Legal Framework On Drug Abuse Prevention - Indian Perspective
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Category: General Law
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LEGAL FRAMEWORK
ON DRUG ABUSE PREVENTION: INDIAN PERSPECTIVE C. Neethu, Dr. Ambedkar Global Law Institute
K. Kokila, Bharath Institute of Law
INTRODUCTION
The Psychotropic Chemicals Act 1985 and Narcotic Drugs Act serve as temporary legislation that regulates the production, usage, and disposal of the hazardous substances outlined below. His beating was intended to deter individuals from engaging in the use of illegal narcotics, which can be detrimental to one's physical health. Substance abuse represents a major social concern. The misuse of drugs is increasing, with many young individuals developing addictions as a consequence. The trafficking of narcotic and psychotropic drugs into India, along with other forms of illegal drug trade, has led to worryingly high levels of substance addiction among teenagers and the general population. The entire generation faces a risk of succumbing to drug dependency. In the presence of illegal drugs, no individual, family, or community is secure.
Drug production and drug cartels may exert control over farmers; while trafficking and criminal activities can dominate communities, and drugs can take control over the bodies and minds of consumers. Substance abuse devastates lives and communities, obstructing meaningful human development. The effects of drug use permeate all areas of society, especially among the youth. This situation has necessitated the implementation of legal drug control measures. PROGRESSIVE DEVELOPMENT OF DRUG LAWS IN INDIA According to Article 47 of the Indian Constitution, which states that "The state will strive to prevent the use of non-alcoholic and hazardous drugs," India aims to address the growing concern surrounding opiates and psychotropic substances effectively. Various central and state institutions in India have been utilized to manage the documentation related to opiate narcotics.
Given the opium incidents of 1857 and 1878 and the Dangerous Drugs Act of 1930, it appears that the leaders of the central initiatives had made such declarations long ago. Certain disparities in the laws that gave authorities the power to act regarding the Exhibitions imposed until now emerged with the onset of the development era, which was subsequently followed by advances in illicit logistics and drug abuse at the international level. This pertains to ongoing legal frameworks and extensive legislation. By modifying existing regulations regarding opiate medications, the combination of opiates and psychotropic substances will have a significant effect. The Opiate Substances and Psychotropic Substances Bill of 1985, referred to as the NDPS Act, subsequently legitimized the practice of regulating the use of psychiatric drugs and enabled international exhibits concerning these substances.
EXISTING
LEGAL FRAMEWORK
1. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985
India is a signatory to three United Nations drug treaties, including the 1961 Single Convention. • Drug Addiction (1961 Conference),1 • Convention on 1971 on Psychotropic Substances (1971 Convention)2 and • 1988 Conference on Drug Trafficking and Psychotropic Drugs (1988 Conference)3 It was only during the 1980s, after the grace period for the cessation of non-medical marijuana and opium use under the 1961 Convention had expired, that laws relevant to these agreements were established. The Indian Parliament swiftly and with little debate passed the Drugs and Mental Health Act, 1985 (NDPS Act), exercising its power to implement "any agreement, accord, or decision made at an international conference. " The NDPS Act substituted the previously existing Opium Acts and the Dangerous Drugs Act on November 14, 1985. Conversely, the 1940 Drugs and Cosmetics Act remains in effect.
4 The official documentation states that the NDPS Act was enacted to uphold intellectual 1 To view the full publication, visit https://www. unodc. org/pdf/convention_1961_en. pdf accessed on May 2nd,
2 To view the full treaty, visit https://treaties.un.org/doc/Treaties/1976/08/19760816%2008-
16%20AM/Ch_VI_16p.pdf accessed on May 1st, 2024 3 To view the full document, visit https://www.unodc.org/pdf/convention_1988_en.pdf accessed on May 1st, 2024
4 To view the full report, visit
https://www. indiacode. nic. in/handle/123456789/1791? sam_handle=123456789/1362accessed on June 1st, 2024 property rights, enhance enforcement, establish appropriate penalties for drug trafficking, and implement international agreements to which India is a signatory. The Act has been updated in 1989, 2001, and most recently in 2014. The NDPS law prohibits the production, handling, sale, purchase, trade, import, export, consumption, and utilization of psychotropic substances and other drugs except for legal purposes. Certain offenses carry an attempted crime penalty if there is intent to commit them. Assisting others in committing offenses and conspiring to do so receive the same penalties as violating the primary law.
