Illicit Drug Trafficking: Time to plug the loopholes

Statutory provisions in India

As already mentioned till 1980s it was not a big issue so we didn’t have any enactment until 1985 but before that also we were signatory to a number of international treaties. These international treaties and conventions are as follows:[3]
1. Convention on Narcotic Drugs, 1961.
2. Convention on Psychotropic Substances, 1971.
3. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
4. Transnational Crime Convention, 2000.

Indian Parliament has enacted two Central Acts:
1. The Narcotic Drugs and Psychotropic Substances Act, 1985, and
2. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988.

Legal bodies that enforce these laws:
Government of India is taking very active steps to curb illegal trafficking of drugs in India to protect its youth and therefore following legal bodies have been formed to check the illegal drugs in society and its trafficking:

1. Narcotics Control Division
2. Central Bureau of Narcotics (CBN)
3. The Narcotic Control Bureau (NCB)
4. Other Agencies- Directorate of Revenue Intelligence, Central Bureau of Investigation (CBI), Customs Commission, Border Security Force (BSF).

Narcotic Drugs and Psychotropic Substances Act, 1985

Article 47 of the Constitution states that the State shall work towards increasing the level of life and nutrition of its people and it is the primary duty of the state to improve the public health. State shall prohibit the consumption of the intoxicated drugs and drinks which are injurious to health except its use for medical purpose.^[4]

Following the Article 47 of the Constitution of India, government came up with the Narcotic Drugs and Psychotropic Substances Act, 1985. The NDPS Act came into force on 14 November 1985, replacing the Opium Acts and the Dangerous Drugs Act. It has been amended in 1989, 2001 and latest in 2014. The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law.^[5]

NDPS act has provision for search seizure and arrest of a person^[6]. The Act also empowers government to frame rules to allow some types of drugs for medicinal, scientific and research purposes. Amendment of 2014 allows private pharmaceuticals to use certain types of drugs but everything should be done for betterment of humankind only ^[7].

In 1998, NDPS Act was added with another armor - The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, this empowered the agencies to arrest a suspected or accused or previously involved person on the grounds of preventive detention. The Act had very harsh rules and even provision of capital punishment in some cases but some of these have been relaxed through Supreme Court and High Courts judgments and various amendments.

Harm Reduction Network v. Union of India is a landmark case for NDPS Act because in this case Bombay High Court held that capital punishment in drug trafficking is unconstitutional but at the same time time did not struck down the Section 31A of this Act. In case of Abdul Aziz v. State of Uttar Pradesh court allowed bail in case of person arrested for minor offences which did not exists first. Similarly, another very import case was of E. Michael Raj v Intelligence Officer Narcotic Control Bureau (NCB) where the Supreme Court held that in case drug is mixed with a neutral substance while giving punishment only the original quantity of drugs must be taken in account.

Positive aspects of this act

Quantity based Sentencing: the Supreme Court has made it very clear that sentencing will be based purely on quantity basis. In case the drug is mixed with a neutral substance only the original amount/quantity of drugs must be taken into consideration while giving punishment.^[8]

Confession made to drug law enforcement officer is admissible in court as evidence. Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008) 4 SCC 668. In both the cases, the Indian Supreme Court, in a departure from the settled position on the law on evidence, made confessions to drug law enforcement officers admissible as evidence.

Criminalization of people who use Drugs and Harsh Punishment this is debatable topic but it can be seen as a positive step to discourage people from using drugs and also create a fear among drug peddlers and traffickers. Simple possession of drugs maybe for personal use also attracts the same amount of punishment as distribution for profit.

In February 2008, two drug offenders were sentenced to death by NDPS special courts in Mumbai and Ahmedabad respectively. Ironically, both sentences were for cannabis (charas). A constitutional challenge followed, which led the Bombay High Court to declare the mandatory provision unconstitutional and read the same as discretionary, that is, in a manner where the sentencing court will hear the offender on punishment and have the power to impose a prison sentence instead of death.^[9]

Provisions for treatment and rehabilitation Section 2(a), 4(2)(d), 7A, 39, 64A, 71, 76(2)(f) and 78(2)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides for rehabilitation and treatments of addicts.

