Narcotics Drugs and Psychotropic Substances

Synopsis:

1. Introduction 

2. What are Narcotic Drugs and Psychotropic Substances?

3. Objectives

4. Applicability

5. Salient Features

6. Compliance Requirements

7. Penalties

8. Types of Drugs

9. Psychotropic Substance

10. Is it illegal to be high?

11. Felony drug possession

12. Procedural Safeguards and Immunities

13. Personal search

14. Immunities for Drug Offences

15. Minimum punishment

Introduction:

The system of control of Narcotic Drugs in India has been put in place considering the requirement of narcotic drugs and psychotropic substances for medical use and the country's obligations towards the UN conventions. India is a signatory to The UN Single Convention on Narcotics Drugs 1961, The Convention on Psychotropic Substances, 1971 and The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.

The administrative and legislative setup in the field of Narcotics has been put in place in the country in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in the regard is the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985. Various Ministries and Departments under the Government of India as well as the State Governments exercise various functions pertaining to drug demand and supply reduction. The aspect of drug supply reduction is looked after by various enforcement agencies under the Ministry of Finance, Ministry of Home Affairs and State Governments. The aspect of drug demand reduction is handled by the Ministry of Social Justice & Empowerment and that of treatment of drug addicts and their rehabilitation falls under the domain of the Ministry of Health.

Control over cultivation of Opium and all matters relating to narcotic drugs and psychotropic substances are regulated by the "Narcotic Drugs and Psychotropic Substances Act and Rules" (NDPS Act & Rules). The NDPS Act 1985 has been enacted by the government to combat the illicit trafficking of narcotic drugs, psychotropic substances, controlled chemicals as specified by the Govemment. It provides for prosecution of offenders, deterrent punishment and forfeiture of illicit property acquired from drug trafficking. The NDPS Act envisages a multi-agency enforcement system comprising of a number of Central Government enforcement agencies besides the Central Bureau of Narcotics, such as Narcotics Control Bureau, Customs, Central Excise, Para-military Forces as well as State Govt. Agencies like State Police for effective control and prevention of illicit production, manufacture, distribution, trade, etc. of narcotic drugs and psychotropic substance.

Under the aforesaid Act, the Government has also framed the Narcotics Drugs and Psychotropic Substances Rules, 1985 (NDPS Rules, 1985) for effectuating the purpose of the Act. The above Rule govern the various provisions, viz., Opium poppy cultivation and production of opium and poppy straw, Manufacture, Sale and Export of Opium, Manufacture of natural manufactured drugs, Manufacture of synthetic manufactured drugs, Import, Export and Trans- shipment of NDPS, etc.

Besides the NDPS Act, 1985, the Government also has The "Prevention of Illicit Trafficking in Narcotics Drugs and Psychotropic Substances" (PITNDPS) which provides for detention of persons indulging in illicit trafficking of narcotic drugs by the issuance of an Executive Orde

What are Narcotic Drugs and Psychotropic Substances?

● "Narcotic Drug" means coca leaf, cannabis (hemp), opium, popy straw and includes all manufactured drugs.

● "Psychotropic substance" means 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.

The Narcotic Drugs and Psychotropic Substances Act, 1985 also knows as the NDPS Act, prohibits any individual from engaging in any activity consisting of production, cultivation, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance.

It was enacted in 1985 to fulfill India's treaty obligations under the Single convention on Narcotic Drugs and Psychotropic Substances, United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Objectives - 

● To take measures for preventing, combating 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 all the relevant matters.

● To add or omit the list of psychotropic substances. 

Applicability - 

The NDPS Act prohibits a person. from manufacture/production/cultivation/possession/sale/purchase/transport/store/consume any narcotic drug or psychotropic substance without due permission from the appropriate authorities.

Salient Features -

● Cultivation and Production of Opium poppy straw.

● Delivery of the opium produced and its price determination.

● Manufacture of natural manufactured drugs.

