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Current status of the narcotic drugs and

psychotropic substances (NDPS) act

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CURRENT STATUS OF THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT

SATYAKAM MOHAPATRA *

*SENIOR RESIDENT, DEPARTMENT OF PSYCHIATRY, MENTAL HEALTH INSTITUTE,

S.C.B. MEDICAL COLLEGE, CUTTACK, ODISHA

ABSTRACT

Substance use is ubiquitous with a range of substances being abused the world over. India has a
large consumer base of different substance abusers. This has serious repercussions in terms of
morbidity & mortality. In India, the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS) provides the framework for drug abuse control in the country. Some anomalies of
NDPS act is rectified by Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011.
This paper critically reviews the initiatives taken so far to control drug abuse in our country.

INTRODUCTION

Drug abuse has become a universal and growing issue of concern to humanity. The illicit drugs
have multiple consequences to health, society and economy. These consequences include health:
mortality, morbidity, psychiatric and physical disorders; social: accidents, absenteeism, family
disintegration, prostitution, organized crime etc; and economic: finances spent on developing
services, drain on national resources, loss of productivity, etc.[1]. This issue is complex and
multifaceted requiring both health measures and efforts to control trafficking/smuggling and
manufacture of illicit drugs. A reduction in the demand of drugs of addiction both legal and
illegal is required. According to estimates made by the Ministry of Health and Family Welfare
(MOH & FW), at least 40 million people throughout the world regularly abuse drugs. In India
too, the problem is increasing and it is estimated that 3 million people are alcohol and other drug
abusers of which 5-6 lakhs are dependent, requiring medical treatment and rehabilitation.

India is the biggest supplier of licit demand for opium required primarily for medicinal purposes.
Besides this, India is located close to the major poppy growing areas of the world, with Golden
Crescent on the Northwest and Golden Triangle on the NorthEast. These make India
vulnerable to drug abuse particularly in poppy growing areas and along the transit/trafficking
routes.

The fast changing social milieu, among other factors, is mainly contributing to the proliferation
of drug abuse, both of traditional and of new psychoactive substances. The introduction of
synthetic drugs and intravenous drug use leading to HIV/AIDS has added a new dimension to the
problem, especially in the Northeast states of the country.

EXTENT OF DRUG ABUSE IN INDIA

In the National Survey on The Extent, Pattern and Trends of Drug Abuse in India, conducted
by Ray R (2004) [2] major findings were that alcohol, cannabis, opium and heroin were major
drugs of abuse, The number of persons requiring treatment was large, drug abuse was seen in
both rural and urban India and Injection Drug Use had been reported from various sites,
including rural India. The duration of drug abuse was long with significant time gap between
onset of drug use and treatment seeking. A large number of drug users engaged in unsafe sex
practices. Congruence between treatment seeking and the extent of the problem in a given state
was lacking with low enrollment in treatment.

LEGISLATIVE POLICY OF INDIAN PARLIAMENT ON DRUG ABUSE

India's approach towards Narcotic Drugs and Psychotropic Substances is enshrined in Article 47
of the Constitution of India which mandates that the 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. The statutory control over narcotic drugs was exercised in India
through a number of Central and State enactments. The principal Central Acts, namely, the
opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted long
time ago. With passage of time and the developments in the field of illicit drug traffic and drug
abuse at the national and international level, many deficiencies in the laws that have come into
force under the aforesaid Acts. As a result to provide a comprehensive legislation on narcotic
drugs and psychotropic substances which, inter alia, should consolidate and amend the then
existing laws relating to narcotic drugs, make provisions for exercising effective control over
psychotropic substances, make provisions for the implementation of international conventions
relating to narcotic drugs and psychotropic substances, the Narcotic Drugs and Psychotropic
Substances Bill 1985 was enacted on 16th September, 1985, and the Act is popularly known as
(NDPS Act). [3]

NDPS act is an act to consolidate and amend the law relating to narcotic drugs, to:

1. Make stringent provisions for the control and regulation of operations relating to narcotic
drugs and psychotropic substances.

2. Provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs
and psychotropic substances.

3. Implement the provisions of the International Conventions on Narcotic Drugs and

Psychotropic Substance and for matters connected therewith.

COMPONENTS OF NDPS ACT

The act as originally passed in 1985 was spread over six chapters comprising 83 sections. After
being amended by the narcotic drugs and psychotropic substances (amendment act), 1988 with
effect from 29-5-1989, [4] the act now contains eight chapters.

