“LAW AS AN INSTRUMENT TO CHECK TRAFFICK IN

NARCOTICS & DRUG ADDICTION”

A DISSERTATION

SUBMITTED
IN THE PARTIAL FULFILLMENT OF THE REQUIREMENT FOR
THE DEGREE OF
B.A.LL.B (H)
SUPERVISED BY: SUBMITTED BY:
Mr. Vikram Duhan Mr. Rahul
(Head of Department) Enrollment No. 02322403814

DELHI INSTITUTE OF RURAL DEVELOPMENT

(AFFILIATED TO GURU GOVIND SINGH INDRAPRASTHA
UNIVERSITY)
DELHI.

1
 DECLARATION

I, hereby declare that the dissertation entitled “LAW AS AN INSTRUMENT

TO CHECK TRAFFIC IN NARCOTICS & DRUG ADDICTION” is based on

original research undertaken by me and it has not been submitted in any

University for any degree or diploma.

Name: Mr. Rahul

Enrollment No. 02322403814

2
 ACKNOWLEDGEMENT

The dissertation on “LAW AS AN INSTRUMENT TO CHECK TRAFFIC IN

NARCOTICS & DRUG ADDICTION” has been given to me as a part of the
curriculum in 5 years B.A.LL.B (H).

I have tried my best to present this information as clearly as possible using basic
terms that I hope will be comprehended by the widest spectrum of researchers,
analysts and students for further studies.

I have completed this research study under the guidance and supervision of
Mr.Vikram Duhan Head of Department; I will be failed in my duty if I do not
acknowledge the esteemed scholarly guidance, assistance and knowledge. I have
received them towards faithful and timely completion of this work.

Mere acknowledgement may not redeem the debt I owe to my parents for their
direct/indirect support during the entire course of this research. This study bears
testimony to the active encouragement and guidance of my friends and well-wishers.
This accomplishment would not have been possible without them.

Mr. Rahul
Enrollment No. 02322403814

3
 CERTIFICATE

This is to certify that the dissertation entitled “LAW AS AN

INSTRUMENT TO CHECK TRAFFIC IN NARCOTICS & DRUG
ADDICTION” has been prepared by Mr. Rahul, Enrolment No.
02322403814, under my guidance and supervision for the partial
fulfillment of the requirement of BA LL.B (Hons) degree at a student of
Delhi Institute of Rural Development, Delhi.

Mr. Vikram Duhan

(Head of Department)

4
 TABLE OF CONTENTS

Declaration

List of Abbreviations

List of Cases

1 Introduction

2 Drugs and Psychotropic Substances: Pre-Historic and Medieval Era

3. Drug Usage under the British Regime

4. International Policy and Legal Framework

4.1The League of Nations

4.2.Under The United Nation

4.3. United Nation Office on Drug and Crime

5. Drug Policy of India

5.1 Commentary on the Important Provisions

6.Amendments in Narcotic Drugs and Psychotropic Substances Act

6.1The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

6.2Narcotic Drugs and Psychotropic Substances(Amendment) Act,2014

7.Ambiguities in Procedural Law

7.1Search of a Place or a Building

7.2 Search of Persons

8.Institutional mechanisms to curb the Menace of Drug Abuse

8.1 Narcotics Control Board

8.2 Central Bureau of Narcotics

8.3 Directorate of Revenue Intelligence

5
 8.4 Problems of Enforcement Agencies

9. Narcotics Drugs and Psychotropic Substances Act, 1985: A Critical Appraisal

9.1 Positive Aspects of Act

9.2 Negative Aspects of Act

10. Drug De-addiction and Rehabilitation Policy

10.1 Legal Provisions related to Treatment

11.Problems Surrounding Drug Treatment Centresin India

11.1Undetermined standards

11.2Inadequate monitoring

11.3Absence of evidence based therapy

11.4Unlicensed De-Addiction Centers

11..5Enrolment in Treatment And Protection from Prosecution

12. Conclusion

13. Suggestions to Tackle the Peril of Drug Abuse

13.1 Suggestion for Prevention and Mitigation of Drug Abuse

14. Articles referred

15. Bibliography

6
 LIST OF ABBREVIATIONS

S. No. Abbreviation Full Form

1. CrPC Code of Criminal Procedure
2. NDPS Narcotics Drugs and Psychotropic Substances
3. UN United Nations
4. UNODC United Nations Office of Drug and Crime.
5. MHA Ministry of Home Affairs
6. NCB Narcotics Control bureau
7. DRI Directorate of Revenue Intelligence
8. CBN Central Bureau of Narcotics
9. WHO World Health Organisation
10. INCB International Narcotics Control Board
11. HIV Human Immuno Virus
12. GOI Government of India
13. OAC Opium Advisory Committee
14. USA United States of America
15. PCOB Permanent Central Opium Board
16. DSB Drug Supervisory Body
17. FATF Financial Action Task Force
18. UNGASS United Nations General Assembly
19. BRQ Biennial Report Questionnaire
20. IDU Injecting Drug User
21. AIR All India Reporter
22. NGO Non-Governmental Organisation
23. WPR Whole Person Recovery
24. IPC Indian Penal Code
25. BSF Border Security Force
26. CRPF Central Reserve Police Force
27. SAARC South Asian Association of Regional Co-operation
28. NOC Non-Objection Certificate
29. CEIB Central Economic Intelligence Bureau
30. ESCAP Economic and Social Commission for Asia Pacific
31. CBI Central Bureau of Investigation
32. THC Tetra Hydro Cannabinol
33. IRCA Integrated Rehabilitation Centre for Addicts
34. NACO National Aid Control Organisation
35. DAC De-Addiction Centre

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 TABLE OF CASES

S. No. Name of the Case Citation

1. Hakam Singh v. Union Territory, Chandigarh 1988 Crl. L.J. 528 (P&H)
2. GurajmalKanaiyalalSoni v. State of Gujarat 1991 Crl. L.J. 1483 (Guj)
3. Abdul Sattar v. State 1989 Drugs Cases 50
4. Richhpal v. State 1989 Drugs Cases 97
5. Jang Singh v. State of Haryana 1988 Drugs Case 67
6. Harbhajan Singh v. State of Haryana 1988 Drugs Case 81
7. Bhajan Singh v. State of Haryana 1968 Drugs Case 94
8. Hakam Singh v. Union Territory, Chandigarh 1988 Crl. L.J. 528 (P&H)
9. Paul Osumbu v. State of Haryana 1991 Drugs Case 87
10. Kailash Singh v. State 1989 Drugs Case 88
11. Jayapalan v. State 1989 Drugs Case 106
12. State of H.P. v. Sudershan Kumar 1989 Crl. L.J. 1412 (H.P
13. Choteylal v. State of Rajasthan 1989 Drugs Case 364
14. Prthvi Raj v. State of Rajasthan 1988 Crl. L.J. (RAJ) 718
15. Dadan Singh v. State of U.P 1993 Crl. L.J. 1785 (Allhbd)
16. Mariappa and other v. State of Madhya Pradesh 1990 Crl. L.J. 1990 (MP)
17. Salamat Ali v. State 1992 Drugs Case 78
19. Md. Jainulabdin v. State of Manipur 1991 Crl. L.J. 696 (Gauhati)
20. SurajmalkanaiyalalSoni v. State of Gujarat 1991 Crl. L.J. 1483 (GUJ)
21. Ahmed Koya v. State of Kerala 1990 Drugs Case 474
22. Wilfred Joseph v. State of Maharashtra 1991 Drugs Case 238
23. Banka Das v. State of Orissa 1993 Crl. L.J. 442 (Orissa)
24. Mahaboob Bee v. State 1993 Drugs Case 94

25. Vincent v. Union of India A.I.R. 1987 S.C. 990.

26. Shaji vs. State of Kerala 2004 (3) KLT 270

8
 CHAPTER 1

INTRODUCTION

Drug and substance abuse has emerged as a serious problem adversely affecting the
social fabric of the country. The epidemic of substance abuse in young generation has
assumed alarming magnitude in India. Changing cultural values, increasing economic
stress and dwindling supportive bonds are leading to initiation into substance use. As
per the World Health Organization (WHO) estimates substance abuse is persistent or
sporadic drug use inconsistent with or unrelated to acceptable medical practice1.

Drug abuse is a complicated phenomenon, having several social, cultural, biological,

geographical, historical and economic aspects and consequences. The peer influence,
socio-economic background, loose parental control, perish of old religious values and
principles, disintegration of the old joint family system, absence of parental love and
care in modern families where both parents are working and moral values etc lead to
a rise in the number of drug addicts who take drugs to escape hard realities of life.
Drug use or misuse is also largely determined by the nature of the drug abused, the
personality of the individual and the addict’s immediate environment. The processes
of industrialization, urbanization and migration have led to loosening of the
traditional methods of social control and family bonding rendering an individual
vulnerable to the stresses and strains of modern life. The introduction and easy
availability of synthetic drugs and intravenous drug use (leading to HIV/AIDS) has
added a new dimension to the problem, especially in the North-Eastern states of the
country.

Drug Abuse and drug addiction is considered a perennial problem in both developed
and developing countries. According to the Webster's Dictionary, 'Drug' has a number
of meanings. The two of them, however, appear to be contradictory to each other.
One defines drug as 'any substance, other than food, intended for use on the

1
WHO.Techn. Res. Ser. No.886: 1999. p. 48.

9
diagnosis, cure, mitigation, treatment, or prevention of disease in man or other
animals'. It also gives another meaning of Drug as “Any narcotic; also, any substance
or chemical agent exclusive of food, employed for other than medical reasons to
obtain a given physiological effect or to satisfy a craving”. When drug is taken for
treatment of a disease, it cures, but when it is taken without any compelling reason, it
causes a disease, popularly known as addiction. Addiction is a disease and there are
well defined protocols of drug course to cure it and addiction is posing a major
challenge for the nation.2

Today, there is no part of the world that is totally free from the curse of drug
trafficking and drug addiction. Thus, it is a global phenomenon having global
repercussions. Millions of drug addicts, across the world, are leading miserable lives,
swinging between life and death. India too has not remained insulated from this
vicious circle of drug abuse, and the numbers of drug addicts are continuously
increasing day by day. The geographical location of the country further adds to its
vulnerability towards the problem of drug abuse as it is situated between the golden triangle
and golden crescent.

According to a UN report, One million heroin addicts are recorded in India, and
unofficial estimate reveals that there are as many as five million. What started off as
casual use among a minuscule population of high-income group youth in the metro
has permeated to all sections of society irrespective of the race, caste, gender and
religion. Inhalation of heroin alone has given way to intravenous drug use, that too in
combination with other sedatives and painkillers. This has increased the gravity of the
effect, hastened the process of addiction and complicated the process of recovery3.
Generally, cannabis, heroin, and Indian-produced pharmaceutical drugs are the
abused drugs in India. Cannabis products, often locally called charas, bhang, or ganja,
are abused throughout the country because it has attained some amount of religious

2
http://www.merriam-webster.com/dictionary/drug (accessed on 10/01/2018 at 12:30hrs)

‘Substance Abuse in India’ by Ahmed Nadeem, BanoRubeena and Kalkotipiyush (Pravara Medical
3

College)

10
sanctity and solemnity because of its association with some Hindu deities. The
International Narcotics Control Board in its 2002 report released in Vienna pointed
out that in India persons addicted to opiates are shifting their drug of choice from
opium to heroin. The pharmaceutical products containing narcotic drugs are also
increasingly being abused. The intravenous injections of analgesics like
dextropropoxpheneetc are also reportedly abused in many states, as it is easily
available at one tenth of the cost of heroin. The codeine-based cough syrups continue
to be diverted from the domestic market for abuse.4

Drug abuse has led to a detrimental impact on the society as its adverse consequences
are not one but many. The inter-twined relationship between drug and crime is now
well known and empirical evidence suggest that drug addicts are likely to commit
several offences every year. Addicts resort to crime to pay for their drugs and for this
purpose they don’t even shy away from causing damage to public and social
infrastructure. Thus, drug addiction is not only a problem in itself but is also a
precursor for increase in crime rate in the society. If the nexus between drug and
crime is broken, the crime rate is likely to decline. Little is the difference between an
addict and a drug peddler as it is the peddler who sell drugs to addicts. Many of them
are also addicts themselves and peddle drugs to earn for meeting their own
requirement of drugs. Peddlers are the final link in the chain from manufacturer to
addicts and hence an effective strategy is required to handle them. They are large in
number and spread throughout the country. Specialized enforcement agencies often
do not have the manpower and resources to handle peddlers and hence it is left to the
local police to handle them. Local police have several competing demands on their
time and dealing with peddlers is often not one of those demands and there is no
pressure from the public to deal with them. Some policemen also do not find it
convenient to arrest a peddler who is also an addict as he cannot be supplied the drugs
which he needs a few hours after his arrest and the policemen are not trained to
handle addicts.

4
‘National household survey of drug abuse in India’ by Srivastava, A. Pal, HR. Dwivedi Report
submitted to the Indian Ministry of Social Justice and Empowerment and the United Nations Office for
Drugs and Crime. 2003.

11
Drug use hampers inhibition and impairs judgment egging one on to commit
offences. Incidences of teasing, group clashes, assault and impulsive murders are
increasingly followed up with drug abuse. Apart from affecting the financial stability,
addiction increases conflicts and causes untold emotional pain for every member of
the family. With majority of drug users belonging to the age group often referred to as
the demographic asset i.e. between 18-35 years, the loss in terms of productive human
capital and resource for the country is incalculable. Further, the damage to the
physical, psychological, moral and intellectual growth of the youth is high,
unquantifiable and cannot be ignored.

India has braced itself to face the menace of drug trafficking both at the domestic and
international levels. Several policies, legislative and institutional measures involving
both fundamental and innovative changes in enforcement, legal and judicial systems
have been brought into effect. The introduction of death penalty for drug-related
offences is a robust step intended to act as a major deterrent.

The Narcotic Drugs and Psychotropic Substances Act, 1985, were enacted with
stringent provisions to curb this social menace. The Act envisages a minimum term of
10 years imprisonment extendable to 20 years and fine of Rs. 1 lakh extendable up
toRs. 2 lakh for the repeated offenders5.

The Department of Revenue has the nodal co-ordination role as administrator of the
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

Narcotics Control Bureau under the Ministry of Home Affairs, is the apex
coordinating agency for co-ordination of actions by various offices, Governments and

5
Section 22, Narcotics Drugs and Psychotropic Substances Act, 1985

12
other authorities under the NDPS Act, Customs Act, Drugs and Act and any other law
for the time being in force in connection with the provisions of the NDPS Act, 1985.6

Comprehensive strategy involving specific programs to bring about an overall

reduction in use of drugs has been evolved by the various government agencies and
NGOs and is further supplemented by measures like education, counseling, treatment
and rehabilitation programs. Substance abuse can be addressed at the individual level,
at the local level (society, national, etc.) and at the cross-national level. At the
individual level, there has to be a synthesis of biological understanding with the
exploration of background sociocultural factors. At the national and cross-national
level, there has to be a concerted effort of all the countries in managing the issue of
substance abuse, taking into account the local socio-cultural and political scenarios.

6
Narcotics Control Bureau, Ministry of Home Affairs, available at
(http://narcoticsindia.nic.in/about.php) accessed on 16/01/2018.

13
 CHAPTER 2

DRUGS AND PSYCHOTROPIC SUBSTANCES: PRE-HISTORIC AND

MEDIEVAL ERA

Pre-Historic evidences suggest that the taste for addictive psychoactive substances
since the ancient times is attested to in the earliest human records. Historically,
psychoactive substances were very much the part and parcel of social and cultural
sentiments of the ancient people and primarily they had been used by:
(i) priests in religious ceremonies
(ii) healers for medicinal purposes (eg, opium) or
(iii) General population in a socially approved way (eg, alcohol, nicotine, and
caffeine).

“aapamasomamamrtaabhumaganmajyotiravidamadevanckimnunamasma

nkrnavadaratihkam u dhurtiramrtamartyasya”7

“We have drunk Soma and become immortal; we have attained the light, the Gods
discovered. Now what may foeman’s malice do to harm us? What, O Immortal,
mortal man’s deception?”The Vedas (the first Hindu texts), have a large selection of
hymns that specifically name the plant as important for spiritual rituals. This plant
was considered so important, in fact, that it was thought to be on the same level as the
gods in ancient times.

In 2,000-800, BCE Bhang (dried cannabis leaves, seeds and stems) has been
mentioned in the Hindu sacred text Atharva Veda (Science of Charms) as "Sacred
Grass", one of the five sacred plants of India. It was used by medicinally and ritually
as an offering to Shiva.8

7
The Rigveda (8.48.3)
8
http://www.advancedholistichealth.org/history.html (accessed on 15/01/218 at 13:00hrs)

14
Later on, in 330 BCE, Alexander the Great introduced opium to the people of Persia
and India.9

While it is believed by many that opium were introduced in India by the Arabs during
the medieval period. On the other hand cannabis was grown as a plant of Indian
origin. It is interesting to note here that the medicinal use of opium was mostly
included in the Ayurvedic texts and which were written in western India. It is possible
that the physicians of this era might have been influenced by the Arabic medicine
brought by the Muslim Physicians in the medieval India.

The Ayurvedic texts written about the Vedic period in the medieval period of eastern
India does not find mention of opium in the contemporary period though in the later
period opium was used in almost all Ayurvedic books of the India.

The medicinal use of opium and cannabis had crossed each other at some point.
Opium was used as aphrodisiac and later as anti-diarrheal, while cannabis was first
used as anti-diarrheal and then as aphrodisiac. It appears that both cannabis and
opium might have mutually influenced therapeutic use of each other. This observation
can be supported by the observation of Sarnagadhra that both these drugs possess
vyavayi property. Vyavayi has been defined as drug which is absorbed quickly
without going on through the intestinal digestion and it affects the whole body. The
therapeutic effect of opium and cannabis was quick in action10.

9
http://cbn.nic.in/html/opiumhistory1.html (accessed on 15/01/2018 at 13:15hrs)
10
History of Opium, Morphine and Heroin available at (http://www.intheknowzone.com/substance-
abuse-topics/heroin/history.html) accessed on 16/01/2018 at 15:20hrs.

15
 CHAPTER 3

USAGE OF DRUGS UNDER THE BRITISH REGIME

There is very little mention of Opium in the ancient religious books of the Hindus or
in the books of the Indian Medicine by Chraka, Sushruta and Vagabatt. However
there is reference in the works of opium like ‘Sharangadhar’ and ‘ Samhita’ believed
to have been written in the 14th and 16th century respectively. There is also the
reference of opium in the ‘Ain-i-Akbari’ written by AbulFazal during the reign of
Akbar.

During the Mughal period opium became very popular in India due to the belief that
it could take care of the sex-deficiencies. Gradually, the opium cultivation picked up.
Early in the 18th century the Portuguese discovered that they could import opium
from India and sell it in China at a considerable profit. By 1773 the British had
discovered the trade, and that year they became the leading suppliers of the Chinese
market. The British East India Company established a monopoly on opium cultivation
in the Indian province of Bengal, where they developed a method of growing opium
poppies cheaply and abundantly. Other Western countries also joined in the trade,
including the United States, which dealt in Turkish as well as Indian opium11.

Warren Hasting encouraged the opium trade for foreign commerce, in the Chinese
territory, while advising restraint from internal consumption of opium ,especially the
traffic that developed in the 18th and 19th centuries in which Western countries,
mostly Great Britain exported opium grown in India and sold it off to China. The
British used the profits from the sale of opium to purchase such Chinese luxury goods
as porcelain, silk, and tea, which were in great demand in the West.

Britain and other European countries undertook the opium trade because of their
chronic trade imbalance with China. There was tremendous demand in Europe for

11
‘ Opium trade’ – British and Chinese History (Encyclopedia Britannica) available at
http://www.britannica.com/topic/opium-trade accessed on 16/01/2018at 15:20hrs.

16
Chinese tea, silks, and porcelain pottery, but there was correspondingly little demand
in China for Europe’s manufactured goods and other trade items. Consequently,
Europeans had to pay for Chinese products with gold or silver. The opium trade,
which created a steady demand among Chinese addicts for opium imported by the
West, solved this chronic trade imbalance.

So valuable had this trade become to British India by the 1830s that its threatened
closure by the Qing government caused the British government to send ships and
troops to attack Canton and other coastal cities in the First Opium War. The British
thereby forcibly prevented the Qing government from effectively ending the
smuggling of Indian opium and its illegal sale to Chinese consumers.
The Qing government's refusal to legalize the sale of Opium was among the factors
that led to the Second Opium War.

Lord Cornwallis started the system under which the cultivation of opium was
permitted only under the license from the Government, and the sale of the opium was
also regulated by it. The opium act 1857 and the opium act 1878 was enacted later
primarily for the purpose of regulating the cultivation of poppy and the manufacture
of opium and subjecting these activities under the strict government control. The
same system continues till date although these acts have since been replaced bythe
Narcotic Drugs and the Psychotropic Substances Act, 198512.

As opium trafficking soared, the volume of criticism directed at it grew, especially in

Britain. Reformers headed by Evangelicals and Quakers organized, petitioned and put
forward Parliamentary resolutions aimed at halting the trade. Finally, in 1893, under
Prime Minister William Gladstone's Liberal government, anti-opium pressures
prevailed and Parliament approved the appointment of a Royal Commission on
Opium.

12
An Historical Overview of Opium Cultivation and Changing State Attitudes towards the Crop in
India, 18782000 A.D.
http://environmentportal.in/files/An%20Historical%20Overview%20of%20Opium%20Cultivation.pdf
accessed on 17/01/2018 at 15:40hrs.

17
The Commission was to report on whether India's opium exports to the Far East
should be ended and, further, whether poppy growing and consumption of opium in
India itself should be prohibited, save for medical purposes. After an extended inquiry
the Royal Commission released its report, running to around two thousand pages, in
early 1895.

The Royal Commission on Opium, appointed by the British Government in 1893,

found that while smoking of opium was rare in India, it was being used for oral
consumption. Referring to the ceremonial and social use of the opium, the
commission opined that it would be impracticable to prohibit its use. Accepting these
recommendations the Government decided not to delegitimize the cultivation,
manufacture or sale of opium. However the opium trade with China came to end in
1906, when the British House of Common passed a resolution declaring that such
trade was morally indefensible. In 1924, the all India Congress Committee passed a
resolution condemning the opium policy of the Government.

Consequent on the signing of the Geneva Convention, 1925 by India, the Dangerous
Drug Act, 1930 was passed. However no restrictions were imposed on the
consumption of the Opium. 1946, the government decided to prohibit the use of
opium. Exception was however made in the case of the existing addicts as long as
they survived and subject to their producing requisite medical certificates. Touching
upon the atmosphere in which Opium had to be cultivated after 1945, it is pertinent to
mention the UN Protocol of allowed the seven countries (including India) to produce
and export opium under conditions of severe regulation. They were ‘required to
establish a governmental machinery which would amount to a national monopoly of
the production of, and international and wholesale trade in, opium. Only licensed
farmers, with each license fixing the average under the crop, would be permitted to
grow opium poppy. After independence the Government of India and all state
governments in India were bound by the 1948 International Convention on opium and
the 1949 Indian Conference on opium. In accordance with the aims of the Protocol of

18
1948 they were committed ‘to close down supplies of opium for oral consumption in
the territory of India. The Government of India initiated vigorous action against
opium which was identified as ‘one of the worst debilitating agents in the list of
drugs. Consequently the number of registered addicts declined rapidly and the
consumption of opium plummeted.

