of India. Yet, the powers
that be did not take the situation very serious and the only tools to deal with the
situation were three obsolete Acts, formed over a century ago. These were The
Opium Act, 1857, The Opium Act, 1878, and The Dangerous Drugs Act, 1930,
which, as could be easily understood, did not have enough teeth to deal with the
Finally, in 1985, a change came about in the attitude of the government, which
proceeded to enact T h e Narcotic Drugs and Psychotropic Substances Act, 1985.
This change can be attributed to the influence of the various international con-
ventions on the subject in which India was participant, as much as to the domestic
need for tough measures. This Act, made law from 14th November, 1985, repealed
the three above mentioned Acts. Its professed aims are to 'consolidate and amend
the existing laws relating to narcotic drugs, strengthen the existing controls over
drugs of abuse, considerably enhance the penalties, particularly for trafficking
offences, make provisions for exercising effective control over psychotropic
substances and make provisions for the implementation of international conven-
tions relating to narcotic drugs and psychotropic substances to which India has
become a party'.
This act is valid all over India and covers almost every aspect of the problem,
as could then be envisaged. The government is invested with sufficient powers
to take necessary steps for efficient implementation through a Gazette notification,
without waiting to amend the law. One such power is to include in or delete
from the list of narcotic drugs and psychotropic substances. Some of the other
1. The Central Government shall take all necessary measures to prevent and
combat abuse of and illicit traffic in narcotic drugs and psychotropic substances.
These measures include:
(a) Co-ordinating various officers, State Government and other authorities in this
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(b) Co-ordinating at the international level in order to suppress illegal trafficking.
(c) Identification, treatment, education, after-care, rehabilitation and social re-
integration of addicts.
(d) Any other measures deemed necessary. (Sec. 4)
2. The Central Government may appoint a Narcotic Commissioner to superintend
various activities, especially regarding cultivation and production of Opium. It
may also appoint an advisory committee called Narcotic Drugs and Psychotropic
Substances Consultative Committee to advise the government. It may also appoint
any other authorities as needed, by a Gazette notification. (Sec. 5, 6)
3. The Central Government and State Governments are entrusted with all powers
to regulate and control all operations connected with NDPS. (Sec. 9, 10).
4. There is a blanket ban on cultivation of coca plant, opium poppy or cannabis
plant or on production, manufacture, possession, sale, purchase, transport, ware-
housing, use, consumption, import inter-state, export inter-state, import into India,
export from India or transhipment of any narcotic drug or psychotropic substance,
except for medical or scientific purposes and according to licences, permits or
authorisations given. Violation of this is punishable with rigorous imprisonment for a
minimum of 10 years and a fine of Rs. 1 lakh which could be extended upto 20 years
and Rs. 2 lakhs. A fine of more than 2 lakhs could be imposed if the court feels it
necessary, provided the reasons are recorded in the judgement. Repeat offenses
are punishable with minimum rigorous imprisonment of 15 years and a fine of Rs. 1.5
lakhs extendable upto 30 years and 3 lakhs. Violation of this rule even outside
India is punishable with the same punishment. (Sec. 15 onwards)
Violation of said rule regarding cannabis other than ganja, poppy straw, opium
poppy and opium, prepared opium, coca plant and coca leaves, manufactured
drugs and preparations, and psychotropic substances gets the said punishment.
Same punishment is prescribed for a cultivator, specially of opium, who disposes
of it illegally, for allowing premises to commit offence, attempt to commit offence,
abetment of offence and criminal conspiracy. Preparation to commit an offence
which did not take place due to circumstances outside the will of the offender is
punishable with half the punishment for the offence itself.
