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NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 ACT (LXI) OF 1985 AT A GLANCE.

Introduction


Narcotic Drugs and Psychotropic Substances have a variety of medical and scientific uses. However, they can be and are abused and trafficked. India's approach towards Narcotic Drugs and Psychotropic Substances is envisaged in Article 47 of the Constitution of India[1] which mandates that the “State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”. The same principle of preventing the use of drugs except for medicinal use was also adopted in the three drug-related international Conventions, namely, Single Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified the above-mentioned conventions.


In India, Cannabis smoking has been known since at least 2000 BC. Cannabis and its derivatives (marijuana, hashish/charas and bhang) were not prohibited in India until 1985, and their recreational use was commonplace.


Enactment of NDPS Act, 1985


Prior to the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the statutory control over narcotic drugs was exercised in India mainly through three Central Acts i.e. The Opium Act, 1857 Act (XIII), The Opium Act, 1878 Act (I) and The Dangerous Drugs Act, 1930 Act (II).


The Narcotic Drugs and Psychotropic Substances Act, 1985 Act (LXI) (hereinafter NDPS Act)was enacted taking into account India’s obligations under the three UN drug Conventions as well as Article 47 of the Constitution. This Act prohibits, a person from the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance, except for medical or scientific purposes. The NDPS Act has since been amended thrice in 1988, 2001 and 2014. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.


Aims And Object of the Act


The legislature has enacted the NDPS Act to achieve the following objectives.


· 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.


In other words, the NDPS Act aims to prohibit the consumption of drugs and their trafficking including cultivation. Manufacture, distribution, sale & purchase. It is a special Act and it has been enacted with a view to making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.[2]


Narcotic Drugs and Psychotropic Substances – Meaning


Section 2[3] of the NDPS Act lays down definitions of various terminologies used in the legislation. The term ‘narcotic’ in the legal sense is quite different from that used in the medical context which denotes a sleep-inducing agent. Section 2 (xiv) of the Act defines narcotic drugs coca leaf, cannabis (hemp), opium, poppy straw, derivatives/concentrates of all the aforementioned substances and other narcotic substances notified by the Central Government in the official gazette.


Further, ‘psychotropic substances’ denotes mind-altering substances. Section 2(xxiii) defines ‘psychotropic substances’ as any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule of NDPS Act.


Offences Under NDPS Act


Section 8 of NDPS Act prohibits any person to cultivate any coca plant or gather any portion of coca plant, or cultivate the opium poppy or any cannabis plant, or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes.


Furthermore, NDPS Act punishes the production, manufacturing, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export from India or tranship of any narcotic drug or psychotropic substance.[4]Any use of narcotic drugs and psychotropic substances for scientific or medicinal purposes are exempted from the rigour of the law. It further exempts the export of poppy straw for decorative purposes. However, even in those cases, one needs to obtain the required permit or authorisation.[5]


Quantity


The prosecution and quantum of punishment of an individual depend on the quantity of drugs found in possession. NDPS Act has categorised quantity into three categories.


1. Small quantity- any quantity lesser than the quantity specified by the Central Government[6]

2. Less than commercial quantity - any quantity lesser than commercial quantity but greater than the small quantity

3. Commercial quantity - any quantity greater than the quantity specified by the Central Government[7]


The quantity of different drug and its category is not uniform, rather it is different for every drug as specified by the Central Government. For instance, 1kg of Ganjais small quantity and 20 kg commercial, whereas, 5 grams of Heroineis small quantity and 250 grams commercial.


Punishment And Penalties


Chapter IV of the NDPS Act deals with offences and penalties against contravention to the provision of this Act. It lays down punishment for contraventions relating to various substances, for possession, purchase, sale, uses etc. in various quantities.


Quantity


Punishment


Small Quantity- Rigorous imprisonment for a term up to 1 year, or with a fine up to Rs 10,000, or with both. Less than Commercial Quantity- Rigorous imprisonment for a term upto10 years, or with a fine up to Rupees 1 Lakh, or both. Commercial Quantity- Rigorous imprisonment for a term of 10 to 20 years, or fine of rupees 1 Lakhs to 2 lakh.