In the Second and the Third All India Narcotics Conferences held in 1956 and 1959
respectively, it was decided that that non-medical and quasi-medical use of the opium
should be absolutely prohibited except for the persons requiring consumption of
opium on medical grounds. Consequently, all excise opium shops and vendors were
closed, and it was decided by the government to supply opium to the addicts who
have registered themselves

It is safely concluded and credit must be given to the Indian state for made efficient
use of the federal ‘governmental’ machinery left behind by the British in its fight
against opium. The legal framework it worked under had been created by the British
between the Mutiny and the Second World War. This framework was finally
superseded, and the opium act 1857 and the opium act 1878 repealed, by the
comprehensive Narcotic Drugs and Psychotropic Substances Act, 1985.

19
 CHAPTER 4

INTERNATIONAL POLICY AND LEGAL FRAMEWORK

The international control on narcotics and psychotropic substances dates back to the
beginning of the 20th century. Aggrieved by the high level of opium consumption in
the early twentieth century and its social, economic and health, consequences, several
countries gathered for the first time to discuss the drug problem prevailing in the
world. The stringent policies and the legal framework that we see today at the
international level were not always as it is today, but it has evolved and strengthened
with time. Let us look at its development chronologically:

The Shanghai Opium Commission, 1909.

It is undoubtedly and legitimately be considered the starting point of the international

drug control system. The first international conference to discuss the world’s
narcotics problem was convened in February 1909 in Shanghai. This forum became
known as the Opium Commission and it enabled the identification of the main opium
trade flows. The largest exporter of opium at the time was India, followed by Hong
Kong and Singapore, which were primarily re-exporters rather than producers13. The
largest global importer was China.

The original plan for the conference was to limit discussions to the topic of ending the
opium trade in Asia, notably to China. In the run-up to the conference, several
governments expressed interest in participating and others registered reservations. Most
reservations centered on the feeling that the issue could not be properly discussed

13
Report of the International Opium Commission, Vol. II, Reports of the Delegation, Memorandum on
Opium in India, 1909, Op Cit, P. 173.

20
unless all major producing, manufacturing and consuming nations attended. Several
governments were opposed to giving the conference any plenipotentiary powers14.

Aside from exchanging data and information, the International Opium Commission
also made a number of non-binding recommendations. It was agreed that it was
undesirable to import drugs into a country where their use was illegal. While the
Commission was not mandated to provide binding agreements, it still was a great
success because it did set the stage for the signing of The Hague Opium Convention
just three years later, which then formally established narcotics control as an element
of international law15.

The Hague Declaration, 1912

The path from the non-binding recommendations of the Shanghai conference to the
establishment of international legally binding instruments was a big transition in the
direction of the evolution of binding international drug regulation treaty.Following
intensive discussions, the conference agreed on the first international drug control
treaty, the International Opium Convention, consisting of six chapters and 25 articles.

The 1912 Convention invigorated drug control efforts in several countries. In the
United States it prompted the 1913 Congressional passage of the Harrison Act, which
is largely viewed as the foundation of 20th century US drug policy16. The Harrison

14
‘International Policy and Legal Framework’: An Overview by Rajat Ray, AtulAmbekar and
KoushikSinha, AIIMS, New Delhi, Emergence of International Drug Control Consensus available at -
http://www.aiims.edu/aiims/departments/spcenter/nddtc/Downloadable%20documents/DrugAbuse_Ne
ws-N-Views_Dec09.pdf accessed on 17/01/18 at 15:35hrs.
15
UNODC Report on Drug Control Foundation available at
https://www.unodc.org/documents/wdr/WDR_2008/WDR2008_100years_drug_control_foundation.pd
f accessed on 18/01/2018 at 13:10hrs.
16
Bewley –Taylor, David R., The United States and International Drug Control, 1909-1997, London &
New York, 2002, p. 26.

21
act arose as a direct result of the Convention and the international obligations which
underpinned its establishment17.

Despite its vast influence, there were limits to how far the Hague Convention actually
went. Most producer countries, for example, notably the UK, Persia and Russia,
objected to proposals to reduce cultivation. Thus, Article 1 of the convention only
obliged the contracting powers to ‘control’ opium production, not to reduce it to
medical and scientific use. Also, although states agreed to gradually suppress opium
smoking, they did not agree on any timetable. This enabled most countries to
continue the status quo through the subsequent decade.

The 1912 Convention was far from perfect, but it contained many elements of a
comprehensive drug control treaty. Moreover, as an official declaration on the
dangerous practices of opium smoking and the non-medical trade in opium and other
drugs, it had value as an advocacy tool.

The League of Nations, 1920-1945

The treaty of Versailles, 1919 that virtually halted the World War 1, also laid the
foundation for the League of Nations, and, by a resolution of the League of Nations
on 15 December 1920, the Opium Advisory Committee (OAC) was established to
oversee the implementation of the Hague Opium Convention of 191218.

In addition, the League designated an Opium and Social Questions Section within its
secretariat to provide the OAC with administrative and executive support. The
League’s new international drug control organs focused considerable effort on
gauging the extent of the international drug problem. The OAC requested information
about imports, exports, re-exports, consumption, reserve stocks, etc. Against this

17
UNODC on 1912, the Hague International Opium Convention available at -
http://www.unodc.org/unodc/en/frontpage/the-1912-hague-international-opium-convention.html
accessed on 18/01/2018 at 14:25hrs.
18
‘Legal Aspects of International Drug Control’by Chatterjee, S.K., London, 1981, p. 80.

22
background the OAC urged states to adopt an import / export certification scheme
modelled after the British system.

The involvement of several key countries in the OAC, including the US and Russia,
was extremely limited, as they were not members of the League of Nations. This had
a detrimental impact on the efficacy of the OAC. Several attempts were made to
enable the USA to participate directly in the OAC, and as of 1923, the US State
Department did send observers to the OAC meetings. These meetings revealed,
however, ongoing differences in opinion among the participating states. While the US
delegation advocated a strict supply-control, the colonial powers defended the
traditional forms of opium use in Asia. They rejected any substantive restrictions on
poppy cultivation, arguing that this would only foster illegal cultivation and trade in
China.

The position of the USA vis à visthe League of Nations meant that it could no longer
play the leading role in promoting international drug control efforts. This role was
now increasingly taken over by the United Kingdom.

Increasing political tensions in the late 1930s weakened international cooperation.

Germany, which had entered the League of Nations in 1926, left after the National-
socialists came to power. Japan left the League of Nations in 1933 after the League
had voiced opposition to the invasion of the Chinese territory of Manchuria. Italy
withdrew in 1937, following the League’s condemnation of its invasion of Ethiopia.
The Soviet Union, which had only joined the League of Nations in 1934, had to leave
it in 1939 following its aggression against Finland19.

Despite of this unfavorable political environment in the late 1930s, most countries
adhered to the conventions and even supplied statistics until 1939. During World War

‘A Century of International Drug Control’, published by United Nations Publication, ISBN No. 978-
19

92-1-148252-2, P.79.

23
II violations against the international drug control treaties were limited to significant
shipments of opium and other opiates to China.

As of 1940, most of the offices of the international drug control system were
gradually transferred to the United States (the Opium Advisory Committee to
Princeton and the Central Permanent Board and the Drug Supervisory Body to
Washington), though their official seat remained in Geneva.

The Opium Geneva Conventions, 1924 and 1925

Although the U.S. had chosen not to join the League of Nations, American influence
in international drug control matters did not taper off. Worried by the 1912 Hague
Convention’s limited effect on the smuggling of opium and, increasingly,
manufactured drugs in East Asia, the U.S. pressured the League to convene a new
conference – the League (of Nations) feared that if it did not comply, the U.S. might
act independently. Between November 1924 and February 1925, two back-to-back
conferences were held and two separate treaties were concluded20.

The first Geneva Convention focused on opium-producing nations; whereby it was

agrees that signatories would be permitted to sell opium only through government run
monopolies and were required to end the opium trade completely within 15 years.

The Geneva Convention of February 19, 1925, was a great step forward in the control
of narcotic drugs. Governments were required to submit to the newly created
Permanent Central Opium Board (PCOB) annual statistics concerning production of
opium and coca leaves, the manufacture, consumption and stocks of narcotic drugs
and quarterly reports on the import and export of such drugs (including opium and
coca leaves). It also established the system of import certificates and export

20
‘The History and Development of the Leading International Drug Control Conventions’ by Jay
Sinha for the Parliament of Canada, available at -
http://www.parl.gc.ca/Content/SEN/Committee/371/ille/library/history-e.htm#C. The 1925 Geneva
Opium Conventions accessed on 19/01/2018at 15:10hrs

24
authorizations requiring governmental approval of each import and export. The
Permanent Central Opium Board (PCOB) was established to supervise the statistical
system introduced by the Convention. It was composed of eight independent experts
serving in their personal capacity and not as representatives of their governments. The
Board was authorized under certain conditions to recommend an embargo of drug
exports to a country which threatened to become a center for illicit traffic, and thus a
danger to other nations, even if that country was not a party to the Convention.

Interestingly the PCOB had a positive impact on raw materials producers. By 1925,
the Government of India concluded that the political costs linked to continued opium
exportation outweighed the economic advantages. It announced that it would end
opium exports to any state or colony acting as a center for the illicit traffic, even if
such a government were to produce any valid import certification. In 1926, the
Government of India declared a gradual reduction of all non-medicinal opium
exports. Indian exports dropped significantly in subsequent years21.

Another new element of the 1925 Convention was the application of the international
drug control system to cannabis. Control of cannabis was far less comprehensive than
control of opium/morphine/heroin or coca / cocaine. Although the 1925 Convention
brought cannabis, under international control for the first time, control was limited.
The Convention only dealt with the international dimension of the cannabis trade. It
did not prohibit the production of cannabis as such; it did not ask to control domestic
traffic in cannabis; it did not prescribe measures to reduce domestic consumption; and
it did not ask governments to provide cannabis production estimates to the Board22.

21
McAllister, 1999, Op Cit, p. 81.
22
‘The Control of Drugs and Drug Users, Reason or Reaction’ by Coomber, Ross, London, 1998, p 38.

25
The Geneva Narcotics Manufacturing and Distribution Limitation Convention,
1931

By the end of the 1920s drug control efforts had achieved several objectives. The
1925 International Opium Convention enjoyed growing acceptance, and even
countries which had not signed and ratified it, such as the USA, cooperated with the
Permanent Central Opium Board. Government statistical returns were increasingly
received and provided a clearer picture of the supply and demand situation. In
addition, many states had strengthened their domestic enforcement efforts, and India,
the world’s main opium exporter, started to reduce its opium exports.

The lack of universality in the agreements, however, ensured that these approaches
would never be fully successful. Persia and other states started to fill the void created
by the Indian withdrawal from the quasi-medicinal market. In addition, the
overproduction of opium inside China continued. Statistical returns from China
indicated that imports of manufactured drugs into China had started to skyrocket.
And, as European governments pressured pharmaceutical companies to conform to
more stringent control standards, a number of unscrupulous operators moved their
activities to states that had not ratified the International Opium Convention. The
global economic depression of the 1920’s severely hampered any attempts at
limitation with producer countries refusing to forego existing export opportunities23.

Member states favoring limitation began to look into other control options. The
Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic
Drugs 24 introduced a compulsory estimates system aimed at limiting the global
manufacture of drugs to the amounts needed for medical and scientific purposes and
established a Drug Supervisory Body (DSB) to monitor the operations of the system.

, ‘The beginnings of international drug control’United Nations,1998.

23

‘ Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs’
24

League of Nations, Geneva, 13 July 1931

26
The key elements of the new control system were as follows: Signatories had to
submit, Estimates on the quantities needed for medical and scientific needs,
- For conversion,
- For reserve stocks, and
- For Government stocks.

Provisions were also included regarding the revision of estimates for unforeseen
medical requirements. Further, the 1931 Convention also introduced the principle
presently known as ‘drug scheduling25’, i.e. applying three different control levels to
drugs based on:
(i) The degree of danger by a particular drug , and
(ii) The extent to which a drug was used by the medical profession.

The Responsibility for monitoring the estimate system was entrusted to a newly
26
founded Drug Supervisory Body (DSB). The DSB was in charge of a
comprehensive assessment of global drug requirements. US had to report imports and
exports to the DSB after execution of the orders, thus giving the DSB indirect control
powers over the global trade in manufactured drugs 27. Thus, by creating this new
Body, (the tasks could have been fulfilled by the Permanent Central Opium Board)
the US was able to avoid acknowledging the leading role of the League of Nations in
the area of international drug control28.

Bangkok Opium Smoking Agreement

In late 1931, a further conference was held in Bangkok to address opium smoking in
the Far East. The treaty produced was weak, primarily because the U.S. attended it
only as an observer and the European colonial powers were unwilling to implement
effective controls on opium use while there was significant opium overproduction and
trafficking. The fact that the U.S. strategy of absolute prohibition had made little

25
‘Article 10 of the 1931 Convention’,Bulletin on Narcotics,1953, Issue 2013
26
Chatterjee, S.K, 1981,OpCit, p. 95.
27
McAllister, 1999, Op Cit, p. 96.
28
Ibid, p. 98.

27
impact on opium trafficking and use in the Philippines did not assist the U.S. in
pushing for the elimination of poppy cultivation29.

The key effect of the Bangkok conference was that it convinced the U.S. a firmer
approach was needed to combat raw material production and illicit drug trafficking.

The Geneva Suppression of the Illicit Traffic in Dangerous Drugs Convention,

1936

Unfortunately, progress made on the licit side prompted the emergence of a whole set
of illegal activities. Following the end of alcohol prohibition in the United States
(1933) and other parts of the world, number of organized crime groups and criminal
syndicates were exploring new avenues of business opportunities for earning
supernatural profits as the initiatives at the international level proved to be a major
setback for their economic interests and they discovered heroin trafficking a lucrative
option especially when done in collaboration with their international counterparts.

Now, concerned over the expansion of drug markets, the League of Nations convened
a conference in 1936. The main outcome of this conference was the 1936 Convention
for the Suppression of the Illicit Traffic in Dangerous Drugs 30 . This was the first
treaty to explicitly focus on drug trafficking and the first to make certain drug
offenses international crimes.

It was for the very first time the Convention dealt explicitly with drug related crime
committed abroad and extradition. Notwithstanding this, the practical importance of
this Convention remained limited as a number of key countries refused to sign and
ratify it. This included the USA, for which the convention was not sufficiently far-
reaching especially in relation to extradition, extraterritoriality and the confiscation of
trafficking. Other countries, such as Germany and Japan, were no longer participating

29
Supra, N. 28
30
Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs, League of Nations,
signed on June 26th, 1936, Geneva.

28
in international conferences. In total only 13 countries signed and ratified this
convention.

Despite its minimal overall effect, the 1936 Trafficking Convention stood out and
marked a turning point. All the previous treaties had dealt with the regulation of
“legitimate” drug activities, whereas the 1936 Trafficking Convention had then made
such activities an international crime subject to penal sanctions31.

The practical importance of this Convention remained limited as a number of key

countries refused to sign and ratify it. This included the USA, for which the
convention was not sufficiently far-reaching32. Other countries, such as Germany and
Japan, were no longer participating in international conferences. In total only 13
countries signed and ratified this convention.ac Moreover, it only became effective in
October 1939, i.e. after World War II had started, and drug control priorities had been
supplanted by more immediate foreign policy imperatives. In fact, it was another five
decades before these topics were dealt with again in detail at the multilateral level.

Under the United Nation, 1946 onwards

From 1946 on, the United Nations assumed the drug control functions and
responsibilities formerly carried out by the League of Nations. The major treaties,
protocol and the convention under the UN regime include:

The Opium Protocol, 1953

In the aftermath of the World War II, international relations changed dramatically and
the development of multilateralism in drug control relied more than ever on
diplomacy and consensus building. The United States of America (USA) and the
Soviet Union (USSR) emerged as the two new superpowers. Germany and Japan
were reconstructing. In the meantime, the new Chinese government or the Peoples

31
Supra, N.37
32
League of Nations, Records of The Conference for the Suppression of the Illicit Traffic In Dangerous
Drugs, Geneva, June 8th To 26th, 1936, Text of the debates, Geneva 1936.

29
Republic of China after independence in 1949, eliminated opium production, trade
and consumption from China33.

In June 1953, nations agreed to the elaboration of a Protocol for Limiting and
Regulating the Cultivation of the Poppy Plant, the Production of, International and
Wholesale Trade in and Use of Opium, known more simply as the 1953 Opium
Protocol. The Protocol was intended to limit opium production and use to medical
and scientific needs.

As per the Protocol only seven counties Bulgaria, Greece, India, Iran, Turkey, the
USSR and Yugoslavia – were authorized to produce opium for export. The Protocol
also asked countries to implement comprehensive control systems at the national
level34.

The Permanent Central Board was empowered with specific supervisory and
enforcement responsibilities, including recommendations for an embargo and a
mandatory embargo. Legal overproduction was to be eliminated through control of
the amount of opium that could be stocked by individual States35.

The 1953 Opium Protocol contained the most stringent drug-control provisions that
had ever been embodied in international law36. The agreement extended the reporting
provision placed on manufactured drugs under the 1931 Convention to raw opium.
Aimed primarily at producing states, signatories would submit estimates concerning
the amount of opium planted, harvested, consumed domestically, exported and
stockpiled to the DSB. Year-end statistics would have to be reported to the PCOB.
The Protocol also gave the Board responsibility for making inquiries into
discrepancies, conducting inspections, and imposing embargoes.

33
Zhou Yongming, “Nationalism, Identity and State Building, The Antidrug Crusades in the People’s
Republic, 1949-1952”, in Timothy Brook and Bob Tadashi Wakabayashi, Opium Regimes, China,
Britain and Japan, 1839-1952, Los Angeles 2000, pp. 380-403.
34
United Nations, ‘The beginnings of international drug control’, UN Chronlicle, Summer 1998.
35
United Nations, ‘The United Nations Drug Abuse Control’, 1992, pp. 65-66.
36
Canadian Senate, 2002

30
The Board was empowered to fix estimates, and could take investigatory and punitive
action, even in the case of states that were not a party to the Protocol. In exchange for
accepting the new burdens and limitations, producer countries received a monopoly
on licit sales of opium, and were given a fifteen year grace period in which to cease
all production. Parties to the treaty agreed to buy opium only from the seven states
named in the text37.

The Protocol stipulated that twenty-five states, including three of the seven producing
states, had to ratify the treaty. However, among the seven identified opium producing
and exporting states, only India and later Iran ratified the Protocol38.

The Soviet Union opposed some of the inspection regulations. Greece and Yugoslavia
only declared their readiness to ratify it once Turkey had done so. Greece eventually
ratified the Protocol in February 1963 and Turkey, following increasing pressure from
the USA.

The Convention on Psychotropic Substances, 1971

In the mid-1960s, most countries imposed only minimal limitations on the

distribution of amphetamines, barbiturates, tranquilizers and other synthetic, non-
plant based drugs. As the problems described above gained in intensity, restrictions
were introduced in several of the developed countries, prompting pharmaceutical
companies to market their products more aggressively in Latin America, Africa and
Asia. The misuse of psychotropic substances thus became a truly global phenomenon
and several developing countries started to reproach the double standards applied to39.
These epidemics initially appeared to be isolated phenomena. By the mid-1960’s,
however, the general upward trend in the abuse of psychotropic substances seemed to
qualify as a global phenomenon.

37
McAllister, 1999, p. 181-182.
38
United Nations, Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the
Production of, International and Wholesale Trade in, and use of Opium New York, 23 June 1953.
39
McAllister, 1999, Op, Cit, pp. 219-226.

31
In 1967, the UN Legal Office and the WHO expressed the view that in order to
control these psychotropic substances a new treaty would have to be negotiated. The
Convention, known as the 1971 Vienna Convention, placed a number of
amphetamine-type stimulants, hallucinogens (such as LSD), sedative hypnotics and
anxiolytics (benzodiazepines and barbiturates), analgesics and antidepressants under
international control40.
Seventy-one states, the World Health Organization, and INTERPOL attended the
plenipotentiary conference. A number of representatives from various pharmaceutical
companies attended as well41.

The control system provided by this Convention was based on the 1961 Convention,
however, it also contained some innovations. There are general prescription
requirements, i.e. all substances can only be supplied or dispensed with a medical
prescription42. The advertisement of such substances to the general public was to be
prohibited and, instead, appropriate cautions and warnings had to be indicated on the
labels and the accompanying leaflets43.

The nations who ratified this convention had to maintain a system of inspection of
manufacturers, exporters, importers, wholesale and retail distributions and of medical
and scientific institutions. A Party may also notify all other Parties through the
Secretary-General (subsequently changed to UNODC) that it prohibits the
importation of one or more of the psychotropic substances44.

Under the treaty if the Board had a reason to believe that the aims of the Convention
had been seriously endangered by the failure of a country to carry out the provisions,
the Board could recommend to the Parties, the Economic and Social Council and the
Commission on Narcotic Drugs that they stop the export, import or both of particular

40
INCB, 2007 Psychotropic Substances, New York 2008, p. 33-58.
41
Convention on Psychotropic Substances 1971, New York, 1977, p. 1.
42
Article 9, Clause 1 of the Convention of Psychotropic Substances, 1971
43
Article 10, Clause 2 of the Convention of Psychotropic Substances, 1971
44
Article 15 of the Convention of Psychotropic Substances, 1971.

32
psychotropic substances from, or to, the country concerned. This gave the Board a
powerful sanction mechanism.45

The Drug Abuse Control Strategy, 1981

Despite efforts made over the previous decades, sharp increases in drug abuse
occurred in many countries towards the end of the 1970s. Turkey in the early 1970s
was filled by rising opium production in Mexico and in the Golden Triangle. There
was also an increase in opium production and diversion from Iran. Cannabis
production and consumption increased worldwide, with production increasing in
Latin America and consumption increasing in North America and Europe. Cocaine
started to emerge as a serious problem in North America beginning in the 1980s46.

Taking this into consideration, the Commission on Narcotic Drugs studied the
possibilities of launching a comprehensive strategy to reduce international drug
abuse. This resulted, in 1981, in the formulation of an International Drug Abuse
Control Strategy47. The Strategy called for international co-operation to combat drug
abuse and trafficking with the following objectives:

(1) Improvements to the drug control system,

(2) Maintenance of a balance between legitimate drug supply and demand,
(3) Eradication of illicit drug supply,
(4) Reduction of illicit traffic,
(5) Reduction of illicit demand and prevention of drug abuse, and
(6) Commitment to the treatment, rehabilitation and social reintegration of drug
abusers.

