PRESENTATION TITLE

SPECIAL LAW II
PRESENTED BY BASHARAT TAWHEEDAABADII

INARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

 AGENDA

1. INTRODUCTION AND BACKGROUND

2. PRIMARY OBJECTIVES AND REASONS FOR THE ENACTMENT OF THE ACT
3. OFFENCES TO BE COGNIZABLE AND NON BAILABLE
4. CURRENT STATUS OF DRUG ABUSE
5. WAY FORWARD
6. DRUG MENACE – THE CURSE
7. CONCLUSION
 INTRODUCING NDPS , ACT
. CHAPTERS VIII. SECTIONS 83. SCHEDULE 01 (LIST OF PSYCHOTROPIC SUBSTANCES).
• THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 OR THE NDPS ACT IS THE
LEGISLATION THAT DEALS WITH NARCOTIC DRUG OR PSYCHOTROPIC SUBSTANCE
PROHIBITION IN INDIA.
• THE NDPS ACT PROHIBITS A PERSON FROM THE PRODUCTION/MANUFACTURING/CULTIVATION,
POSSESSION, SALE, PURCHASING, TRANSPORT, STORAGE, AND/OR CONSUMPTION OF ANY
NARCOTIC DRUG OR PSYCHOTROPIC SUBSTANCE.
• INITIALLY ENACTED IN 1985, THE ACT WAS AMENDED THREE TIMES IN 1988, 2001 AND 2014.

• ACCORDING TO THE ACT, NARCOTIC DRUGS INCLUDE COCA LEAF, CANNABIS (HEMP), OPIUM,
AND POPPY STRAW; AND PSYCHOTROPIC SUBSTANCES INCLUDE ANY NATURAL OR SYNTHETIC
MATERIAL OR ANY SALT OR PREPARATION PROTECTED BY THE PSYCHOTROPIC SUBSTANCES
CONVENTION OF 1971.
• THE PENALTIES UNDER THIS ACT ARE SEVERE CONSIDERING THE CONSEQUENCES OF DRUG
ABUSE AND ITS TRAFFICKING. FOR EXAMPLE;
• THE OFFENCES UNDER THE ACT ATTRACT JAIL TERMS RANGING FROM ONE YEAR TO 20 YEARS
AND FINE DEPENDING ON THE CRIME.
 OBJECTIVES AND REASONS FOR ENACTMENT OF THE LEGISLATION
• THE STATUTORY CONTROL OVER NARCOTIC DRUGS WAS BEING EXERCISED UNDER THE OPIUM ACT, 1857, THE OPIUM
ACT, 1878 AND THE DANGEROUS DRUGS ACT, 1930.
• THE PROVISIONS OF THESE ENACTMENTS WERE FOUND TO BE INADEQUATE BECAUSE OF THE PASSAGE OF TIME AND
DEVELOPMENTS IN THE FIELD OF ILLICIT DRUG TRAFFIC AND DRUG ABUSE AT NATIONAL AND INTERNATIONAL LEVEL.
• TO CONSOLIDATE AND TO AMEND THE EXISTING LAWS RELATING TO NARCOTIC DRUGS A COMPREHENSIVE
LEGISLATION WAS CONSIDERED TO BE NECESSARY. ACCORDINGLY THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES BILL WAS INTRODUCED IN LOK SABHA ON 23RD AUG 1985.
• PASSSED BY BOTH THE HOUSES OF THE PARLIAMENT , RECEIVED ASSENT FROM THE PRESIDENT GAINI ZAIL SINGH ON
16TH SEP 1985 , AND CAME INTO FORCE ON 14TH NOV 1985.

• LESSER PUNISHMENT UNDER PREVIOUS LAWS.

• NO POWER OF INVESTIGATION PROVIDED TO THE OFFICERS OF THE CENTRAL ENFORCEMENT AGENCIES.

• THE NDPS ACT WAS ENACTED TO FULFIL INDIA’S TREATY OBLIGATIONS UNDER THE SINGLE CONVENTION ON NARCOTIC DRUGS,

CONVENTION ON PSYCHOTROPIC SUBSTANCES, AND THE UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS

AND PSYCHOTROPIC SUBSTANCES..

