Legal Provisions for Proclivities of Illegal Drug Trafficking in India: NDPS Act, 1985

  • Adv. Aishwarya Pramod Athawale
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  • Adv. Aishwarya Pramod Athawale

    Advocate in India

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Abstract

Drug use can have physiological and psychological effect, Consumption of narcotic substance make person more or less zombie living. significant proportion of young generation consume drug to spoil all of the good things in life. According to preamble of single convention act, states that are parties to the convention are responsible for the health and welfare of mankind and the concerned state parties are obliged to prevent and combat the evil of drug addiction. Indian constitutional law article 38(1) says, it is the primary duty of state to promote welfare of people and to provide quality life to its citizens, but government cannot enforce quality control on product sold and manufactured illegally. The World Health Organisation and narcotic drug policy in India work to control and deter drug trafficking and its abuse. India has signed 37 bilateral treaties, agreement and Memorandum of understanding to control illicit drug trade but the potential harm of illicit business of drug its cultivation, usage and consumption is severely increasing.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 413 - 418

DOI: http://doi.one/10.1732/IJLMH.26068

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

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Copyright © IJLMH 2021

I. Introduction

Drugs are injurious to health and has its various forms like anabolic, steroids, cocaine, opium, cannabin, heroin, coca plant, coca leaves and many more. Consumption of these drug induces stupor or insensibility and therefore are not allowed to consume for medical and scientific purpose. The laws are strictly formed to prohibit drug abuse and to prevent intoxication of drugs, each state or country has its own administrative system to control illicit business of drugs. After World War II several drug control policies were adapted by League of Nations to determine and introduce policies against drug trafficking and to specify uniform control on harmful addictive drug, but the mortal effect of drug abuse is spreading rapidly, eroding the morale of society. The devastating effect of drug trafficking and drug addiction has created a problem for every solution and hence to control illicit trade of drugs stern action must be taken with strong emphasis on prevention of its cultivation and usage, with proper coordination in implementing the law to disturb its availability, demand and harm.[1]

II. Pathways towards drug policy

Various multilateral treaties were in existence concerned with control of narcotic drugs, but due to ever increasing magnitude of illicit production of drug posed a serious threat for welfare of human being and it adversely affected the economic, cultural and political foundation of society. Individual are predisposed to consume drug due to some unpleasant condition and this often leads them towards self-pity and social turmoil and this adversely affect their behaviour.[2]

Single convention act 1961-The single convention on narcotic drug act was formed to consolidate various enactment made to control illicit business of drug. It came into force on 13 December 1964, the act prohibited the supply of drugs except under licence for specific purpose. previous treaties repressed many types of drugs uses including opium, coco etc. in the list of banned substance but later cannabin whose effect was similarly harmful was included by the enactment of the convention act,1961. Article 38 of convention act postulates that parties are liable to take every possible measures to control abuse of drug, suppression of illicit activities of trafficker was given highest priority but still the threat of narcotic drug abuse did not come to an end.[3]

United Nations convention against illicit trafficking 1988- The harm of drug trafficking was on rise and traffickers were steadily making inroad into various social groups making them consumer of illicit drug. Henceforth the scope of single convention was expanded significantly by entry of United Nations convention against illicit trafficking narcotic drugs and psychotropic substance act signed at Virginia on 20 December 1988, enacted to control and stop steadily increasing groups of drug traffickers, its scope was expanded significantly which had a strong emphasis to deter organised crime of drugs by starving them through forfeiture and freezing of funds, also  International cooperation was provided to apprehend and convict gangster, other method were  also used to established  a proper system under international control for placing rules under smooth coordination to prevent drug trafficking.[4]

To better apprehend narcotic drug trafficking and its abuse, state parties were allowed to carry out its own provision to prevent illicit business of drugs by corroborating with national drug control laws therefore supplementary treaty were made in standardization with the convention act namely (i) United States controlled substance act, 1970 (ii) Convention of psychotropic substance, 1971 (iii) United Kingdom misuse of drugs act, 1971 & (iv) United Nations convention against illicit traffic in narcotic drugs and psychotropic substance, 1988, were designed to fulfil treaty obligations  in accordance with the strictness required by the single convention act,1961.[5]

III. Drug policies in india

The opium act, 1857, Opium Act, 1878, Dangerous Drugs Act, 1930- to control the supply of drugs as well as to supress drug trafficking the above mentioned drug control policies were established by the government of India to deter illicit business of drugs. It provided drug treatment policies with formation of an rehabilitation centre, but certainly the rules made were ineffective to combat the continuous growing menace of drug trafficking and its abuse.[6]