CHAPTER I

Section 2 of the act defines 36 terms [sub sections (i) to (xxix), (viia-d), (viiia), (xxiiia), and
(xxviiia)]. Some of the important definitions under this act include:

1. Addict as a person who has dependence on any narcotic drugs or psychotropic substance.

2. Narcotic drug as coca leaf, cannabis (hemp), opium, poppy straw and includes all
manufactured goods.

3. Psychotropic substance as 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
(n=110).

4. Controlled substance means any substance with possible use in the production or
manufacture of narcotic drugs or psychotropic substances or to the provisions of any
international convention. The Central Government has so far notified Acetic Anhydride, N-
Acetylanthranilic acid and Pseudoephedrine as controlled substances.

CHAPTER II

Section 4 authorizes the central government to take measures necessary to prevent and combat
drug abuse and illicit trafficking, including identification, treatment, education, aftercare,
rehabilitation and social reintegration of addicts. Subsection 3 of section 4 also authorizes the
central government to constitute an authority or hierarchy of authorities for the purposes and
objectives mentioned in details in the different subsections. Section 6 empowers the central
government to constitute an advisory committee called The Narcotic Drugs and Psychotropic
substances Consultative committee to tender advice on matters referred to it.

CHAPTER IIA

This chapter was added by the 1989 amendment to constitute a fund to be called the National
Fund for Control of Drug Abuse with government and public contributions and also with the
sale of proceeds of forfeited property derived from or used in illicit traffic with action predicated
on criminal conviction.

CHAPTER III

The act empowers Central Government to permit and regulate by rules (i) the sale of opium and
opium derivatives from the Central Government Factories for export from India or sale to State
Government or manufacturing chemists; (ii) the manufacture of manufactured drugs, not
including manufacture of medicinal opium or any other preparation containing manufactured
drug from materials which the maker is lawfully entitled to possess.

The State Government may by rules permit and regulate (i) the cultivation of

cannabis plant, production , manufacture, possession, transport, import inter-State, export inter-
State, sale, purchase and consumption of cannabis (Except Charas); (ii) The manufacture of
medicinal opium or any preparation containing the manufactured drug from materials which the
maker is lawfully entitled to process; (iii) the sale of opium and opium derivatives from the
Central Government Factories for export from India or sale to State Government or
manufacturing chemists;( iv) the manufacture and possession, of prepared opium from opium
lawfully possessed by an addict registered with the State Government on medical advice for his
personal consumption.

CHAPTER IV

Chapter IV, (Sections 15 to 40) sets out the penalties for offences under the Act. These offences
are essentially related to violations of the various prohibitions imposed under the Act on the
cultivation, production, manufacture, distribution, sale, import and export etc. of narcotic drugs
and psychotropic substances. All these offences are triable by Special Courts and the
punishments prescribed range from imprisonment from 10 to 20 years for first offences to 15 to
30 years for any subsequent offences together with monitory fines.

The Act was amended in May 1989 to mandate the death penalty for second offences relating to
contraventions involving more than certain quantities of specified narcotic drugs and
psychotropic substances.

The Act, however, makes a distinction between possession for personal consumption and
trafficking, the punishment for the former being limited to between six months and one year
only. The application of this provision is subject to the qualification that the quantity of the drug
involved in the offence should be a small quantity as specified by the Central Government.
Drug Quantity and Punishment

Small Commercial
Quantity Quantity
Rigorous
Heroin 5mg 250gms
Maximum of 6 imprisonment
months from 10years
Opium 25mg rigorous 2.5kgs (min.) to 20 years
imprisonment (max.) & a fine
or a fine up to from Rs 1 lakh to
Morphine 5mg 250gms
Rs. 10,000 or 2 lakhs.
Both.
Ganja 1000mg 20kgs

Charas 100mg 1kg

Cocaine 2mg 100gms

Methadone 2mg 50gms

Amphetamine 2mg 50gms

LSD 0.002gm 0.1gm

Punishment for cultivation of any cannabis plant and also for coca plant and coca leaves is
rigorous imprisonment up to ten years and also fine up to 1,00,000 rupees. Punishment for
consumption of any narcotic drug or psychotropic substance like cocaine, morphine, diacetyl-
morphine or any other narcotic drug or any psychotropic substance specified by Central
Government by Gazette Notification is rigorous imprisonment for a term up to one year or fine
up to 20,000 rupees or both. Punishment for consumption of any narcotic drug or psychotropic
substance other than mentioned is rigorous imprisonment for a term up to six months or fine up
to 10,000 rupees or both. For second and each subsequent offence, punishment is rigorous
imprisonment for a term, which may extend to one half of the maximum term of imprisonment
and also fine up to one half of the maximum amount of fine.
CHAPTER V

Chapter V of the NDPS Act (Sections 41 to 68) sets out the powers as well as the procedures for
the investigation of offences under the Act.

