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Introduction

“Drugs takes you to hell, disguised as heaven”- Donald Lyn Frost

The earliest reference to opium use and growth is 3400 B.C. in Mesopotamia. The Sumerian
called the plant the ‘joy plant’. As the knowledge to produce opium reached far from the place
of origin, people realised the power opium possess. Its cultivation spread along the Silk Road,
from the Mediterranean through Asia and finally to China where it was the catalyst for the
Opium Wars of the mid-1800s. The use of opium in India traces back to 1000 A.D. which at
that time was used for treatment of various ailments. During the Mughal period opium was
extensively produced in Malwa (M.P.) and Mewar (Rajasthan) region.

Opium like colonialism is a sensitive issue. Each society and culture has drugs of choice that
have been assimilated to its cultural practices. Throughout 19th Century opium was sent to
China, which later became India’s most valuable export1. In 1797, Lord Cornwallis abandoned
its practice of using private contractors to work the official monopoly on the export of opium.
Only licensed cultivators could grow poppy. By 1830 the East India Company had also devised
a stable arrangement for western India whereby peasant cultivators in land-bound Indian
princely states could grow poppy for export by sea to the far eastern market. The revenue
flowing into the coffers of the Government of India from the sale of these grew steadily
throughout the 19th Century.2 At this the conditions of the poppy farmers deteriorated, and the
tension erupted between local zamindars and the colonial authorities. Therefore in order to
form a complete control of private cultivation of opium poppies and free trade of opium poppy
Government adopted the Opium Act 1857 and Opium Act 1878. The imperial acts were of
double standards as they allowed the imperial authorities to appropriate from the state run
revenue monopoly.

In 1923, India participated in the second International Opium Conference at Geneva and on
19th February 1925 adopted the conventions related to Dangerous Drugs. India was a State
signatory to the said Geneva Convention. Contracting Parties to the said Geneva Convention
resolved to take further measures to suppress the contraband traffic in and abuse of Dangerous

1
David Mansfield. "An analysis of licit opium cultivation: India and Turkey". Retrieved 2009-03-16
2
J. F. Richards, 'Indian Empire and Peasant Production of Opium in the Nineteenth Century,' Modern Asian Studies
13 (1981): 59-82
Drugs, it is also expedient that the penalties for certain offences relating to Dangerous Drugs
should be increased, and that all penalties relating to certain operations should be rendered
uniform throughout the Union of Burma.

Before 1985 India didn’t had any legislation related to narcotics. Smoking Cannabis in India
dates back to 2000 B.C.3 Cannabis and its derivatives were sold in India without any
restrictions. Consumption of Cannabis was not seen as a socially deviant behaviour. Therefore
in order to strengthen and amend the laws relating to narcos, to make firm provisions for the
control and regulations of operations relating to narcotics and psychotropic drugs and to
implement provisions of the International Convention on Narcotic Drugs and Psychotropic
substances, the parliament of India enacted the Narcotics Drugs and Psychotropic substances
Act in 1985. This act was enacted with a view to make strong provisions for the control and
regulation of operations relating to narcotic drugs and psychotropic substances.4 There was a
sense that the previous central enactments (Opium Act 1857, Opium Act 1878 and Dangerous
Drugs Act 1930) were less effective and partially ineffective.
Prior to 1950, the administration of the Narcotics Laws, namely, the Opium Act of 1857 &
1878 and the Dangerous Drugs Act 1930 vested with the Provincial Government. The
amalgamation of these Agencies laid the foundation of the Opium Department in November,
1950 which is presently known as Central Bureau of Narcotics (CBN). The headquarters of
Central Bureau of Narcotics was shifted from Shimla to Gwalior in 1960.5 Some of the
responsibilities of the CBN are:
1. India is a signatory to the UN Convention on Narcotic Drugs 1961, UN Convention on
Psychotropic Substances 1971 & UN Convention against the Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988 which obligates member countries to monitor
the implementation of the United Nations drug control conventions. CBN interacts
with the International Narcotics Control Board, Vienna and the Competent Authorities
of other countries to verify genuiness of the transaction prior to authorizing the
shipments.
2. Issuance of Export Authorisations/ Import Certificate for export/ import of Narcotic
Drugs and Psychotropic Substances6
Central Bureau Of Narcotics is responsible for implementations of the provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985.