• DOES NOT DEAL WITH PSYCHOTROPIC SUBSTANCES.

• THE LAW SEEKS TO ACHIEVE THE OBJECTIVES ABOVESTATED.

 SECTION 37 OF THE ACT : OFFENCES TO BE
COGNIZABLE AND NON BAILABLE
• (1) NOTWITHSTANDING ANYTHING CONTAINED IN THE CODE OF CRIMINAL PROCEDURE, 1973. NON ONSTANTE CLAUSE
—(A) EVERY OFFENCE PUNISHABLE UNDER THIS ACT SHALL BE COGNIZABLE;

• (B) NO PERSON ACCUSED OF AN OFFENCE PUNISHABLE FOR OFFENCES UNDER SECTION 19 OR SECTION 24 OR
SECTION 27A AND ALSO FOR OFFENCES INVOLVING COMMERCIAL QUANTITY SHALL BE RELEASED ON BAIL OR ON
HIS OWN BOND UNLESS

• —(I) THE PUBLIC PROSECUTOR HAS BEEN GIVEN AN OPPORTUNITY TO OPPOSE THE APPLICATION FOR SUCH
RELEASE, AND

• (II) WHERE THE PUBLIC PROSECUTOR OPPOSES THE APPLICATION, THE COURT IS SATISFIED THAT THERE ARE
REASONABLE GROUNDS FOR BELIEVING THAT HE IS NOT GUILTY OF SUCH OFFENCE AND THAT HE IS NOT LIKELY TO
COMMIT ANY OFFENCE WHILE ON BAIL.

• (2) THE LIMITATIONS ON GRANTING OF BAIL SPECIFIED IN CLAUSE (B) OF SUB-SECTION (1) ARE IN ADDITION TO THE
LIMITATIONS UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974) OR ANY OTHER LAW FOR THE TIME BEING
IN FORCE, ON GRANTING OF BAIL.] ADDITIONAL LIMITATIONS UNDER SUB SEC 1 (B).

• SEC 19 PUNISHMENT FOR EMBEZZLEMET OF OPIUM BY CULTIVATOR.

• PUN. FOR EXTERNAL DEALINGS IN NDPS IN CONT. OF SEC 12.

• SEC 12 RESTRICTIONS OVER EXTERTNAL DEALINGS IN NDPS.

 CRUX-SECTION 37, NDPS ACT, 1985.
SECTION 37 OF THE NDPS ACT LAYS DOWN THE PROVISIONS FOR OFFENCES
UNDER THIS ACT. OFFENCES UNDER THIS ACT ARE COGNIZABLE AND NON-
BAILABLE. UNDER THIS ACT, THE FOLLOWING PROVISIONS ARE LAID DOWN:
OFFENCES UNDER THIS ACT ARE COGNIZABLE, I.E., AN OFFENCE FOR WHICH
THE POLICE CAN ARREST WITHOUT ANY WARRANT. SEC. 2(C) OF CR.PC,1973.
OFFENCES UNDER THIS ACT ARE NON-BAILABLE UNLESS THE PUBLIC
PROSECUTOR HAS BEEN ALLOWED TO OPPOSE THE APPLICATION AND THE
COURT IS SATISFIED THAT THE ACCUSED SHALL BE RELEASE.
THE PROVISIONS REGARDING BAIL IN THIS PARTICULAR SECTION ARE IN
ADDITION TO THE PROVISIONS LAID DOWN UNDER THE CODE OF CRIMINAL
PROCEDURE (CRPC),1973.
• WHAT ARE RESONABLE GROUNDS-VIEWS OF SUPREME COURT