CHAPTER VA

A new Chapter, Chapter V-A, was introduced into the Act in May 1989 to provide for the
investigation, freezing, seizure and forfeiture of property derived from or acquired through illicit
trafficking in narcotic drugs and psychotropic substances. This Chapter prohibits any person
from holding any property derived from drugs trafficking and authorizes officers empowered
under the Act to investigate, identify and seize such property.

CHAPTER VI

Under section 70 central and state governments should have regard to international conventions
while making rules. Section 71 of this act, empowers government to establish centers for
identification, treatment, education, after care, rehabilitation, social reintegration of addicts and
for supply, of any narcotic drugs and psychotropic substance (as prescribed by concerned
Government) to the addicts registered with government and to others where such supply is a
medical necessity.

POSITIVE ASPECTS OF NDPS ACT

(1) An interesting feature of the act is that the procedure of addition and deletion from the
lists of manufactured drugs (narcotic drugs) and psychotropic substances have been made very
simple. No formal bill or amendment is required for the purpose, and the government has been
empowered to do such changes through simple notifications in the official gazette on the basis of
available information or a decision under any international convention (sections 2.b) and 3).

(2) In terms of subsection 3 of section 4, the Narcotics Control Bureau was set up by the
Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally.
The NCB basically functions as national coordinator international liaison and as the nodal point
for the collection and dissemination of intelligence and assures coordinated implementation
within the parameters of a broad national strategy.
(3) The Narcotic Drugs and Psychotropic substances Consultative committee makes
significant contributions in shaping and developing a national policy and strategy and also in
matters of amendments under section 2.b and 3 for scheduling addition or deletion of drugs and
substances for legal regulation and control. The committee also provides valuable inputs for
Indias contribution to the molding of international policy and programs.

(4) A reassessment of the Act in 2001 resulted in amendments relating to the length of
imprisonment and the quantity and type of drug seized. This ensured that, where traditional drugs
are concerned, only individuals with large quantities of cannabis can be arrested for drug
trafficking and face imprisonment. Further changes in the law in 2002 created two categories that
are based on quantity seized. These were defined as small quantities and commercial quantities.

(5) Section 31A states that any person convicted by a competent court of criminal
jurisdiction outside India under any corresponding law shall be dealt with as if he has been
convicted by a court in India. Thus international criminals are also dealt with effectively.

(6) An addict convicted under section 27 may be released on probation under section 39 after
signing a bond with or without sureties, for detoxification or deaddiction from a hospital or an
institution maintained or recognized by the Government. The conviction would stand and the
sentence remains in abeyance to enable him to report back on successful completion of
deaddiction treatment within one year. The court may direct the release of the offender after
successful completion of deaddiction treatment and abstaining from the commission of any
offence under Chapter IV for three years. On failure to do so, he would have to serve the
sentence.

(7) The power to issue search and arrest warrants, has in terms of Section 41 been vested
both in Magistrates as well as in specially designated (Gazetted) officers of the Central and State
Governments. This is designed to ensure both timely and effective action in response to any
information and to obviate the need for judicial satisfaction each time a warrant is required to be
issued.

(8) Under section 64 A, any addict, who is charged with an offence punishable under section
27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who
voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution
maintained or recognized by the Government or a local authority and undergoes such treatment
shall not be liable to prosecution under section 27 or any other section for offences involving
small quantity of narcotic drugs and psychotropic substances. This immunity may be withdrawn
if the addict does not undergo the complete treatment for de-addiction.

(9) Chapter V-A, was introduced into the Act in May 1989 to provide for the investigation,
freezing, seizure and forfeiture of property derived from or acquired through illicit trafficking in
narcotic drugs and psychotropic substances.

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (AMENDMENT)

BILL, 2011

During the implementation of NDPS Act, some anomalies have been noticed. Accordingly the
Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011 aims at rectifying those
anomalies and also making certain further changes to strengthen the provisions of the Act.