The Strategy also called for various organizations and agencies operating within the
United Nations system to provide increased support to assist Governments in

45
Article 19, Clause 1 and 2, of the of the Convention of Psychotropic Substances, 1971
46
National Institute on Drug Abuse, Monitoring the Future - national survey results on drug use, 1975-
2006. Volume I: Secondary school students, National Institutes of Health Publication No. 07-6205,
Bethesda, 2007.
47
United Nations, The United Nations and Drug Abuse Control, 1992, pp. 70-71.

33
activities such as crop-substitution, drug law enforcement and preventive drug
education.

In December 1984, the General Assembly adopted a ‘Declaration on the Control of

Drug Trafficking and Drug Abuse’ which stated that eradication of the illegal trade of
drugs and other psychotropic substances was the collective responsibility of all States
(nations) The importance of these statements could be gauged from their elucidation
of the link between the drug problem and social and economic development and their
emphasis on the collective responsibility of all States48.
The United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic substances, 1988

The global influence of organized crime groups increased throughout the 1980s. They
made use of the exorbitant profits derived from the cocaine business to corrupt local
and national authorities. Against such a background the General Assembly urged the
Economic and Social Council - the Commission on Narcotic Drugs, to initiate, as a
matter of priority, the preparation of a draft convention against illicit traffic in
narcotic drugs which would consider the various aspects of the problem as a whole in,
in particular, those not envisaged in existing international instruments49.

Some of the obligations of this Convention are rather far-reaching, clearly going
beyond those contained in earlier Conventions. One of the main characteristics of
Convention was the emphasis it had placed on the prevention of money laundering50
i.e. financial operations in connection with the offences relating to drugs. The 1988
Convention is clearly designed to hit drug traffickers where it hurts them most - by
depriving them of ill-gotten financial gains51.
Moreover, the courts have to be empowered to seize bank, financial or commercial
records. Bank secrecy cannot be invoked in such cases, and mutual legal assistance

48
United Nations, The United Nations and Drug Abuse Control, 1992, p. 72.
49
United Nations, ‘Draft Convention against Traffic in Narcotic Drugs and Psychotropic Substances
and Related Activities’ General Assembly Resolution 39/141, 14 December 1984.
50
Article 36, clause 2, of the United Nations Convention against Illicit Traffic in Narcotics Drugs and
Psychotropic Substances, 1988
51
United Nations, The United Nations and Drug Abuse Control, 1992, p. 75.

34
cannot be declined on the ground of bank secrecy though the Convention does not
require any party to abolish its bank secrecy laws, it does require appropriate
exception to the principle of bank secrecy or confidentiality to enable action in cases
involving illicit drug traffic.52.

The 1988 Convention emphasized the importance of precursor control at the

international level. Trade in precursor chemicals for the manufacture of illegal drugs
was established as a punishable offence under the 1961 Convention if considered a
‘preparatory act’. Very few countries had implemented precursor legislation prior to
the 1988 Convention. The 1988 Convention established, that the manufacture,
transport or distribution of equipment used in the manufacture of illicit drugs, as well
as the manufacture, transport or distribution of precursor chemicals, knowing that
they are used for the illicit manufacture of drugs, have to be made criminal offences 53.

The 1988 Convention began with goals related primarily to preventing drug
trafficking, the holistic approach to the problem (i.e. with a focus to curb both supply
and demand), was particularly prescient. It has been a guiding principle of
international drug control ever since. Thus this convention required the Parties to
adopt appropriate measures to eliminate illicit demand for narcotic drugs and
psychotropic substances and dismantle the sources of supply of the same.

United Nation Office on Drug and Crime-

UNODC is a global leader and a dedicated body of the United Nations fighting
against illicit drugs and international crime. Established in 1997 through a merger
between the United Nations Drug Control Program and the Centre for International
Crime Prevention, UNODC operates in all regions of the world through an extensive
network of field offices. It relies on voluntary contributions, mainly from
Governments, for 90 per cent of its budget.

52
Article 5, Clause 3, of the United Nations Convention against Illicit Traffic in Narcotics Drugs and
Psychotropic Substances, 1988
53
‘United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
1998’, 1998, P.122.

35
UNODC is mandated to assist Member States in their struggle against illicit drugs,
crime and terrorism. In the Millennium Declaration, Member States also resolved to
intensify efforts to fight transnational crime in all its dimensions, to redouble the
efforts to implement the commitment to counter the world drug problem and to take
concerted action against international terrorism54.

The three pillars of the UNODC work program are:

1. Field-based technical cooperation projects to enhance the capacity of Member

States to counteract illicit drugs, crime and terrorism
2. Research and analytical work to increase knowledge and understanding of
drugs and crime issues and expand the evidence base for policy and
operational decisions
3. Normative work to assist States in the ratification and implementation of the
relevant international treaties, the development of domestic legislation on
drugs, crime and terrorism, and the provision of secretariat and substantive
services to the treaty-based and governing bodies.

54
The official UNODC website available at www.unodc.com/aboutus/ accessed on 05/02/2018 at
13:20hrs.

36
 CHAPTER 5

DRUG POLICY OF INDIA

Historically, India being a country with significant volumes of licit and illicit drug
cultivation, a transit route as well as a consumer market, India’s drug policy
dilemmas span between ‘demand’ and ‘supply’ control. Narcotic Drugs and
Psychotropic Substances are known to have several medicinal and scientific uses.
However, they can be and are also abused and trafficked for the non-medical
purposes. India’s large chemical and pharmaceutical industry draws the country into
the licit and illicit manufacture of drugs as well as the non-medical use of prescription
drugs. Some parts of the country report alarmingly high rates of drug abuse,
dependence, HIV and viral hepatitis amongst people who inject drugs, making health
hazard reduction an important policy considerations for the country. While India’s
stringent drug regulation laws (in particular the criminalization of drug use and the
imposition of the death penalty for certain drug offences) conform strictly with
prohibition55.

India's stand towards Narcotic Drugs and Psychotropic Substances is also enshrined
in the Constitution of India which mandates that the ‘State shall endeavor to bring
about prohibition of the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health’56.
Although these Directive Principles of State Policy are unenforceable, the above
article of the Indian Constitution is frequently invoked to justify punitive drug
policies. The Constitution also earmarked subjects on which Parliament or state
Legislatures could make law either exclusively or concurrently. “Drugs and poisons”
was placed in the concurrent list allowing both Centre and States governments to
legislate on the matter. “Public health” and “prisons and other institutions of like
nature and persons detained therein” lie solely in the jurisdiction of the State. The
division of legislative powers is significant because removes ambiguity and

55
A Rational Drug Policy: Problems, Perspective, Recommendations, in the Interest of Social Justice
in HealthbyPranjapayee.
56
Article 47 of the Constitution of India

37
determines State Governments’ ability to ‘break’ from national drug policies and
employ alternative in areas where they are empowered to frame policy.57,

It is observed that Indian Legislators have responded by translating the internationally

accepted principles and convention on the abuse and regulation of Drugs and
Psychotropic substances in the domestic law by laying down broad and
comprehensive legislative policy that is contained in the three Central Acts:
1. The Narcotic Drugs and Psychotropic Substances Act, 1985
2. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988, and
3. Drugs and Cosmetics Act, 1940.

Drug Policy And Legislative Measures

Drug and substance abuse is a serious problem adversely affecting the social fabric of
the country. Addiction to drugs not only affects the individual’s health but also
disrupts their families and the whole society. Regular consumption of various
psychoactive substances leads to drug dependence of the individual. Some drug
compounds may lead to neuron-psychiatric disorders and other diseases such as
cardiovascular diseases, as well as accidents, suicides and violence. Therefore, drug
abuse needs to be viewed as a psychosocial-medical problem, which requires a
combination of medical treatment and psychosocial intervention. Of late the menace
of drug abuse in the younger generation has been rising all over the world and India is
no exception to it. The vulnerability of injecting drug users (IDUs) to acquire blood
borne infections that include co-infection with HIV/AIDS and Hepatitis B and C due
to sharing of needles and syringes makes the problem of drug abuse even more
serious58.

India is situated in a region highly vulnerable to drug use with various adverse health
and social consequences which have only added to the menace. This menace needs to

57
Entry 19 of Concurrent List under Schedule VII of the Constitution of India
58
Introduction, National Policy of Drug Demand Reduction, 2014

38
be addressed urgently and holistically so that different sections of the society,
especially the youth do not fall prey to it.

Mandate in the Directive principles of ‘Indian Constitution ‘has laid stress on the
improvement of public health and prohibition of drugs injurious to health as one of
the primary duties of the State. Taking thread from these Constitutional provisions,
the Supreme Court of India in Vincent v. Union of India59, explained the scope of this
primary duty of the State.60

The Supreme Court of India expressed the view that such drugs which are found
necessary should be manufactured in abundance and availability to satisfy every
demand should be ensured. According to the Court undue competition in the matter of
production of drugs by allowing too many substitutes should be reduced as it
introduces unhealthy practice and ultimately tends to affect quality.61

These are the objectives set out and the responsibilities imposed by the Constitution
of India on the State. In the light of these objectives and responsibilities a rational and
effective drug policy for the country was carved out. These guidelines must ensure
logical production and consumption in the light of the provisions of the Constitution,
directions of the Supreme Court.

According to the WHO, a national drug policy must be structured on relevant

background information including the country’s morbidity, mortality, health system,
human resources, and the organisation of the drug sector. A (rational) national drug
policy should ideally include: a list of essential drugs; use of generic names of drugs;
criteria for drug registration based on safety, efficacy, quality, health needs and cost;
regulation, control and monitoring of drug prices and drug promotion; centralised
59
A.I.R. 1987 S.C. 990.
60
Article 47 of the Constitution of India 7. It reads; “ The State shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public health as among its
primary duties and in particular. the state shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to
health."
61
Ibid pg. 996

39
bulk purchase of drugs using international tenders (for countries lacking
manufacturing facilities), and national legislation on patents to exclude
pharmaceutical products from patent protection62.

In February 2012, country’s latest National Policy on Narcotic Drugs and

Psychotropic Substances (NDPS) was released by the Government of India. The
policy was drafted by the Department of Revenue, Ministry of Finance and released
with much fanfare by the then Finance Minister Sh. Pranab Mukherjee (currently
President), Government of India. The policy states its aims as “to spell out policy of
India towards NDPS”, “guide various ministries and organizations, international
organizations, and NGOs”, as well as to “re-assert India’s commitment to combat the
drug menace in a holistic manner.

The underlying objectives of the Policy for Prevention of Alcoholism and Substance
(Drug) Abuse are:

a) To create awareness and educate people about the ill-effects of alcoholism and
substance abuse on the individual, the family, the workplace and society at large;

b) To provide for the whole range of community based services for the identification,
motivation, counselling, de-addiction, after care and rehabilitation for Whole Person
Recovery (WPR) of addicts;

c) To alleviate the consequences of drug and alcohol dependence amongst the

individual, the family and society at large; and

d) To facilitate research, training, documentation and collection of relevant

information to strengthen the above mentioned objectives.63

62
‘How to develop and implement a national drug policy’. 2nd ed. (updates and replaces Guidelines for
Developing National Drug Policies, 1988) Geneva: WHO, 2001.
63
‘Press Information Bureau, Government of India’,Ministry of Social Justice and Empowerment,
available at- http://pib.nic.in/newsite/PrintRelease.aspx?relid=68111 accessed on 8/04/16 at 14:10hrs.

40
Commentary on the Important Provisions

Some of the Important Provisions pertaining to the Control, Prohibition and

Regulation and Classification of the offences under the Narcotics Drugs and
Psychotropic Substances Act are as follows:

Section (8): Prohibition of certain operations.

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 tranship 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 licence, permit or authorization also in
accordance with the terms and conditions of such licence, permit or
authorization.64

Section [8A]: Prohibition of certain activities relating to property derived from

offence.
No person shall:
a) convert or transfer any property knowing that such property is derived
from an offence committed under this Act or under any other
corresponding law of any other country or from an act of participation
in such offence, for the purpose of concealing or disguising the illicit
origin of the property or to assist any person in the commission of an
offence or to evade the legal consequences; or

64
Section 8 of the Narcotics Drugs and Psychotropic Substances Act, 1985

41
 b) conceal or disguise the true nature, source, location, disposition of any
property knowing that such property is derived from an offence
committed under this Act or under any other corresponding law of any
other country; or
c) Knowingly acquire, possess or use any property which was derived
from an offence committed under this Act or under any other
corresponding law of any other country.65

Section (9): Power of Central Government to permit, control and regulate. –

(1) Subject to the provisions of section 8, the Central Government may, by
rules-
a) Permit and regulate-
(i) the cultivation, or gathering of any portion (such cultivation or gathering
being only on account of the Central Government) of coca plant, or the
production, possession, sale, purchase, transport, import inter-State,
export inter-State, use or consumption of coca leaves;
(ii) the cultivation (such cultivation being only on account of Central
Government) of the opium poppy;
(iii)the production and manufacture of opium and production of poppy
straw;
(iv) the sale of opium and opium derivatives from the Central Government
factories for export from India or sale to State Government or to
manufacturing chemists;
(v) the manufacture of manufactured drugs (other, than prepared opium) but
not including manufacture of medicinal opium or any preparation
containing any manufactured drug from materials which the maker is
lawfully entitled to possess;
(vi) the manufacture, possession, transport import inter-State, export inter-
State, sale, purchase, consumption or use of psychotropic substances;

65
Section 8A, of the Narcotics Drugs and Psychotropic Substances Act, 1985, inserted by the 2001
Amendment of the Act.

42
(vii) the import into India and export from India and transhipment of
narcotic drugs and psychotropic substances;

(b) Prescribe any other matter requisite to render effective the control of the
Central Government over any of the matters specified in clause (a).

(2) In particular and without prejudice to the generality of the foregoing

power, such rules may

a) empower the Central Government to fix from time to time the limits
within which licenses may be given for the cultivation of the opium
poppy;
b) require that all opium, the produce of land cultivated with the opium
poppy, shall be delivered by the cultivators to the officers authorized in
this behalf by the Central Government;
c) prescribe the forms and conditions of licenses for cultivation of the
opium poppy and for production and manufacture of opium; the fees
that may be charged therefor; the authorities by which such licenses
may be granted, withheld, refused or cancelled and the authorities
before which appeals against the orders of withholding, refusal or
cancellation of licenses shall lie;
d) prescribe that opium shall be weighed, examined and classified
according to its quality and consistence by the officers authorized in this
behalf by the Central Government in the presence of the cultivator at the
time of delivery by the cultivator;
e) empower the Central Government to fix from time to time the price to
be paid to the cultivators for the opium delivered;
f) provide for the weighment, examination and classification, according to
the quality and consistence, of the opium received at the factory and the
deductions from or additions (if any) to the standard price to be made in
accordance with the result of such examination; and the authorities by

43
 which the decisions with regard to the weighment, examination,
classification, deductions or additions shall be made and the authorities
before which appeals against such decisions shall lie;
g) require that opium delivered by a cultivator, if found as a result of
examination in the Central Government factory to be adulterated, may
be confiscated by the officers authorized in this behalf;
h) prescribe the forms and conditions of licenses for the manufacture of
manufactured drugs, the authorities by which such licenses may be
granted and the fees may be charged therefor;
i) prescribe the forms and conditions of licenses or permits for the
manufacture, possession, transport, import inter-State, export inter-
State, sale, purchase, consumption or use of psychotropic substances,
the authorities by which such licenses or permits may be granted and the
fees that may be charged therefor;
j) prescribe the ports and other places at which any kind of narcotic drugs
or psychotropic substances may be imported into India or exported from
India or transshipped; the forms and conditions of certificates,
authorizations or permits, as the case may be, for such import, export or
transshipment; the authorities by which such certificates, authorizations
or permits may be granted and the fees that may be charged therefor.

This section empowers the Central Government to permit, control and

regulate by rules, certain operations in relation to certain narcotic drugs and
psychotropic substances. It may be noted that the permissions granted under
these rules themselves are subject to further control66.

Section [9A]: Power to control and regulate controlled substances.-

(1) If the Central Government is of the opinion that, having regard to the
use of any controlled substance in the production or manufacture of any

66
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P.79

44
 narcotic drug or psychotropic substance, it is necessary or expedient so
to do in the public interest, it may, by order, provide for regulating or
prohibiting the production, manufacture, supply and distribution thereof
and trade and commerce therein.
(2) Without prejudice to the generality of the power conferred by sub-
section (I), an order made there under may provide for regulating by
licenses, permits or otherwise, the production, manufacture, possession,
transport, import inter-State, export inter-State, sale, purchase,
consumption, use, storage, distribution, disposal or acquisition of any
controlled substance.

There were certain chemicals or substances which were used in the production or
manufacture of narcotic drugs or psychotropic substances. The intelligence reports
indicate existence of heroin trade across the border. Simultaneously outflow of
precursor chemicals like acetic anhydride and other chemicals, used in the conversion
of the opium into heroin, from India to border countries, had also been established
after refining; the heroin is smuggled into or throughout this country. To counter this
situation, it was necessary to have an effective control over manufacture and
movement of all such chemicals67.

The present section empowers the Central Government to control and regulate the
production, manufacture, supply and distribution, and other activities in relation to
“controlled substances” by means of an order. Any contravention of such order has
been made punishable under section 25A of the act.68

Section (10): Power of State Government to permit, control and regulate.-

(l) Subject to the provisions of section 8, the State Government may, by rules
a) Permit and regulate-

67
‘ Narcotics Drugs and Psychotropic Substances Act, 1985’ Second Edition, P. K. Jain, P. 80.
68
Section 9A, of the Narcotics Drugs and Psychotropic Substances Act, 1985, inserted by Act no. 2 of
the 1989 Amendment of the NDPS Act.

45
 (i) the possession, transport, import inter-State, export inter-State,
warehousing, sale, purchase, consumption and use of poppy straw;
(ii) the possession, transport, import inter-State, export inter-State, sale,
purchase, consumption and use of opium;
(iii)the cultivation of any cannabis plant, production, manufacture,
possession, transport, import inter-State, export inter-State, sale,
purchase consumption or use of cannabis (excluding charas);
(iv) the manufacture of medicinal opium or any preparation containing any
manufactured drug from materials which the maker is lawfully entitled
to possess;
(v) the possession, transport, purchase, sale, import inter-State, export inter-
State, use or consumption of manufactured drugs other than prepared
opium and of coca leaf and any preparation containing any
manufactured drug;
(vi) the manufacture and possession of prepared opium from opium lawfully
possessed by an addict registered with the State Government on medical
advice for his personal consumption:

Provided that save in so far as may be expressly provided in the rules made under
sub-clauses (iv) and (v), nothing in section 8 shall apply to the import inter-State,
export inter-State, transport, possession, purchase, sale, use or consumption of
manufactured drugs which are the property and in the possession of the Government:

Provided further that such drugs as are referred to in the preceding proviso shall not
be sold or otherwise delivered to any person who, under the rules made by the State
Government under the aforesaid sub-clauses, is not entitled to their possession;
(b) Prescribe any other matter requisite to render effective the control of the
State Government over any of the matters specified in clause (a).
(2) In particular and without prejudice to the generality of the foregoing
power, such rules may-

46
 a) empower the State Government to declare any place to be warehouse
wherein it shall be the duty of the owners to deposit all such poppy
straw as is legally imported inter-State and is intended for export inter-
State or export from India; to regulate the safe custody of such poppy
straw warehoused and the removal of such poppy straw for sale or
export inter-State or export from India; to levy fees for such
warehousing and to prescribe the manner in which and the period after
which the poppy straw warehoused shall be disposed of in default of
payment of fees;
b) provide that the limits within which licenses may be given for the
cultivation of any plant shall be fixed from time to time by or under the
orders of the State Government;
c) provide that only the cultivators licensed by the prescribed authority of
the State shall be authorized to engage in cultivation of any cannabis
plant;
d) require that all cannabis, the produce of land cultivated with cannabis
plant, shall be by the cultivators to the officers of the State Government
authorized in this behalf;
e) empower the State Government to fix from time to time, the price to be
paid to cultivators for the cannabis delivered;
f) prescribe the forms and conditions of licenses or permits for the in sub-
clauses (i) to (vi) of clause (a) of subsection (1) and the authorities by
which such licenses or may be granted and the fees that may be charged
therefore.69

This section empowers the State Government to permit, control and regulate by rules,
certain operations in relation to certain narcotic drugs and psychotropic substances. It

69
Section 10, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

47
may be noted that the permissions granted under these rules themselves are subject to
further control70.

Section (11): Narcotic drugs and psychotropic substances, etc., not liable to
distress or attachment.-

Notwithstanding anything to the contrary contained in any law or contract,

no narcotic drug, psychotropic substance, coca plant, the opium poppy or
cannabis plant shall be liable to be detrained or attached by any person for
the recovery of any money under any order or decree of any court or
authority or otherwise.71

This section lays down that narcotics and psychotropic substances shall not be liable
to be distained or attached for the recovery of any money due under any decree of any
decree or order otherwise72

Section (12): Restrictions over external dealings in narcotic drugs and

psychotropic substances.-

No person shall engage in or control any trade whereby a narcotic drug or

psychotropic substance is obtained outside India and supplied to any person
outside India save with the previous authorization of the Central
Government and subject to such conditions as may be imposed by that
Government in this behalf.73

This section prohibits all external dealings in narcotics drugs and psychotropic
substances except with the previous authorization of the central Government. This
section and section 29(2) give effect to the Single Convention on Narcotic Drugs and

70
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P.82
71
Section 11, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
72
Narcotics Drugs and Psychotropic Substances Act, 1985,
73
Section 12, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

48
1961 and the convention on the Psychotropic Substances74.

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 six months, 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. 75

This section provides for the punishment for the contravention in relation to the
poppy straw. According to the clause (xvii) of S.2, “poppy straw “means all parts
(except the seed) of the opium poppy after harvesting whether in the original form or
cut, crushed or powdered and whether or not the juice has been extracted therefrom76.

74
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P. 82.
75
Section 15, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
76
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P. 85.

49
khakhass seeds which also form the part of the capsule poppy have been excepted
from the definition. The obvious reason for this exception seems to be that the seeds
which are commonly used in cooking do not possess the intoxicating properties of the
opium. It may also be noted that export of poppy straw for decorative purposes has
been excepted from the prohibitions contained in section 8 by the Amendment act of
1989.

Section (16): Punishment for contravention in relation to coca plant and coca
leaves.-

Whoever, in contravention of any provision of this Act or any rule or order

made or condition of 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 or with fine which may extend to one lakh rupees.77

This section provides for the punishment for the contravention in relation to the coca
plants and cocoa leaves. Cocaine naturally occurs in the leaf of the Coca plant. The
word ‘Cocaine’ is a generic term which includes within its ambit both the direct
extracts of coca leaf and also any products resulting from the application of the
chemical process to the natural form.

Section (17): Punishment for contravention in relation to prepared opium. –

Whoever, in contravention of any provision of this Act or any rule or order
made or condition of 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

77
Section 16, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

50
 imprisonment for a term which may extend to six months, 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:

Provided that the court may, for reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees.78

This section provides for punishment for the contravention of the in relation to
prepared opium. Preparation involves some process of manufacture or treatment
where things occurring or growing in natural state are made to take a different shape
or form or to serve a different purpose .it is interesting to note here that the definition
of ‘prepared opium’ includes any residue (remaining after the drug has been smoked).
This is a very wide definition as in the process of combustion the opium ceases to
exist as such, although the traces of the un-burnt drug will remain undoubtly79.