An “addict” is a person who is dependent on any narcotic drug or psychotropic substance as per Section 2 (a).

Treatment is one of the measures that the central government must take and allocate funds for, from the National Fund (Sections 4 (2) (d) and 7A).

Drug dependent people, who are charged with consumption or an offence involving a small quantity of drugs can choose to undergo treatment and be exempt from prosecution under Section 64 A.

Instead of sentencing, courts can divert drug dependent people convicted for consumption or an offence involving a small quantity of drugs, to a recognized medical facility for detoxification, instead of sentencing under Section 39

The government (central and/or state) can set up and regulate centers for the identification, treatment and care of drug dependent people. (Section 71, 76 (2) (f) and 78 (2)(b)).

LOOPHOLES

DELAY IN TRIAL “Justice delayed is Justice denied.”

Research shows that many of those arrested on drug charges spend years in jail before their cases finally come up for hearing, a direct consequence of the notoriously slow pace of the Indian judicial system. Special courts have been set under NDPS Act but states have given them additional responsibility as result of which cases are delayed more. Apart from all this when minor offenders spent a lot of time in jail there is a chance of them being recruited in organized crimes and gangs.

STRIGENT BAIL RULES

Courts cannot provide bail to those accused of offences under Sections 19, 24 or 27A of the NDPS Act and for offences involving commercial quantities (Section 2). Generally, all are innocent till proved guilty. But this law says that you are guilty unless proven innocent! Section 35 presumes that an accused under this Act had the intent, motive and knowledge of and for his actions while Section 54 goes a step further to add that unless the contrary is proved it shall be presumed that the accused was in possession of the illicit articles seized from him.

ABSENCE OF DATA

One of the major issues in Indian policies is data. The nature and extent of drug use, dependence and its attendant health implications these things should have been the most important when framing NDPS Act but irony is it is still unknown. The only survey regarding extent of drug use was conducted in 2001-2002. According to that survey, there were an estimated 8.7 million cannabis users, of which 2.3 million were dependent (26%). The number of opiate users was estimated to be 2 million, of which 0.5 million (22%) were thought to be dependent.^[10] 

HARSH AND DISPROPORTIONATE PENALTIES

Like many other countries who have formed laws under the pressure of international conventions have made the laws too harsh as we have already discussed even death penalty in some cases. Raju v. State of Kerala AIR 1999 SC 2139: the appellant had served 10 years of rigorous imprisonment and was imposed a fine of ₹1 lakh for possession of 100 mg of heroin worth ₹25. Absence of withdrawal was seen as evidence that the appellant was not drug dependent and therefore, the heroin was not meant for personal use. The Supreme Court finally held that such a small quantity could not have been meant for sale or distribution and reduced the sentence to that for possession for personal consumption.

UNEVEN COORDINATION AMONG AGENCIES

The implementation of drug policy has sometimes seen a confusing overlap and, at times, an abdication of responsibility.

ACCESS TO MEDICINE

NDPS Act allows the use of drugs as medicine. Yet, morphine and other opiates were unavailable to patients due to strict provisions and penalties. Until recent years all these were regulated by state governments which meant multiple licenses were required but from 1998 central government has taken this into its own hands but the situations have not improved. Western media questions regularly how is that India supplies morphine to the world when it can’t supply it back at home.^[11]

LACK OF CONSULTATION IN POLICY MAKING

The NDPS Act 1985 allows government to make a 20-member body NDPS Consultative Committee as a policy advisory body. The committee may prepare a special report on any topic of importance for the government consideration. Advice the government on policy matters, and other issue as requested by the government. The Committee can draw upon experts and civil society representatives to review and recommend changes in nearly all areas of drug policy.^[12] Sadly, these provisions have not yet been invoked.