3
P. Ram Manohar, "Smoking and Ayurvedic Medicine in India" in Smoke, pp. 68–75
4
State of Rajasthan Vs Udai Lal, (2008) 11 SCC 408
5
http://cbn.nic.in/html/aboutcbn.htm
6
Ibid 5
Provisions of the Act

This Act is the prime provision of the Government to combat the menace of Drugs. The act
extends to the whole of India7. The schemes of penalties sufficiently deterrent to meet the
challenge of the well organised mafias and it provides various central drug enforcement
agencies powers to investigate. Code of Criminal Procedure in various provisions, specifically
section 96-103 and section 165 recognises the need and usefulness of search and seizure during
investigation8. The Narcotic Drugs and Psychotropic Substances Act, 1985 has a well established
search and seizure steps embedded in it. Section 50 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 prescribes the conditions under which search of a person shall be conducted. Section 50
ensures that the persons are only search with a good cause9.

Authorities and officers


Section 4-7 deals with the authorities and officers for combating the menace of the prohibited
substances under this act. Section 4 makes the central Government responsible for preventing
and combating abuse of and illicit traffic in narcotic drugs. The Government is under
obligations under various international Conventions, it also makes provision for identification,
treatment, education, after care, rehabilitation and social re-integration of addicts, the 2014
amendment seeks to strengthen existing provisions pertaining to the establishment and working
of centres for the identification and treatment of addicts. Section 5 of the Act provides that
there should be a Narcotics Commissioner who would be appointed by the Government and
should appoint such officers with such designations as it thinks fit for the purpose of this Act.
Currently the Narcotics Commissioner is Mr. Rajesh Puri10. Section 7-A provides that the
Central Government may constitute a Governing body as it thinks fit to advise that
Government and to sanction money out of the said fund subject to the limit notified by the
central Government in the official Gazette11.

7
Ins. By Act 9 of 2001, sec. 2 (w.e.f. 2-10-2001)
8
Surendra Malik & Sudeep Malik, Supreme Court on Narcotics and Drugs, pg. 08 (1st ed. 2011)
9
Karnail Singh Vs State of Haryana, (2009) 8 SCC 539: (2009) 3 SCC (Cri) 887
10
Supra 5
11
Subs. By Act 9 of 2001, S.4 (w.e.f. 2-10-2001)
Prohibition, Control and Regulation
Chapter 3 of the Narcotic Drugs and Psychotropic Substances Act, 1985 comprising of section
8-14 deals with Controlling and regulating the use and production of certain substances and
prohibits the general use of them. Section 8 provides that no one can cultivate, manufacture,
possess, purchase, transport, warehouse, import, export etc. Except for medical reasons or
scientific reasons in the manner and to the extent provided by the provisions of this Act or the
rules or orders made there under and in a case where any such provision, imposes permit or
license is required. Section 9 defines the power of central Government to permit, control and
regulate sale, manufacture, cultivation, import-export Narcotic Drugs and Psychotropic
Substances12. It is also held that if two views are possible then the benefit of doubt should be
given to the accused13

Offences and Penalties


Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that under
this act the Government for the purpose of speedy trail can constitute as many Special Courts
as may be necessary for such areas as may be specified in the notification. A special court shall
consist of a single judge who shall be appointed by the Government with the concurrence of
the Chief Justice of the High court. Section 36-B provides the high courts powers to appeal and
revision if a special court within the local limits of the jurisdiction of the High Court were a
court of session trying cases within the local limits of the jurisdiction of the High Court, the
powers are conferred by Chapters 29 and 30 of Code of criminal procedure, 1973. Section 37
provides that every offence punishable under this act shall be cognizable14.