Section (18): Punishment for contravention in relation to opium poppy and

opium-

Whoever, in contravention of any provision of this Act or any rule or order

made or condition of license granted thereunder, cultivates the opium poppy
or produces, manufactures, possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses opium shall be punishable,

78
Section 17, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
79
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 87.

51
 (a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, 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.

This section provides for punishment for contravention in relation to opium poppy
and opium. It may be noted that the raw opium is obtained by making a small incision
either vertically or horizontally, which allows the milky juice to seep from the plant.80

The proviso to the sub-clause (b) above envisages a preparation containing some
mixture of the coagulated juice of the opium poppy, with or without neutral material.
Preparation involves some process of manufacture or treatment where things
occurring or growing in natural state are made to take a different shape or form or to
serve a different purpose.

Sub-clause (b) suggests that a mechanical mixing of the coagulated juice of the opium
poppy with any amount of neutral substances which may reduce the morphine content
to negligible proportions, will stay and make the stuff a prohibited drug. In the
proviso there under, the emphasis is as much on the a scientific and non-processing
which may control or regulate the morphine content as on keeping the percentage
below the harmful or dangerous limit.

80
Section 18, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

52
Section (19): Punishment for embezzlement of opium by cultivator. –
Any cultivator licensed to cultivate the opium poppy on account of the
Central Government who embezzles or otherwise illegally disposes of the
opium produced or any part thereof, shall be punishable 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 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.81

This section provides for punishment for the embezzlement or the illegal disposal by
the cultivator of opium cultivated on account of the central government. Section 9 of
the act confers this power on the central government to permit and regulate by the
rules inter alia the cultivation being only on account of the central government. The
cultivation of the opium poppy save on account of the central government is
absolutely prohibited by section 8 of the Act.

Where a cultivator cultivates opium poppy in accordance with a license obtained, he

is bound to comply with the provisions contained therein regarding the production,
weighment and delivery of opium produced by him. If there is any discrepancy found
on the part of the cultivator in the compliance of the provision then he can be
prosecuted and punished under section 19 of the act82.

Section (20): Punishment for contravention in relation to cannabis plant and

cannabis.-
Whoever, in contravention of any provisions of this Act or any rule or order
made or condition of license granted thereunder,
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,

81
Section 19, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
82
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P. 89-90.

53
 imports inter- State, exports inter-State or uses cannabis, shall be
punishable
(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 six months, 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.83

This section provides for the punishment for the contravention in relation to cannabis
plant and cannabis. A ‘cannabis plant’ means any plant of the genus cannabis. The
term ‘cannabis (hemp)’ has been defined by the clause (iii) of Section 2 of the act to
mean (a) charas, (b) ganja and(c) any mixture, with or without any neutral material,
of any of the said forms of cannabis or any drink prepared therefrom. In other words
the definition does not include the whole of the cannabis plant, i.e. the leaves and
stalk. It’s not feasible to say why the present act does not bring the leaves and stalk
within the definition of the ‘cannabis ‘, when the resin found throughout the plant in
varying degrees of strength. It is particularly strange that it is so when the it is an
offence to grow the plant of cannabis at all84.

83
Section 20, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
84
Narcotics Drugs and Psychotropic Substances Act, 1985, pranjapayee, P. 90-91.

54
India, along with U.S.A. , Canada and other countries, is a member to the Single
Convention on the Narcotics and Drugs, 1961 the Protocol of 1972 amending the said
Convention and the convention on psychotropic substances, 197. To meet the
obligations under the said conventions, the definition of the ‘Cannabis (hemp)’ needs
suitable amendment.

Section (21): Punishment for contravention in relation to manufactured drugs

and preparations.-
Whoever, in contravention of any provision of this Act or any rule or order
made or condition of 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 six months, 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 two 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.85

85
Section 21, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

55
This section provides for punishment for the contravention in relation to
manufactured drugs and preparations. According to the clause (xi) of Section 2, the
expression “manufactured drugs” means:-
(a) all cocoa derivatives, medicinal cannabis, opium derivatives and poppy
straw concentrate;
(b) any other narcotic substance or preparation which the Central
Government may, having regard to the available information as to its
nature or to the decision, if any, under any international convention, by
notification in the official gazette, declare to be a manufactured drug.

But does not include any narcotic substances or preparation which the central
government may, having regard to the available information as to its nature or to a
decision, if any, under any International convention, by notification in the official
Gazette, declare not to be a manufactured drug. The Central Government has declared
88 drugs to be ‘manufactured drugs’ for the purposes of section 2 (xi) and
consequently for this section also86.

Section (22): Punishment for contravention in relation to psychotropic

substances.

Whoever , in contravention of any provision of this Act or any rule or order

made or condition of license granted there under, manufactures, possesses,
sells, purchases, transports, punishable, imports inter-State, exports inter-
State or uses any psychotropic substance shall be,
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, 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

86
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 92.

56
 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.87

This section provides for contravention of in relation to psychotropic substances. The

expression ‘psychotropic substances’ means any substance, natural or synthetic, or
any natural material or any salt or preparation of such material included in the list of
psychotropic substances specified in the schedule88.

Section (23): Punishment for illegal import in to India, export from India or
transshipment of narcotic drugs and psychotropic substances.-

Whoever, in contravention of any provision of this Act or any rule or order

made or condition of license or permit granted or certificate or authorization
issued there under, imports into India or exports from India or transships any
narcotic drug or psychotropic substance shall be punishable,-
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, 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

87
Section 22, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
88
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 82.

57
 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.89

This section provides for punishment for illegal import into India, export from India
or transshipment of narcotic drugs and psychotropic substances90.

Section (26): Punishment for certain acts by licensee or his servants.-

If the holder of any license, permit or authorization granted under this Act or
any rule or order made there under or any person in his employ and acting
on his behalf;
(a) omits, without any reasonable cause, to maintain accounts or to submit
any return in accordance with the provisions of this Act, or any rule
made thereunder;
(b) fails to produce without any reasonable cause such license, permit or
authorization on demand of any officer authorized by the Central
Government or State Government in this behalf;
(c) keeps any accounts or makes any statement which is false or which he
knows or has reasons to believe to be incorrect; or
(d) willfully and knowingly does any act in breach of any of the conditions
of license, permit or authorization for which a penalty is not prescribed
elsewhere in this Act,
He shall be punishable with imprisonment for a term which may extend to
three years or with fine or with both.

This section provides for punishment for certain contraventions of the terms and

89
Section 23, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
90
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 93-94.

58
conditions of the license, permit or authorization granted under this act or any rule or
order made thereunder, by the holder of such license, permit or authorization or by his
servant. Where any such contravention does not fall within the ambit of this section,
the same is covered by the residuary section 32 of the act. It may be noted that the
scope of the present section is limited to the holder of the license, etc. or his
employee; whereas section 32 covers every person. Where a case is covered by
section 26, which is more specific in relation to both the offender and the offence and
provides for a severe punishment, the court is not empowered to convert the same
under section 32 which is general but residuary in character and provides for lesser
sentence.91

Similarly, clauses (a) to (c) of this section relate to specific acts of omission or
commission, whereas clause (d) punishes every other act, done by the holder of the
license or his employee. It may be noted that each of the four clauses require a
specific kind of mensrea to constitute an offence thereunder, although existence of
such culpable mental state may be presumed by the court in view of the provisions of
section 35 of the act. It is one thing to say that under a particular provision to
constitute an offence no mensrea is required e.g. where the statute creates an absolute
offence, and it is quite another that mensrea is required but its existence may be
presumed. This distinction should not be lost sight of because the same has far
reaching effects in a criminal trial92.

Section (27): Punishment for illegal possession in small quantity for personal
consumption of any narcotic drug or psychotropic substance or consumption of
such drug or substance.-

Whoever, consumes any narcotic drug or psychotropic substance shall be

punishable,-
(a) Where the narcotic drug or psychotropic substance consumed is

91
Section 26, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
92
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 102-108.

59
 cocaine, morphine, diacetyl-morphine 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.

Explanation.-
(1) For the purposes of this section “small quantity” means such quantity
means such quantity specified by the Central Government by
notification in the official Gazette.
(2) where a person is have shown to have been in possession of a small
quantity of a narcotic drug or psychotropic substances, the burden of
proving that it was intended for the personal consumption of such
person and not for the scale or distribution, shall lie on such person.93

Scope- Possession of any narcotic drug or psychotropic substances is prohibited by

section 8 of the act. Any person in possession of such drug or substance contrary to
the provisions of this act, or any rule or order made or condition of license granted
there under, shall be punishable 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.

In case of possession of ganja lesser punishment up to five year’s rigorous

imprisonment and fine up to fifty thousand rupees has been prescribed. From a bare
perusal of the provisions of section 15 to 18, and sections 20 to 23, it is evident that

93
Section 27, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

60
the quantity of drugs or substance in possession of the offender is quite immaterial.

The present section creates two separate but related offences, i.e. possession of small
quantity of narcotics drugs and psychotropic substances for personal consumption,
and the consumption of such drug or substance. The punishment provided for each of
the two sections is a minor one, i.e. imprisonment of one month or fine or both in case
of some specified drugs and substances, and imprisonment up to six months or both
in case of some specified drugs and substances. Therefore, it is wrong to say that a
person in possession of small quantity of drug or substance for his personal
consumption without any permit does not commit any offence. The only effect of this
section is to take a lenient view in the matter of sentence under the given conditions.

However, section 64A (inserted under the 1989 amendment) of the act grants to the
addict, once in a lifetime, immunity from the prosecution under the section 27 of the,
provided he voluntarily seeks to undergo medical treatment for de-addiction or de-
toxification from a hospital or a institution maintained or recognized by the
Government or a local authority and undergoes such treatment. Notwithstanding, the
immunity from prosecution is liable to be forfeited if the addict does not undergo
complete treatment for de-toxification or de-addiction. The object of the provision
apparently is the rehabilitation and social reintegration of drug addicts.

Possession of Small Quantity- to constitute an offence under the first part of this
section, the following ingredients need to be established:-
(1) that the accused in possession of narcotic drug or psychotropic substance
in small quantity;
(2) that such possession is contrary to any provision of this act, or any rule or
order made or permit issued thereunder; and
(3) That this quantity was intended for the personal consumption of such
accused and not for sale or distribution.
Explanation (2) appended to the section provides that where a person is shown to
have been in possession of a small quantity of a narcotic drug or psychotropic

61
substances, the burden of proving that it was intended for the personal consumption
of such person and not for the sale or distribution, shall lie on such person. In other
words, this burden has been shifted to the accused, and rightly so because it is a plea
in defense. It may be noted that the requirement of personal consumption is that of the
offender himself, and not for any person94.

Consumes- whoever consumes any narcotic drugs or psychotropic substance in

contravention of the provisions of the act, or any rule or order made or permit issued
the4reunde, is punishable under this section. Such drug or substance can be consumed
by several means, i.e. by smoking, sniffing, injection or oral means.
Illustration- if the drugs are placed in a hookah kept in the center of the room, and is
passed round. Everyone sitting around takes a puff at it. Every such person would be
guilty of the offence of consumption.

Small Quantity-Explanation (1) of the section provides for the purposes of this
section “small quantity” means such quantity as may be specified by the Central
Government by the notification in the Official Gazette.by means of the notification
dated 14th November 1985, the Central Government has specified the quantity
mentioned in column (3) of the table below, in relation to the narcotic drug mentioned
in corresponding entry in column (2) of the said Table, as “small quantity” for the
purposes of this section-

S.No. Name of Narcotic Quantity

1. Heroin or drug commonly known as Brown Sugar or Smack 250 mg
2. Hashish or Charas 5 grams
3. Opium 5 grams
4. Cocaine 125 mg
5. Ganja 500 grams

94
Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P. K. Jain, P. 100-102.

62
Sentence- This section recognizes the principle that sentence should be proportionate
to the gravity of the offence. The punishment prescribed by the section has been
classified according to the nature of the drug or substances possessed or consumed by
the convict. It may be noted that if the offender is in possession of the small quantity
of the narcotic drugs or psychotropic substances and he fails to prove that it was
meant for the personal consumption, he is liable to be convicted not under this section
but under the other relevant section of the chapter and sentence shall be imposed in
accordance with that section.

Section (27A): Punishment for financing illicit traffic and harboring offenders.-

Whoever indulges in financing, directly or indirectly, any of the activities

specified in sub-clauses (i) to (v) of clause (viii a) of section 2 or harbors any
person engaged in any of the aforementioned activities, shall be punishable
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.

The act of financing, directly or indirectly, any of the specified activities and
harboring persons engaged in any of such activities could be charged earlier by way
of abetment or conspiracy. These acts have now been declared as independent
offences punishable under this section.95

An accused is properly convicted as a party to the offence where, although not in

possession of the narcotics, she lent the principal offender the money and give her a
share of the proceeds from the resale of the narcotics.

Section (28): Punishment for attempts to commit offences.-

95
Section 27A, of the Narcotics Drugs and Psychotropic Substances Act, 1985.Inserted by Narcotics
Drugs and Psychotropic Substances (Amendment) Act, 2001.

63
 Whoever attempts to commit any offence punishable under this Chapter or
to cause such offence to be committed and in such attempt does any act
towards the commission of the offence shall be punishable with the
punishment provided for the offence.96

All offences must be viewed in four distinct stages:

Intention- is the determination of the will to act in a particular manner. So long as
such intention does not pass beyond the stage of mental resolve or determination, the
law cannot punish it, because the law will not take notice of intent without actusreus.
But this moment it emerges from last stage, it ceases to be an intention and develops
into preparation.

Preparation- preparation to commit an offence consists in devising or arranging the

means or measures necessary for the commission of the offence. It implies the taking
of previous necessary measures for the crime. Ordinarily preparation like intention is
not per se indictable. But a statute may declare by its express language that the
preparation to commit an offence thereunder is also punishable. The present act, by
its section 30, makes preparation to do or omit to do anything which constitutes an
offence thereunder as punishable.

Attempt- a person commits the offence of “attempt to commit a particular offence”

when:
(a) he intends to commit that particular offence; and
(b) he , having made preparations and with the intention to commit the
offence, does an act towards its commission; such act need not be the
penultimate act towards the commission of that offence but must be an
act during the course of committing that offence.

Impossible Act- the section says that whoever attempts to commit an offence...and in
such attempt does an act towards the commission of the offence, shall be punishable.

96
Section 28, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

64
As already stated, the overt act need not be penultimate act towards the commission
of the offence, but must reasonably be proximate to the consumption of the offence.
Attempts arising out of the failure on the part of the accused to complete the full
offence usually fall into two main classes97.

1. The first class is the type of cases where the accused has embarked on the
course of conduct which, if completed, will result in an offence but for
some reason breaks off that course of conduct and never completes the
action required to amount to the offence; for example, the pickpocket who
puts his hand in man’s pocket only to find it empty.
2. The second class of cases where attempt is sought to be charged is where
the accused has meticulously and in detail followed every step of his
intended course believing throughout that he was committing a criminal
offence and when in the end it is found he has not committed a criminal
offence because in law that which he planned and carried out does not
amount to a criminal offence at all; for example , a person is charged with
attempt to import or sell heroin, but the substance is turned out to be snuff
or some similar harmless substance contrary to the belief of the accused
himself.

The first of these two classes does not present any difficulty, and the act would
undoubtedly constitute an attempt to commit an offence.

Section (29): Punishment for abetment and criminal conspiracy.-

(1) Whoever abets, or is a party to a criminal conspiracy to commit an

offence punishable under this Chapter, shall, whether such offence be or
be not committed in consequence of such abetment or in pursuance of
such criminal conspiracy, and notwithstanding anything contained in
section 116 of the Indian Penal Code (45 of 1860), be punishable with the

97
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 110-114.

65
 punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an
offence, within the meaning of this section, who, in India abets or is a
party to the criminal conspiracy to the commission of any act in a place
without and beyond India which:
(a) would constitute an offence if committed within India; or
(b) Under the laws of such place, is an offence relating to narcotic drugs
or psychotropic substances having all the legal conditions required to
constitute it such an offence the same as or analogous to the legal
conditions required to constitute it an offence punishable under this
Chapter, if committed within India.98

Abetment- under section 107 of the Indian Penal Code, a person abets the doing of an
act in any of the three ways which can be: instigating any person to do an act; or
engaging with one or more persons in any conspiracy for the doing of the act; or
intentionally aiding the doing of that act. A person is said to instigate another when he
actively suggest or stimulates him to act by any mean, or language, direct o0r
indirect, whether it takes the form of express solicitation or hints, insinuation, or
encouragement or willful misrepresentation or willful concealment of a material fact.

Abetment by Aiding- a person abets the doing of a thing if he intentionally aids by an

act or illegal omission the doing of that thing. Aid must be provide either before or at
the time commission of the act and the aid must be in order to facilitate and in fact
must have facilitated the commission of the act.

Abetment by Conspiracy- a person abets the doing of a thing who engages with one
or more other person or persons in any conspiracy for the doing of that thing, if an act
or illegal commission takes place in pursuance of that conspiracy for the doing of that
thing. An accused is properly convicted of this offence where, although not in
possession of the narcotics, she lent the principal offender the money and gave her a

98
Section 29, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

66
share of the proceeds from the resale of the narcotics.

Conspiracy- the gist of the offence of criminal conspiracy is the very agreement
between two or more persons to do or cause to be done an illegal act or legal act by
illegal means subject however to the proviso that where the agreement is not an
agreement to commit the offence, the agreement does not amount to conspiracy,
unless it i8s followed up by an over act done by one or more than one persons in
pursuance of such agreement. The offence of conspiracy is complete when the two or
more conspirators have agreed to do or cause to be done an act which is itself an
offence, in which case no overt act need be established. Where the agreement
between certain persons is a conspiracy to do or continue to do something which is
illegal, it is immaterial whether the agreement to do any of the acts in furtherance of
the commission of the offence does not strictly amount to an offence. The entire
agreement must be viewed as a whole and it has to be ascertained as to what i fact the
conspirators intended to do or the object they wanted to achieve. Consequently, even
if the acts done by a conspirator in furtherance of the criminal conspiracy do not
strictly amount to offence, he is liable to be convicted.

The offence of criminal conspiracy under section 120-A, IPC is a distinct offence.
The very agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the conspiracy
as long as they are co-conspirators in the main object of the conspiracy. There may be
so many devices and techniques adopted to achieve the common goal of the
conspiracy and there may be division of performances in the chain of actions with one
object to achieve the real end of which every collaborator must be aware and in which
each one of them must be interested. There must be unity of object or purpose but
there may be plurality of means sometimes even known to one another; amongst the
conspirators. In achieving several offences must be committed by some of the
conspirators even unknown to the others. The only relevant fact is that all means
adopted must and illegal acts done must be and purported to be in furtherance of the
object of the conspiracy even though there may be sometimes miss-fire or over-

67
shooting by some of the conspirators. Even if some steps are resorted to by one or
two conspirators without the knowledge of the other it will not affect the culpability
of those others when they are associated with the object of the conspiracy.

Section (31): Enhanced punishment for offences after previous conviction.-

(1) 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 this Act is subsequently convicted of the
commission of, or attempt to commit, or abetment of, or criminal
conspiracy to commit, an offence punishable under this Act with the same
amount of punishment shall be punished for the second and every
subsequent offence with rigorous imprisonment for a term which may
extend to one-half of the maximum term of imprisonment and also be
liable to fine which shall extend to one-half of the maximum amount of
fine.
(2) Where the person referred to in sub-section (1) is liable to be punished
with a minimum term of imprisonment and to a minimum amount of fine,
the minimum punishment for such person shall be one-half of the
minimum term of imprisonment and one-half of the minimum amount of
fine: Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding the fine for which a person is liable.
(3) Where any person is convicted by a competent court of criminal
jurisdiction outside India under any corresponding law, such person, in
respect of such conviction, shall be dealt with for the purposes of sub-
sections (1) and (2) as if he had been convicted by a court in India.99

Scope – this section provides that a person previously convicted of a certain offence
under the act will be liable to higher punishment than what they would otherwise be.
The principle underlying this section is that if the previous sentence borne by the
accused had had no effect on him, a more serious sentence should be awarded. The
99
Section 31, of the Narcotics Drugs and Psychotropic Substances Act, 1985.

68
object of the award is deterrent sentence so as to prevent an offender from repeating
the crime.

Previous Conviction – the previous conviction referred to in the section naturally

implies the commission of, and the commission for, an offence in point of time prior
to the commission of the subsequent offence. This section will apply only when the
second or the subsequent offence is committed after the conviction of the earlier
offence. The obvious reason is that the section is based on the ground that the
sentence already borne has no effect in preventing a repetition of crime, and has been,
therefore, insufficient as a warning.

Procedure for enhanced punishment – in a case where it is intended to prove previous

conviction for the purpose of enhanced punishment, section 211(7) of the Code of
Criminal Procedure enjoins upon the court to state the fact, date and place of the
previous conviction in the charge. If such statement has been omitted, the court is
empowered to add it at any time before sentence is passed. Then section 236 of the
Code lays down:

“in a case where previous conviction is charged under the provisions of the sub-
section (7) of section 211, and the accused does not admit that he has been previously
convicted in the charge, the Judge may, after he has convicted the said accused under
section 229 or section 235, take evidence in respect of alleged previous conviction,
and shall record a finding thereon:

provided that no such charge shall be read out by the Judge nor shall the accused be
asked to plead thereto nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused has been
convicted under section 229 or section 235.”

A similar provision is contained in section 248(3) of the code relating to the trial of
warrant cases by magistrates. Thus, it is clear if the accused admits his previous
conviction or convictions, they do not have to be proved separately and the court can
69
take them into the consideration in convicting him and sentencing him for the main
offence. If however the accused does not admit his previous conviction, the court has
to proceed to the judgment on the substantive charge and if that is the judgment of
conviction, it has then to take evidence as to the previous convictions and then to
come up with a separate finding upon them after which it will pass the proper
sentence under the substantive section read with the present section.

The above procedure is to be followed only where the provision of section 31 of the
present act are brought into action. They are not brought into action where the
sentence intended to be awarded is within the competence of the court to award under
the ordinary provisions of the act, and, in such a case, the fact that previous
convictions were not stated in the charge does not render the conviction illegal.

Proof of previous Conviction- a previous convicted is to be proved strictly in

accordance with the law. The Indian Evidence Act lays down the general modes of
proof, i.e.
(a) By the admission of the fact by the accused; or
(b) By the production of the judgment convicting the accused, or by a
certified copy thereof, under section 91 read with section 65 of the act.
Section 298 of the Code of Criminal Procedure provides for two modes of
proof in addition to the above, namely-
(1) by an extract certified to be copy of the sentence ; or
(2) by a certificate signed by the office of the office-in-charge of the jail
in which the punishment or any part thereof was undergone, or by
production of the warrant of commitment under which the
punishment was suffered.