Drug and Cosmetic Act, 1945– the law came into existence to regulate procedure for export, import, distribution, manufacture and sale of drug and cosmetic products. Section 65 provides for condition of licence it says prior approval is required to be obtained from licensing authority established under the rule of draft drugs and cosmetic amendment rules 2018, once the licensing authority is satisfied as to the safety of drug it may grant permission for its business. Section 97 (c) articules that a substance specified in schedule H1 and which comes within the purview of section 2 of NDPS act should be labelled within the symbol of NRV drug, and rule 65 (3)(1) (h) says whenever drugs are specified in schedule H1 and supplied to a customer,  separate register has to be made containing the name and address of the prescriber, the name of the patient, the name of drug and the quantities supplied, under rule 65 (9)(b) the supply of drug specified to registered medical practitioner, Hospital, dispensary and Nursing Home shall be made only against the sign order in writing which shall be preserved by the licence for a period of 2 years. The law mandates that registered medical practitioner after undergoing adequate training in OTS can prescribe essential narcotic drugs from recognised medical Institution and it is their duty to maintain day-to-day account in respect of all transaction of essential narcotic drugs which shall be preserved for a period of 2 years.[7]

Narcotic Drug and Psychotropic Substance Act,1985- To generate more adhere laws and to effectively prohibit drug abuse, narcotic drugs and psychotropic substance bill was formulated, commenced on 4 November 1985, necessary provision were stipulated for prevention of illicit trafficking which also enacted stringent punishment for whoever produced, manufacturer, cultivates, purchase, transport, store and consume any banned narcotic and psychotropic substance. To fulfil treaty obligation under single convention act,1961, NDPS act was  amended in 1988, 2001 and in 2014, the amendment of 2014 recognised the need for pain relief as an important application and  created a class of medicine for essential narcotic drugs (END) and power for legislation on (END)  has been shifted from the State government to the Central government so that whole country now can have a uniform law covering the  medicine which are in need for purpose of painful relief and the said amendment is applicable to all states and union territories of India as announced by the government in May, 2015.[8]

NDPS act, section 3 empowers the central government to add or omit the name of drug from the list of psychotropic substance, it satisfied that it is necessary to do so on basis of received information and evidence or on the basis of the modification or provision if any which have been made by the concerned authority. Section 4 of NDPS act, 1985 enable central government to take all necessary measures to prevent and combat abuse of banned substance by coordinating with officer, and state government. In such matters the central government can appoint Hierarchy of authorities as may be specified in the order for purpose of exercising due power granted in respect to control the drug trafficking and its abuse. Under section 6, to advice central government on matters related to drug abuse and for administration of the NDPS act, the central government may constitute an advisory committee.[9]

Penal provision under narcotic drugs and psychotropic substance act,1985.

Section 8 of NDPS act,1985 prohibits any person from cultivating, manufacturing, possessing, selling, purchasing, transporting, ware house usage for drug business, consuming, processing, import and export of a banned substance within or outside state or nation except for medical or scientific. Prohibited action related with drug abuse are punishable as given under NDPS act, section 15 to 26 provides punishment of 10 years extendable to 20 years for whoever charged for acting in contravention of the said rules. [10]

Section 27 elaborates punishment for consumption of drugs and gives punishment extendable up to 1 year for consuming drugs, as listed in scheduled group of banned substance. And for consumption of drugs other than listed in schedule of drugs the imprisonment is extendable to 6 month or with fine. The burden of proof that it was intended for personal consumption of  and not for sale or distribution shall lie on such person.[11] Henceforth the penal provision for consumption of banned substance is considerably minimal. Law prohibit every action committed in contravention to the formed rules related with narcotic drug abuse and penalises for its consumption, but towards consumer law is being soft in approach. The banned substance is consumed because it is sold and vice versa these harmful drugs are more in demand and hence vended, whereof consumption is prohibited under section 8 of NDPS act but consumer is not completely taken into its fold and law is somewhere silent on this subject, which adds a layer of complexity to deter uncompromisingly every possible aspects of drug abuse.

