Should Drugs & Psychotropic substances be legalised?

The Author, Surabhi Guha, is a 5th year, BA.LLB student of IMS Law College, Noida. She is currently interning with LatestLaws.com.

Narcotic and Psychotropic substances are generally conceived and governed on the principled indispensible medicinal use, since otherwise they can be source of health abuse through illicit traffic.

Following is the classification of drugs^[1]:

The case of Cannabis:

1. Cannabis is a widely consumed psychoactive substance. Indigenously known and ingested as charas (resin), ganja(flower), bhang (seeds &leaves), derived from the marijuana plant. The State Governments are empowered to license cultivation of cannabis by Sections 8, 10 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), but despite heightened international interest among scientists in exploiting medical advantages of cannabis and in research including trials of various varieties of cannabis.
2. Though use of cannabis for horticultural or industrial purpose is legal in India. Its resin and flowers are prohibited but leaves and seeds are allowed to be used, under the NDPS. The National policy on Narcotic Drugs and Psychotropic Substances encourages cultivation of cannabis with a low Delta-9 THC content; valuing it as a source of fibre, oil and biomass.
3. A PIL was filed by The Great Legalisation Movement India Trust^[2] in the Delhi High Court seeking specific provisions of the NDPS Act to be declared unconstitutional which criminalises cannabis use and imposes severe restrictions related to it. The petition has claimed that there are several scientific research papers, including one by the World Health Organization, that establish the medicinal benefits of the use of cannabis as well as its industrial application - extraction of fibers from the cannabis plant.

It stresses the analgesic and medicinal benefits based on various reputed research papers and sought framing of rules by the government regulating cannabis use. The bench has issued notice to the central government seeking its stand on the plea.

4. Various states in India have banned consumption of Bhang, or limited its use like:

• In Assam, the Assam Ganja Prohibition Act, 1958
• In Maharashtra, Bombay prohibition Act, 1949

But on February 21, 2017, the state of Gujarat removed Bhang from the list of “intoxicating drugs” and legalised it under the Gujarat Prohibition Act.^[3]

Art. 47 of the Constitution also obligates India ‘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’. India has signed and ratified the following 3 conventions:

• Single Convention on Narcotic Drugs, 1961,
• Convention on Psychotropic Substances, 1971
• UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

Scope of the NDPS Act :

As opposed to popular perception the NDPS Act does not prohibit activities concerning narcotic drugs and psychotropic substances. Its functions bilaterally by:

• Ensuring availability of narcotic drugs and psychotropic substances for medicinal and scientific use and
• Restricting availability of the same for non-medical and non-scientific use.

Section 8 criminalizes the production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import-inter State, export inter-State, import into India, export out of India or transshipment of narcotic drugs and psychotropic substances are except if carried out for non-medical or non-scientific purposes and does not criminalise drug-related operations per se.

1. Legitimacy of purpose is essential and not legitimacy of drugs

Only a legitimate purpose is not sufficient, the activity must be carried out in manner stipulated by the act, rules or licenses concerned.

2. Categorisation is vague as most narcotic and psychotropic substances are medicinal in nature

Pharmaceutical drugs have not been defined separately but fall under the ‘preparation’ making narcotic drug/ psychotropic substance or controlled substance based on the active ingredient.

3. Mens Rea & Liability:  

• Presumption of culpable mental state under Section 35.
• offences being non-bailable and cognisable.
• courts are empowered to release offenders on probation to undergo medical treatment and furnish the medical report within a year (Sec 39)
• addicts who volunteer for treatment recieve immunity from prosecution (Section 64A)
• Governments are required to establish centres for identification and rehabilitation of offenders.^[4]

4. Rebuttal of presumption

Person accused can adduce: w.r.t Sec 35 that he/she:

• did not have knowledge about the presence of the drug
• was authorized of its possession

w.r.t Sec 54, explain or adduce evidence to counter the accusation of ‘illicit possession or possession not accounted for’.