But in each of the cases, evidence as to the identity of the accused person with the
persons so convicted should be given. Indian Evidence Act. But the previous
conviction or the identity of the accused cannot be proved by mere production of the
conviction slip or a history sheet which is nothing but the criminal records of the
convicts kept by the authorities.

70
Convictions outside India – under the general law contained in section 75 of the
Indian Penal Code, a conviction outside India cannot be taken into consideration for
imposing enhanced punishment. But this sub-section expressly provides that a
conviction outside India under any law corresponding to the provisions of section 15
to section 25, section 28 and section 29, shall be deemed to be a conviction in India
for the purposes of this section. This deeming fiction has been imported to make the
law more deterrent for the offenders who operate at the international level, and also to
make the obligation under the international conventions to which India is a party.
However, such foreign convictions have to be proved in accordance with the law of
evidence prevailing in India.

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 under column (1) of the Table below and involving the
quantity, which is equal to or more than the quantity indicated
against each such drug or substance, as specified in column (2) of
the said Table:

S. No. Particulars of narcotics drugs/ psychotropic Quantity

substances

(i). Opium 10 kg

71
(ii). Morphine 1kg

(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 1500 grams
any of the above drugs

(ix). LSD, LSD-25 (+)-N, N-Diethyllysergamide 500 grams

(x). Tetrahydrocannabinols, the following isomers: 6a 500 grams

(10a), 6a (7), 7, 8, 9, 10, 9 (11) and their
stereochemical variants

(xi). Msethamphetamine (+)-2- Methylamine-a- 1500 grams

Phenylpropane

(xii). Methaqualone (2-Methyl-3-0-toly-4-(3-H)- 1500 grams

Quinanzolinone)

(xiii). Amphetamine (+)-2-amino-1- Phenylpropan 1500 grams

(xiv). Salts and preparations of the Psychotropic Substances 1500 grams

mentioned in (ix) to (xiii)

(b) Financing, directly or indirectly, any of the activities specified in

clause (a), shall be punishable with death.

72
 (2) where any person is convicted by a competent court of criminal
jurisdiction outside India under any law corresponding to the provisions
of l [section 19, section 24 or section 27 A and for offences involving
commercial quantity 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.

Scope – this section has been enacted to provide death penalty on second conviction
in respect of specified offences involving specified quantities of certain narcotics
drugs and psychotropic substances. Previously, section 31 dealt with question of
imposing enhanced sentence for the subsequent offence punishable under section 15
to section 25. That section provides a minimum sentence of fifteen years rigorous
imprisonment and a fine of one lakh fifty thousand rupees, which may extend to thirty
years imprisonment and a fine of three lakh rupees. In the face of such deterrent
punishment even, the situation of illicit traffic at the domestic and international level
deteriorated so fast and the transit traffic through India assumed such serious
proportions that a need was felt by the government to bring in further deterrence in
the penal provisions of the act. Accordingly capital punishment has been introduced
for the second offence under the specified circumstances.

The main ground being advanced in the justification of the provisions for extreme
penalty of death may be enumerated as:
(1) Drug trafficking means dealing with a slow, agonizing death. It is premeditated
with the sole aim of self-gain.
(2) Drug Trafficking generates large financial profits and wealth enabling
transnational criminal organizations to penetrate, contaminate and corrupt the
structures of government, legitimate commercial and financial business, and
society at all its levels.
(3) A close nexus between the drug trafficking and other related organized criminal
activities, such as terrorism and insurgency, has been established which

73
 undermines the legitimate economies and threatens the stability, security and
sovereignty of the states.
(4) A sentence of long imprisonment already borne has had no effect in preventing a
repetition of crime, and has been, therefore, insufficient as warning.

Thus, there is a purpose and policy behind the legislation.

Further, section 31 and 31A, in between themselves, make a reasonable classification

in respect of the nature and gravity of various offences under the act and the quantum
of punishment to be imposed therefor. The legislature has not only drawn a line, but
has also prescribed its precise course in section 31A. If anyone crosses that line, it is
familiar to the criminal law to make him take the risk. Thus, the legislative
classification cannot be said to be arbitrary, but it is apparently based on an
intelligible principle having relation to the object which the legislature seeks to
obtain.

Provision whether prospective or retrospective – a sovereign legislature has the power

to legislate prospectively and retrospectively. Article 20 of the Constitution of India
places two limitations upon the legislative authority while enacting criminal law. It
prohibits:
(1) The creation of an offence for an act which at the time of its commission
was not an offence.
(2) The imposition of a penalty greater than that which might have been
inflicted under the law which was in force when the act was committed.

Article 20 in its broad import has been enacted to prohibit convictions and sentences
under 'ex post facto' laws.

Section 31A has been inserted by the Amendment act of 1989 and before its insertion
no offence under the act was punishable with death sentence. Also, the scope of the
subsequent offence has been modified by the use of the expression “engaging in”
with reference to the specified activities. An act of financing directly or indirectly,

74
any of the specified activities has also been included within the ambit of subsequent
offence. Therefore a second or a subsequent offence committed by an accused before
the commencement of the Amendment act of 1989 will have to be dealt with under
the provisions of the section 31of the act, and not under this section. Thus, this
section is prospective in nature, and cannot operate retrospectively.

Previous Conviction – the previous conviction referred to in the section naturally

implies the commission of, and the conviction for, an offence in point of time prior to
the commission of the subsequent offence.

Section (32): Punishment for an offence for which no punishment is provided.

Whoever contravenes any provision of this Act or any rule or order made, or
any condition of any license, permit or authorization issued thereunder for
which no punishment is separately provided in this Chapter, shall be
punishable with imprisonment for a term which may extend to six months,
or with fine, or with both.100

This is a residuary section which provides for punishment for offences for which no
punishment is separately provided in this chapter101.

Section (32A): No suspension, remission or commutation in any sentence

awarded under this Act.
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in force but subject to
the provisions of section 33, no sentence awarded under this Act (other than
section 27) shall be suspended or remitted or commuted.

This section takes away the powers of the Central Government and the State
Government, vested in them under section 432 to 435 of the Code of Criminal

100
Section 32, of the Narcotics Drugs and Psychotropic Substances Act, 1985.
101
Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985, Second Edition, P.
K. Jain, P. 128-129s.

75
Procedure, 1973 or under any of other law, to suspend, remit or commute any
sentence awarded under this act. But an appropriate Government may exercise such
powers in respect of a sentence awarded under section 27 of the act only. The
provisions of section 33 regarding the applicability of section 360 of the Code of
Criminal Procedure, 1973 and the provisions of the Probation of Offenders Act, 1958
have been saved.

It may be noted that under Article 72(1) of the Constitution of India the President has
the power to grant pardons, reprieves, respites or remissions of the punishment or to
suspend, remit or commute the sentence of any person convicted of any offence in all
the cases where the punishment or sentence is for an offence against any law relating
to a matter to which the executive power of the Union extends and also in all the
cases where the sentence is one of death. Similarly, under Article 161 of the
Constitution the Governor has the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to which the executive
power of the state extends it cannot be disputed that the constitutional power is
‘untouchable’ or ‘unapproachable and cannot suffer the vicissitudes of simple
legislative processes. Therefore, the present section does not and cannot affect even a
wee-bit these powers of the Governor or the President. The necessary sequel to this
logic is that notwithstanding section 32A, the President or the Governor continue to
exercise the power of commutation and release under the aforesaid Articles.

Section (32B): Factors to be taken into account for imposing higher than the
minimum punishment.

Where a minimum term of imprisonment or amount of fine is prescribed for any

offence committed under this Act, the court may, in addition to such factors as it
may deem fit, take into account the following factors for imposing a punishment
higher than the minimum term of imprisonment or amount of fine, namely:-

76
(a) The fact that the offender holds a public office and that he has taken advantage of that
office in committing the offence;
(b) The fact that the minors are affected by the offence or the minors are used for the
commission of an offence;
(c) The fact that the offence is committed in an educational institution or social service
facility or in the immediate vicinity of such institution or faculty or in other place to
which school children and students resort for educational, sports and social activities;
(d) The fact that the offender belongs to organized international or any other criminal
group which is involved in the commission of the offence; and (f) the fact that the
offender is involved in other illegal activities facilitated by commission of the
offence.

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 CHAPTER 6

AMENDMENTS IN NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill,

2011

1. The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

was introduced in the LokSabha on September 8, 2011 by the Minister of
Finance, ShriPranab Mukherjee. The Bill was referred to the Standing
Committee on Finance (Chairperson: ShriYashwantSinha) on September 13,
2011, which is scheduled to submit its report within three months.
2. The Bill amends the Narcotic Drugs and Psychotropic Substances Act, 1985,
which provides for control and regulation of narcotic drugs and psychotropic
substances and the forfeiture of property related to illicit traffic of narcotic
drugs and psychotropic substances.
3. The Bill adds a new definition of “central government factories” and amends
the definitions of “commercial quantity”, and “small quantity”. In the Act,
“commercial quantity” is defined as any quantity of drugs or psychotropic
substances above the specified amount and “small quantity is any amount less
than the specified amount. The Bill states that the specified amount can be in
terms of pure drug content or otherwise. This is to clarify that the entire
quantity of drug seized should be taken into account while determining the
punishment, and not just the pure drug content.
4. The Bill broadens the definition of “illegally acquired property” to include not
just property derived from income out of an illegal act under this law but also
the equivalent value of such property. It also includes any property acquired
out of earnings whose source cannot be proved.
5. The central government may permit and regulate the sale, purchase or
consumption of poppy straw produced from plants from which no juice has
been extracted through lancing. The state government may permit the same,
except those produced from plants from which no juice has been extracted
through lancing.
6. The Act stipulates that any person who consumes drugs specified by the
central government shall be penalized
7. with rigorous imprisonment of up to six months or a fine of up to Rs 20,000 or
both. For drugs not specified by the central government, the penalty is
imprisonment of up to six months or fine up to Rs 10,000 or both. The Bill
replaces this with the provision that any person who consumes drugs in
contravention of this Act shall be penalized with imprisonment for up to six
months or a fine up to Rs 10,000 or both.
8. The Act prohibits any person from possessing or transferring any property or
concealing the nature and location of property derived from an offence under

78
 the Act or any other corresponding law in another country. The Bill provides
for penalizing such an offence with rigorous imprisonment between 3 to 10
years and a fine.
9. The Bill enhances the penalty for offences committed after previous
convictions. A person’s term of imprisonment shall be extended to one and a
half times the term he can be convicted for. Similar enhancement is specified
for the amount of fine.
10. The Bill states that drugs, psychotropic substances or controlled substances
shall be disposed off in the manner to be prescribed.
11. Whenever an officer (notified either by the central or state government) makes
an arrest or seizes goods under this Act, he shall report to the jurisdictional
competent authority within 180 days of the arrest or seizure.
12. The competent authorities under this Act include the Collector of Customs or
Central Excise. The Bill changes this to Commissioner of Customs or Central
Excise.
13. The Act provides for an Appellate Tribunal headed by a Chairman. The Bill
adds that in case the Chairman’s position is vacant due to absence, resignation
or death, the central government can nominate any member to act as the
Chairman till he resumes his duties or a new Chairman is
appointed.102

Narcotic Drugs and Psychotropic Substances (Amendment) Act,2014

1. Chiefly, a pain reliever drug Morphine has been made more attainable now,
post the amendment (rightly called as The Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 2014) which came into force earlier this year in
the month of March. Not only this, the series of new amendments to the
principal Act of NDPS, 1985 has introduced some ground breaking changes.
2. Drug dependents for medical purposes can now have easy access to narcotic
drugs unlike the condition under 1985 Act previously. This is done with a
view to improve health conditions and provide medical care as and when
required.
3. One of the major changes has rendered Morphine as an essential drug under
Section 2(viii a) of the Act so that the Central Government is empowered to
make rules for granting licenses directly for such drugs without the
requirement of approaching the State Drugs Controller. Drugs identified as
essential will be subject to Central Rules under Section 9(1) (a).
4. But, the narcotics control in the form of licensing and monitoring is still in the
hands of these State Drugs Controller. Furthermore, the need for multiple
licenses has been done away with. Moreover, the scope and objective of the
NDPS Act, 1985 seems to have been broadened to include the medical and
scientific uses of drugs and narcotic substances. This will promote the
advances in the Research and Development (R&D) sector. All this was

102
http://www.prsindia.org/billtrack/the-narcotic-drugs-and-psychotropic-substances-amendment-
bill-2011-1988/

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 unprecedented until now. The amendments can be seen more in line with the
various corpus of International law signed and ratified by India namely
5. Single Convention on Narcotic Drugs, Convention on Psychotropic
Substances, and United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances.
6. Other major changes involve the penal provisions. Under S. 31, Clause A has
been added which provides for mandatory Death Penalty in case of a drug
trafficker who has been convicted once under the NDPS Act for “engaging in
the production, manufacture, possession, transportation, import into India,
export from India or trans-shipment, of narcotic drugs or psychotropic
substances.” The repeat offender will directly go under the gallows. However,
the Act seems to be more stringent here as awarding death penalty happens in
the rarest of the rare case and in offences of the highest gravity. Even the
International drug conventions do not call for deprivation of life. S. 31 A still
is the eye of storm. The reason being imposition of death penalty and
increasing the prison sentences upto 10 years. The revised penalty structure is
tougher apparently.
7. On simple reading of S. 71 of the amended Act, it is concluded that there is a
move to protect the interests of drug addicts affirmatively. The discretionary
element in the provision has been removed thereby prompting the
Government to identify and treat the addicts in the established centers. The
amendments done to S. 68-B, 68-D and S. 68-0 are merely clarificatory in
nature. Now, under S. 57 the report of search and seizure of illegally acquired
property can be made before ninety days, earlier the time frame was just forty
eight hours. Unlike previously, the report can be submitted to any
jurisdictional competent authority.
8. A comprehensive analysis and evaluation of the amended Act leaves more
room for doubt than it does hope. Section 35, presumes the guilt of the
accused and puts the liability on the accused to prove his innocence. It further
states that, unless the contrary is proved, it will be believed that the accused
intentionally held the illicit drugs found in his possession. This is contrary to
the general notion of justice wherein the accused is innocent until proven
guilty. Moreover, the Act also does not make any meaningful distinctions
between small and commercial quantity of drugs.a concern.103

103
https://lawlex.org/lex-bulletin/ndps-amendment-act-2014-promotion-palliative-care-
eyewash/11685

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 CHAPTER 7

AMBIGUITIES IN PROCEDURAL PROVISIONS

It is necessary to lay down statutory guidelines regarding the procedure to be followed by

the law enforcement officials during investigation of the criminal offences so that they do
not resort to illegal arrests, unlawful searches and seizures, coercive interrogation and
illicit means to collect evidence. Procedural norms are essential for regulating the
proceedings in the court of law. The procedural provisions are indispensable components
of any penal statue.

In the Narcotics Drugs and Psychotropic Substances Act, all the procedures required to
be followed by the enforcement officials during the investigation have been exhaustively
dealt with. However, many of the procedural provisions are complex, cumbersome and
impractical. Moreover, diverse and conflicting interpretations accorded to those
provisions by the court have rendered have rendered the procedural law highly uncertain
and vulnerable. Under these circumstances, the enforcement officials often fail to
meticulously follow such provisions, and this result in large percentage of drug offenders

Search of a Place or Building

It is stipulated in the section 41 of the NDPS act that a gazette officer of any government
department has been entrusted with the enforcement of the act, who has been empowered
for the purpose of this section by a general or special order by the central or state
government, may authorize search of any building, conveyance or place, if he has reasons
to believe from personal knowledge or ‘information given by any person and taken in
writing that any contraband drug or any documented article in relation to an offence
under the act.

There have been conflicting judicial pronouncements on the question whether the failure
of any officer to merely record, record the information, received by him, in writing, in
terms of section 41 and 42 of the NDPS Act will render the search illegal and thus
vitiates the subsequent proceedings or trial.

81
The Punjab and Haryana High Court held in Hakam Singh v. Union Territory,
Chandigarh104, that it is mandatory to reduce in writing the information received by an
officer under section 41. The Court held the prerequisite of recording the information in
writing cannot be said to be said to be only a formality and its contravention would
certainly cause prejudice to the accused, because in the absence of any writing, there
would be no chance to cross-examine the officer with regard to the factum or contents of
the information received. The failure of the police officer in recording the secret
information in writing was one of the grounds for quashing the conviction of the accused
in the NDPS act.

The Gujarat High Court disagreed with the above view in GurajmalKanaiyalalSoni v.
State of Gujarat105 and observed ‘we are not in a position to endorse the view that in the
absence of writing, there will be no chance to cross-examine the officer with regard to the
factum and contents of the information received and that would cause prejudice to the
accused.

The Bombay High Court in Abdul Sattar v. State106 and the Delhi High Court in Richhpal
v. State 107 have also held that mere failure to reduce the information received by an
officer into writing, before conducting a search, does not vitiate the proceedings. Coming
to the practicability of the these provisions, it may not always be possible for an officer to
reduce the secret information in writing a he has to act swiftly on such information,
suppose an informer is keeping a watch over the buildings and he notices a suspect
entering a building with a briefcase suspected to contain heroin. The informer will rush to
the official, for furnishing this information. If the official starts writing the information
instead of immediately hurrying towards the spot, there is a likelihood that the suspect
might escape in the meantime. Speed and promptness of the action is the essence of
success for both the traffickers as well as enforcement officials.

104
1988 Crl. L.J. 528 (P&H)
105
1991 Crl. L.J. 1483 (Guj)
106
1989 Drugs Cases 50
107
1989 Drugs Cases 97

82
The requirement of writing the information in writing before conducting the search does
not appear to serve any practical purpose. If the aim of the provision is to ensure that the
enforcement officials do not make fake or frivolous searches without recording the
statement in writing, there is nothing to prevent an officer from circumventing the law by
recording the information after the search has been made by manifesting it as having been
recorded prior to the search. Further, the information itself can be faked as an
enforcement official cannot be compelled by any court of law or any other authority to
disclose the source of information under any circumstances, whatsoever, by virtue of
section 68 of the NDPS Act.

Search of Persons

Section 50 of the NDPS act, 1985 stipulates that, “when any officer duly authorized
under section 42 is authorized to search any person under the provision of section 41,
section 42 or section 43, he shall, if the person so requires, take such person without
delay to the nearest gazetted officer of any department mentioned in section 42 or the
nearest magistrate.”
However, these provisions have been subjected to conflicting interpretations by the
courts, leading to uncertainty regarding the true ambit of this section.

On the one hand, seven High Courts including the Punjab and Haryana High Court in
Jang Singh v. State of Haryana108, Harbhajan Singh v. State of Haryana109, Bhajan Singh
v. State of Haryana110, Hakam Singh v. union territory111, Chandigarh and Paul Osumbu
v. State of Haryana 112 ; Delhi High Court inKailash Singh v. State 113 , Jayapalan v.
State114; the Himachal Pradesh High Court in State of H.P. v. Sudershan Kumar115; the
Rajasthan High Court in Choteylal v. State of Rajasthan 116 , Prthvi Raj v. State of

108
1988 Drugs Case 67
109
1988 Drugs Case 81
110
1968 Drugs Case 94
111
1988 Crl. L.J. 528 (P&H)
112
1991 Drugs Case 87
113
1989 Drugs Case 88
114
1989 Drugs Case 106
115
1989 Crl. L.J. 1412 (H.P.)
116
1989 Drugs Case 364

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Rajasthan117; the Allahabad High Court in Dadan Singh v. State of U.P118.; the Madhya
Pradesh High Court in Mariappa and other v. State of Madhya Pradesh119, Salamat Ali v.
State120and the Gauhati High Court in Md. Jainulabdin v. State of Manipur121, have held
that officer making the search under section 41, 42, 43 does not inform the person
searched that he has a right to be taken before a gazetted officer or a magistrate for a
personal search, it will be violation of the mandatory provision of section 50 of the NDPS
act and would consequently vitiate the proceedings. As per these pronouncements an
officer conducting a search under the act needs to comply with the provisions unless it
will quash the proceedings against the accused and such officer is under a legal obligation
to bring the provision of section 50 of NDPS Act to the knowledge of the accused.

On the other hand, five High Courts viz. Gujarat High Court, Kerala High Court, Bombay
High Court, Orissa High Court and Madras High Court have taken a contrary view.

The Gujarat high Court held in SurajmalkanaiyalalSoni v. State of Gujarat122 “the person
who is to be searched, has however to require the authorized officer to take him to the
nearest magistrate. If no such requisition is made, it is not necessary for the authorized
officer to take such person to the gazette officer or the nearest magistrate. The section
does not specifically provide that such person should be informed that it’s his right to be
taken to a gazetted officeror the nearest magistrate nor does it impose an obligation on
the officer to inform such person. Expressing a similar view the Kerala High Court held
in Ahmed Koya v. State of Kerala123 “if the legislature wanted the officer to ascertain
from the accused whether he desired to have the search before the gazetted officer or a
magistrate, it could have easily stated so in section 50. So clearly it was not the intention
of the legislature.

117
1988 Crl. L.J. (RAJ) 718
118
1993 Crl. L.J. 1785 (Allahabad)
119
1990 Crl. L.J. 1990 (M. P.)
120
1992 Drugs Case 78
121
1991 Crl. L.J. 696 (Gauhati)
122
1991 Crl. L.J. 1483 (GUJ)
123
1990 Drugs Case 474

84
The Bombay High Court in Wilfred Joseph v. State of Maharashtra124 and the Orissa
High Court in Banka Das v. State of Orissa125, similarly held that section 50 does not cast
any legal duty on the concerned official to inform the person to be searched that he has an
option of making a requisition to be taken before a gazetted officer or an magistrate for
such search. The Madras High Court has held that in Mahaboob Bee v. State 126 that
section 50 is not mandatory and non-compliance of this section will not prove fatal to the
prosecution.

Apart from the above conflicting court ruling, one practical problem regarding the
compliance of section 50 of the NDPS acts. Sometimes, a person whose movements are
suspicious may be searched by the police without knowing whether such person is
carrying stolen property, narcotics or illegal arms. Similarly, a person may be searched by
a police or security staff as a matter of routine to see whether he is carrying any
hazardous good or weapons which may endanger public safety. In such situations, if the
person is detected with carrying illicit or contraband drugs, then the legality of such
search and seizure, for the purpose of his conviction under the NDPS act, becomes
questionable and needs to be ascertained. It is highly unlikely, that it would have been the
intention of the legislature to make the section 50 applicable to such a situation. Taking
this factor and also the conflicting judicial pronouncements into account, it can be stated
that the language of section 50 does not clearly bring out the legislative intent behind
enacting these provisions.

124
1991 Drugs Case 238
125
1993 Crl. L.J. 442 (ORISSA)
126
1993 Drugs Case 94

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 CHAPTER 8

INSTITUTIONAL MECHANISM TO CURB THE MENACE OF DRUG ABUSE

Till the coming into force of the Narcotic Drugs and Psychotropic Substances Act, 1985
only the state police or state excise could investigate the drug offences and prosecute the
offenders. The officials of some of the other government departments namely customs,
central excise, narcotics, drug control and revenue, had limited powers of search, seizure
and arrest. The seized contraband and drugs and the arrested persons had to be handed
over by such officials to the state police or the state excise for further proceedings. Being
overburdened with the investigations of more serious crimes, law and order duties and
security arrangements etc, the police could hardly devote much attention to the drug
offences. Therefore the NDPS Act, 1985 sought to confer equal powers under the act on a
number of agencies of the Central Government as well as the State Government.