● Submission of reports, returns, and estimates under international conventions.

Compliance Requirements Maintenance of Registers

Maintenance of register including daily accounts in Form No. 3D and 3H, by medical practitioner and medical institution respectively, and preservation of same for at least 2 years.

Filing of returns- Registered manufacturer has to file quarterly returns on or before the last day of the following month of the quarter. Submission of estimates in Form No. 31 for returns and Form No. 3J for estimates, by medical institution on annual basis is also mandatory. The same for companies is in Form no. 9 for annual returns.

Certifications for import and export-Certificates for approval of import in Form 4 and 4A and Form 5 for export are mandatory. The appropriate authority is Controller of Drugs as appointed by the State Government.

Penalties - 

The act has specifically defined penalties for production/possession/transportation/sale/purchase/use/ omit to warehouse, of popy straw, coca plant and coca leaves, preparation of opium and opium poppy, cannabis plant and cannabis or any other such narcotic drug and psychotropic substance, and any such other preparation, will be liable for penalties which includes imprisonment or fine or both, depending upon the severity of the crime.

These offenses are triable by Special Courts and the punishments prescribed range from imprisonment from 10 to 20 years for first offenses to 15 to 30 years for any subsequent offenses together with monitory fines.

Punishment for possessing small quantities of drugs (quantity specified in the Act) will be maximum of 6 months rigorous imprisonment or a fine of upto Rs. 10,000 or both. But in the case of commercial quantity it would be rigorous imprisonment from 10years(min.) to 20 years (max.) & a fine from Rs 1 lakh to 2 lakhs

Types of Drugs -

(i) Opium: Papaver Somniferum, commonly known as the opium poppy, is a species of flowering plant in the family Papaveraceae. It is a plant that grows in many countries around the world with a moderate climate. Raw Opium is a non- homogeneous material, sticky, tar-like and dark brown when it is fresh, and becomes brittle and hard as it ages. Opium contains a class of naturally occurring alkaloids known as opiates which includes Morphine, Thebaine, Codeine, Papaverine, Noscapine and Oripavine. Heroin is synthesized from Opium.

(ii) Medical Opium: The Opium that undergoes the necessary process to adapt for medical use as per the requirements of the central government.

(iii) Morphine: This is also known as Mud, Morf, Morpho or Goma etc. This is a refined version of opium formed by mixing opium gum with Lime water and a few organic solvents.

(iv) Codeine: Another derivative of opium which is usually found in cough syrups.

(v) Poppy straw: The husk left after the extraction of opium from the pods. It consists of small quantities of morphine, which is used as a drug.

Trafficking trend: Tra-fficking of Opium mainly takes place in Punjab, Rajasthan, M.P., Bihar, Jharkhand, Manipur and Gujarat.

(vi) Heroine: This is also known as Brown Sugar, Mexican Mud, Smack,Crap, Horse, Junk and Big H etc. It is made when morphine is further refined by treating it with acetylene anhydride (AC20). Heroin is also known as di-acetyl morphine, is an opioid made from morphine, after processing it with Acetic Anhydride. It comes out in a variety of colours ranging from white, o white and brown to grey. Colours also depend on the impurities added as it passes through a number of hands due to successive levels of adulteration. The South West Asian origin Heroin (white and brownish mostly) that enters India through the Indo-Pak border has a higher level of purity.

Trafficking trends: Major trafficking of Heroin in India takes place through Indo-Pakistan border mainly in the states of Punjab and Jammu & Kashmir. From these states Heroin is tra-fficked into other states.

(vii) Cannabis: Cannabis is a genus of flowering plants in the family Cannabaceae. The Cannabis, produced from the Cannabis sativa plant, is used in three forms: herbal Cannabis, the dried leaves and flowering tops. Cannabis is also known as 'Ganja,' or 'Weed'. Cannabis resin, the pressed secretions of the plant, known as 'Hashish' or 'Charas; and Cannabis oil, a mixture resulting from distillation or extraction of active ingredients of the plant.

