Drugs, Narcotics and Criminal Law

By Shivangi Dubey

 

Abstract

Every coin has two sides, so is the case with drugs. On one side it is used for curing diseases i.e. as medicine, on the other side in excess use of it deeply harms brain and our body. India has cultural roots of adapting with narcotic substances since ancient time. Proximity to the largest producers of heroin and hashish-the Golden Triangle and Golden Crescent (Afghanistan-Pakistan-Iran) -has made India’s border vulnerable to drug trafficking.

Introduction

The extent to which heroin seized in India can be sourced to the diversion of licit opium grown here and it is a matter which continues to be debated. Opium has been cultivated in the northeastern states of India for medical use by both people and livestock. It is also used in festivals and celebrations in these areas as well as Rajasthan. Most areas have now curtailed this practice, but it remains prevalent in remote areas, such as in the east of Arunachal Pradesh. Hence, we can say that drugs in India are being used at a large extent.

Various steps have been taken nationally as well as internationally like following bodies govern drug abuse in India like Central Bureau of Narcotics (CBN), The Narcotic Control Bureau (NCB) etc. Illicit cultivation of opium poppy still occurs in India. It has been argued that illicit cultivation of opium poppy in the north east became commercial when the tribal population came into contact with timber merchants from the plains in the late 1980.

India and Drugs

If we look at the location of our country then it lies in the middle of two major illicit opium production regions in the world. One is the Golden Crescent in the west and the other is Golden Triangle in the east which makes it a viable hub of the illicit drug trade.

Golden Crescent includes countries like Afghanistan, Iran, and Pakistan and is a principal global site for opium production and distribution. Golden Triangle covers the regions of Myanmar, Laos, and Thailand and is Southeast Asia’s main opium-producing region and one of the oldest narcotics supply routes to Europe and North America.

In 1917, Mahatma Gandhi while addressing the All India Social Service Conference in Calcutta had said, “The cocaine habit was sapping the nation’s manhood, and that like the drink habit, it was on the increase in its effect more deadly than drink”.

In the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378- The Supreme Court has observed, “Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of the country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomenon and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice.”

Drug Trafficking in India

Pakistan and Bangladesh are the neighboring countries of India which are closely connected to the world’s two largest illicit drug dealing countries i.e. Afghanistan and Burma. Drugs Trafficking takes place devastatingly through land borders which are being followed by sea and air routes. This menace is giving vulnerability to the borders of our nation however India has put in many efforts to tackle this problem it has made planned strategy to curb drug supply and demand reduction. A new concept of “Narco- Terrorism” has come in International sphere that huge money earned through the drug trafficking activities having been used by the terrorist for their illegal activities in certain part of the world.

In Punjab there has been a bad experience where youngsters and students are mostly addicted to drugs and the same situation should not be allowed to spread to other States. It is known that Punjab is the transit point on the drug route and the State has become a major consumer base. A recent survey by the Union Ministry of Social Justice and Empowerment in association with the All India Institute of Medical Sciences (AIIMS), which revealed that 3.1 crore Indians use cannabis, bhang, ganja, charas, heroin and opium. It also expressed the concern that only one in 20 drug addicts get treatment at a hospital. Today approximately 2.65 crore people in India have used or use opioids and approximately 1.17 crore people use sedatives and inhalants.

Very recently a case related to drugs use came to the light where the Bollywood actress named Rhea Chakraborty was questioned and later arrested by the Narcotics Control Bureau (NCB) for the offence of consuming and distributing drugs to her friends. In this case, the actress is alleged with possession of drugs particularly marijauna and also procuring of the same for her boyfriends, which is an offence according to NDPS Act, Section 20(b) Section 27, Section 28 and Section 29.

Steps taken by India involves enactment of various laws, co-operating with voluntary organizations, securing its borders and coasts by increasing surveillance, as well as seeking the active cooperation of its neighbors and the international community. There are large scale organised groups that work in different parts of the society which help in procuring drugs to the people and earning by spoiling the future of the country.

Statutory provisions relating to drugs and narcotics

In India, the fundamental Act that deals with drugs related offences is The Narcotic Drugs and Psychotropic Substances Act, 1985, [in short called as NDPS Act]. This Act prohibits a person from producing/ manufacturing and cultivating drugs and it also prohibits the person from possession, sale, purchasing, transport, storage, and/or consumption of drugs. The need for legislation for drug control was felt at the time when British ruled India. During Britishers reign, The Opium Act 1857 came into force to regulate the cultivation of opium poppy and manufacture of opium. India as a monopoly of Govt. of India Opium Act 1857 regulated the sale of opium and poppy heads, their interstate import & exports it which was followed by another legislation of the same name in 1878.