5. A notable exception to these strict rules is Ganja. Prohibition of cultivation of
cannabis for production of Ganja as well as of the other operations mentioned
in No. 4 shall take effect only from the date the Central Government may, by
notification in the official Gazette, specify in this behalf (not automatically when the
Act takes effect, as for other drugs). (Sec. 8)
Violation of these rules regarding cultivation, transport, possession and sale invites
a lesser punishment than for other drugs i.e.
rigorous imprisonment upto 5 years
and fine upto Rs. 50,000/-, extended upto 10 years and Rs. 1 lakh for repeat
offence. (Sec. 20)
6. Minor offences like violation of some provisions of licence, omission to keep
proper accounts and such others are punishable with imprisonment upto 3 years
or fine or both. (A minimum period or minimum fine is not specified). (Sec. 26)
Social Legislation 121
7. Punishment for illegal possession in small quantities for personal consumption
of cocaine, morphine, heroin or any other specified by the Government in this regard
will be imprisonment upto one year or fine or both. For other drugs, the punishment
will be imprisonment upto 6 months or fine or both. The responsibility to prove that
the small quantity was for personal consumption rests on the accused. (Sec. 27)
The act itself does not specify the small quantity, but leaves it to the Government
to do so. The Government has, by a notification, specified that the small quantity
would be: heroin or brown sugar—250 mg; Hashis/Charas and Opium—5 grams;
Cocaine—125 mg and Ganja—500 grams! (Amounts look quite ridiculous. Also,
drugs like morphine are not mentioned)
8. Any offence for which punishment is not specified in the Act would be punishable
with imprisonment upto 6 months, or fine, or both. (Sec. 32)
9. Section 360 of the Code of Criminal Procedure, 1973, and The Probation of
Offenders Act, 1958 (probation instead of imprisonment) will not be applicable to
offences, other than those mentioned in Nos. 6 and 7 above, unless the person
concerned is under 18 years of age (if the person is below 18, could have probation
instead of prison, even if the offence is grave). (Sec. 33)
10. The court can release an addict guilty of possession of small quantity for
treatment for detoxification and rehabilitation from a hospital or institution main-
tained or recognised by the Central Government, upon his entering into a bond,
with or without sureties, to appear and furnish before the court, a report, within
one year, regarding his treatment, and also to abstain from committing any offence
during the period. After receiving such a report, the court may release him if he
gives a bond not to commit any offence under the Act for a period decided by the
court, but not more than three years. (Sec. 39)
11. The court shall presume the culpable mental state (intention, motive, knowledge
of a fact and belief in or reason to believe a fact) of the accused unless the accused
proves otherwise. In the same way, guilt will be presumed unless the accused
proves he is not guilty (Sec. 54). The court shall presume the authenticity of
authorised documents produced in prosecution, unless it is proved otherwise
(Sec. 66). (The work of the prosecution is made easy).
12. The court may also publish the names and other details of an offender, except
in case of possession of small quantity for personal consumption, and the expense
for such publication recovered from the accused. (Sec. 40)
13. Every offence under this act shall be cognisable (a police officer can arrest
without warrant). (Sec. 37)
14. In case of an offence by a company, all those who are incharge of and
responsible to the company at the time of offence will be liable to prosecution,
unless they prove ignorance of it or efforts to prevent it. (Sec. 38)
15. A number of officers of various departments are authorised to arrest or
search or issue warrant to do so, if adequate information about an offence being
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committed is received. (Sec. 41,42). The Central Government may also give powers
of officer incharge of a police station to certain officers for purpose of investigation.
16. All government officers, village officers and others are responsible to inform
about illegal cultivation and other operations regarding NDPS. Also, land owners to
inform about any illegal cultivation in their land. (Sec. 46, 47)
17. All officers mentioned in the Act as having power to act, shall be duty bound
to assist each other if a notice is given or a request made. (Sec. 56)
18. Vexatious entry, search seizure and arrest without reasonable ground of
suspicion shall be punishable with imprisonment upto 6 months or a fine of
Rs. 1000/- or both. Wilfully giving false information causing such harassment is
punishable with imprisonment upto 2 years or fine or both. (Sec. 58)
19. An officer, duty bound to act, refuses to act without lawful excuse shall be
punishable with imprisonment upto 1 year or fine or both. Any officer who wilfully aids
or connives the contravention of this Act shall be punishable with imprisonment
upto 5 years and fine (Sec. 59). (Provision to enforce action).