The law covers three broad categories of things: • Definition of ―Narcotic drug, under the 1961 Convention;5 • Definition of ―Psychotropic substances, covered under the other psychoactive chemicals, such as ketamine, that are not included in any international treaties, such as the 1971 Convention;6 and • "Controlled substances," such as complex compounds like acetic anhydride, ephedrine, and pseudoephedrine, are used to produce narcotic drugs or psychotropic materials. Narcotic drugs include: • Marijuana is a plant, a resin known as charas, and its concentrated forms known as hashish, as well as dried or fruit-bearing plant blooms known as ganja and any combination of charas and ganja. Importantly, bank or cannabis leaf is governed by state tax regulations and is not included (in line with Article 1 of the 1961 Convention).
7 • Coca: a leaf of a plant; substitutes include cocaine and environment that contains 0. 1 percent cocaine8 5 To view the full publication, visit https://www. unodc. org/pdf/convention_1961_en. pdf accessed on May 2nd,
6 To view the full treaty, visit https://treaties.un.org/doc/Treaties/1976/08/19760816%2008-
16%20AM/Ch_VI_16p.pdf accessed on May 1st, 2024 7 To view the full article, visit https://nida.nih.gov/publications/research-reports/marijuana/what-marijuana accessed on May 3rd, 2024
8 Section 2(v) of the NDPS Act, 1985
Opium: Poppy plant, poppy straw, roasted poppy straw, opium juice, a combination of opium poppy juice, preparations containing 0. 2 percent morphine, and its derivatives, such as heroin, morphine, codeine, and thebaine, are all examples of the poppy plant. 9 The previously referenced category of "manufactured medications" also encompasses alcoholic drugs. The phrase "psychotropic pharmaceuticals" lacks a clear definition, yet covers all drugs recognized as such by the authorities. Following international agreements, the authorities may increase or restrain the quantity of substances such as amphetamines, methamphetamines, LSD, MDMA, and buprenorphine based on proof of actual or potential "misuse" or shifts in systems. The process for locating, apprehending, and arresting individuals in public and private spaces is specified in the NDPS Act.
Because of the severe penalties established by the Act, safeguards such as pre-recording of information, notifying a superior, limiting the power to arrest to specific officials, and informing the person being searched of their rights have been mandated by the courts. Nonetheless, the investigation procedures and the evidence permit and interpret the evidence in a manner that is prejudiced against the respondent. 10 The NDPS Act contains provisions for drug regulation despite being filled with penalties. The Act fails to specify or provide a definition for the term "medical and scientific purpose," which empowers both federal and state governments to formulate laws and sanction drugrelated activities under specific conditions. While certain activities may only be permitted for the government to conduct, others may be assigned to licensed private organizations.
Unlike current harm reduction strategies, the regulatory framework also includes providing registered users who rely on opium for medical guidance. Although it is legally permitted, the practice has largely disappeared, and there have been fewer than 1,000 registered opium users in the country since last year. The Prohibition of Illegal Vehicles on Drugs and Psychotropic Substances was incorporated into the NDPS Act in 1988 to facilitate detention that inhibits individuals suspected or alleged 9 To view the full report visit https://www. vakilno1. com/bareacts/thenarcoticdrugs1985/the-narcotic-drugsand-psychotropic-substances-act-1985. html accessed on June 2nd, 2024
10 The NDPS Act, 1985
to be engaged in drug trafficking.
2. PUNISHMENT FOR DRUG ADDICTS
Even after the Supreme Court ruled that drugs cannot be mixed with "neutral" substances, the discussion over "purity compared to total weight" continued. Only the actual makeup of narcotic substances is significant in evaluating whether they hold a low or high economic worth. A year later, officials stated that the entire weight of the confiscated product, instead of merely the quantity of pure drug it included, should be considered when assessing the value. Because street drugs are "shut off" and are rarely caught unexpectedly, this change is particularly detrimental to drug users and other low-income offenders who risk being subjected to moderate or commercial crimes. 11 A choice made based on statistics might be seen as logical and equitable, yet it disregards essential elements, such as the offender's role and motivation, as unimportant.