Stringent punishments are provided for commission of any offence provided in the Act.
Punishments are provided for procurement or dealing with any substances such as poppy straw,
coca plant, coca leaves, prepared opium, opium poppy, opium, cannabis plant, cannabis,
manufactured drugs and its preparations and psychotropic substances as defined in the Act.
Punishments are progressive in nature for most of these substances defined in relation to small
quantity, commercial quantity and any quantity between small and commercial quantity. This

12
Dr. M.C. Mehanathan Law on Control of Narcotic Drugs and Psychotropic Substances in India Pg. 37 (3rd edition, 2015)
13
. Dilip Vs State of M.P., (2007) 1 SCC 450: (2007)1 SCC (Cri) 377: AIR 2007 SC 369
14
Ibid
quantity for each substances is specified by the government by the notification in the Official
Gazette15. The quantity ceiling of some of the substances is the following-

A. Amphetamine: small quantity – 2 grams, commercial quantity – 50 grams.

B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.

C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.

D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.

E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.

F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.

G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg

Punishments are also provided for embezzlement of opium by cultivator, illegal import/export,
external dealings or consumption of narcotics substances and psychotropic substances,
allowing premises to others for commission of offence, financing illicit traffic and harbouring
offenders16. Other provisions also provide for attempts to commit offences, abetment and
criminal conspiracy. Punishments range according to the nature of crime and may vary for
imprisonment for a term from six months to twenty years and fine from ten thousand rupees to
two lakhs rupees. In case a person is convicted of the same offence provided in the Act, the
person’s term may be extended to one-half of the term and fine up to one-half of the originally
provided. Death penalty may also be given in cases of certain offences if a person is again
convicted after previous convictions.

However, it is felt that the awarding of same punishments for different intensity of crimes were
felt to be unreasonable. For example, awarding of same punishments i.e. 7 years for dealing
with ganja, LSD and cocaine can’t be equivocated. Consumption of ganja is less risky than
that of cocaine and LSD. The effects of cocaine and LSD are very detrimental as compared to
ganja. Therefore, the same punishment for both the substances isn’t justified.

15
Dr. M.C. Mehanathan Law on Control of Narcotic Drugs and Psychotropic Substances in India Pg. 77 (3rd edition, 2015)
16
Surendra Malik & Sudeep Malik, Supreme Court on Narcotics and Drugs, pg. A-68 (1st ed. 2011)
Procedure
Section 42 provides power of entry, search, seizure and arrest without warrant or authorisation.
The officer is backed by the state Government. If he has a reason to believe from personal
knowledge or information given by any person and taken down in writing that a narcotic drug
in respect of which an offence punishable under this Act has been committed, he can enter,
search, seize and detain the person17. If two views are possible benefit of doubt should always
be given to the accused18. Section 50 of the Narcotic Drugs and Psychotropic Substances Act,
1985 prescribes the conditions under which search of a person shall be conducted. Sec. 50 of
the Act gives the accused the right to be searched in the presence of the magistrate or a
gazetted officer19. Section 68-J provides that the burden of proof that any property specified in
the notice served under section 68-H is not legally acquired property shall be on the person
affected.

International Scenario

The story of the legendary Columbian drug lord Pablo Emilio Escobar Gaviria is well known to
the world of narcotics. At his peak he controlled almost 80% of the total cocaine industry of the
world20. He was the supreme reason of Miami turning into the drug capital of U.S.A. His
emergence to the scene made U.S.A. restless and it used every authority written in the book or
not in it to formally make an extradition agreement with Columbia. These few years led to
more stringent laws against the Narcos in the international ambit. Formal talk on drug
enforcement was getting priority throughout the world as the menace was taking shape of a
giant monster. US President Richard Nixon at that time used the term “War on drugs” for the
first time. The international Opium conference of 1925 took the first step to codify laws related
to narcotics, then the need for more laws was felt and thus many conventions, protocols were
ratified by various nations.