Salient features of the Narcotic Drugs and Psychotropic Substance (Amendment) Bill, 2011

i. Defining Central Government Factories [new entry in Section 2]: Even though the term
Central Government Factories is mentioned in certain Sections of the Act, till now it has not
been defined in the Act. It is proposed to define Central Government Factories on the lines of
the definition of Government Company under the Companies Act, so as to allow the Central
Government the flexibility to restructure the Government Opium and Alkaloid Works without
diluting the control over them.

ii. Changing the definition of commercial quantity and small quantity [Section 2 (viia)
& (xxiiia)]: NDPS Act follows a graded system of punishment the quantum of punishment
varies depending on whether the quantity of drug involved in a case is small or commercial
or more than small but less than commercial. It has been held by the Honble Supreme Court
that while determining whether the quantum of drug involved in a particular case is small/
commercial, etc., it is the pure drug content and not the quantity of drug seized, which has to be
taken onto account. Since the drug is almost never seized in the pure form and small and
commercial quantities have been notified for preparations also, it is proposed to empower the
government to notify quantities in respect of preparations of drugs and psychotropic substances
also.

iii. Rationalising the punishment for consumption of morphine, cocaine and heroin [Section
27]: Presently, the consumption of these drugs involves a maximum punishment of 1 year while
trafficking of small quantities of the same attracts maximum punishment of 6 months only. This
anomaly is proposed to be rectified, by reducing the maximum punishment for consumption of
drugs to 6 months.

iv. Repeat offences under the NDPS Act invite a punishment of one and one half times (1.5
times) of the punishment for the first offence. However, this provision has been erroneously
worded as one-half of the penalty for the first offence, instead of one and one half times.
This anomaly is proposed to be rectified.

v. While section 52A of the Act provides for disposal of drugs during trial after due certification
of the inventories of the same by the competent Magistrate, it does not do so for precursors
used in the manufacture of drugs, which are also liable for seizure under the Act or for
conveyances seized. The amendment proposes to allow for pre-trial disposal of precursors and
conveyances also.

vi. Presently, no time limit is prescribed for the investigating officer to look into the illegally
acquired properties of trafficking and report the same to the Competent Authority. Consequently
financial investigations in drug cases have been receiving low priority. It is proposed to make it
mandatory for the investigating officer to make a report of the illegally acquired properties of the
person involved in drug trafficking, to the jurisdictional competent authority within one hundred
and eighty days of the arrest or seizure. [New entry Section 57A]

vii. The Honble Supreme Court has interpreted the present provisions of Chapter VA (including
Section 68B) and held that it is necessary to establish a direct nexus between the properties
sought to be forfeited and the offence committed. It is nearly impossible to prove such a nexus as
the drug traffickers do not keep records of the drugs they sell and the manner in which they
invests the sale proceeds. It is, therefore, proposed to define properties belonging to traffickers,
their relatives and associates, the source of which cannot be proved and the property of
equivalent value, as illegally acquired properties by amending section 68B clause (g).
viii. Insertion of Explanation to Section 68H regarding validity of notice: Section 68H deals
with the issue of a notice for forfeiture of property. As stated above, the Honble Supreme Court
has held that it is necessary to establish a direct nexus between the properties sought to be
forfeited and the offence committed, which is not practically possible. In order to address this
situation, it is proposed to insert an Explanation to section 68H stating that the notice for
forfeiture would not be invalid merely on the ground of failure to establish a nexus between the
property sought to be forfeited and any activity in contravention of the provisions of this Act
(drug trafficking activity).

viii. Legal basis for measures to manage injecting drug users [Section 71]: To minimize risk
to HIV, measures such as needle-syringe exchange and oral substitution are followed. These
measures aim at management of addicts and cannot be strictly called treatment. It is proposed
to include the word management in section 71 so as to provide a firm legal basis to such
measures.

COMMENTS ON THE PROPOSED NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCE (AMENDMENT) BILL, 2011

The NDPS (Amendment) Bill, 2011 seeks to modify a number of provisions of the Act, which
will affect penalties that people who use and are dependent on drugs will be subject to. In
addition, the proposed changes have an important bearing on access to treatment and care for
drug users. Some specific comments on amending clauses:

(1) Amending clause 5, modification in Section 27 Punishment for consumption of any

narcotic drug or psychotropic substance:

The Bill seeks to standardize the punishment for consumption of narcotic drugs and psychotropic
substances to a maximum of 6 months imprisonment and/or fine which may extend to Rs 10,000.
Under the existing Act, punishment for consumption of certain drugs like cocaine, morphine and
heroin is up to 1 year imprisonment and/or fine of Rs 20,000. While the proposed move is a
welcome step as Persons who use drugs, need support and assistance. Punishment is not an
appropriate sanction to drug dependence. It has to be understood that once a person becomes
dependent on drugs, she/he cannot give up without medical help. Punishing a patient is not only
inappropriate but also unhelpful and unjust.
(2) Amending clause 15, Section 71 (1) Power of Government to establish centres for
identification, treatment, etc. of addicts:

Proposed insertion of the term management, after the words treatment, identification is a
welcome step as it is a more accurate description of clinical care for drug dependence. There is
an urgent need to increase the number of government institutions providing drug dependence
treatment as well as to regulate private facilities purporting to provide such services. The
suggested language change will help address both concerns.

