The Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act 1985)

Narcotic drugs and psychotropic materials have been a menace to any civilized society. When addicted to them it corrupts the user’s mind and he transforms into a different personality.

Its use invigorates the criminality and aggressive behaviour in the user. Especially the younger generation who are the targets of the drug peddlers are easily compromised. They are then made to act to the tune of the bigger wolves who control the drug mafia and finally transform into mere tools in their hands made to commit offences of varied nature which affects the very peaceful existence of the society.

The preamble of the NDPS Act 1985 reads as follows:

An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances 1 [, 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 matters connected therewith.

The NDPS Act 1985 was enacted with an intention to curb the use and sale of Narcotic and Psychotropic substances which has been scheduled and defined in the Act. The NDPS Act 1985 has applicability all over India and to all citizens who are in India or outside India, and to all citizens in a ship or aircraft registered in India

Important Definitions under the NDPS Act 1985

Section 2(i) Addict : means a person who has dependence on any narcotic drug or psychotropic substance. Thus any person who depends on and uses the narcotic drugs and substances shall be deemed to be an addict.

Section 2 (iii) defines 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 any drink prepared there from;

(iv) “cannabis plant” means any plant of the genus cannabis;

 

Section 2(v) defines coca derivatives. (v) “coca derivative” 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;

Section 2(vi) and Section 2(vii) defines coca leaf and coca plant respectively.

Section 2(vii(b) defines what is controlled delivery to constitute a punishable offence under the NDPS Act 1985. (vii( b) “controlled delivery” means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision of an officer empowered in this behalf or duly authorised under section 50A with a view to identifying the persons involved in the commission of an offence under this Act.

And controlled substance has been defined as follows: Section 2[(vii(d)] “controlled substance” 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 substance.

The next definition is important as it provides what is illicit traffic in drugs and similar substances.

Section 2(viii(b)]” illicit traffic”;, in 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 authorisation issued, there under, 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 afore-mentioned activities.

Opium and Opium derivatives have been defined under Section 2(xv) and (xvi).

However medicinal opium has been differentiated by the NDPS Act 1985 which are used for medical purposes.

The NDPS Act 1985 also provides for omission or addition of a particular substance classified as Narcotic drug or psychotropic substance under the Act. Under Section 3.

The controlling authorities have been appointed by the Central Government and also a consultative committee to decide upon any matter pertaining to the Act under Section 6.

Section 8 of the NDPS Act 1985 prohibits a person from doing the following:

No person shall— (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship 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 there under and in a case where any such provision, imposes any requirement by way of license, permit or authorisation also in accordance with the terms and conditions of such license, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

Section 8 A includes the properties derived from committing an offence under the NDPS Act 1985.

Section 9 and 9A deals with the powers to control and regulate the controlled substances under the NDPS Act 1985.

Section 11 provides that No narcotic drug or psychotropic substance shall be liable to distress attachment for recovery of any money under any civil or criminal proceedings.

Chapter IV of the NDPS Act 1985 deals with offences and Penalties under the NDPS Act.

Section 15. Punishment for contravention in relation to poppy straw.Whoever, in contravention of any provisions of this Act or any rule or order made or condition of a license granted there under, 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,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, 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 . Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 16 provides for punishment in relation to coca plant and leaves as follows:

Whoever… in contravention to the NDPS Act 1985 or license granted there under …… 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 may extend to ten years, and with fine which may extend to one lakh rupees.

Section 17. Punishment for contravention in relation to prepared opium.

Whoever… in contravention to the NDPS Act 1985 or license granted there under ……… “manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 1 [one year], or with fine which may extend to ten thousand rupees, or with both; or (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; or (c) where the contravention involves commercial quantity, 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”

Section. 18. Punishment for contravention in relation to opium poppy and opium.

Whoever, in contravention to the NDPS Act 1985 or license granted there under cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2 [one year], or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves commercial quantity, 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 which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees; (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.

