Background

India had no legislation regarding narcotics until 1985. Cannabis smoking in India has been known since at least 2000 BC and is first mentioned in the Atharvaveda, which dates back a few hundred years BC.The Indian Hemp Drugs Commission, an Indo-British study of cannabis usage in India appointed in 1893, found that the "moderate" use of hemp drugs was "practically attended by no evil results at all", "produces no injurious effects on the mind" and "no moral injury whatever". Regarding "excessive" use of the drug, the Commission concluded that it "may certainly be accepted as very injurious, though it must be admitted that in many excessive consumers the injury is not clearly marked". The report the Commission produced was at least 3,281 pages long, with testimony from almost 1,200 "doctors, coolies, yogis, fakirs, heads of lunatic asylums, bhang peasants, tax gatherers, smugglers, army officers, hemp dealers, ganja palace operators and the clergy."

Cannabis and its derivatives (marijuana, hashish/charas and bhang) were legally sold in India until 1985, and their recreational use was commonplace. Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians as the poor man's intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961. However, India opposed the move, and withstood American pressure to make cannabis illegal for nearly 25 years. American pressure increased


in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India.

Theory and Concept

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. The Narcotic Drugs and Psychotropic Substances Bill, 1985 was introduced in the Lok Sabha on 23 August 1985. It was passed by both the Houses of Parliament, received assent from then President Giani Zail Singh on 16 September 1985, and came into force on 14 November 1985. 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.
Under one of the provisions of the act, the Narcotics Control Bureau was set up with effect from March 1986. The Act is designed to fulfill India's treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Short Title, Extent and Commencement

The short title for the Act is the Narcotic Drugs and Psychotropic Substances Act, 1985. It extends to the whole of India. It came into force after the Central Government notified it in the Gazette of India on 14 November 1985.

Definition

Some of the definition under this Act are as follows-

1.Narcotics

They are addictive drugs that reduce the user's perception of pain and induce euphoria (a feeling of exaggerated and unrealistic well-being). The English word narcotic is derived from the Greek ”narkotikos” , which means "numbing" or "deadening." Although the term can refer to any drug that deadens sensation or produces stupor, it is commonly applied to the opioids—that is, to all natural or synthetic drugs that act like morphine.

2.Cannabis

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or a drink prepared there from

3.Cannabis plant

It means any plant of the genus “cannabis”.

4.Coca derivative

It means (a) crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of cocaine; (b) ecgonine and all the derivatives of ecgonine from which it can be recovered; (c) cocaine, that is, methyl ester of benzoyl-ecgonine and its salts; and (d) all preparations containing more than 0.1 per cent. of cocaine.

5.Coca leaf

It states(a) the leaf of the coca plant except a leaf from which all ecgonine cocaine and any other ecgonine alkaloids have been removed; (b) any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent. of cocaine; (vii) "coca plant " means the plant of any species of the genus Errythroxylon.

6.Controlled substance

It means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substances.

7.Illicit traffic

It means relation to narcotic drugs and psychotropic substances, means: (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transshipment, of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or (v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), other than those permitted under this Act, or any rule or order made or any condition of any license, term or authorization issued, thereunder, and includes: (1) financing, directly or indirectly, any of the aforementioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harboring persons engaged in any of the aforementioned activities.

8.Manufacture

It is in relation to narcotic drugs or psychotropic substances, includes: (1) all processes other than production by which such drugs or substances may be obtained; (2) refining of such drugs or substances; (3) transformation of such drugs or substances; and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances.

9.Psychotropic substance

It 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.

10.Production

It means the separation of opium, poppy straw, coca leaves or cannabis from the plants from which they are obtained.

Functioning

The law regulates drug use and possession, prohibits trafficking in drugs, and allows the government to control the cultivation, production and use of some drugs, for medicinal purposes.

Crimes under the law:

  • Cultivating different kinds of narcotic drugs such as cannabis, coca plants and opium poppy.
  • Possession of illegal drugs and substances - depending on the quantity of drugs you are caught with and the type of drug, you can be sent to jail for up to 20 years.
  • Repeat offenders (usually those involved in trafficking) can be given up to 30 years or the death penalty in extreme cases.
  • Any other handling of or dealing with illegal drugs and substances.