17
Surendra Malik & Sudeep Malik, Supreme Court on Narcotics and Drugs, pg. A-47 (1st ed. 2011)
18
Dilip vs State of M.P., (2007) 1 SCC 450: (2007) 1 SCC (Cri) 377: AIR 2007 SC 369: 2007 Cri LJ 880
19
State of Punjab V. Balbir Singh 1994 AIR 1872
20
"Pablo Escobar Gaviria – English Biography – Articles and Notes". ColombiaLink.com. Archived from the original on November 8, 2006.
Retrieved 2011-03-16
The International Narcotics Control board was established in 1968 by the Single convention on
drugs 1961. The functions of INCB are laid down in the following treaties: the Single
Convention on Narcotic Drugs, 1961; the Convention on Psychotropic Substances of 1971;
and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances of 1988. The body regulates, maintains and administer the manufacture, sale of the
narcotics and monitors and analyse the product in the world in different places, it checks the
trafficking and use of narcotics around the world, In order to further the aims of the treaties, the
Board maintains ongoing discussions with Governments, The Board has repeatedly stressed
that real and lasting progress in the fight against drug abuse and trafficking depends on the
strong commitment of Governments.21

United Nations Offices Drugs and Crimes is a global body of United Nations which is leader in
the fight against illicit drugs and international crime. Established in 1997 through a merger
between the United Nations Drug Control Programme and the Centre for International Crime
Prevention, UNODC operates in all regions of the world through an extensive network of field
offices. It tackles organised crimes, corruption leading to trafficking it also ensures Crime
prevention and Crime justice system.22

United States of America

The United States has perhaps the world’s most stringent standards for approving new drugs.
Drug approval standards in the United States are considered by many to be the most demanding
in the world. The definition of drug in the Federal Food, Drug and Cosmetic Act of U.S.A is
"articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease
in man or other animals" and "articles (other than food) intended to affect the structure or any
function of the body of man or other animals”23. With Stringent laws, U.S.A has a well
established Drug Enforcement Agency or DEA, which has a duty to enforce the controlled
substances and bring to the criminal and civil justice system of the U.S.A. Its main aim is to
reduce the availability and consumption of illicit controlled substances on domestic and
international markets24. DEA Operations stripped drug traffickers of nearly $1.9 billion in drug
proceeds. This includes $1.4 billion in asset seizures and $477 million in drug seizures.

21
https://www.incb.org/incb/en/about/mandate-functions.html
22
https://www.unodc.org/unodc/en/about-unodc/index.html?ref=menutop
23
Section 321, Federal Food, Drug and Cosmetic Act, 1938
24
https://www.dea.gov/about/mission.shtml
Investigations that began as “following the money” led to the seizure of 947 kilograms of
cocaine, 21,650 pounds of marijuana, and 7 kilograms of heroin25.
One of the Major accolades of the DEA is their operation against the Cali Cartel, the seven top
Cali mafia bosses have been arrested by or have surrendered to Colombian authorities26.

Enforcement

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is criticized as one of
the harshest laws in the country. The minimum sentence for drug dealing is rigorous
imprisonment for 10 years and a fine of Rs 1 lakh in contrast with punishment for rape and
human trafficking which stands at seven years imprisonment. Bail is also rejected at the mere
name of narcotic or psychotropic substances. The law bars suspension, remission or
commutation of any sentence passed, foreclosing all relief. In prison, drug convicts are labelled
a “dangerous breed” and treated more harshly than rapists and murderers.

The Act lays down the burden of proof on the person under whose custody substances related
to drugs were found27. This goes against the basic principle of criminal law that an accused is
innocent until proven guilty.

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. Sections like these will ensure corrective steps especially for people who are
involved in petty matters. The power to issue search and arrest warrants, has been vested both
in Magistrates as well as in specially designated (Gazetted) officers of the Central and State

25
https://www.dea.gov/pubs/pressrel/pr122805.html
26
"History of the US Customs Service Investigation into Colombia's Cali Drug Cartel and the Rodriguez-Orejuela Brothers". United States
Customs Service
27
Section 68-J, Narcotic Drugs and Psychotropic Substances Act, 1985
Governments. This will again ensure timely action whenever a warrant is required to be issued
by judicial body.