The comprehensive legislative policy for regulating, controlling and monitoring the
problem of drug abuse and incidental consequences is broadly covered in the three
Central Acts, viz. Drugs and Cosmetics Act, 1940, The Narcotic Drugs and Psychotropic
Substances Act, 1985 and The Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988. The responsibility of drug abuse control, which is a
federal function, is carried out through a number of Ministries, Departments and
organizations like Narcotics Control Bureau, Department of Revenue Intelligence, Local
Police, etc. They also have enforcement powers for dealing with complaints and detecting
contraventions. Various other functions in the matter are carried out by various
Departments and Organizations. The health, treatment and hospitalization facilities are
the responsibility of the Ministry of Health and Family Welfare and Health Departments
of the States/Union Territories127.

The responsibility of drug abuse control, which is a federal function, is carried out
through various Ministries and Departments under the Government of India as well as the
State Governments exercise various functions pertaining to drug demand and supply

127
Ministry 0f Health and Family Welfare Website, about us, accessed on 19/04/16 at 13:15hrs.

86
reduction. The aspect of drug supply reduction is looked after by various enforcement
agencies under the Ministry of Finance, Ministry of Home Affairs and State
Governments. The aspect of drug demand reduction is handled by the Ministry of Social
Justice & Empowerment and that of treatment of drug addicts and their rehabilitation
falls under the domain of the Ministry of Health128.

General enforcement of the provisions of the N.D.P.S. Act, 1985 is looked after by
various other enforcement agencies like custom and Central Excise, State Police,
Directorate of Revenue Intelligence (DRI), Central Bureau of Narcotics (CBN), Central
Bureau of Investigation etc. Para-Military forces like B.S.F., C.R.P.F., and Coast Guards
etc. are also required to play an important role in tackling smuggling of drugs. The brief
role played by important enforcement agencies is as follows:

The Narcotics Control Bureau (NCB) –

The Narcotic Drugs and Psychotropic Substances Act, 1985 which came into effect from
14th November, 1985 made an express provision for constituting a Central Authority for
the purpose of exercising the powers and functions of the Central Government under the
Act. In exercise of the powers, the “Narcotics Control Bureau” was constituted with
Headquarters at Delhi in the year, 1986. The Bureau, subject to the supervision and
control of the Central Government, exercises the powers and functions of the Central
Government for taking measures with respect to:
(i) Co-ordination of action by various offices, State Governments and other
authorities under the NDPS Act, Custom Act, 1962, Drugs Act and Cosmetics
Act, 1940, and any other law for the time being in force in connection with the
enforcement provisions of the NDPS Act, 1985
(ii) Implementation of the obligation in respect of counter measures against illicit
traffic under the various international conventions and protocols that are in force
or which may be ratified or acceded to by India in future.

128
Ministry of Finance Website, Department of Revenue, Narcotics Drugs and Psychotropic Substances
available at - http://dor.gov.in/overview_ndps accessed on 20/04/16 at 14:25hrs.

87
(iii) Assistance to concerned authorities in foreign countries and concerned
international organizations to facilitate coordination and universal action for
prevention and suppression of illicit traffic in these drugs and substances.
(iv) Co-ordination of action taken by the other concerned Ministries, Departments and
Organizations in respect of matters relating to drug abuse129.

The Narcotics Control Bureau (NCB) is the apex coordinating agency. It also functions as
an enforcement agency through its units located at Bombay, Delhi, Calcutta, Madras,
Varanasi, Jodhpur, Chandigarh, Jammu, Ahmadabad, Imphal and Tiruvananthapuram as
these locations are deemed to be sensitive from the point of view of drug trafficking. The
Zonal units collect intelligence and work in close co-operation with the Customs and
other law enforcement agencies. The Narcotics Control Bureau strives to promote inter-
agency co-operation both in India and abroad and implements the provisions of various
International Conventions pertaining to drug abuse and illicit drug trafficking, interalia,
liasoning and assisting international agencies, such as Interpol, UNODC, Customs
Cooperation Council, SAARC and the enforcement agencies of various other
countries 130 . Assistance is extended by way of financial support for procurement of
equipment and vehicles, skill up-gradation through training and supply of investigative
tools like drug detection kits, etc.

The primary areas of focus for counter narcotics efforts, made by the Narcotics Control
Bureau in India include:
(a) Intensive preventive and interdiction efforts on known drug routes.
(b) Identification of illicit cultivation of the opium poppy and the wild growth of
cannabis and eradication of these sources of supply.
(c) Strict surveillance and enforcement at import and export points, land borders,
airports, foreign post offices and production areas etc.
(d) Strict control over the movements of precursor chemicals.

129
Narcotics Control Bureau, Ministry of Home Affairs, Government of India available at
http://www.narcoticsindia.nic.in/about.php accessed on 20/04/16 at 14:15hrs.
130
ShodhgangaInflibnhet available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/18155/12/12_chapter6.pdf accessed on 20/04/16 at
15:55hrs.

88
 (e) Improved coordination between various drug law enforcement agencies in order to
effectively implement the Drug laws.
(f) Building of an electronic database of offenders and suspects
(g) Strengthening of international liaison to improve the collection, analysis and
dissemination of operation intelligence in order to keep a complete watch on drug
smugglers
(h) Implementing a scheme of monetary rewards for information leading to seizures of
Narcotic drugs to informants and officers.
(i) Using satellite imagery for monitoring identified areas for illicit growth of cannabis
or opium.
(j) Conducting training programmes for law enforcement officials for upgrading their
skill to combat drug trafficking
(k) NCB strives to promote interagency co-operation in India and abroad in order to
implement the provisions of various international conventions relating to drug abuse
and illicit drug trafficking.

The work and recovery record of Narcotics Control Bureau is appreciable as regards to
the seizures of contrabands made from the year 2009 to 2014, it can be said that the NCB
has done a commendable job in this regard and succeeded in its mission to control the
supply of contrabands131.

Major trafficking trends and patterns that have dominated the drug trafficking scenario in
India as per the latest Annual Report132 published by the Narcotics Control Bureau, can
be broadly summarized as follows:
1. Suspected diversion of opium from licit cultivation and indigenous production of
low quality Heroin.
2. Trafficking of Heroin from South West Asia to India and further to Sri Lanka,
Maldives and other western countries.
3. Trafficking of hashish and cannabis from Nepal to India.

131
Narcontrol 2014, Journal of Narcotics Control Bureau, Operations
132
Narcotics Control Bureau, Ministry of Home Affairs, Annual Report, 2014

89
 4. Illicit cultivation of opium poppy.
5. Wild growth of cannabis.
6. Diversion of precursor chemicals and other controlled substances.
7. Diversion of pharmaceutical preparations and prescription drugs containing
psychotropic and controlled substances and their smuggling to neighboring
countries.
8. Trafficking of drugs through illicit internet pharmacies and misuse of courier
services. Ã Involvement of foreign nationals in trafficking and distribution
networks, majorly Nigerians in the case of Heroin and Cocaine & Israelis and
Nepalese in the case of Hashish.
9. Trafficking of Ketamine, a veterinary anesthetic, from India to certain
destinations in South East Asia.
10. Emergence of new psychoactive substances like Ketamine, Mephedroneetc in the
country133.

NCB and Drug Demand Reduction

India is located close to the major poppy growing areas of the world, with “Golden
Crescent” on the North-West and “Golden Triangle” on the North–East. India due to its
geographical location is vulnerable to drug abuse particularly in poppy growing areas and
along the transit/trafficking routes. The use of dependence-producing substances, in some
form or the other, has been a universal phenomenon. The fast changing social milieu,
among other factors, is mainly contributing to the proliferation of drug abuse, both of
traditional and of new psychoactive substances. The introduction of synthetic drugs and
intravenous drug use leading to HIV/AIDS in some parts of the country has added a new
dimension to the problem, especially in some parts of the country. The vulnerability of
the modern society acts as a catalyst in promoting the consumption and abuse of narcotic
and psychotropic drugs. Reducing the demand for illicit drugs is a key element in the
overall strategy for dealing with the drug problem. The measures adopted by the

133
Major Trafficking Trends of 2014, Annual Report of Narcotics Control Bureau available at
http://narcoticsindia.nic.in/upload/download/document_idfa385fb5a8e79b41a0d37b12c9f95996.pdf
accessed on 21/04/16 at 11:15hrs.

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Narcotics Control Bureau for demand reduction include:
(a) Awareness building and educating people about deleterious effects of narcotic drugs;
(b) Community-based intervention for identification, treatment, motivation, counselling
and rehabilitation of drug addicts;
(c) Training of volunteer/service providers and other stake holders for building of a
committed and skilled cadre.

The objective of the entire strategy devised by the Narcotics Control Bureau is to
empower and make the society and the community self-reliant while dealing with the
problem of drug abuse. The NDPS Act 1985 provides for the treatment of drug-
dependent persons. Under Section 71 of the Act, the Government may establish centers
for identification, treatment, education, after-care rehabilitation and social integration of
addicts besides for supply of narcotics drugs and psychotropic substances to them. The
NDPS Act also permits non-government entities to set up drug treatment services. These
non-government entities are required to maintain documentation regarding the inventory
of drugs. Targeted at Demand reduction and also with the intent of creating awareness
among people about the ill effects of drug abuse, the NCB zonal units have been
conducting awareness programs during the year 2014 as well like the previous years. The
Ministry of Social Justice & Empowerment is the nodal agency for implementing the
drug demand reduction programmes in the country.

During the crop year 2014, the Narcotics Control Bureau with the help of various Drug
Law Enforcement Agencies co-ordinate the efforts that eventually resulted in eradication
of standing and fruiting illicit opium cultivation spread over 22,857 acres of land in the
States of J&K, Himachal Pradesh, Uttarakhand, Bihar, Jharkhand, West Bengal,
Arunachal Pradesh and Manipur. NCB with State agencies initiated action for eradication
of illicit cultivation in over 2,656 acres of land out of total 2,857 acres that was destroyed
during the crop year, 2014134.

134
Ministry of Home Affairs, Annual Report, 2014-15.

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Central Bureau of Narcotics (CBN) –

the primary responsibilities of Central Bureau of Narcotics established under the multi-
agency scheme of the Narcotics Drugs and Psychotropic Substances Act, 1985 cover the
following:
1. Supervision over licit cultivation of opium poppy in India spread across 22
Districts 102 Tehsils / Parganas in the States of Madhya Pradesh, Rajasthan and
Uttar Pradesh.
2. To check and take legal recourse against the illegal cultivators of the poppy in the
country.
3. Preventive and enforcement functions especially in the three poppy growing
States.
4. Conducting investigation of cases under the NDPS Act, 1985 and filing of
complaints in the Court of Law.
5. Action for tracing and freezing of illegally acquired property as per the provisions
of NDPS Act, 1985.
6. Issue of licenses for manufacture of synthetic narcotic drugs and cultivation of the
narcotics by licit means.
7. Issuance of Export Authorizations / Import Certificate for export / import of
Narcotic Drugs and Psychotropic Substances.
8. Issuance of No Objection Certificate (NOC) for import/ export of a select number
of Precursor Chemicals.
9. Import of Poppy Seeds are permitted only from Australia, Austria, France, China,
Hungary, the Netherlands, Poland, Slovenia, Spain Turkey and Czech Republic
on production of an appropriate certificate from the Competent Authority of the
exporting country that the opium have been grown legally in that country. All
import contracts for this item shall compulsory be registered with the Narcotics
Commissioner, Gwalior prior to import.
10. 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

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 control conventions. CBN interacts with the International Narcotics Control
Board, Vienna and the Competent Authorities of other countries to verify
genuineness of the transaction prior to authorizing the shipments135.

Despite the legal provisions enshrined under the Narcotics Drugs and Psychotropic
Substances Act, 1985, instances of illegal cultivation of opium poppy and cannabis have
been noticed. The Government of India considers such illegal cultivation as a matter of
serious concern. The Central and State Governments continue to work together to combat
this problem and issue directions to all officers under their control to discharge their
responsibility with integrity under Section 47 of the NDPS Act. For this purpose the
Central Government and each State Government has designated one or more nodal
officers to whom the officers who come to know of any illegal cultivation are reporting.
The Government endeavors to publicize widely the names and contact details of the
nodal officers so that not only the officers, panches, sarpanches and land holders but even
general public can provide information about illicit cultivation. The Central and State
Governments shall follow a policy of zero tolerance and take severest possible action
against anyone involved in illicit cultivation. The Narcotics Control Bureau and Central
Bureau of Narcotics and concerned State Governments have been directed to prosecute
officials under their respective control who violate the provision of Section 47 of the
NDPS Act.

From the legislative framework, it is clear that the overall responsibility of tackling the
problem of illicit cultivation is bestowed upon the Central Government. The Central
Economic Intelligence Bureau (CEIB) has been authorized to vigorously continue
Satellite Surveying and Satellite Mapping of illicit opium poppy cultivation and will
share the images of such identified areas with the Narcotics Control Bureau (NCB) and
Central Bureau of Narcotics (CBN). The NCB, in coordination with the CBN and
respective State authorities, are empowered to carry out destruction operations in the
areas identified for illicit poppy cultivation. The responsibility of collecting field
intelligence and destroying illegal cultivation and arresting and prosecuting the offenders

135
Central Bureau of Narcotics website available at - http://cbn.nic.in/html/aboutcbn.htm accessed on
22/04/16 at 12:40hrs.

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lie primarily with the State Governments. The State Governments is also obligated to
render all necessary help and security to any central drug law enforcement agency in their
illicit crop destruction operations. At the field level, as far as possible, joint operations
between the central and State Governments have been conducted to identify and demolish
the illegally standing or cultivated opium poppy and cannabis crops in the territory of
India.

Directorate of Revenue Intelligence (DRI) –

The recognition of the need for a central organization for gathering details of violations
of economic laws in a continuous and organized manner so as to devise a strategy to deal
with them and to alert the concerned customs formation was felt as early as 1953. This
resulted in the setting up of an organization called the Central Revenue Intelligence
Bureau in 1953. The organization was charged with the responsibility of developing
intelligence on matters connected with anti-smuggling and anti-corruption in the Customs
and Central Excise formations all over the country. In retrospect, one Assistant
Commissioner and two Superintendents as then provided, was too small a complement of
staff. The work done by this small organization, however, brought into sharp focus the
urgent need and necessity for an exclusive organization to deal with the menace of
violation of fiscal laws. The Directorate of Revenue Intelligence (DRI) was thus formed
in 1957 as a direct result of the sequence of events which followed preceding its
establishment. The Directorate of Revenue Intelligence primarily undertakes all aspects
of work pertaining to customs, central excise and narcotics.

The role of Directorate of Revenue Intelligence in the enforcement of Drug Laws in India
is as good as that of the Central Bureau of Narcotics, Central Bureau of Investigation and
Narcotics Control Bureau. These agencies along with Directorate of Revenue Intelligence
have a legacy of performing the duties assigned on their part effectively in all the spheres
to check the growing incidence of Narcotic Trafficking and to enforce the anti-Narcotic
Laws136.

136
History of the Directorate of Revenue Intelligence available at http://dri.nic.in/home/history accessed on
23/04/16 at 13:50hrs.

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The functions of the Directorate of Revenue Intelligence in its original brief varied from
the evasion of central excise duties to preventing narcotic drug trafficking. Thus, the
charter of DRI, as it stood previously, encompassed all aspects of work pertaining to
customs, central excise and narcotics, which required control, direction and investigation
from the Centre. With the passage of time and the growth in the problems relating to
effective control of violations of such diverse laws, the need for specialization and
expertise was felt. The result was the creation of a separate Directorate of Anti-Evasion
(now known as Directorate General of Central Excise Intelligence) in 1978 to handle
violations of Central Excise laws and creation of the Central Economic Intelligence
Bureau in 1985 to co-ordinate activities amongst various enforcement agencies of the
Department of Revenue. With the growing incidence of narcotics trafficking and in
keeping with India’s commitment to the international community under various
conventions to tackle this problem, the Narcotics Control Bureau took shape in 1986, to
co-ordinate the enforcement of antinarcotics laws.

The Directorate of Revenue Intelligence in the present form is a lean organization

bestowed essentially with the collection of intelligence, its analysis, coding, decoding
collation, interpretation, and dissemination on matters relating to violations of customs
laws, and to a relatively lesser extent, anti-narcotics law. In order to ensure effective
discharge of its responsibilities, DRI maintains close liaison and collaborates with all the
important enforcement agencies in India like the Central Economic Intelligence Bureau,
Income-Tax Department, Enforcement Directorate, Narcotics Control Bureau,
Directorate General of Foreign Trade, Border Security Force, Central Bureau of
Investigation, Coast Guard, the State Police authorities and also with all the Customs and
Central Excise Commission rates. It also maintains close liaison with the World Customs
Organization, Brussels, and The Regional Intelligence Liaison Office at Tokyo,
INTERPOL and foreign Customs Administrations.

Directorate of Revenue Intelligence functions under the Central Board of Excise and
Customs in the Ministry of Finance, Department of Revenue, headed by Director General

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in New Delhi, it is presently divided into seven zones, each under the charge of an
Additional Director General, and further sub-divided into Regional Units, Sub-Regional
Units and Intelligence Cells with a complement of Additional Directors, Joint Directors,
Deputy Directors, Assistant Directors, Senior Intelligence Officers and Intelligence
Officers.
The Charter of the DRI includes:
1. Collection of intelligence about smuggling of contraband goods, narcotics, under-
invoicing etc. through sources of India and abroad, including secret sources.
2. Analysis and dissemination of such intelligence to the field formations for action.
3. Working out of intelligence by the Directorate officers themselves to a successful
conclusion, where necessary.
4. Keeping watch over important seizures and investigation cases.
5. Associating or taking over the investigations which warrant specialized handling
by the Directorate.
6. Guiding important investigation/prosecution cases.
7. Functioning as the liaison authority for exchange or information among United
Nations Economic and Social Commission for Asia and the Pacific (ESCAP)
countries for combating international smuggling and customs frauds in terms of
the recommendation of the ESCAP conference.
8. Keeping liaison with foreign countries, Indian Missions and Enforcement
agencies abroad on anti-smuggling matters.
9. To keep liaison with C.B.I. and through them with the INTERPOL.
10. To co-ordinate, direct and control anti-smuggling operations on the Indo-Nepal
border.
11. To refer cases registered under the Customs Act to the Income Tax Department
for action under the Income Tax Act.
12. To keep statistics of seizures and prices/rates etc. for watching trends of
smuggling and supply required material to the ministry of Finance and other
Ministries.
13. To study and suggest remedies for loopholes in law and procedures to combat

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 smuggling137

The land borders of our country, extending to more than 15,000 km and a coastline of
over 7,500 km, make the task before DRI very daunting. The progressive economic
liberalization with increasing emphasis on trade facilitation has also led to enormous
increase in the misuse of the facilities / concessions resulting in loss of customs duty and
foreign exchange. The complexion of economic frauds has changed dramatically. Every
enforcement agency in this climate has to tread carefully and strike a fine balance
between facilitation- a natural corollary to liberalization and enforcement. This
Directorate has risen to this challenge138.

Problems of Enforcement Agencies

While all round efforts are being made for prevention and containment of drug abuse in
our society, a long journey is yet to be covered before we can draw some satisfaction.
The menace of drug abuse having transnational causes and implications shall require
Herculean efforts on the part of all the institutions. The empowerment of society through
sensitization and awareness is the only solution to support the efforts of enforcement
agencies in containing the proliferation of drug trafficking and drug abuse. However,
there are some inherent drawbacks in the functioning of these institutional agencies
namely:

1. Widespread Corruption: It is correct to say that the organized drug syndicate

cannot function without the active or tacit connivance of the enforcement
officials. The illegal drug trade generates such exorbitant profits that the
traffickers can conveniently buy off the enforcement officials and the
judiciary.
137
The Charter of Directorate of Revenue Intelligence available at - http://www.ceib.nic.in/dri.htm
accessed on 22/04/16 at 15:00hrs.
138
: United Nations Office on Drugs and Crime (UNODC) and Ministry of Social Justice and
Empowerment, Government of India 2004. The extent, pattern and trends of drug abuse in India: National
Surveyby Ray R, Mondal AB, Gupta K, Chatterjee A, Bajaj P. New Delhi

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There is, of course, no dearth of the honest and conscience oriented enforcement
officials. However, they may rarely be strategically placed. Even if they happen to
occupy sensitive positions and are able to book a few offenders, they may not be a
witness to their conviction and punishment for they are frequently transferred as the
trials take a long time to conclude.

Regarding corruption amongst enforcement officials in India, the instances of low-

level enforcement officials indulging in acts of trafficking are not uncommon. Their
knowledge about the underworld as well as the detection and procedures gives them
an added advantage

Indirect involvement of the enforcement officials, in small proportions cannot be ruled

out while jumping to any conclusion is not feasible at this stage, especially in the
absence of compelling evidence.

2. Lack of Co-ordination – the inter agency swapping of clues and secret

information has to be enhanced for effective coordination and better results.
The exchange of intelligence input between the agencies should be free from
biases, prejudices and a sense of rivalry because it is a common experience
that even when they are working in the same field or same geographical area
agencies do not indulge in free and transparent information sharing. Many a
times, when agencies work without informing each other, it results in the
frustration of the efforts.

3. Lack of Training – a general overview of some of the judgments passed by

the Hon’ble Supreme Court and Various High Court’s reveal that the
enforcement officials are generally ignorant of the basic provisions of the act
and commit various procedural and substantive irregularities during the
investigation which translates into the failure of the prosecution case on
numerous occasions and an overall poor conviction rate.

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The training programmes of the enforcement officials, apart from the official language
must also be conducted and communicated in their local language and the duration of
the training should be sufficient enough so that the officials can get a hold over the
technicalities of the drug law. The training progammes organized for the enforcement
officials should be dynamic enough to accommodate the recent developments in the
current happenings like the increasing use of technology and innovative modus
operandi adopted by organized drug syndicates.

4. Lack of Infrastructure - It is felt for some time that the existing infrastructure
at the Centre and States was not adequate to perform the assigned functions
efficiently and speedily. However, creating another authority will not solve
the problem at hand. Hence it is both essential and indispensable to
strengthen the existing organizations to enable them to undertake all the
functions under the NDPS Act, 1985. A strong, well equipped and
professionally managed Central Drugs Standard Control organization, which
could be given the status of Central Drug Administration was an appropriate
and viable solution. A detailed proposal, to create such a structure and
strengthen the State level regulatory apparatus with complementary roles of
the Centre and the States, while at the same time ensuring uniform and
effective implementation, has been sent for drafting.