• THE SUPREME COURT OBSERVED THAT THE EXPRESSION “REASONABLE GROUNDS” USED IN
SECTION 37(1)(B) UNDER NDPS ACT WOULD MEAN CREDIBLE, PLAUSIBLE GROUNDS FOR THE COURT
TO BELIEVE THAT THE ACCUSED PERSON IS NOT GUILTY OF THE ALLEGED OFFENCE. THE COURT
ALSO SAID THAT, UNDER SECTION 37 NDPS ACT, BAIL CANNOT BE GRANTED MERELY ON THE
GROUND THAT NOTHING WAS FOUND FROM THE POSSESSION OF THE ACCUSED . (NARCOTICS
CONTROL BUREAU VS MOHIT AGGARWAL 2022 LIVELAW (SC) 613).
• IT HAS BEEN REPEATEDLY STRESSED THAT NDPS CASES SHOULD BE TRIED AS EARLY AS POSSIBLE
BECAUSE IN SUCH CASES NORMALLY ACCUSED ARE NOT RELEASED ON BAIL; A.N. PATEL V. STATE OF
GUJARAT, AIR 2003 SC 2172.
• (II) IT IS PLAIN FROM THE LANGUAGE OF SECTION 37(1) (B) THAT THE COURT MUST ADOPT A NEGATIVE
ATTITUDE TOWARDS BAIL BUT TURN POSITIVE FIRSTLY IF IT IS SATISFIED THAT THERE ARE REASONABLE
GROUNDS FOR BELIEVING THAT THE ACCUSED IS NOT GUILTY OF OFFENCE UNDER THE ACT AND SECONDLY
THAT HE IS NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL. BOTH THESE TESTS MUST BE SATISFIED
BEFORE BAIL CAN BE GRANTED; SUKHDEV SINGH V. UNION TERRITORY OF CHANDIGARH, (1986) CR LJ 1757 (P & H).
S
PHOOL CHAND VS NARCOTICS CONTROL BERAU
22 NOV 2022.

• MERE OPERATION OF S.37 NDPS ACT DOES NOT DISENTITLE ACCUSED TO BAIL, RELIEF SHOULD
BE GRANTED IF REASONABLE GROUNDS EXIST.

• MERELY BECAUSE SECTION 37 OF THE NDPS ACT COMES INTO PLAY WHERE COMMERCIAL
QUANTITY OF CONTRABAND IS INVOLVED, IT DOES NOT MEAN THAT THE ACCUSED CANNOT BE
ENTITLED TO BAIL WHATEVER MAY BE THE CIRCUMSTANCES THAT MAY BE BORNE OUT FROM
THE RECORD.

UNDER SECTION 437 CR. P.C., IT IS FOR THE PROSECUTION TO SHOW THE EXISTENCE OF
REASONABLE GROUNDS TO SUPPORT THE BELIEF IN THE GUILT OF THE ACCUSED TO ATTRACT THE
RESTRICTION ON THE POWER TO GRANT BAIL;

• BUT UNDER SECTION 37 N.D.P.S. ACT, IT IS THE ACCUSED WHO MUST SHOW THE EXISTENCE OF
GROUNDS FOR THE BELIEF THAT HE IS NOT GUILTY, TO SATISFY THE CONDITION PRECEDENT
AND LIFT THE EMBARGO ON THE POWER TO GRANT BAIL. TO BE THE DISTINCTION BETWEEN
THE TWO PROVISIONS WHICH MAKES SECTION 37 OF THE N.D.P.S. ACT MORE STRINGENT.” UNION
OF INDIA VS. THAMISHARASI AND ORS DECIDED ON 11 TH MAR 2004.
 STATE OF KERALA VS RAJESH 24 JAN 2020.
• THE APEX COURT, DELIBERATING ON SECTION 37 OF THE ACT ,OBSERVED THAT THE SCHEME
OF SECTION 37 REVEALS THAT THE EXERCISE OF POWER TO GRANT BAIL IS NOT ONLY
SUBJECT TO THE LIMITATIONS CONTAINED UNDER SECTION 439 OF THE CR.P.C BUT IS ALSO
SUBJECT TO THE LIMITATION PLACED BY SECTION 37 WHICH COMMENCES WITH NON­
OBSTANTE CLAUSE.