Effectiveness The Act has served to be a great boon in India when it was enacted in 1985.
There were emerging cases of drug dealers and traffickers in both national and international
scenario in the 1980s. The Act had protected the nation when it was on the verge of getting into
the clutches of drug dealers and other related substances. The Act has given power to the
government to add or remove any substance from the list of narcotics drugs and psychotropic
substances by passing a notification in the Official Gazette. This has eased the procedure as no
bill or amendment is required to be passed by the government for the purpose. Narcotics
Central Bureau has been made to implement the provisions of the Act and catch the offenders
swiftly. Leaving this task to ordinary police officers would not have served the purpose as
offenders are very cautious of policeman and extra intelligence is required for them to be
caught. The Act has laid down stringent punishments for the wrongdoers and imposed
minimum punishment of 10 years term and fine of 1 lakh rupees. Punishments like these will
dissuade a person from committing such offences and repeating the same offence as it will lead
to enhanced and harsher punishment. The division into small, medium and commercial
quantities will further rationalize the awarding of punishments according to the quantity of
drugs seized and heavier punishments will be provided only to the culprits convicted of drug
trafficking

Punjab
Punjab is ranked 2nd in terms of NDPS cases with 14,483 registered cases in 201428. The
implementation of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the state is
very poor. The pervasive use of narcotics in the state is spreading its tentacles among the
youth. Infact, according to a survey 76% of the drug addicts in the state are between the age
group of 18-35 years and 89% of the addicts are literate29. The Narcotic Drugs and
Psychotropic Substances Act, 1985 pose considerable strict laws against narcotics but
corruption and carelessness play an important role to nullify it. Punjab Police is ranked 1st
when it comes to help convicts to escape prisons30. Heroin is the most commonly used drug

28
Ari. Maninder Dabas, reality of the Punjab drug crisis The Reality Of The #PunjabDrugCrisis Is Exactly Why We Should Not Be Censoring
Udta Punjab, India times, June 08 2016.
29
Ibid
30
Ari. Jupinderjit Singh, With 14,483 NDPS cases, state at No. 2 in country, The Tribune, 21st Aug 2015
which shares 53% of the total drugs consumed in the state. Chitta is a drug for those who aren’t
so financially strong31.

Seeing the scenario moving towards a catastrophic end Punjab Government is seeking to form
an agency which would solely be responsible for NDPS cases. It would be constituted under
the chairmanship of Additional Director-General of Police (Crime), and would have all Zonal
Police Commissioners as its members and DIG (Crime) as member Secretary32. The main
problem in Punjab Crisis is addiction, the NPDS checks the trafficking of narcotics in the
Indian territory and control the manufacture but one of the main concern is cross-border
trafficking. As Punjab share a 553km long border with Pakistan through which heroin is
apparently channelled from Afghanistan33. The Government has set up many rehabilitation
camps across the country under the said act and there has been a prodigious drop in arrest
under the NDPS act in 2014-15 year due to a strong de-addiction campaign across the country.

Maharashtra
Maharashtra ranks 1st in the GDP contribution, making it the richest state in the country but it
is placed on the zenith of another chart which is of highest number of registered drug addict34
and deaths due to drug abuse, but luckily it also has the highest number of applicants for drug
de-addiction almost 44,000 between 2007 and 201035. 77.5 cases per one lacs Mumbai are
registered under the act, the highest under NDPS. The all-India average for the year 2014 was
12.4. Maharashtra also is placed at a high rank in people committing suicide from drug abuse.
The state Government always pose a plea that they are not provided with adequate funds from
the Centre to combat crimes related to narcotics. Maharashtra police in order to combat the
drug menace have formed a special task force under the affiliation of NDPS act. The task force
was constituted on 24th October, 2005. The task force will follow the example of the Drug
Enforcement Administration (DEA) of U.S.A.