Basic assets face the same consequences as profit distribution. The implementation of compulsory minor sentences, in which only an increase in the term is allowed and a decrease is not permitted, is another reason the courts have imposed similar penalties for both types of offences. OFFENCES AND PENAL SECTIONS UNDER THE NDPS ACT FOR NARCOTIC DRUGS
POPPY STRAW
The activities of producing, overseeing, moving, marketing, purchasing, and any other involvement leading to a case under this Section fall under Section 15 of the Act. The quantity of poppy straw involved in each transaction is considered when determining penalties. 12 A small quantity of poppy grass can lead to fines of up to ten thousand rupees, a year of labor, or both. A prison term of ten years and a penalty of up to one lakh rupees are mandated for a price that exceeds a small amount but is less than the transaction value. A penalty of at least 11 To view the full article, visit https://drugabuse. com/addiction/drug-abusepenalties/#:~:text=Selling%20Drugs. %20Selling%20drugs%20carries%20much%20harsher%20penalties,of%2 0up%20to%20%24100%2C000%20and%2040%20years%20imprisonment.
accessed on June 3rd, 2024 12 Section 15 of The NDPS Act, 1985 – speaks about the punishment for contravention in relation to poppy straw one lakh rupees but not exceeding two lakhs rupees along with a prison term of a minimum of
10 years each may be imposed for transactions related to the price of poppy straw.
• COCA PLANT AND LEAVES
In contrast to the regulations enforced by this Act, Section 16 of the Act contains provisions pertaining to investment, production, acquisition, sale, purchase, transportation, and any other action related to a violation of its requirements. In addition to a fine of up to one lakh rupees, a felony carries a maximum jail sentence of ten years.13
PREPARED OPIUM
Section 17 of the Act provides regulations pertaining to conduct that violate the Act with relation to modified opium. The production, seizure, sale, purchase, transportation, and consumption of processed opium are all prohibited by this section. It has been seen to have the potential to cause both bodily and psychological harm to an individual. Any restrictions on human activity will result in fines akin to those outlined in Section 15 for poppy grass.14
OPIUM POPPY AND OPIUM
According to Section 18 of the Act, it is contrary to its requirements to produce, buy, produce, obtain, transport, or sell opium and opium poppy. Infractions under this section have the same consequences as those under Sections 15 or 17.15
EMBEZZLEMENT OF OPIUM
According to Section 19 of the Act, opium abuse is defined as an act that contravenes the Act's criteria and is, thus, a crime under Chapter IV. Anybody who engages in fraudulent activities or uses illegal opium in any other way will be subject to consequences under this article. A minimum of 10 years in prison, with the possibility of an extension to a maximum of 20 years, and a fine of at least one lakh rupees, with the possibility of an increase to two lakh rupees, are 13 Section 16 of The NDPS Act, 1985 – reads as punishment for contravention in relation to coca plant and coca leaves 14 Section 17 of The NDPS Act,1985 states the punishment for contravention in relation to prepared opium 15 Section 18 of The NDPS Act, 1985 deals with punishment for contravention in relation to opium poppy and opium the penalties for this offence.
CANNABIS PLANT AND CANNABIS
Section 20 of the Act addresses the cultivation, production, handling, sale, acquisition, and transportation of cannabis plants or marijuana. If caught growing marijuana, a person faces a maximum penalty of 10 years in prison and/or a fine of one lakh rupees. The size or quantity of the offending object determines the severity of the penalty for any activity other than ploughing. The three sanctions levied against the other groups are likewise followed in this section. FOR PSYCHOTROPIC SUBSTANCES
MANUFACTURED DRUGS AND PREPARATIONS
Section 21 of the Act permits the manufacture, possession, sale, purchase, transportation, and use of any drug that has been prepared or altered in contravention of the Act's regulations. In the three-section criminal code of the Act, the penalties indicated in this section are the same as those listed in the other sections.