Trafficking trends: Traffi-cking from the North-East India to eastern states is mainly by surface transport. Tra-fficking in substantial quantities takes place across India-Nepal border and in the states of Andhra Pradesh, Odisha, Uttar Pradesh, West Bengal and Tripura. The main transit routes for Ganja are through Assam, West Bengal, Bihar, Uttar Pradesh, Nagaland and Chhattisgarh.

(viii) Hashish: Hashish, or Charas, is a drug made from cannabis. Hashish is cannabis resin. Generally, Hashish is extracted from the plants by rubbing the flowering tops of the plant between the palms of the hand or on rubber sheets.

Trafficking trends: Charas/Hashish is derived from the illicit cannabis cultivation by the drug tra-ffickers especially in the districts of South Kashmir and Kullu in Himachal Pradesh. There is a trend of traffi-cking of Charas from Kashmir to Maharashtra, Rajasthan, Goa & Gujarat. Charas is also tra-fficked from Nepal to India.

(ix) Cocaine: Cocaine is a powerful addictive stimulant drug made from the leaves of the coca plant native to South America. It is known as a street drug, it looks like a fine, white, crystal powder. The primary markets are North America and Europe. In India, cultivation of coca plant is not done. However, Cocaine is mainly smuggled in by West African drug tra-ckers.

Trafficking trends: Smuggling of cocaine is mostly being done by African nationals based in India. Instances of Cocaine being smuggled from Argentina, Brazil and South America have also come to notice. Seizures of Cocaine in India have been made mostly at the airports. The trafficking of small quantities of Cocaine is usually done through parcels hidden in common household articles like food items, utensils, cosmetics, books, and clothing.

(x) Acetic Anhydride: One of the largest producers of Acetic Anhydride for legitimate usage is India. It is widely used by the pharmaceutical and textile industries in India as well as being used for the illicit manufacture of Heroin.

Trafficking trends:

● The medicines having narcotic/psychotropic components are under the dual control of Drugs and Cosmetic Act as well as the NDPS Act, the latter being more stringent. 

● There also exists a loose regime of over the counter sale of drugs under the category of dispensation against valid prescriptions.

● Abuse of pharmaceutical drugs is prevalent in virtually all states of northem India. 

● Abuse of Codeine Based Cough Syrups.

● Trafficking of CBCS is mainly along the border, especially at Indo. Bangladesh crickie based cough syrups are mainly tra-cked from Northern states like UP, Delhi, Bihar to Northeastern states by road in trucks and railway parcels and there to Bangladesh. CBCS brands like Corex, Phensedyl, Recodex are abused and traf-ficked.

● Abuse of Depressants: Alprazolam, Diazapam, Clonazepam, Lorazapam, Benzodiazepine etc.

● Tramadol is used like codeine. It is not covered under NDPS Act, 1985, It is a Schedule 'H' drug under the Drugs & Cosmetics Act, 1940 and can only be dispensed under the prescription of a registered Medical Practitioner. Tramadol is also not included in any of the Schedules of 1971 UN Convention on Psychotropic Substances. It is banned in many of the countries resulting in the smuggling through India. Tramadol is traffi-cked via courier and manual means to countries like US, Canada etc. The notification of tramadol under NDPS Act is under consideration.

● Ayurvedic tablets containing Opium like Kamini Vidrawan Ras, Barshasa.

● Diversion of tablets containing Ephedrine/Pseudo-ephedrine.

● Use of Internet for smuggling these pharmaceutical drugs is on the rise.

Psychotropic Substance 

Seven (7) NPS were notified under NDPS Act as per recommendation of 59th Commission on Narcotic Drugs. Out of 7 NPS, 5 were notified as Psychotropic Substances. The name of a few chemicals scheduled as Psychotropic Substances are as follows:

● Para-methoxymethylamphetamine (PMMA), is notified as 'Psychotropic Substance'.