It’s not just the police officers who can conduct arrests and searches under this law - certain types of authorized government officers also have the powers to conduct and arrest or search. The court can in certain circumstances send a drug addict to a government recognized detox or de-addiction centre instead of sending him/her to jail. People who voluntarily seek medical treatment and have not been involved in trafficking, you will not be sent to treatment rather than jail. Use of marijuana can be punished with up to 6 months of jail time and/or a fine of up to Rs. 10,000.

Power to add to or omit from the list of psychotropic substances

The Central Government may, if satisfied that it is necessary or expedient so to do on the basis of the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material; and the modifications or provisions (if any) which have been made to, or in, any International Convention with respect to such substance, natural material or salt or preparation of such substance or material, by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the Schedule such substance or natural material or salt or preparation of such substance or material.

Officers of the Central Government

The Central Government appointed a Narcotics Commissioner under subsection(3) of Section 4 of the Act without prejudice to the provision, and may also appoint such other officers with such designations as it thinks fit for the purposes of this Act. The Narcotics Commissioner shall, either by himself or through officers subordinate to him, exercise all powers and perform all functions relating to the superintendence of the cultivation of the opium poppy and production of opium and shall also exercise and perform such other powers and functions as may be entrusted to him by the Central Government. The appointed officers are subject to the general control and direction of the Central Government, or, if so directed by that Government, also of the Central Board of Excise and Customs or any other authority or officer.

The Narcotic Drugs and Psychotropic Substances Consultative Committee

The Central Government may constitute, by notification in the Official Gazette, an advisory committee to be called "The Narcotic Drugs and Psychotropic Substances Consultative Committee" (hereafter in this section referred to as the Committee) to advise the Central Government on such matters relating to the administration of this Act as are referred to it by that Government from time to time. The Committee shall consist of a Chairman and such other members, not exceeding twenty, as may be appointed by the Central Government. The Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure. The Committee may, if it deems it necessary so to do for the efficient discharge of any of its functions, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person (including a non-official) who is not a member of the Committee. The term of office of, the manner of filling casual vacancies in the offices of and the allowances, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint a person who is not a member of the Committee as a member of any of its sub-committees, shall be such as may be prescribed by rules made by the Central Government.

Officers of State Government

The State Government may appoint such officers with such designations as it thinks fit for the purposes of this Act. The appointed officers are subject to the general control and direction of the State Government, or, if so directed by that Government, also of any other authority or officer.

Prohibition of Certain Operations

Section 8 of the Act prohibits any person from cultivating any coca plant or gathering any portion of coca plant; or cultivating the opium poppy or any cannabis plant; or producing, manufacturing, possessing, selling, purchasing, transporting, ware-housing, using, consuming, import inter-State export inter-State import into India, exporting from India or transshipment of any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization.
Nothing in this section applies to the export of poppy straw for decorative purposes.

Offences And Penalties

Chapter IV describes offences under the Act, and the punishments to be applied for contravening provisions of the Act. The various sections under this chapter prescribe a minimum term of rigorous imprisonment of 10 years, which may extend to 20 years for offenders, and also a fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. In all cases, the court may impose a higher fine, for reasons to be recorded in the judgment.Some of such punishment are as follows

1.Punishment for contravention in relation to poppy straw

Any person who contravenes any provision of this Act, or any rule or order made or condition of a license granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

2.Punishment for contravention in relation to coca plant and coca leaves

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

3.Punishment for contravention in relation to prepared opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

4.Punishment for contravention in relation to opium poppy and opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports Inter-State or uses opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

5.Punishment for contravention in relation to cannabis plant and cannabis

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, cultivates any cannabis plant; or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable:

  • where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees;
  • where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees.
6.Punishment for contravention in relation to manufactured drugs and preparations.

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

7.Punishment for contravention in relation to psychotropic substances.