PSYCHOTROPIC SUBSTANCES
Section 22 of the Act states that any law or act pertaining to the manufacture, sale, purchase, handling, or use of psychotropic substances may result in criminal charges under this section. The penalties under this Section are identical to the three penalties that follow under the Act in other situations. OTHER OFFENCES
TRANS-SHIPMENT OF NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES Section 23 of the Act permits the import or export of any illegal drugs prescribed by the Act from India. The export of alcohol and psychotropic substances is restricted, according to the official language used for this Act. All criminal penalties are administered worldwide using the three-phase punitive system outlined in the Act.
• EXTERNAL DEALINGS
Section 24 of the Act states that it is lawful to sell psychotropic drugs to residents of nations other than India that are not on the Indian subcontinent. This section states that it is unlawful. In this instance, the penalty includes a minimum fine of one lakh rupees and a maximum fine of two lakh rupees, along with a minimum of ten years and a maximum of twenty years in jail.
ALLOWING PREMISES FOR THE COMMISSION OF OFFENCES
Section 25 of the Act addresses situations in which a person allows their property to be used for any of the offences specified in the Act. The perpetrator must be recognised and permitted to utilise this section.
ACTS BY A LICENSEE OR HIS SERVANTS
Section 26 of the Act specifies what can be done if a licensee or one of their employees keeps violating the Act's regulations. if an individual, licensee, agent, or employee makes false statements knowing they are wrong; is prohibited from maintaining accounts without a good reason; wilfully or knowingly violates any licensing requirements; or fails to produce a license, permission, or authorisation to seek. The penalty is either a fine, a maximum jail term of three years, or both.
CONSUMPTION
OF NARCOTIC DRUGS OR PSYCHOTROPIC SUBSTANCES Section 27 of the Act states that using any intoxicating drug or psychoactive substance is illegal for the purposes of the Act. Anyone found in possession of morphine, cocaine, diacetylmorphine, or any other drug that the government later determines to be a severe one faces a heavy one-year jail sentence, a fine of up to 20,000 rupees, or both sentences. Using any narcotic or psychotropic substance other than those on the list carries a possible penalty of six months in jail, a maximum fine of ten thousand rupees, or both.
FINANCIAL ILLICIT TRAFFICKING AND HARBOURING OFFENDERS
Section 27A of the Act describes how illegal trafficking is funded and the consequences of breaking its regulations, which include jail time. Anyone who directly or indirectly sponsors or withholds any unlawful trafficking activities faces criminal penalties. A conviction will result in a minimum of 10 years in prison, with the possibility of up to 20 years, and a minimum fine of one lakh rupees, with the possibility of a fine of up to two lakh rupees. DEATH PENALTY The application of the death penalty in specific recurrent situations (production, manufacture, acquisition, transport, import, and export) involving a significant number of narcotics serves as an example of the NDPS Act's intricacy. The death sentence was made obligatory in 1989, but it was later removed from the list in 2001.
Two convicts received sentences from the NDPS special courts in Mumbai and Ahmedabad in February 2008. It's ironic because neither phrase contained marijuana. The duty was then subject to a constitutional challenge, which resulted in the Bombay Supreme Court declaring it unlawful and readable similarly to a discretionary sentence, meaning that the sentencing court would hear the criminal and impose the maximum sentence of death. Later, both defendants were sentenced to 30 years in prison after a different conviction. A third convicted individual also succeeded with their appeal. The location of a fourth person who was also sentenced to death in Punjab under the NDPS Act remains unknown. Drug trafficking is not always seen as a "serious felony" that entails the possibility of the death penalty.
Nevertheless, the Indian government insists that the drug case is more severe than the murder case, given that the murder case affects only one person, while the drug case negatively influences society as a whole. Additionally, the government asserts that the International Narcotics Control Board (INCB) has never opposed certain Asian countries’ implementation of the death penalty for drug offenses involving small quantities. It is uncertain how the government would respond to the March 2014 INCB statement urging leaders to consider abolishing the death penalty for drug-related offenses. INDIAN POSITION ON THE AWARD OF DEATH PENALTY The death penalty was first introduced in the NDPS Act in 1898, at which point a person found guilty of narcotics trafficking on multiple occasions was subjected to a compulsory death penalty.