● pyrrolidinovalerophenone (PVP), is notified as 'Psychotropic Substance'.

● methoxetamine (MXE), is notified as 'Psychotropic Substance'.

● Phenazepam, is notified as 'Psychotropic Substance'.

Is it illegal to be high? 

It is illegal to be high in India as provided under Section 27 of the NDPS Act, which provides for the punishment for the consumption of any Narcotic drugs or psychotropic substance stating that any individual who consumes any kind of narcotic drugs or psychotropic substances would be punishable, if the substance which has been consumed is morphine, cocaine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified by the Central Government in this behalf with a strin 1 gnt punishment of imprisonment for a term which may extend to one year, or to pay a fine which may extend to twenty thousand rupees, or with both. If the narcotic drug or psychotropic substance consumed is other than those mentioned above than the punishment would be imprisonment for a term which mav extend to six months, or to pay the fine which may extend to ten thousand rupees or with both.

With the exception of scientific and medical purposes the following actions pertaining to drugs are termed as illegal:

(i) Cultivation or growing opium, poppy or any cannabis plant.

(ii) Possessing any kind of narcotic drugs or psychotropic substances.

(iii) Sale or purchase of narcotic drug or psychotropic substance.

(iv) Using raw materials from the source for making of any narcotic drug or psychotropic substance.

(v) Carrying or transporting narcotic drug or psychotropic substance from one state to another, into union territory, importing or exporting from the country.

(vi) Consumption of narcotic drugs or psychotropic substance.

(vii) Ware-housing or storing large quantities of narcotic drugs or psychotropic substances.

Felony drug possession 

The term Felony originated from English Common law, it is defined as a crime of a serious nature, it can be violent as well as non-violent. Felonies are punishable by imprisonment for a minimum term of one year, to which additional punishment including capital punishment can be included. Crimes are usually divided into two heads, felonies and misdemeanours based on nature and the punishment (maximum punishment) which can be imposed. Felony involves serious misconduct that is punishable by death. The NDPS Act, 1985 had the provision of death penalty for subsequent convictions for trafficking large quantities of drugs under Section 31A of the act but through the amendment of 2014 the provision of the death penalty has been made discretionary for the judge by providing a sentence for 30 years. But on the other hand, this same amendment increased the punishment for "small quantity" offences to 1 year from a maximum period of 6 months. Therefore, the offences related to large quantities of drugs can be termed as felony.

Procedural Safeguards and Immunities

The Narcotic Drugs and Psychotropic Substances Act, 1985 views drug offences very seriously and prescribes stiff penalties. The Act follows a graded system of punishment with the punishment varying with the quantum of punishment being dependent upon whether the offence pertains to small, commercial and intermediate quantities of narcotic drugs and psychotropic substances. 

For offences involving commercial quantities of drugs, a minimum penalty of ten years rigorous imprisonment is prescribed, which may extend to twenty years. Repeat offences attract one and half times the penalty and in a few cases even the death penalty. Alongside these stringent provisions, the Act has procedural safeguards as follows:

Personal search

Word 'person' means human being with appropriate covering and clothings and footwear-Bag, briefcase or container carried by person cannot fall within the ambit of 'person' - Section 50 does not apply to search of baggage, article or container carried by person searched. State of H.P. v. Pawan Kumar, AIR 2005 SC 2265 (3 Judges Bench)

Any person being searched has a right to be searched before a Gazetted Officer or a Magistrate (Section 50). The officer searching the person has to explain to the person that he has a right to be searched before a Gazetted Officer or a Magistrate and if the person wishes to be searched before a Gazetted Officer or a Magistrate he should be taken to the Gazetted Officer or the Magistrate and searched.