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, export inter-State, or uses any psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten year but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

8.Punishment for allowing premises, etc., to be used for commission of an offence

Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

United Nations Convention Against Illicit Traffic In Narcotic And Psychotropic Substances

The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 19 December 1988 is part of the worldwide effort to combat illegal drugs.. Article 12 of the Convention requires a system to be introduced to monitor international trade in drug precursors, taking account of the fact that, in principle, trade in these substances is lawful. Consequently, the Community adopted measures to strike an appropriate balance between the desire to exploit all possible means to prevent drug precursors reaching illicit drug manufacturers and the commercial needs of the chemical industry and other operators .The three major international drug control treaties are mutually supportive and complementary. An important purpose of the first two treaties is to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes, and to prevent their diversion into illicit channels. They also include general provisions on illicit trafficking and drug abuse. Single Convention on Narcotic Drugs, 1961: This Convention aims to combat drug abuse by coordinated international action. There are two forms of intervention and control that work together. First, it seeks to limit the possession, use, trade in, distribution, import, export, manufacture and production of drugs exclusively to medical and scientific purposes. Second, it combats drug trafficking through international cooperation to deter and discourage drug traffickers. Convention on Psychotropic Substances 1971: The Convention establishes an international control system for psychotropic substances. It responded to the diversification and expansion of the spectrum of drugs of abuse and introduced controls over a number of synthetic drugs according to their abuse potential on the one hand and their therapeutic value on the other. Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988: This Convention provides comprehensive measures against drug trafficking, including provisions against money laundering and the diversion of precursor chemicals. It provides for international cooperation through, for example, extradition of drug traffickers, controlled deliveries and transfer of proceedings.

Criticism

During the discussion of the Bill in Parliament, several members opposed it for treating hard and soft drugs as the same. However, the Rajiv Gandhi administration claimed that soft drugs were gateway drugs.

The NDPS Act was criticized in The Times of India. The paper described the law as "ill-conceived" and "poorly thought-out" due to the law providing the same punishment for all drugs, which meant that dealers shifted their focus to harder drugs, where profits are far higher. The paper also argued that the Act had "actually created a drugs problem where there was none." The Times of India recommended that some of the softer drugs should be legalized, as this might reduce the level of heroin addiction.

In 2015, Lok Sabha MP Tathagata Satpathy criticized the ban on cannabis as "elitist", and labeling cannabis the "intoxicant" of the poor. He also felt that the ban was "an overreaction to a scare created by the United States". Sathpathy has also advocated the legalisation of cannabis.On 2 November 2015, Lok Sabha MP Dharamvir Gandhi announced that had received clearance from Parliament to table a Private Member's Bill seeking to amend the NDPS Act to allow for the legalised, regulated, and medically supervised supply of "non-synthetic" intoxicants including cannabis and opium.
In November 2016, former commissioner of the Central Bureau of Narcotics, Romesh Bhattacharji said of the law, "This needs to be debated in the face of such stiff ignorance which often takes root in the moral high grounds people take after being influenced by the UN conventions. This law [NDPS Act] has been victimising people since 1985".

Proposal and Enactment

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011 (Bill No. 78 of 2011) was introduced in the Lok Sabha on 8 September 2011 by then Minister of Finance Pranab Mukherjee. The Bill was referred to the Standing Committee on Finance, chaired by Yashwant Sinha, on 13 September. The Committee was scheduled to submit its report within three months, but actually submitted it on 21 March 2012. The Bill was passed by the Lok Sabha on 20 February 2014, and by the Rajya Sabha the next day.It received the assent of then President Pranab Mukherjee on 7 March 2014, and was published in The Gazette of India on 10 March.

Notable Case Laws on this issue

1. In State Vs. Fatima,High Court of Delhi at New Delhi, the impugned judgment convicting the appellant under Section 21(a) of the NDPC Act holding her to be in possession of contraband falling in 'small quantity' which has been arrived at keeping in view the actual content translated into weight of the aforenoted heroin, suffers from no infirmity.The state appeal was dismissed.

2. In Gorakh Nath Prasad Vs. State of Bihar,the Supreme Court Of India observed that the prosecution witnesses being Police Officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself, either with regard to recovery or the seized material being ganja.The appeal was allowed.