It is important to remember that there is no provision in the Indian Constitution that deems the death penalty illegal. Under Article 47 of the Indian Constitution, the state will seek to prohibit the use of pharmaceuticals and non-alcoholic beverages that pose health risks. As a consequence, individuals convicted of drug offenses now confront the death penalty in the country. The judiciary further determined that the death penalty may only be imposed in exceptionally uncommon circumstances that can be evaluated after considering the specifics of the case and the traits of the defendant in Bachan Singh v. State of Punjab16 by the Supreme Court. The Court also ruled that the death penalty for noncommissioned murderers was illegal. The NDPS Act underwent amendments in 2014 to incorporate the death penalty under Section 31A alongside a 30-year term of a different type of incarceration.
In accordance with Article 6(2) of the International Covenant on Civil and Political Rights, which pertains to countries that have yet to enforce the death penalty, the death penalty may solely be imposed in the most extreme situations and only after adhering to the regulations governing the commission. violates the stipulations of the Convention and the Convention on the Elimination of All Forms of Crime. Therefore, the enforcement of such penalties could only be limited after a competent court has rendered a final ruling. Based on the ruling, the Hon'ble Bombay High Court's Bench, which consisted of Justices A. M. Khanwilkar and A. P. Bhangale, determined in 2011 that Section 31A of the NDPS Act was unconstitutional and sentenced an individual to death at their discretion.
17 According to Article 21 of the Constitution, a fair and unbiased system is represented by the ruling on life and death. Nevertheless, considering the influences exerted by global entities such as Amnesty International and the Office of the United Nations High Commissioner for Human Rights in opposition to the death penalty and the benefits of illegal drug trafficking, which may present a significant danger to public safety, it has the capacity to encompass subservience and robust political aims. The Bombay High Court concluded that, in its inquiries into the purported issue, Indian law and the Constitution utilized various protective mechanisms to ensure the elimination of the innocent, reflecting on the longstanding debate between abolitionists and retentionists regarding death penalties. The court further remarked that obtaining evidence that could
16 To view the full judgment, visit https://indiankanoon.org/doc/307021/ accessed on May 3rd, 2024
17 To view the full judgment, visit https://courtverdict. com/supreme-court-of-india/the-honble-chief-justice- highcourt-of-bombay-ors-vs-shri-b-s-nayak-ors accessed on May 6th, 2024 illustrate the negative impacts of the death penalty is difficult or perhaps unfeasible, as such information may perpetually remain concealed in individuals' minds. It is enough to assert that, among other points, the claim that the retention of the death penalty for the opponent provision lacks rationale and purpose, is dismissed based on the very reality that rational, educated, and straightforward individuals are mentally and profoundly divided in their opinions on this issue. THE NEED FOR DEATH PENALTY FOR REPEAT OFFENDERS India is a diverse cultural nation.
From a geographical perspective, India serves as a southern corridor for drug trafficking because it lies between Pakistan and Bangladesh and is linked to the two largest drug-trafficking countries in the world, Afghanistan and Burma. The results of a comprehensive state drug study conducted by the Department of Social Justice and Empowerment and published in 2019 show that drug consumption in India continues to increase swiftly. The percentage of opioid use has grown from 0. 7 percent in the previous assessment to just over 2 percent in the latest reports, translating to an increase from 2 million to over 22 million in terms of total usage. The dramatic rise in rural to urban migration has been significantly influenced by the decline of the traditional social economy and the effects of industrialization.
Consequently, there has been a noticeable rise in the consumption of drugs for non-medical reasons. The link between adolescent drug consumption and criminal behavior shows a similar effect. The Pushpawati Singhania Research Institute, the Psychiatry Department at Dr. Ram Manohar Lohiya Hospital, and the Institute of Human Behavior and Allied Sciences (IHBAS) conducted a medical assessment. When compared to other drugs, the usage of marijuana and tobacco was found to be more common and more frequently identified among offenders. Prison authorities only conduct drug tests on these individuals when they have observed signs such as erratic behavior, vomiting, and self-harm. The primary reasons provided by youths for drug use include experimentation, curiosity, association with drug users, and easy availability of these substances within the prison environment.