However, if the officer has reason to believe that it is not possible to take him to a Gazetted officer or a magistrate without giving him a chance to part with the drug, controlled substance, etc., he can search him under Section 100 of the Cr. P. C. /Section 50(5) and 50 (6)).

As per Section 41 of the NDPS Act, Gazetted Officers of the empowered Departments can authorize searches. Such authorization has to be based on information taken down in writing. As per Section 42, searches can be made under certain circumstances without a warrant (from a magistrate) or an authorization (from a Gazetted Officer). In case of such searches, the officer has to send a copy of the information taken in writing or the grounds of his belief to his immediate official superior within 72 hours.

The mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or container or premises.

The personal search of the accused did not result in recovery of any contraband - Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements-Contraband recovered pursuant thereto having been proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from search of vehicle. Law laid down in Dilip v. State of Madhya Pradesh, (2007) 1 SCC 450, held as "not correct law" State of Punjab v. Baljinder Singh and anr., (2019) 10 SCC 473 (Three- Judge Bench)

Provision of section 50 should be complied with in letter and sprit - Suspected person must be informed of his right under section 50 of being taken to be nearest Gazetted Officers or Magistrate for making search - Mere seeking in option or giving him an option that he can get him self searched either by before Guzetted Officers of Magistrate or he can also give search to the searching Officer, is not proper compliance of Section 50-Failure to informed the person concerned about the existence of his right, would cause prejudice to that person /accused. Bardrilal v. State of M.P., 2018 (1) ANJ 282.

Personal search of accused-There should be strict compliance of Section 50 of the NDPS Act-Accused should be informed of his right to search before Gazetted Officer or Magistrate - The theory of substantial compliance would not be applicable to such situation - In absence of above strict compliance, search and recovery stands vitiated.

Once the recovery itself is made in an illegal manner i.e. in contravention of strict compliance of Section 50, its character cannot be changed so as to be admissible on the strength of statement of witnesses-What cannot be done directly cannot be permitted to be done indirectly-Accused cannot be held guilty for illegal possession of contraband. State of Delhi v. Ram Avtar, AIR 2011 SC 2699. Search of a female-Should be searched only by a female - Section 50 (4) is mandatory Fatto @ Phoola @ Kamla Bee v. State of M.P., 2004 (2) MPHT 67.

Arrests:

The person who is arrested should be informed, as soon as may be, the grounds of his arrest [Section 52 (1)]. If the arrest or seizure is based on a warrant issued by a magistrate, the person or the seized article should be forwarded to that magistrate [Section 52(2)].

The officer who arrests a person superior within 48 hours [Section 57]. has to make a full report to his official

Immunities for Drug Offences

(1) Officers: Officers acting in discharge of their duties in good faith under the Act are immune from suits, prosecution and other legal proceedings (Section 69).

(2) Addicts: Addicts charged with consumption of drugs (Section 27) or with offences involving small quantities will be immune from prosecution if they volunteer for de-addiction. This immunity may be withdrawn if the addict does not undergo complete treatment (Section 64A).

(3) Offenders: Central or state governments can tender immunity to an offender in order to obtain his evidence in the case. This immunity is granted by the government and not by the court (Section 64).

(4) Juvenile offenders: Juvenile offenders (below 18 years of age) will be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000.

(5) Immunities to diplomats as applicable.

Minimum punishment 

Accused persons found in possession of 6 kg 200 gms. and 4 kg charas respectively containing more than 50 gms. of tetra hydrocannabinol-Held, contraband seized from the accused persons being more than intermediate quantity, falls under commercial quantity and the offence committed is punishable under section 20 (b) (ii) (C) and not under section 20 (b) (ii) (B). Sentencing-Minimum punishment - Where the minimum sentence is provided, Court must not reduce the sentence on the ground of so called mitigating factors as it would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provisions that prescribes minimum sentence for a criminal act. State through Intelligence Officer, Narcotics Control Bureau v. Mushtaq Ahmad etc., 2015 CriLJ 4935 (SC)