In the overall view the work performance of Central Bureau of Narcotics, Narcotics
Control Bureau and the Directorate of Revenue Intelligence is appreciated, it would be
apt to conclude that the role of all the enforcement agencies is crucial in implementing
narcotic laws of the land in an effective and efficient manner in the coming times.

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 CHAPTER 9

NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985: A

CRITICAL APPRAISAL

The issue of drug abuse in India is complex and multidimensional having far reaching
ramifications, requiring both approaches that is the efforts to regulate illicit trafficking /
widespread substance abuse and to provide essential drugs for use as health / medical
measures and Scientific research purposes. India is a signatory to the International Law
on the matter. The United Nation conventions allow the signatory sovereign countries the
flexibility to evolve and develop national policies and programs that are in sync with the
indigenous needs while retaining their focus on the core conventions objectives.

Accordingly, the Narcotics drugs and Psychotropic Substances Act was enacted by the
parliament in 1985. The Act was amended once in 1989 and subsequently in 2001.
During the enforcement of the act several anomalies were noticed, therefore with the
object of eliminating the persistent anomalies and incorporating new dynamic provisions
which were the need of the time, the NDPS Act, 1985 was recently amended again in
2014. In the light of the above background, a critical appraisal of the NDPS Act is as
follows:

Positive aspects of the act–

1. Exercising its power under section 4(3) of the Narcotics Drugs and
Psychotropic Substances (NDPS) Act, 1985 the Central Government set up
the Narcotics Control Bureau (NCB) in 1986, as the chief law enforcement
agency in India responsible for fighting drug trafficking and abuse of illegal
substances.

The NCB primarily functions as national coordinator international liaison and is the
nodal point for the collection and dissemination of intelligence. This system ensures
co-ordinated implementation with the broad parameters of broad national strategy.

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 2. A salient feature of the act is simplification of the procedure of addition or
deletion from the list of manufactured drugs and psychotropic substances
maintained under the NDPS Act. Contrary to the previous position, no formal
amendment or laying of bill in the parliament is required for the same as the
government is empowered to make such changes by way of simple
notification in the official gazette.

This step to delegate authority is a crucial endeavour on the part of legislature

towards promoting speedy decision making and saving the precious public time that
can be devoted for undertaking other nation building initiatives.

3. Unlike the previous NDPS Act, which was restrictive and limited in scope as
it stressed only on preventing abuses of the prohibited narcotics, the present
act recognizes the necessity and gravity of the medical and scientific use of
the same. After the amendment of act a distinct category has been created,
which includes a list of all the dugs the central government has notified for
the medicinal, scientific and research purposes. Additionally, the procedure
for obtaining drugs under this category has been further simplified.

4. Drug trafficking and abuse is often a habitual problem, particularly for those
who indulge in it once. To tackle and deter such miscreants from subsequent
indulging the act prescribes a far stringent punishment for the repeat
offenders. Broadly, the punishment for repeat offences can be up to one and
half times the quantum of punishment for the first offence. Resultantly, the
punishment would vary from 15 years of rigorous imprisonment to 30 years
of rigorous imprisonment depending on the gravity of the offence. Similarly,
the quantum of fine for a subsequent conviction would also be up to one and
half times the fine for the first offence. Subsequently, section 31A of the
NDPS act provides for death penalty for second conviction which is a
burningly debated.

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5. Under section 41 of the NDPS Act, the power to issue search and arrest
warrant has been vested in both the Magistrate as well as specially designated
(gazetted) officer of the Central and State Governments. This provision has
been purposely designed to minimize the time and maximize the
effectiveness of the action initiated in response to any vital information or
clue. Another aspect of it is that the need of a judicial satisfaction for
granting the same has been done away with. It is worthy to note that
however, the power of search, seizure and issue of warrant etc. are inherent
in the NDPS Act, notwithstanding, all the subjects both substantive and
procedural are also guided by the Code of Criminal Procedure, 1972.

6. Under section 64A of the NDPS Act, immunity may be tendered to an addict
who is charged with an offence under section 27 or with offences involving
small quantity of narcotic drugs and voluntarily seeks to undergo and
undergoes medical treatment for the de-addiction or de-toxification from an
hospital or institution maintained or recognised by the Government or the
local authorities shall not be liable to prosecution under section 27 or any
other section for offences involving small quantity of narcotics drugs and
psychotropic substances act. Notwithstanding the above provision, if the
addict does not undergo the complete treatment such immunity is liable to be
withdrawn immediately.

7. Section 31A of the NDPS Act deals with the like treatment of international
criminals so that the technicalities and intricacies of the difference in the
domestic laws of different nations do not confer any benefit on them. Section
31A of the Act provides that any person convicted by a competent court of
criminal jurisdiction outside India under any corresponding law shall be dealt
with as if he has been convicted by a court in India.

8. Chapter V-A of the act has been introduced to provide for the investigation,
freezing, seizure and forfeiture of the property derived or acquired through

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 the illicit trafficking of drugs or narcotic substances. The assets amassed out
of the money of trafficking by the drug trafficker are liable to forfeiture and
confiscation. The sale proceeds of such property are credited to the National
Fund for Control of Drug Abuse. Provisions for tracing and seizing of
illegally acquired properties pursuant to drug trafficking activity were
introduced in the principal Act by way of amendment in 1989 and were
further strengthened in the amending Act of 2001.

9. Under section 64, immunity may be tendered to a person with a view to

obtaining evidence, from the prosecution of an offence under this act or the
Indian Penal Code or any Central Act or State Act on the condition of
making full and true disclosure of the whole circumstances relating to such
contravention. This section is an exception to the rule that no inducement
should be given to a person to make him disclose what is in his knowledge. It
is also an exception to the general rule that a statement of an accused cannot
be used against the co-accused.

10. An addict convicted under section 27 may be released on probation under

section 39 after signing a bond with or without sureties, for detoxification or
de-addiction from a hospital or an institution maintained or recognized by the
Government. The conviction would stand and the sentence remain
sinabeyancetoenablehimtoreportbackon successful completion of de-
addiction treatment within one year. The court may direct the release of the
offender after successful completionofde-
addictiontreatmentandabstainingfromthecommissionofany offence under
ChapterIV for threeyears. Onfailureto doso, hewould have toserve the
sentence.

11. The present Act prior to the amendment of 2014, did not prescribe a time
limit for the investigating officer to look into the illegally acquired properties
of the drug traffickers. However, the current amendment has laid down a

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 maximum time limit of ninety days for ascertaining the same. This will not
only allow the timely determination of the illicitly amassed properties but
also minimize the manipulation of facts about the seized properties.

12. Prior to the 2014 amendment of the Act, each state had its own regulations
which varied from state to state. The current amendment has brought in
uniformity for all states and union territories as the power to amend the
provisions of Essential Narcotics Drugs will be vested with the Central
Government ensuring the highest standard of uniformity throughout the
country. Further, in each state, instead of multiple agencies being involved in
the process of licensing, there will be only one the drugs controller, thus
eliminating the interdepartmental red tape and inordinate delays.

13. The tough provisions in the Act prior to the 2014 amendment, that were
intended to prevent easy access to and abuse of opioids, also effectively shut
the door on pain relief for millions. The amendment has enabled registered
agencies to procure morphine by obtaining a single license from the
respective State Drugs Controller.

Negative aspects of NDPS Act –

1. The first real problem lies with the complainants. Parents, friends,
family, relatives, neighbors never really complain as many of the
law’s practical aspects are not known by the people in general in the
society. The police is also reluctant and unwilling to respond to such
complaints for the fear of drug user developing health problems.

2. The consumption of drugs continues to be punishable as the current

amendment has increased the punishment of small quantity offences
from a maximum of six months to one year of imprisonment. This is
particularly regrettable as the parliament had the opportunity to
review and reform the penal provisions against the people who use

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 drugs. In past decade, an increasing number of countries have moved
toward the complete de-criminalization of the drug users, with
negligible or no negative consequences on the individuals and society.

3. From the legal point of view the drug commonly known as ‘Bhang’
falls outside the purview of the Narcotics Drugs and Psychotropic
Substances Act and it is not a prohibited substance under the same.
However, Bhang is covered by the excise acts of the respective states
and many states issue licenses for its general consumption. Bhang is
generally believed to be a relatively less harmful form of cannabis. Its
use has got some socio-cultural sanction as well in certain regions of
the country. The line distinguishing between Cannabis and Bhang is
very thin i.e. if Bhang tests positive of TetraHydroCannabinol (THC),
which is an active component of Bhang then it is classified as
psychotropic substance.

4. The National Fund for Control of Drug Abuse was constituted from
the seed money provided by the central government. The use of
comprehensive provisions of forfeiture of property acquired by the
traffickers is too scanty for the reasons like lack of will or the time
consuming process. The fund has not yet attained the desired growth.

5. India is the largest licit producer of the opium in the world, which is
both exported and used by pharmaceutical industries domestically.
The Government periodically enhances the official price paid to the
farmers to increase the incentives to the licit cultivators for declaring
and selling all the licitly grown opium to the Government. The price
of such harvest set by the Indian Government is at par with what the
US government and other countries are willing to pay in the
international market for the Indian opium. Notwithstanding, it is only
a fraction of the drug’s value offered to the farmer in the black

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 market. Thus, the Government, in spite of the penal provisions, has
failed to keep a check as more and more farmers are induced to divert
sales to the drug traffickers who are willing to pay a much higher
price for the same.

6. The Narcotics Drugs and Psychotropic Substances Act prescribes

Capital Punishment for a repeat offence of drug trafficking, even
though it does not involve violence or killing and, consequently,
cannot be categorized as a “most serious crime”, for which the death
penalty may be used. Empirical evidence and research studies reveal
that there is no compelling evidence that demonstrates the death
penalty is a greater deterrent than other punishments in reducing drug
crimes. When a second conviction for murder does not automatically
qualify as a “rarest of rare” case deserving capital punishment.
However, the debate goes on as the recent law commission has
recommended the remove the death penalty for all the cases except
that involving terrorism.

7. Over the years the undue delay in the disposal of the cases under the
NDPS Act has emerged as burning issue despite the creation of
sspecial courts under this Act to help deal with the cases
expeditiously.

However, in many states, such courts have been given the additional responsibility of
dealing with other cases as well causing undue delays in the disposal of drug related
cases. Further, it is quite difficult to find witnesses, often due to threats from the
accused including possible bribes to turn hostile. A number of times long time-gaps
between the occurrence of the crime and the trial cast doubts on the accuracy of the
evidence leading to acquittal on grounds of insufficient evidence. It is indeed a well-
known fact that experienced advocates brings out inconsistencies in the statements of
the witness on cross examination so as to weaken the case of prosecution.

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Research also shows that many of those arrested on drug charges spend years in jail
before their cases finally come up for hearing, a direct consequence of the
notoriously slow pace of the Indian judicial system. In some instances, it has meant
that those caught with small quantities of drugs were eventually acquitted after
spending years behind bars.

8. The failure of the enforcement agencies to present prosecution cases

according to the procedure set by the NDPS Act due to ignorance and
lack of knowledge of the provisions of the NDPS act. For most of the
agencies, except the Narcotics Control Bureau, like the Department of
Revenue Intelligence, Police, Customs, Central Excise etc, drug
control implementation is an additional responsibility.

The existing webs of agencies are facing variety of problems which hamper their
efficiency and effectiveness viz.; the shortage of staff; lack of co-ordination and
sharing of sensitive information; inter-departmental transfers; procedural
irregularities committed by the enforcement officials pertaining to the ignorance of
the provisions of the NDPS act, constituting one of the prime reasons for the
observance of a low conviction rate; lack of educational qualifications to keep a
check on the intricate banking and commercial transactions involved in transfer and
holding unaccounted money by the traffickers; widespread corruption practices and
the casual approach of the officers etc.

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 CHAPTER 10

DRUG DE-ADDICTION AND REHABILITATION POLICY

The line differentiating between a drug dependent and a drug addict is not a major one.
Especially, in today times when drug addiction is increasingly becoming an area of
concern as traditional settings, social taboos, importance of self-restraint, control and
discipline are eroding with the rapid pace of urbanization and industrialization.

It is now well accepted that drug dependence is a medical condition, classified as a

“multi-factorial health disorder that often follows the course of a relapsing and remitting
chronic disease”.139 It is then imperative that health interests be central to the response to
drug use. Although drug policy in India provides for treatment, it is not prioritized in
enforcement.

Section 71 of the NDPS Act empower of the Government of India to establish centers for
identification, treatment, etc. of addicts and for supply of narcotic drugs and psychotropic
substances contains provisions for setting up of rehabilitation and treatment centers for
drug dependent persons. And for this purpose the Government of India has set up the
Integrated Rehabilitation Centre for Addicts (IRCA).

The Integrated Rehabilitation Centre for Addicts (IRCAs) provides counseling, treatment
and rehabilitation services to the victims of substance abuse. In addition to the IRCAs,
mentioned above, De-addiction Centers/Units are also present in about 122 Government
Hospitals across the country, which are under the Ministry of Health and Family Welfare.
The current policy draws upon the strength of Non-Governmental Organizations, as these
are placed in an informal setting, are present in the rural and remote locations, are known

139
UNODC and WHO, Principles of Drug Dependence Treatment, Discussion Paper, March 2008

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in the community, have access to information and use innovative dissemination methods
conducted in the local language viz. role plays, street plays, informal discussions etc.140
The IRCAs is entrusted with the following services:
1. Rehabilitation - The primary objective of the IRCA is the complete
rehabilitation of the addict after having been treated for drug
dependence. To facilitate the self-sustainability of the
addict/dependent family members, an IRCA would avail of the
services available through various schemes / programs of the
Government / State through effective networking. Rehabilitation
activities may include relevant vocational training utilizing local
resources. It also involves identification and networking with
government recognized vocational centers to refer
recovering/recovered addicts for training. The Central Government
also maintain a network directory of specialized services141.

2. Preventive Education and Awareness Generation- programme

primarily addresses specific target groups (vulnerable or the high risk
groups) in the neighborhood, educational institutions, workplace,
slums and social welfare organizations with the purpose of sensitizing
the community about the impact of addiction, and the need and
importance to take professional help to treatment.

The programme specifically focuses on children and youth, both inside and outside
the educational institutions. The programme starts at the school level addressing
adolescent groups and continue with college students. Under the programme
Parents/teachers are sensitized to develop skills to understand the working
psychology of the youth and to help them keep away from substance abuse. The
high-risk groups like commercial sex workers, mobile population like tourists and

140
Central sector scheme of assistance for prevention of alcoholism and substance (drugs) abuse and for
social defence services, Guidelines, Ministry of Social Justice and Empowerment
141
Central Sector Scheme of Assistance for Prevention of Alcoholism and Substance (Drugs) Abuse and for
Social Defence Services, Guidelines, Ministry of Social Justice and Empowerment.

109
 truck drivers, children of alcoholics and drug addicts, children of HIV affected
parents, street children, prisoners and school dropouts, are specifically addressed142.

3. Identification of substance dependent persons for motivational

counseling- this require assessing the problem related to addiction
and motivating the addict to avail the services at IRCA. It envisages
total recovery of the addicted person leading to his socio economic
rehabilitation through a unique and appropriate combination of
individual counseling, group therapy, yoga, exposure to self-
help/support groups, and introduction to other recovering addicts. It
also includes support and care to families of the addicted person143.

4. Detoxification and Whole Person Recovery (WPR) - Detoxification

services are provided for safe and ethical management of withdrawal
symptoms. The addict would be helped to overcome the desire to use
drugs even when he is in situations, which were once tempting144.

WPR would indicate that a person who has acquired life skills stays drug free and
develops an interest in healthy living. It provides for the whole range of community
based services for the identification, motivation, counseling, de-addiction, after care
and rehabilitation for Whole Person Recovery (WPR) of addicts to make a person
drug free, crime free and gainfully employed.

5. Referral services - Addicts showing deviant behavioral symptoms

like violence, depression, suicidal thoughts, etc., should be assessed
and referred to a psychiatric hospital immediately for availing
specialized psychiatric services. For allied and opportunistic medical
manifestations such as tuberculosis, hepatitis C, STDs, AIDS, etc.,

142
Drug Abuse Treatment and Rehabilitation: A Practical Planning and Implementation Guide, UNODC,
United Nations Publication, ISBN 92-1-148160-0, Chapter- 2.
143
‘Health and Family Welfare in India’ by B. Jena and R. N. Pati, P. 136
144
‘Drug Dependence: A Multidisciplinary Approach’ Edited by J.S. Madden, Robin Walker and W. H.
Kenyon, P.272

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 referral should be made for appropriate medical interventions which
would, inter-alia, include services of other specialists, hospitals and
testing laboratories, run/controlled/aided/accredited by the Union or
State Governments such as National Aids Control Organization
(NACO) and de-addiction hospitals set up by the Ministry of Health
and Family Welfare including also other institutional networks
established in the field of social defense focusing on the target groups
covered under this scheme. There should be a system of inter-linkage
of care givers and care-giving institutions to ensure effective handling
of the social defense issues145.

6. After-care and support to families for co-dependence and

rehabilitation - After care and follow up are essential components of
addiction treatment subsequent to the discharge of the client from the
IRCA. The outcome of therapy depends largely on the effectiveness
of the follow-up efforts and the dependents reintegration into the
community.

The IRCA has a well-defined program for the family members especially for co-
dependence and ensuring the social reintegration of the addict/family. This includes
counseling, relapse prevention, self-help programme, and reaching out to the families
of the addicts through regular home visits. The focus would be to make the families
understand that addiction is a disease, and help them develop a caring attitude
towards the addicts. The thrust would to help the addicts as well as their families
deal with their negative emotions and improve their quality of life146.

145
Central Sector Scheme of Assistance for Prevention of Alcoholism and Substance (Drugs) Abuse and for
Social Defence Services, Guidelines, Ministry of Social Justice and Empowerment.
146
Drug Abuse Treatment and Rehabilitation: A Practical Planning and Implementation Guide, UNODC,
United Nations Publication, ISBN 92-1-148160-0, Chapter- 3.

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Legal Provisions related to the Treatment under the NDPS act
With respect to health, the NDPS Act and Rules there under provide for:
(1) Use of narcotic and psychotropic substances for medical reasons,
(2) Treatment of persons dependent on such substances and,
(3) Administration of such substances in treating drug dependence.

The table below summarizes legal provisions related to treatment for drug dependence
under the NDPS Act and Rules:
Section Summary
2 (a) Defines “addict” as a person who has dependence on any narcotic drug
or psychotropic substance.
4 (2) (d) Directs the Central Government to take measures for identification,
treatment, education, after care, rehabilitation and social reintegration of
persons dependent on drugs
4 (3) Permits the Central Government to constitute authorities to undertake
the above
7A Enables the Central Government to set up a national fund to meet
expenditure towards identification, treatment and rehabilitation and
provision of drugs to dependent persons where such supply is a medical
necessity
10(1)(vi) Authorises State Governments to regulate possession of medically
prescribed opium for personal use by registered “addicts”
39 Empowers Court to, in lieu of sentencing, divert “addicts”, convicted for
consumption or offence involving a small quantity of drugs, to a
government recognized medical facility for detoxification
64 A A Entitles a drug dependent person, charged with consumption or
offence involving a small quantity of drugs, to undergo treatment at
centres maintained or recognised by government and be exempt from
prosecution
71 (1) Allows Government, to establish centres for identification, treatment

112
 and care of drug dependent persons and to ensure supply of any narcotic
drug and psychotropic substance to “addicts” registered with
government and to others, where provision of such drugs is a medical
necessity
71 (2) Authorizes Government to make rules providing for: - establishment,
appointment, maintenance and superintendence of treatment centres -
supply of narcotic drugs and psychotropic substances at treatment
centres and, - for the appointment, training, powers, duties and persons
employed in such centres
76 (2) (f) Authorizes the Central Government to make rules for the establishment,
appointment, maintenance, management and superintendence of centres
established by it under Section 71(1) and for appointment, training,
powers and duties of persons employed at such centres
78 (2)(a) Authorizes State Governments to regulate the manner in which narcotic
drugs and psychotropic substances shall be supplied to registered
“addicts” and others in medical need
78(2) (b) Authorizes State Governments to frame rules for establishment,
maintenance, management and superintendence of centres set up under
Section 71(1) and appointment, training, powers and duties of persons
employed at such centres
Rule 67 Allows use of narcotic drug and psychotropic substances: - by foreign
A (a) and nationals on medical advice - for “de-addiction” of drug dependent
(c) NDPS persons by Government or voluntary organization or other institution
Rules approved by the Central Government
Table 1: Narcotics Drugs and Psychotropic Substances Act, 1985147

Though guided by prohibition, the NDPS Act does provide room to accommodate use of
drugs, in medical as well as non-medical contexts. Through their rule making powers, the
Central and State Governments can prescribe conditions for supplying narcotic and

147
Narcotics Drugs and Pyschotropic Substances Act, 1985 available from
http://narcoticsindia.nic.in/upload/download/document_id08b2dbdc9ca941d237893bd425af8bfa.pdf
accessed on 1/05/16 at 17:10hrs

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psychotropic drugs to a select class of persons, which include patients, foreign nationals,
registered “addicts” and persons undergoing treatment for drug dependence. In the latter
category, the NDPS Act supports treatment both as an alternative to, and independent of
penal measures.

Arguably, for drug users, addiction treatment is part of the right to health, which the
Supreme Court has recognized within the constitutional guarantee of life and liberty148
And international human rights law 149 . Treatment provision must then be guided by
principles of non-discrimination, participation, quality and evidence informed standards
that characterize the right to health.

Treatment is the component which directly targets drug addiction. India has a two-
pronged strategy towards it-
(a) Running de-addiction centers in Government hospitals; and
(b) Supporting NGOs involved in this endeavor.

The Ministry of Health and Family Welfare of the Government of India runs over 122
drug-de-addiction centers in various Government hospitals across the country. The
Ministry of Social Justice & Empowerment has been implementing schemes for
Prohibition and Drug Abuse Prevention since the year 1985-86. At present, under various
schemes, the Government of India supports 400 Non-Governmental Organizations
(NGOs) running; 376 De-addiction-cum-Rehabilitation Centers, De-addiction Camps,
and 68 Counseling and Awareness Centers. GOI bears the major portion of the cost of
services provided at these Centers. Government shall ensure that there is easy access to
the services of motivational counseling, treatment, and rehabilitation provided by the
Government through NGOs or its own institutions150.

148
PaschimBanagKhetSamity v. State of West Bengal (1996) 4 SCC 37
149
Article 12, International Covenant on Economic, Social and Cultural Rights.
150
Ministry of Social Justice and Empowerment available from http://www.socialjustice.nic.in/aldd.php
accessed on 1/05/16 at 19:30hrs

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 CHAPTER11
PROBLEMS SURROUNDING DRUG TREATMENT CENTERS IN INDIA

1. Undetermined standards - Notwithstanding statutory provisions, drug

treatment in India largely remains unregulated, placing the health and
safety of patients at risk. With the exception of some reputed institutions,
most centers do not follow sound clinical practices; instead, utilize
redundant and unscientific methods. The reason being, the system lacks a
standardized care; anything and everything is called treatment. Several
human rights groups and organizations have urged the government to lay
down standards for the medication of drug addicts.