20. Goods used for hiding NDPS, conveyance for transport or accessories in
production shall be liable to confiscation. Sale proceeds of ND&PS will also be
confiscated. (Sec. 6 1 , 62)
2 1 . Central or State Government may grant immunity from prosecution to an
accused on condition of making a full and true disclosure of the whole circumstances
relating to the offence. (Sec. 64)
22. An authorised officer can call for information, documents or such like, from
anyone considered to have such information or document. An officer cannot be
compelled to disclose his source of information and also cannot be prosecuted for
an action taken in good faith. (Sec. 67, 68, 69)
23. Government may establish centres for identification, treatment, education,
after-care, rehabilitation, and social re-integration of addicts and for supply under
prescribed conditions of ND & PS to registered addicts or when there is a medical
necessity. It may also provide for training of employees for such centres as well as
maintain and manage such centres. (Sec. 71)
24. Finally, the Central Government is authorised to remove any difficulties in the
implementation of the act, such actions to be taken within three years of enforcement.
(This time frame makes this provision useless now.)
In addition to the N.D.P.S. Act, the Government has issued the N.D.P.S. rules,
1985, which specifies various regulations, mainly regarding cultivation and matters
related to it.
Limitations of N.D.P.S. Act, 1985.
The N.D.P.S. Act, 1985, fills a great void and covers almost all the aspects that could
have been envisaged at that time. However, there are a few limitations:
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1. There is an inexplicable relaxation in the rules as well as punishment prescribed
to offences connected with Ganja. Prohibition is not what is imposed on other drugs;
punishment is only half as that in the case of other drugs, and the minimum quantity for
personal consumption considered illegal is 500 grams for Ganja which is a lot,
by any standards, compared to only 125 milligrams of cocaine, 250 milligrams of
heroine, and 5 grams of charas and opium. One is at a loss to understand such
gross discrimination favourable to Ganja use and this, by itself, tarnishes the
image of the Act in the eyes of the lay public. Further, when rules are so grossly
relaxed for one drug, it is difficult to be strict with others.
2. There is no distinction made between a drug user and a pusher or trafficker. Both
are considered equal offenders, and, as a consideration, Sec. 27 prescribes a small
quantity for possession of which a lesser punishment is given. But, the prescribed
quantity, especially for heroin and cocaine is so small that every addict will have more
than that for his personal consumption. This means that an addict can get the severest
punishment just because he had with him a little more than the prescribed amount.
Even the question of release for treatment is given only as a suggestion which the
judge may or may not consider. Drug addiction is considered a disease by W.H.O. This
Act, however, totally disregards this concept by treating it as an offence and by viewing
the addict as a criminal.
3. For all the minor offences a maximum term of imprisonment is prescribed, but not
a minimum. Also, in such cases, a fine is mentioned, but no maximum or minimum
4. In certain cases, the gravity of the offence is not taken into consideration while
prescribing punishment. For example, a kingpin in the drug trade who deals with
quintals of drugs and a small-time pusher (who may sell drugs to support a habit) who
sells a few grams a day, will get the same punishment. In a civilized country,
punishment should be based on the gravity of the crime. Such arbitrary punishment
will serve to destroy the faith of the people in the Act.
5. Though there are provisions made to ensure the enforcement of the Act, these do
not seem to be very practicable. For instance, according to Dr. D. R. Singh (Department
of Criminal and Correctional Administration, T.I.S.S.), the number of persons
convicted in 1988 was 586, which figure came down to 239 in 1988. In contrast,
the number of acquittals (170 in 1986) went up to 446 in 1988, thus evidencing the
loopholes in enforcement of the Act. The offences under the N.D.P.S. seem bailable
and are, thus, in favour of offenders. Lack of witnesses further augments this problem.
In addition, although co-ordination of various offices and officers is stressed in the Act,
this is, in reality, lacking, especially in preventive education and treatment.
6. The Act says the government may set up centres for identification or treatment of
addicts and to train personnel to work in such centres. But neither is it obligatory on
the government to do so, nor has any time-frame been given within which the
government shall do this. This makes this provision as good as void. This is the reason
why, so far, very few such centres have been set up by the government.
7. The Act does not take into consideration the role of N.G.O.s in this field. This is
unfortunate considering that most of the work in this field is being done by N.G.O.s.
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Notwithstanding these drawbacks, the Act is commendable in preventing the spread
of drug abuse and trafficking. However, the desired aim of the Act is far from being
achieved even after 4 years of its enforcement. The necessary infrastructure does
not seem to have been provided when the Act was enforced. May be all concerned
officers and judiciary should have been specially trained to understand the aims and
implications of the Act, a fact which should have ensured the success.