SUGGESTIONS FOR AMENDING OTHER PROVISIONS OF THE ACT

(1) Availability of opiates for medical use: Under Section 10 (1) (a) (v) of the NDPS Act, the
purchase, sale, use and consumption of morphine [5] (a cheap and effective opioid used for
alleviation of pain) is vested with the State Governments. Different States have different
regulatory procedures and agencies. Moreover, in some States, multiple licenses are required
to possess, transport, distribute, sell, purchase, use and consume morphine. Morphine has
therefore, remained virtually inaccessible. There is an urgent need to simplify the regulatory
procedure and vest it within a single, preferably Central government agency such as the
Narcotics Commissioner.

(2) Immunity for treatment seekers: Under Section 64A of the existing Act, drug dependent
persons who opt for medical treatment are entitled to relief from prosecution, provided the
charge is that of consumption or involves a minor quantity of drugs. The application of this
clause has been fraught with ambiguities. Immunity has not been granted to most drug
dependent persons, on one or other technical grounds. These include insistence on proof of
addiction, plea of guilt and waiting for framing of charge. This has resulted in undermining
the legislative intent of the section, which is to discourage criminalization of drug dependent
persons and encourage treatment seeking. Section 64A requires urgent legislative attention
and reform.

(3) Mandatory capital punishment: Section 31A of the NDPS Act prescribes a mandatory
death sentence for certain drug offences upon subsequent conviction. The death sentence is
mandatory in that there is no punishment laid down in Section 31A other than death and the
alternative of sentencing the repeat offender under Section 31 is foreclosed by the non-
 obstante clause in Section 31A. But in 1983 the Supreme Court of India declared mandatory
capital punishment as unconstitutional. In a recent decision, [6]. the Bombay High Court
applied the same principle and held Section 31A of the NDPS Act to be violative of Article
21 of the Indian Constitution. The NDPS (Amendment) Bill, 2011 ignores the basis of
invalidity of Section 31A as pointed out by the Constitutional Court. The Government has
neither abolished nor amended Section 31A in the NDPS (Amendment) Bill, despite the
findings of the Bombay High Court on its constitutional validity. This disregard of judicial
orders merits attention of the Standing Committee.

CONCLUSIONS

The last 27 years have seen rapid growth in the combat against drug dependence especially the
areas of policy formulation and growth of infrastructure. This is commendable. What now
remains to be seen is the effectiveness and impact of the various measures initiated. It is
imperative to have evaluation and subsequent modifications of plans and policies based on
effective research. Without any systematic evaluation, plans would be just that - plans.

REFERENCES

1. Malhotra,A., Mathur.R.S., Basu.D. & Mattoo,S.K. (1997) Primer of addiction Drug

deaddiction and treatment centre. Postgraduate Institute of Medical Education and
Research, Chandigarh.

2. Ray R, editor. The extent, pattern and trends of drug abuse in India-National survey.
Ministry of Social Justice and Empowerment, Government of India and United Nations
Office on Drugs and Crime. 2004. Available from:
www.unodc.org/India/Indianationalsurvey 2004.html, accessed on June 13, 2012.

3. Published in the Gazette of India, Extraordinary, Pt. II, Sec. 1, No. 75, dated 16th
September, 1985.

4. Act 2 of 1989 enforced w.e.f. 29th May, 1989, Published in the Gazette of India
Extraordinary, Pt. II, Sec. 2, No. 59, dated 6th December, 1988, vide S.O. 379 (E), dated
 29th May, 1989, published in the Gazette of India, Extraordinary, Pt. II, Sec 3 (ii), No.
300, dated 29th May, 1989.

5. Morphine is classified as an opium derivative, a manufactured drug and a narcotic drug

under Sections 2(xvi), (xi) and (xiv) respectively of the NDPS Act, 1985.

6. Bombay High Courts decision dated 16 June 2011 in Indian Harm Reduction Network v
Union of India [Criminal writ petition No. 1784 of 2010.

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