Instead of medical care, “punishments” are meted out to rid patients of addiction.
Physical isolation, chaining, electric shocks, beatings, forced labor, denial of meals,
other cruel and deleterious behavior is commonly practiced at such unauthorized
centers. Many drug users have reportedly died because of physical torture and/or
lack of timely medical attention. These incidents have come to light from across
India, most notably from Punjab, Chennai, Manipur and Delhi 151. People seem to
have forgotten that drug users are human beings first. By using drugs a person
doesn’t cease to be human. The Government must, in order to halt the administration
of inhumane treatment to its citizen on its own territory, devise and prescribe suitable
standards for the voluntary treatment of drug dependents.

2. Inadequate monitoring–Naturally, if there are no standards then how will

the actual work be compared to the standard work to ascertain the quality
of the work performed? However, existing monitoring guidelines are
sketchy; they elaborate neither clinical nor human rights standards in
managing drug dependence. Further still, they are loose operational codes
and not statutorily binding on private centers. Legally, ambiguity prevails

151
Article from The Hindu: Drug Users Call for Humane Rehabilitation Services available from
http://www.thehindu.com/news/cities/Delhi/drug-users-call-for-humane-rehabilitation-
services/article4191168.ece accessed on 2/05/16 at 12:45hrs

115
 over whether drug dependence treatment is governed by the NDPS or the
Mental Health Act. Systems for review and oversight are non-existent;
evaluation of NGO centers is limited in scope to grant and/or renewal of
funding. The effectiveness of psychosocial interventions has not been
scientifically evaluated till date.152

3. Absence of evidence based therapy - The world over, opium dependence

is effectively managed with medicines like Methadone and
153
Buprenorphine . Barring premier centers like the National Drug
Dependence Treatment Centre at the All India Institute of Medical
Sciences, Delhi, most government centers do not offer such treatment and
stick to abstinence based models. Currently, only a small number of
injecting drug users receives sublingual Buprenorphine for a limited
duration under the National AIDS Control Programme.

Abstaining clinically proven medical therapy from millions of opiate users in the
country is indeed questionable. As explained above, the NDPS Act allows the
medical use of narcotic and psychotropic substances. It also supports the provision of
opiates to drug dependent persons as part of medical care. Drug control agencies
must abandon their restrictive understanding of treatment as “de-addiction.” Instead,
Governments must be encouraged to make use of flexibilities within the law to
provide quality and evidence based treatment to discharge its Constitutional
obligation to safeguard the right to health of all persons including persons dependent
on drugs.

4. Unlicensed De-Addiction Centers - The government-run centers are few

and far between. As a result, a large number of unauthorized ‘de-

Drug Control Laws in India – An Analysis by KavitaDhull, Maharishi Dayanand University, Rohtak
152

available from http://www.oiirj.org/oiirj/may-june2016/24.pdf accessedon 2/05/16 at 16:10hrs.

153
World Health organization Essential List of Medicines available from
http://www.who.int/selection_medicines/committees/expert/20/EML_2015_FINAL_amended_AUG2015.p
df?ua=1 accessed on 3/05/16 at 14:25hrs

116
 addiction’ centers have proliferated to cash in the opportunity resting on
the desperation of drug users and their families. In these unregulated de-
addiction and rehabilitation centers, drug users are often confined against
their will for years together. Subsequently, under the Court’s directions,
the Governments of Punjab and Haryana notified rules directing drug
treatment facilities to offer evidence-based care, without coercion or
compulsion. Further, Unlicensed centers and those committing human
rights violations are liable to closure, as also prosecution in some cases.

Enrolment in Treatment and Protection from Prosecution:

Drug dependent persons who opt for medical treatment are entitled to relief from
prosecution, provided the charge is that of consumption or involves a minor quantity of
drugs 154 . For people who use drugs, this provision de-penalizes personal use and
possession of small amounts on the condition that they accept and complete treatment.
Criminal proceedings may be reinstated if treatment is left halfway.

The application of this clause is, however, fraught with ambiguities. Unlike Section 64
which confers powers on the Central or State Government to tender immunity to accused
persons who offer to assist the State in prosecuting drug offences, this provision does not
specify which authority – the executive or judiciary, can waive criminal proceedings. In
Shaji vs. State of Kerala155, the Kerala High Court ruled:

“Whether a person is entitled to the immunity provided in

Section 64A of the Act, being a person undergoing
treatment for de-addiction, is a matter to be specifically
urged and proved by production of sufficient evidence by
the person concerned.”
In holding that addiction be proved to the Court’s satisfaction, the decision may be
undermining the legislative intent of the section, which is to discourage criminalization of

154
Section 64 A, Narcotics Drugs and Psychotropic Substances Act, 1985
155
2004 (3) KLT 270

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drug dependent persons and encourage treatment seeking. Being beneficent in nature, the
provision ought to be construed liberally and not strictly. Further, seeking Court’s
permission will only delay entry in treatment. Another drawback is the restricted
application to “addicts”; first time users cannot be exempted from punishment, unless
they falsely testify as being drug dependent.

This flies in the face of reason and good practice, which demands that, naive users be
educated on drug use and related harms. By committing such persons to prison, the
system is blighting more lives and futures than drugs themselves. If access to drug
treatment is constricted by Courts; poor users, who rarely have legal representation, will
remain bereft of remedial measures. Once again, law enforcement and drug control
agencies must work with drug users and health providers to ensure wider application and
benefits of this provision.

The cardinal principle of an effective drug treatment programme is to attend the multiple
needs of the individual and not just his/her drug abuse. Clinically assisted detoxification
is only the first stage of addiction treatment and by itself does not do much to alter the
long term drug abuse. We must not forget that addiction is no doubt a complex but
treatable disease and therefore, the individual needs to remain in the treatment for an
adequate period of time. Also since, drug use during treatment needs monitoring
continuously so as to avoid relapses.

Clearly, the de-addiction centers established and run by NGOs under the control of
Ministry of Social Justice & Empowerment do not fall under the purview of psychiatric
hospitals or psychiatric nursing homes as defined under the Mental Health Act.
Moreover, the patients being treated in these de-addiction centers are not “mentally ill”
persons as per the definitions provided in the Act. All this poses a great threat to the
scope of treatment and rehabilitation to the drug users who may or may not be falling in
the category of “mentally ill” individuals156.

156
Developments in Psychiatry in India: Clinical, Research and Policy Perspectives by SavitaMalhotra and
SubhoChakraborti, ISBN 978-81-322-1673-5, Chapter-20, De-addiction Services in India, P. 412-413.

118
Being a criminal statute, welfare provisions of the NDPS Act have remained under-
emphasized. Over the last two decades, drug law enforcement has relegated treatment to
a mere paper provision. This must change. Statutory sections beneficial to persons who
use drugs are as much a part of drug policy as those proscribing drugs. The vigor in
enforcing penal procedures must also be seen in applying measures that support the
health and rights of people who use drugs. The need of the hour is for concerned
authorities to deliberate, together with people who use drugs, on mechanisms that affirm
voluntary and effective treatment as an important and legitimate constituent of drug
policy.

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 CHAPTER 12

CONCLUSION

The Narcotics Drugs and Psychotropic Substances Act, 1985 is a very comprehensive
legislation with unique features : under certain circumstances, there is no possibility of
bail; burden on the accused to be proven innocent, as opposed to normal jurisprudence
where a person is presumed to be innocent until proven guilty. In fact, it is as stringent as
any anti-drug laws in the West. However, the Act itself is quite draconian, and though the
Act is having deterrent effect upon the culprits, there is a hitch-slow trial, leading to
acquittals. The result is over crowding of jails.
In order to eliminate and reduce the flaws, the Act has been amended on several
occasions in 1989, 2001 and 2014 by incorporating certain provisions: constitution of a
National Fund for Control of Drug Abuse, introduction of death penalty on second
conviction under specific circumstances, forfeiture of property acquired through drug
trafficking, trial by special courts, pre-trail destruction of seized drugs and prompt
destruction of illicit cultivation, quantum of sentence to be based on the quantity of the
drug seized, formal authorization of controlled deliveries inside and outside India,
forfeiture of the sale proceeds of illegally acquired property and crediting it to the
‘National Fund for Control of Drug Abuse’. Prior to these changes, individuals found
with small quantities of illicit drugs were subject to the same penalties as large-scale drug
traffickers.

It is concluded that though certain features of the NDPS Act, 1985 are unique (e.g. under
certain circumstances there is no possibility of bail, burden is on the accused to prove
innocence as opposed to normal jurisprudence, where a person is presumed to be
innocent until proven guilty), it is not free from flaws and criticisms, having said that, the
previous 31 years have seen tremendous growth in every sphere of human environment
be it policy formulation, infrastructure development and education & health
opportunities, all these in turn have bolstered in combat against drug dependence. It is
correct to say that though this transition has taken time but the recent amendments of
2014 has indeed enhanced and broadened the nature, scope and object from abuse

120
prevention and mitigation to promoting the medical and scientific uses of the narcotics
and psychotropic substances.

CHAPTER 13

SUGGESTIONS TO TACKLE THE PERIL OF DRUG ABUSE

During the last two decades, there has been an unprecedented rise in the drug use, reuse
and abuse, not only in India but throughout the world. Trade of illicit drugs and narcotic
substances has seconded the illegal trade in arms and ammunition in terms of the volume
and particularly the exorbitant amount of profits generated. Thus, it has been the source
of generating funds for both the organized and unorganized underworld and terrorist
outfits. The curse of drugs poses a grave threat in terms of the intensity, magnitude and
the scale of operations to the security, stability and the development of the nations. Illegal
drug trade has resulted in a surge in the organized criminal syndicates, corruption in
public and political life, violence in the society, poor productivity at workplaces, neglect
of the children, distortions in the family bonding and spread of various incurable diseases
like AIDs etc.

The amendment of 1989, provided for the imposition of the death penalty for certain
offences under the act. However, it has not shown much result as is evident from the fact
That drug abuse is on a constant rise in the country.

The 2001 Amendment was a watershed development in the history of the NDPS Act that
sought to make a distinction between drug users/persons committing minor offences and
drug traffickers, by rationalizing punishment on the basis of the quantity of drugs
involved. The Act classified narcotic drugs and psychotropic substances into “small” and
“commercial” quantities. Thus, quantity of drugs involved in the offence became the
basis to distinguish the notorious drug traffickers from less serious offenders.157

157
The Additional comments on the NDPS bill , available at -
http://www.lawyerscollective.org/files/Additional%20Comments%20on%20the%20NDPS%20(Amendme
nt)%20Bill.pdf accessed on 5/05/16 at 20:10hrs.

121
The amendment of 2014broadened the object of the NDPS Act from preventing illicit use
to promoting the medical and scientific use of narcotic drugs. Ironically, India being one
of the largest producers of morphine in the world, yet patients in the country could not
access it owing to the stringent licensing requirements under the NDPS Act. Patients with
severe pain in India were not able to get opioid medicines for pain relief owing to the
harsh NDPS statute, thus, making it difficult for hospitals to store and dispense opioids.
The amendment is aimed at ensuring easy availability of Essential opioid medicines for
medical and scientific use. I would like to wind up the discussion on positive note by
giving some positive and practical suggestions which if implemented would do some
betterment for the society.

1. India being the largest producer of licit opium in the world, with extensive opium
cultivation in the states of Uttar Pradesh, Madhya Pradesh and Rajasthan. All the
opium produced by the cultivators is legally and ethically required by them to be
sold to the Central Government; however, there is vast difference in the price
offered by the Government to the farmers and the value of that opium in the black
market. This difference in the price, induces and allures the farmers to illegally
sell their produce in the black market, thereby attracting penal provisions of the
NDPS Act and license cancellation. As per an estimate it is estimated that about
35% of the produce leaks in the illegal market over which the government has no
control due to various reasons. Therefore, there is an urgent need to review and
rationalize the purchase price of the opium, so that the farmers can resist their
temptation for illegally selling off the produce to the drug traffickers. Also the
number of licensed farmers should be limited so that effective monitoring
mechanism can be developed to keep a track of the opium produce. Additionally,
no licenses should be given for the remote and far-flung areas as it is difficult to
maintain vigilance over it. Due diligence must also be exercised by the officials in
renewing the licenses and the past track record of the farmers must also be taken
into account while renewal of the licenses.158

158
United Nation Office on Drug and Crime, Regional Profile, South Asia, 200, P.29

122
2. Apart from the licensed cultivation, mentioned above, illicit cultivation of poppy
and cannabis is also taking place on a massive scale across many states in the
country. Strong and determined political will is required to put an end to this
unlawful activity. Additionally, the loose control over pharmacist and chemist has
made drugs and narcotics substances, meant for the medical and scientific
purposes, basically end up in the hands of the actual and potential drug
dependents. This marks the need for tightening and reinforcing control over the
drug stores.

3. Till date neither the Government nor any other non-governmental agency has
made serious efforts to determine the actual number of drug users in the country.
Non-availability of such basic details acts as a hindrance in ensuring continuous
monitoring of the changing trends in the drug abuse pattern and in chalking out a
relevant strategy to tackle it. It is therefore, suggested that it is high time that
Government of India commences a regular household survey that spells out the
precise statistics regarding drug abuse in India. In view of the paucity of
availability of funds for drug abuse prevention, it is suggested that the potential of
the students studying in various universities across the country must be tapped in
for the purpose. Additionally, this step will create awareness among the students
about their responsibility in the society.

4. Some of the procedural provisions of the NDPS act are highly complex,
cumbersome and irrelevant from the day to day practical application point of
view. In addition, there is lack of consensus of opinion among the judiciary as to
which of the procedural provision are so indispensable in nature that there non-
compliance would vitiate the entire proceedings against the accused. As a result,
many offender escape conviction on account of the procedural glitches that

123
 frustrates the very purpose of enacting the Act. The recommendations in this
regard as under:

i. Section 41 and 42 of the act require that any information, on the basis of which
any search and seizure is made, should be recorded in writing before making such
a. search and seizure. This requirement of recording the information in
writing before making a search or seizure does not serve any practical
purpose. If the intention of the legislature is to ensure that the enforcement
officials do not make any fake or frivolous searches and seizures, without
recording the piece of information beforehand. Then, firstly, nothing is
there in the law that prevents an officer from circumventing the provision
by recording the information after the search has been made and
manifesting it as if the information was recorded prior to the search.
Secondly, the piece of information itself can be forged as the enforcement
officials cannot be compelled in the court of law to disclose the source and
affirm the authenticity of such information in any circumstance, by virtue
of section 68 of the NDPS act. Therefore, it is advisable to delete such a
section from the statute.

ii. Section 51 of the NDPS act, 1985 makes the provisions of the Code of Criminal
Procedure, 1973 applicable to all warrants issued and arrests, search and
seizures made under the act. Section 100 of the Code of Criminal Procedure,
1973 mandates the requirement of two independent and respectable witnesses of
the locality be associated with the search. It is a common experience that the
member of the general society often exhibit reluctance to be associated with the
investigation or search in the capacity of the witnesses, especially in the drug
related matters. Further, the need for taking urgent action may not allow the
officials to waste time in looking for willing public witnesses. It is therefore,
suggested that the where the search is made in the presence of the Gazetted
Officer of the State or Central Government or Magistrate, it shall be made not
mandatory to comply with the provisions of the section 100 of the Code of

124
 Criminal Procedure, 1973 as far as theses relate to the presence of public
witnesses during such search.
iii. The lack of unanimity and uniformity in the judicial interpretation of the
provisions of the NDPS act is apparent from the divulge court pronouncement by
various High Courts. For instance on one hand, in Harbhajan Singh v.
a. State159andBhajan Singh v. State of Haryana160; the Punjab and Haryana
High Court has considered section 41, 42, 43, 50, 51, 55 of the NDPS act
to be mandatory in nature, the contravention would annihilate the
investigation and the trial. On the other hand, the Himachal Pradesh High
Court in State of H.P. v. Sudershan Kumar161held that only the provisions
contained in section 52(1) and 57 were mandatory, while the rest of the
provisions were merely directory. Therefore, it is suggested that either the
Apex Court deliver its opinion on the contentious issues or a provision
may be inserted into the act for stipulating that no proceeding under the
act shall become void on the ground of non-compliance of procedural
provision, unless the respective court is satisfied that such compliance has
caused failure of Justice.

5. Special Courts for the purpose of dealing with offences under the NDPS Act must
be established in every district and metropolitan to speed up the disposal of the
backlog of cases that are pending for years altogether. Keeping in mind the
current scenario and the urgent need, at the very least, exclusive bench should be
set up to deal with such cases and must not be overburdened by the additional
responsibility for the disposal of other cases 162 . This would ensure speedy
disposal of the NDPS cases which are known for the slow speed of trial which is
resulting in the overcrowding of the prisons in the country. Further, the law

159
1988 Drugs Case 81
160
1988 Drugs Case 94
161
1989 Crl. L.J. 1412 (HP).
162
Loopholes in the Narcotics Drugs and Psychotropic Substances Act, 1985 by Ashwin Krishnan and
Joshua Babu George available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021750 accessed on
6/05/16 at 17:20hrs.

125
 enforcement agencies should be well versed with the provisions of this Act. The
fact that only a few under-trials are convicted under this Act highlights this major
flaw.

6. Studies reveal that most of the drug users are from socially and economically
backward classes. The complex and elaborate provisions concerning bail coupled
with an inherent lack of knowledge of law, ignorance and poverty often leave the
poor vanquishing in the prison. Thus, the bail provisions under the act must be
amended to ensure that they do not cause any prejudice to any person coming
from a certain background in the society or they do not serve as a detriment to
another member of the society as everybody is equal in the eyes of law and no
discrimination can be made between a rich and poor person.

7. The enforcement agencies in the country have failed to deal effectively with drug
peril and thus has not achieved desired outcome. With the exception of the Narcotics
Control Bureau all other agencies like the Customs; Central excise; Department of
Revenue Intelligence; Police etc have drug law enforcement as an additional
responsibility. The existing webs of agencies are facing several problems which
hampers their efficiency and effectiveness viz.; the shortage of staff; lack of co-
ordination and sharing of sensitive information; inter-departmental transfers;
procedural irregularities committed by the enforcement officials pertaining to the
ignorance of the provisions of the NDPS act, constituting one of the prime reasons
for the observance of a low conviction rate; lack of educational qualifications to keep
a check on the intricate banking and commercial transactions involved in transfer
and holding unaccounted money by the traffickers; widespread corruption practices
and the casual approach of the officers etc. These problems need to be identified and
then suitable remedial action must be initiated from all spheres be it the legislature,
process of recruitment, the concerned departments etc.

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 8. Availability of opiates for medical use: Under the NDPS Act, the purchase, sale, use
and consumption of morphine, which isa cheap and effective opioid used for
alleviation of pain, is vested with the State Governments. Different States had
different regulatory procedures and agencies. In some States, multiple licenses were
required to possess, transport, distribute, sell, purchase, use and consume morphine.
Morphine has therefore, remained virtually inaccessible to thousands of patients
suffering from unbearable pain. There was a breakthrough at the beginning of 2014
when an Amendment to the Narcotic Drugs and Psychotropic Substances (NDPS)
Act was passed by Parliament. The amendment enabled medical institutes to procure
morphine by obtaining a single license from the State Drugs Controller rather than
five. In theory this should make access to morphine easier. We are yet to see the
benefits in this regard. Thus, it is suggested that steps must be taken to ensure the
actual implementation of the amendment so that the people bearing the unbearable
pain get the much needed relief.

9. Treatment in prisons should also be given priority. Most under-trials or convicts put
behind bars for a prolonged period tend to resort to higher consumption of drugs.
Thus, they constitute vulnerable group as they fall an easy prey to the substance
abuse. Where prisons are meant for reformation, such people will come out with a
higher degree of addiction. Therefore, Prison authorities should cooperate closely
with law enforcement agencies to keep drugs out of the prison system 163 . To
eradicate the drug abuse among the inmates, it is necessary to ascertain and check the
transit route of drug inside the prison, the corruption among the prison officials are
the matters that need to be looked into. Every prison must set up a De-Addiction
Centre (DAC). All inmates, who are reported to be drug addicts, must be identified
on the very first day of their admission and directly sent to DAC where they may be
initially treated for withdrawal symptoms and after de-toxification process is over,
they must be sent to specially earmarked Rehabilitation Wards, for further
counseling and rehabilitation. Further, side by side every drug dependent inmate

163
‘Tihar Central Jail Medical Care and Hospital Administration’ available at
http://www.delhi.gov.in/wps/wcm/connect/lib_centraljail/Central+Jail/Home/Medical+Care+and+Hospital
+Administration accessed on 7/05/16 at 21:10hrs.

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 must be screened by a dedicated team of doctors to facilitate monitoring of the
recovery or relapse symptoms of the inmates.

10. It’s high time that Governments should now invest in drug prevention within a health
promotion framework with greater confidence, given the knowledge that is now
available. Greater priority and investment in terms of time, money and people must
be given to prevention in all its forms. Policy development and subsequent action
should focus on preventing uptake of use, stopping use becoming dependence, and
helping those experiencing problems from continuing use. Budgets should allow the
provision of expert advice, information and support to those who will manage or
deliver prevention programmes, including those working in local government and the
community. Special emphasis needs to be given to hearing the ‘voice of youth’
through surveys, focus groups, youth organizations, etc

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 Articles referred

1. Report of the International Opium Commission, Vol. II, Reports of the

Delegation, Memorandum on Opium in India, 1909, Op Cit, P. 173.

2. UNODC Report on Drug Control Foundation available at

https://www.unodc.org/documents/wdr/WDR_2008/WDR2008_100years_drug_c
ontrol_foundation.pdf accessed on 18/01/2018 at 13:10hrs.

3. ‘A Century of International Drug Control’, published by United Nations

Publication, ISBN No. 978-92-1-148252-2, P.79.

4. ‘The beginnings of international drug control’ United Nations,1998.

5. Draft Convention against Traffic in Narcotic Drugs and Psychotropic Substances

and Related Activities’ General Assembly Resolution 39/141, 14 December 1984

6. ‘Press Information Bureau, Government of India’ ,Ministry of Social Justice and

Empowerment available at-
http://pib.nic.in/newsite/PrintRelease.aspx?relid=68111 accessed on 8/04/16 at
14:10hrs.

7.Major Trafficking Trends of 2014, Annual Report of Narcotics Control Bureau

8‘Drug Dependence: A Multidisciplinary Approach’ Edited by J.S. Madden,
RobinWalker and W. H. Kenyon, P.272

9. Article from The Hindu: Drug Users Call for Humane Rehabilitation Services
available from http://www.thehindu.com/news/cities/Delhi/drug-users-call-for-
humane-rehabilitation-services/article4191168.ece accessed on 2/05/16 at 12:45hrs.

129
 BIBLIOGRAPHY

(A) Statutes referred:

1. The Narcotics Drugs and Psychotropic Substances Act, 1985.

2. The Code of Criminal Procedure, 1973.
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1. Commentaries on the Narcotics Drugs and Psychotropic Substances Act, 1985,

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 11. Preventing Drug Abuse among Children and Adolescents, A Research based
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