31
Ibid 25
32
Ari. Punjab govt. to form agency for supervising NDPS cases, The Hindu, 15th May 2015
33
Ari. Neha Singhal and Sumathi Chandrashekaran Punjab and impending doom: Drug abuse and related crimes have spread across all
districts, The times of India, 23rd June 2016
34
Ari. Nidhi Sharma by ET Bureau Maharashtra tops death due to drug abuse, 22nd July 2016
35
Ari. Kartikeya Maharashtra has highest no of registered drug addicts, 10th March 2010
Criticisms

Though the stringent laws in the NDPS Act are appreciated, however the Act suffers from
various criticisms.

The clause enabling death penalty is severely criticized because of its application in this Act.
The awarding of death penalty is against International human rights standard as it considers
death penalty to be having ‘no place’ in the 21st century.36 It also violates constitutional
principles which say that it should only be provided against the rarest of rare crimes and most
serious crimes. Drug offences do not meet the criteria and hence capital punishment should not
be allowed.

On the flip side, the amendment has increased the punishment for small quantity offences from
a maximum of 6 months to 1 year imprisonment. Consumption of drugs continues to be
punishable. This is regrettable as Parliament had the opportunity to review and reform punitive
provisions against people who use drugs. In the last decade or so, a growing number of
countries have moved towards the full decriminalization of use and possession of drugs, with
no reported negative consequences on individuals and society. Some are boldly creating
legalized markets for the distribution, sale, possession and use of certain drugs. The NDPS
amendments seem regressive and out of step, against the current of international drug policy
reform.

Some of the criticisms are severe and need to be addressed in order to restore the faith of the
people in the fair principles of law laid down by the government. There are not much debates
happening in this field and therefore emphasis should be laid down to bring these criticisms
into the arena where it could be heard by the concerned authorities.

36
Maria Donatelli ‘World’s nations call for execution freeze’ World Coalition against the Death Penalty, December 20th, 2012 available at
< http://www.worldcoalition.org/United-Nations-UN-General-Assembly-vote-moratorium-resolution.html>
Conclusion

In an interview renowned British actor Russell Brand commented about his recovery from
drugs as “It’s difficult to believe in yourself because the idea of self is an artificial construction.
You are, in fact, part of the glorious oneness of the universe. Everything beautiful in the world
is within you.” Drugs can negatively affect all important aspects of a man’s life like family,
friends and place a heavy burden on the Indian Community. The percentage of drug addicts in
our country is rising with each passing year. Our country has some draconian laws to combat
with the ever rising menace of drugs, but the complete eradication of this demon is not possible
unless people make themselves aware to the catastrophic effects of these. The administrative
and legislative setup of the Narcotics drugs and Psychotropic Substances Act, 1985 has been
put in place in the country in accordance with the aforesaid spirit of the UN Conventions. It can
easily be derived that drug-dependence and crime go hand in hand. Data tabled before the
Rajya Sabha on Thursday during the ongoing Monsoon session of the Parliament showed that
India records about 10 suicides/ day due to drug or alcohol addiction. Narco-terrorism which is
a multi-dimensional phenomenon is a growing menace to the nation. Illegal drug business is
having three sides: production, trafficking and consumption. The present study has established
the relationship between drug production, abuse, trafficking, money laundering and Narco-
terrorism. To prevent the resurgence of such cultivation, Government may adopt effective
means; for example, by providing legitimate sources of livelihood for the farmers in question,
in addition to intensifying law enforcement action. Government must be alert against the
danger of illicit production of opium and its diversion. Mumbai has been the drug capital of the
country for the last 3 decades, many dealers are caught each year but the inflow of the poison is
still the which helps us to draw a conclusion that that the mastermind remains far way, those
apprehended are low-level operatives and that they have no clear idea about their ultimate
master. It is the high time that the Government should apply some zero tolerance of corruption
policies to place transparency of enforcement and curb this menace as the Narcotics drugs and
Psychotropic Substances Act, 1985 have placed strict laws against the narcotics world but it
depends mutually upon the Government and the citizen of the country how to fight against it.