Apart from its detrimental effects on health, the economy, and society, drug abuse jeopardizes national security. Since a significant number of offenders are drug traffickers and the rich and influential political leaders remain protected by the law, the adverse effects of penalties for drug crimes are limited. Intoxicating substances are also supplied to prisoners through corruption and political misuse, with the awareness and consent of the prison administration. Thus, the court emphasized the need to keep the death penalty compulsory. In the case of Indian Harm Reduction v. Union of India18, The death penalty was noted as being certain in some cases because of concerns regarding social justice. If a person commits murder and severely disrupts public order through his actions, he presents a continuous threat to peace.
The assessment for imposing the death penalty indicates that the killer poses a considerable danger to society. A public safety judge who knowingly participates in the illegal trade of drugs and psychoactive substances indirectly aids the cause of human fatalities and has his absence affect the well-being of the community. Hence, stringent punishment is essential to disrupt the cycle of unlicensed drug trafficking due to criminal tendencies and the harmful impact of violations under the NDPS Act. CRIMINALIZATION OF PEOPLE WHO USE DRUGS Drug use is forbidden and may lead to fines, imprisonment for up to a year, or both, contingent upon the drug involved. Cannabis use leads to a shorter jail sentence compared to the usage of heroin and cocaine.
In the middle of 2001, the "minimum value" category was removed, and since that time, possessing a small amount incurs the same penalty regardless of purpose. Bail restrictions were implemented in cases related to the use or possession of small amounts of narcotics, even though they were intended for serious offenders. According to the courts, individuals convicted of drug offenses can obtain bail. However, assaults and arbitrary arrests, particularly by drug users in public, are not common, and both the police and drug users seem unaware of the law. The total number of users or minor offenders (including lesser offenses) who have been arrested and faced legal action against "traffickers" is not reflected in official crime statistics (including large quantities of drugs).
It is difficult to ascertain if law enforcement is targeting "consumers" or "traffickers" with any certainty because the law itself does not differentiate between what is meant for personal use and what is possessed for commercial purposes. The volume of drugs involved in each case is the sole indication of such an evaluation, and this information is not found in drug crime statistics. Furthermore, as previously noted, value
18 To view the full judgment, visit https://indiankanoon.org/doc/993388/ accessed on May 25th, 2024
alone is not a sufficient measure for identifying the nature of activities related to a drug. In many situations where substantial amounts of drugs were confiscated, the individuals who were apprehended were simply in possession of or transporting the substances and did not control or manage the trade.
CONCLUSION
India has established a comprehensive legal framework to combat drug abuse through stringent laws, enforcement mechanisms, and international cooperation. The Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985, serves as the cornerstone of India's antidrug legislation, imposing strict penalties while also incorporating provisions for rehabilitation and treatment. Additionally, various policies and initiatives, such as the National Action Plan for Drug Demand Reduction (NAPDDR), reflect a balanced approach that combines punitive measures with preventive and rehabilitative strategies. Despite these efforts, challenges such as drug trafficking, loopholes in enforcement, and increasing substance abuse among youth persist.
Addressing these concerns requires a multipronged strategy involving legal reforms, enhanced border security, public awareness campaigns, and improved access to de-addiction services. Strengthening inter-agency coordination and community participation is crucial in creating a drug-free society. The objective of the Narcotic Drugs and Psychotropic Drugs Act, 1985 was to oversee and manage the transport, consumption, and/or usage of these illicit substances. The strategy for implementing the Act has been effective in attaining the objective for which it was enacted. To exert the maximum impact on the populace, the federal government and provincial governments must effectively propose legislation related to the Act. Lawmakers acknowledged under the legislation were also given the opportunity to act on the principles of natural justice.
Going forward, India's legal framework on drug abuse prevention must continue evolving to address emerging trends, ensure the protection of human rights, and promote a public healthbased approach alongside legal deterrence. A holistic strategy combining law enforcement, education, and rehabilitation will be essential to effectively curb drug abuse and its societal impact.