The Court is empowered to impose a fine exceeding two lakhs by recording reasons for the same in the judgement.[8]


Habitual Offenders


For habitual offenders who are convicted of an offence with the same amount of punishment after a previous conviction, the punishment will be enhanced to one and half times the maximum term of imprisonment and fine both.[9]


The NDPS Act also provides the provision of the death penalty for certain offences to habitual offenders for commission or attempt of certain offences specified in Section 31A.[10]


Consumption of any narcotic drug or psychotropic substance


According to Section 27, for consumption, the punishment is imprisonment of six months to one year or a fine of ten to twenty thousand rupees or both, depending upon the types of drugs used.[11]


Allowing use of premises for an offence


Section 28 of the NDPS Act make even the attempt to commit an offence under the Act punishable with the same punishment provided for the offence actually committed.[12]Similarly, Section 25 states that if an owner or occupier or others of the same nature, knowingly permit it to be used for the commission of an offence in their premises by any other person, they will be punishable with the same punishment as if the offence was committed by them.[13]


Furthermore, Owing to the serious nature of the offences, by 1989 amendment to the Act, the sentence awarded under the NDPS Act was made non-commutable except the sentence awarded for consumption.[14]


Provision For Bail Under NDPS Act


It is well-settled law that a liberal approach in the matter related to Narcotic Drugs and Psychotropic Substances is uncalled for.[15] The Hon‘ble Supreme Court in many Judgments has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act.


In Union of India v. Ram Samujh and Ors[16] the Hon’ble Supreme Court observed that "….It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death−blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely.” Hence, the jurisprudence of bail in narcotics cases is opposite to the general one. In general, bail is a rule and jail is an exception whereas, in NDPS cases, jail is a rule and bail is an exception.


Section 37 of the NDPS Act deal with the aspect of offences to be cognizable and non-bailable. This section states every offence punishable under the NDPS Act shall be cognizable, and no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond unless the certain conditions are met.


The following conditions are required to be met for granting bail:-


(i) That there are reasonable grounds for believing that the accused is not guilty of such offence

(ii) That if bail is granted he is not likely to commit any offence while on bail


It was observed by the Apex Court in State of Kerala v. Rajesh[17] that, “the scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC[18], but is also subject to the limitation placed by Section 37[19] which commences with non−obstante clause.”


The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied.[20]


(i) that the prosecution must be given an opportunity to oppose the application; and

(ii) that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence.[21]


If either of these two conditions is not satisfied, the ban for granting bail operates.[22]

It is pertinent to note that in case of inconsistency, Section 37 of the NDPS Act prevails over Section 439 of CrPC.[23]


Judicial Precedents With Respect To Provision of Bail Under NDPS Act.


Hakim@pilla v. State of Rajasthan S.B.[24]


In this case, the Court observed that though, in the heading prefixed to Section 37 it is mentioned ‘offences to be cognizable and non-bailable’. But the section begins with a non-obstante clause notwithstanding anything contained in Cr.P.C. every offence punishable under the Act shall be cognizable. There is nothing in the body to make every offence non-bailable. Part II of Schedule I to Cr.P.C. deals with the offences under other laws. Item No.3 in the list (in Part II of the First Schedule) provides that if the offence concerned(under the other law) is punishable with imprisonment for less than three years, it is bailable and non-cognizable.


Now the offence of possession of a small quantity (up to 1 kg) of Ganja, under Section 21 of the NDPS Act, if proved, can lead to a sentence of up to six months, and a fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable, however, as per Item No.3 in the list (In Part II of the First Schedule) offence is clearly bailable


Rhea Chakraborty v. The Union of India and Ors.[25]


The Supreme Court in State of Punjab v. Baldev Singh[26] observed that "Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail". Relying on the same, Justice Kotwal noted that "the situation has not changed since 1999 when these observations were made by the Hon'ble Supreme Court. In fact, the situation has become worse. Therefore, these observations apply to today's scenario with more force,hence observations made by the Hon'ble Supreme Court in Baldev Singh[27] are binding and all offences under the NDPS Act are non-bailable."


Presumption Of Culpable Mental State Under NDPS Act


Presumption of Innocence is one of the fundamental principles of criminal jurisprudence which enunciates that an accused is presumed to be innocent until proven guilty. This fundamental principle is derived by the maxim “semper necessitas probandi incumbitei qui agit”, meaning the necessity of proof lies with the person who levels the charges.[28]


Section 35[29] deals with the presumption of the culpable mental state of an accused requiring the Court to presume the existence of such mental state for prosecution under the Act.


Furthermore, an explanation is provided in the provision which states “In this section “culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.” This essentially means that a person charged with an offence under the NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence.[30]

In Naresh Kumar alias Nitu v. State of Himachal Pradesh[31], the Hon’ble Supreme Court held that “the presumptions against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt.” Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on the preponderance of probability.


Further, in Noor Aga v. State of Punjab and Ors.[32] the Apex Court held that "Section 35 and 54 of the Narcotics Act which imposes a reverse burden on the accused is constitutional as the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.".


Conscious Possession And Presumption With Respect To Conscious Possession Under The NDPS Act


The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P.[33] possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person whom physical possession is given holds it subject to that power or control.


The word 'possession' means the legal right to possession.[34] In Sullivan v. Earl of Caithness[35]it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.


Aryan Khan’s Case</