The Supreme Court has held that the presumption under Sections 35 and 54 of the NDPS Act comes into operation after the prosecution reasonably establishes- that the accused person was found in unlawful possession of drugs.^[5]

5. When does the burden stand discharged:

• Irregularity during conduct of search and seizure
• Lead evidence to demolish the prosecution’s claim, ex- premises did not belong or was not under the control of accused^[6]

Adverse effects of consuming Marijuana :-

• Problem in maintaining attention
• Learning disorders and poor grades
• Impairment of cognitive memory and verbal skills
• Schizophrenia
• Injuries and death by motor vehicle accidents

Medicinal benefits of Marijuana in curing:

• Alzheimer’s disease
• Loss of appetite
• Cancer
• Crohn’s disease
• Eating disorder and Post-traumatic stress disorder
• Muscle spasms and wasting syndrome
• Epilepsy

Two common ways of dealing with drug addicts:

• Harm-reduction - persuade injecting drug users (IDUs) to use clean syringes and needles to avoid HIV transmission. Switching to buprenorphine or methadone tablets instead of injecting heroine. EU and Australia follow this.

India follows the harm reduction strategy which involves the three-pronged EDP strategy — enforcement, de-addiction and prevention^[7] legalisation would lead to normalisation of one by one many drugs by a cascading effect.

It is alleged that the socio-legal setup is devoid of genuine concern for persons who use drugs and lack respect for their rights. To elaborate, measures towards ‘de-addiction’ and ‘rehabilitation’ of ‘addicts are neither perceived as rights-based by drug dependent persons nor by human rights experts.

• Abstinence-only- inhibition is the best way to avoid drug-overdose and drug-induced HIV. USA, China, Russia follow this.^[8]

The case of Opiate addiction- Why legalisation isn’t favourable

Opiates are drugs extracted from poppy seeds and plants which finally gives opium, that cures mild to severe pain in patients.

An addiction to painkillers often begins after someone is prescribed the medication for pain following an accident or injury.

Patients though are prescribed these by a doctor, eventually heightened tolerance decreases the effectiveness of these painkillers, making people ingest larger doses than recommended despite adverse side effects. This patent physical dependence on the opiate drugs finally escalates into an addiction.

Therefore, India has not ventured into legalisation, learning from the bitter experiences of the west.^[9]

Drug detention centres harass and detain persons who use drugs or are suspected of using them are left with no judicial redress and coerced into forced labour.

medical interventions carried out in these centers are backed by little or no evidences to their effectiveness.^[10]

Addiction is more severe and complex than a ‘strong desire to take drugs’ – it is a neurological condition that feels inescapable to the person. Though people start consuming drugs voluntarily, resultantly a person’s self-control is damaged because of the alterations in the brain structure and functioning caused by repeated drug intake. Addiction is a chronic disabling condition driving people affected into compulsive drug seeking tendencies.

Traditionally consumers of opium and cannabis in India but with these going scarce they have shifted to heroin and other extremely harmful drugs.

Preventive educational programmes depicting the dangers of drug abuse, integrating the youth into the community, to developing healthy lifestyles. The programs could include training of youth leaders in communication and counselling skills^[11]

Why there has been a demand for Legalisation?

• Legalization will expand the revenue income of the Government
• Prove beneficial to farmers growing these crops additionally.
• legalization of cannabis and flowing of tax will bring down the costs of consumer with fall in demand for drugs sold in black markets which are arbitrarily priced.
• Consumers are at threat as dealers do not ask for ID and sell the unregulated and impure product.
• Legalization will improve the quality of marijuana sold to consumers as the legalization will lead to setting up of rules and regulation for production and selling the drug.^[12]
• Portugal is a leading example where decriminalisation reduced the burden on the criminal justice system as decline in drug prevalence, drug deaths and HIV infections were recorded.^[13]

Why Legalisation the following should be mandated:-

1. The cannabis products should indicate the CBD and THC content.
2. Must be prescribed by authorised physician adhering to the best medical evidence.
3. Physician to be responsible for prescribing cannabis-based medicine.
4. Such prescription should be well within the regulatory framework.
5. Health system should track in their surveillance systems progress patterns of patients on cannabis medications.

Thus, the balance is in regulating and not completely banning.