Section 27 A provides punishment of 10 years extendable to 20 years for financing illicit trafficking and harbouring offenders.  For directly or indirectly providing the traffickers with finances or for any of the activities are specified in clause 8 (a) of section 2 NDPS act, any person engaged in any of the aforementioned activities is a punishable offence. Section 28, 29, 30 says whoever attempts, abets, conspires, prepares for commission of such offence is liable for rigorous punishment. Under Section 31 punishment for certain offences after previous convention can be enhanced up to 15 to 25 years. 31(A) gives death penalty for certain offences after previous conviction. And section 32(a) elaborates no suspension remission or commutation in any sentence awarded under this act.[12]

Formation of laws to prohibit drug abuse are vigilantly made and empowers the concerned authority to do everything to combat the spread of illicit use of drug but the laws or rules are unable to deter crimes related with drug abuse. And India remains the major hub for illicit drug trafficking fulcruming its abuse, In Union of India v Ram Samujh & anr[13] the court pointed that, with an indeep concern the organised activities of smuggler have increased and has led to huge drug addiction and it has assumed serious alarming proportion in recent years.

The Hon’ble Court in Union of India v Kuldeep Singh[14] said that, the health fabric of society is being corroded by drug abuse and increased drug addiction and the efficiency of the act made to prohibit such crime depends on its implementation and proper use of it to meet the challenges which are posed by the smugglers and traffickers.

Drug abuse and trafficking is on upsurge and postulates a clear impression that absence of synergy between the concerned authorities makes it unfeasible to control drug abuse fully. Henceforth to curb illicit drug trade, it needs perquisite attention to disrupt the illicit business of drug by early identification of traffickers which is the main cause of problem. The illicit business of drugs and its abuse can be deterred with proper national and international coordination. The authorities shall wakefully keep check on activities of traffickers. Along with this the authorities are unquestionably empowered to take effective steps to deter such crime and must dig deep into the blacken pit of illegal drug trade to shake the mammoth size mountain of crimes related with drug abuse.  And it will definitely help to deter, prevent and control illicit drug trade, hence to effectively prevent the illicit business of drug, the concerned enforcement agencies should work with more vigilance to execute the laws more appropriately to forbid drug production, trafficking and its abuse.

IV. Conclusion

There are specific laws and penalties for controlling act which are committed in contravention of NDPS rules and the perpetrator is liable for rigorous punishment. Though violation of drug laws has rigorous imprisonment up to 10 years extendable up to 20 years, if the person is convicted again for commission of same offence he can be convicted with death penalty, but apparently stricter laws is doing little to prevent such crime and when the contravention involve use of banned substance for consumption the penalties are acute. Also lack of coordination in implementation of the laws makes it difficult to prohibit the abuse of drugs. Law can effectively control the increased abuse of drugs when strict action with proper coordination is effected in treatment, one of the major fact which cannot be ignored is that there is an immense need to generate more awareness in society about the detrimental effects of drugs, which can help individual from endangering their life, hence government and societies must keep their nerve to keep away from being undulated or misguided by notion of forbearance.

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FOOTNOTES

[1] Narcotic drug laws regulation and policies by Sunita Mishra-1 jan-2015.

[2] International convention relating to dangerous drugs, and protocol. ATS 5 of 1982, Austral Asian legal information institute, retrieved on 15 april-2017.

[3] Single convention on narcotic drugs,1961, as amended by the 1972 protocol amending the single convention on narcotic drugs,1961.

[4] United nation convention against illicit traffic in Narcotic Drugs and Psychotropic, 1988.United Nations.

[5] Appendix B: international organisation and groups-the world fact book, central intelligence agencies-www.cia.gov-retrieved 30may 2020.

[6] A collection of the acts of Indian legislative for the year 1930. The opium and revenue laws (extension of application) act 1950, act no.33 of 1950-18 April 1950.

[7] Drug and cosmetic act,1940 arrangement of section, central government act, the Indian medical council act,1956.

[8] Narcotic drug and psychotropic substance law of India second revised Edition-B. V Kumar, R.K. Tiwari,1990.

[9] Supreme court on narcotic and drugs with the NDPS act and rules by sudeep malik and surendra malik-2011.

[10] Narcotic and psychotropic substance ct,1985, bare act by EBC, 26th,2021.

[11] Narcotic drug and psychotropic substance law of India second revised Edition-B. V Kumar, R.K. Tiwari,1990.

[12] Narcotic and psychotropic substance ct,1985, bare act by EBC, 26th,2021.

[13] Appeal no. (crl.)866 of 1999, judgement-30/8/1999, SUPP (2) SCR 76

[14] Appeal (civil) 2702 of 1997 S.L.P. © no. 5674/1997/C.A.No.2702/1007