In view of the obligations undertaken by the Government of India by ratifying the Geneva Dangerous Drugs Convention, 1925, and to clear the existing confusion of the laws governing the traffic in dangerous drugs Dangerous Drugs Act of 1930 was passed.

If we look at the Constitution of India then Article 47 provides 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.”

However, the fundamental legislature to control drugs abuse in India is the NDPS Act, 1985.

Narcotic Drugs and Psychotropic Substances Act

The US was the driving force behind the global prohibition of drugs, which came into effect via the United Nations’ 1961 Convention on Narcotic Drugs. Secondly, there was no law which criminalised the possession and use of drugs and throughout India marijuana and other substances and there various derivatives were sold freely. So law was needed. But India kept the sale of marijuana for nearly 25 years. However, as the war to cure Drugs gained momentum and India’s economic position was of the country was also deteriorating.  Rajiv Gandhi government finally passed NDPS Act.

Following are the functions of NCB, according to the NDPS Act:

·         To coordinate actions by various authorities under the principal Act, and any other laws in relation with the enforcement of the principal Act.

·         To implement the obligations in respect of counter-measures against illicit traffic under several international conventions.

·         Assistance to the authorities in foreign countries and international organizations

·          Coordination of actions taken by the various Ministries.

Punishment for consuming drugs

A comparison of Indian laws versus European, American, and Middle Eastern regarding punishment of marijuana users and pushers and sellers shows startling differences. For example, possession of even small amounts of marijuana in several countries invites life imprisonment and even death (UAE, Maldives, Singapore), while other countries have graded penalties which are different for pushers and users and also distinguish between the type and quantities of the illicit substances. In the US, some states have legalised marijuana, while others make possession of even small amounts a crime.

As per Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 production, sale/purchase, transportation, interstate import/export or any other commercial activity of cannabis is punishable.

·         For holding a small quantity, the prescribed punishment is rigorous imprisonment for up to six months, fine of Rs 10,000 or both.

·         For holding more than a small quantity but less than the commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10 years, fine of Rs 1 lakh, or both.

·         For holding commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10-20 years, fine of Rs 1-2 lakh, or both.

Death penalty under Section 31A of NDPS Act

One of the most controversial provisions of the Act which mandated the death penalty in case of repeated offences was Section 31A which was added through an Amendment Act in 1989.

In Union of India v. Ram Samujh and Ors. Appeal (Crl.) 866 of 1999, the Supreme Court opined “it should be born in mind that in murder, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or a death blow to a number of innocent victims who are vulnerable.”

But in Indian Harm Reduction Network v. Union of India, CRIMINAL WRIT PETITION NO. 1790 OF 2010- The International Human Right Commission challenged the mandatory death penalty in the NDPS Act by referring it to an arbitrary, excessive and disproportionate to the crime of dealing in drugs. The court held that  Section 31-A of the NDPS Act is violative of Article 21 of the Constitution of India, as it provides for mandatory death penalty. But rejected the said provision is violative of Article 14 of the Constitution of India. Further, instead of declaring Section 31-A as unconstitutional, and void ab initio, court constituted it to be directory by reading down the expression “shall be punishable with death” as “may be punishable with death” in relation to the offences covered under Section 31-A of the Act. Thus, courts have judicial discretion in regard to the same.
After the judgment in, the NDPS Amendment in 2014 was introduced and amendments in Section 31A(1) of the Act by stating, “that the offender shall be punished with punishment specified in Section 31 or with death”. This meant a shift from the mandatory death penalty for repeat offenders to an optional death penalty.

Conclusion

In India, drug users are found throughout the country and on all levels of the society. The country’s economy is lacking behind due to the issues related to drugs. Though these laws are effective against narcotic traffickers, many practical problems remain unresolved. In such a situation drug rehabilitation and a comprehensive methodology for curbing the use and trafficking of drugs could be put to use. On the other hand, death penalty cannot be considered to be an option for habitual drug offenders instead stringent laws should be made to make the official work easier for the authorities and which would benefit the general public.