Section 20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted there under, (a) cultivates any cannabis plant; (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— 1 [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),— (A) and involves small quantity, with rigorous imprisonment for a term which may extend to 2 [one year], or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, 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: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 21. Punishment for contravention in relation to manufactured drugs and preparations. Whoever…in contravention to the NDPS Act or license granted there under …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, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 4 [one year], or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, 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: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees

Section 22. Punishment for contravention in relation to psychotropic substances

Whoever….. (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, 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: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 23 and 24 deals with punishment for export or import of controlled substances to and from India. Section 25 deals with allowing properties for the disposal of the dealing with the controlled substances punishable.

Section 27 provides for punishment for use of narcotic drugs and psychotropic substances.

(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and (b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.

Section 31 provides for enhanced punishment for committing an offence under the NDPS Act 1985 for the second time after having punished for once.

Section 31A Death penalty for certain offences after previous conviction.—(1) Notwithstanding anything contained in section 31, if any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under [section 19, section 24, section 27A and for offences involving commercial quantity of any narcotic drug , or psychotropic substance, is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence relating to (a) engaging in the production, manufacture, possession, transportation, import into India, export from India or transshipment, of the narcotic drugs or psychotropic substances specified in the table provided in the end of the section.

(i) Opium . . . . . . . . . . 10 kgs. (ii) Morphine . . . . . . . . . . 1 kg. (iii) Heroin . . . . . . . . . . 1 kg. (iv) Codeine . . . . . . . . . . 1 kg. (v) Thebaine . . . . . . . . . . 1 kg. (vi) Cocaine . . . . . . . . . . 500 grams (vii) Hashish . . . . . . . . . . 20 kgs. (viii) Any mixture with or without any neutral material of any of the above drugs 1 [lesser of the quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture] (ix) LSD, LSD-25 (+) – N, N-Diethyl gamide (d-lysergic acid diethylamide) 500 grams (x) THC (Tetrahydrocannabinols, the following Isomers: 6a (10a), 6a (7),7,8,9,10,9 (11) and their stereo chemical variants) 500 grams (xi) Methamphetamine(+ )-2-Methylamine-l-Phenylpropane 1,500 gram (xii) Methaqualone (2-Methyl-3-0-tolyl-4-(3h—)quinazolinone) 1,500 gram (xiii) Amphetamine (+)-2-amino-1-phenylpropane 1,500 gram (xiv) Salts and preparations of the psychotropic substances mentioned in (ix) to (xiii) 1,500 gram; (b) financing, directly or indirectly, any of the activities specified in clause (a), [shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death]. (2) Where any person is convicted by a competent court of criminal jurisdiction outside India under any law corresponding to the provisions of [section 19, section 24 or section 27A and for offences involving commercial quality of any narcotic drug or psychotropic substance], such person, in respect of such conviction, shall be dealt with for the purposes of sub-section (1) as if he had been convicted by a court in India.

The cases reported under the NDPS Act 1985 shall be heard by a Special court and the respective High courts shall have the appellate jurisdiction. The Probation of offenders Act (dealing with juvenile offenders) shall not be applicable for an offence under the NDPS Act. Thus making the culprit liable as if he were otherwise capable of committing the offence.

Companies or juridical Persons also come within the mischief of the NDPS Act 1985.

Case Law:

Mahesh Laxmanbhai Patel vs. State Of Gujarat on 10 May, 2002

On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellant was found in possession of 6 grams of brown sugar and that he had committed offences punishable under Sections 8(C) and 21 of the NDPS Act. It was also held by the learned Judge that it was proved by the prosecution that mandatory provisions of the NDPS Act were complied with and the appellant could not satisfy the Court that breach of any of the mandatory provisions of the NDPS Act was committed by the prosecution. After holding that the appellant had committed offences punishable under Sections 8(C) and 21 of the NDPS Act, the learned Advocate for the appellant was heard regarding sentence, as required by Sub-Section (2) of Section 235 of the Code of Criminal Procedure. After hearing the learned Advocate for the appellant, the learned Judge passed an order of punishment dated 8th March, 1999

If a police officer without any prior information as contemplated under the provisions of the NDPS Act 1985 makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.PC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act 1985. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act 1985. Under Section 41(1) only an empowered Magistrate can issue a warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act- etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such a warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

Conclusion

To conclude the article, narcotic drugs and similar substances if used for intoxication and entertainment purposes, shall have a dangerous impact on the user which shall deprive him of his normal senses and be an evil to the society. Let good sense prevail and stop drug abuse.

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