• THE OPERATIVE PART OF THE SAID SECTION IS IN THE NEGATIVE FORM PRESCRIBING THE
ENLARGEMENT OF BAIL TO ANY PERSON ACCUSED OF COMMISSION OF AN OFFENCE UNDER
THE ACT, UNLESS TWIN CONDITIONS ARE SATISFIED.
 UNION OF INDIA VSS PRATEEK SHUKLA (2021) 5 SCC
430
SUPREME COURT NOTED THAT NON-APPLICATION OF MIND TO THE RIVAL SUBMISSION
AND THE SERIOUSNESS OF THE ALLEGATIONS INVOLVING AN OFFENCE UNDER THE
NDPS ACT ARE GROUNDS FOR CANCELLATION OF BAIL.

LIMITATIONS UNDER SECTION 37 OF THE NDPS ACT REGARDING GRANT OF BAIL FOR
OFFENCE INVOLVING A COMMERCIAL QUANTITY ARE:

(I)THE PROSECUTOR MUST BE GIVEN AN OPPORTUNITY TO OPPOSE THE APPLICATION

FOR BAIL; AND

(II)THERE MUST EXIST ‘REASONABLE GROUND TO BELIEVE’ THAT:

(A) THE PERSON IS NOT GUILTY OF SUCH OFFENCE; AND

• (B) HE IS NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL.
• THE SAME JUDGEMENT WAS REITERATED BY CAL. HC. IN MANIK DAS VS NARCOTICS
BUREAU 2022 SCC ONLINE CAL.195
 DRUG MENACE - WAY FORWARD

ADDICTION SHOULD NOT BE SEEN AS A CHARACTER FLAW, BUT AS AN AILMENT THAT ANY OTHER PERSON
COULD BE STRUGGLING WITH. THEREFORE, THE STIGMA ASSOCIATED WITH DRUG TAKING NEEDS TO BE
REDUCED. SOCIETY NEEDS TO UNDERSTAND THAT DRUG-ADDICTS ARE VICTIMS AND NOT CRIMINALS.

CERTAIN CROP DRUGS WHICH HAVE MORE THAN 50% ALCOHOL AND OPIOIDS NEED TO BE CONTAINED.
STRICT ACTION IS REQUIRED FROM POLICE OFFICERS AND THE EXCISE AND NARCOTICS DEPARTMENT
TO CURB THE PROBLEM OF DRUG MENACE IN THE COUNTRY. THERE IS A NEED TO STRICTLY IMPLEMENT
THE NDPS ACT.

RADICAL POLITICAL DECISIONS LIKE THAT ONE OF ALCOHOL PROHIBITION IN BIHAR MAY BE ANOTHER
SOLUTION. WHEN PEOPLE DO NOT EXERCISE SELF-CONTROL, A STATE HAS TO STEP IN, AS PART OF THE
DIRECTIVE PRINCIPLES OF STATE POLICY (ARTICLE 47).
• EDUCATION CURRICULUM SHOULD INCLUDE CHAPTERS ON DRUG ADDICTION, ITS IMPACT AND ALSO
ON DE-ADDICTION. PROPER COUNSELLING IS ANOTHER ALTERNATIVE.
 DRUG ABUSE-THE CURSE IN INDIA
MORE THAN 70% OF THE DRUGS ARE SMUGGLED INTO THE COUNTRY THROUGH INTERNATIONAL SEA ROUTES,
WHILE 20% IS BY ROADWAY AND 10% BY AIR, .

THE CONSUMPTION RATE OF VARIOUS NARCOTICS SUBSTANCES IN THE COUNTRY HAS SEEN A 70% INCREASE IN THE
PAST EIGHT YEARS AND THE NUMBER CONTINUES TO RISE.

COMPARED TO THE PREVIOUS YEAR, THERE HAS BEEN ABOUT 17 PER CENT INCREASE IN CASES UNDER PROHIBITION
ACT OVER A YEAR IN GUJARAT. IN 2020, TOO, THE STATE, AT 2.43 LAKH, ACCOUNTED FOR THE HIGHEST NUMBER OF
SIMILAR CASES, FOLLOWED BY TAMIL NADU AT 1.74 LAKH.

THE REPORT SAYS ONLY 461 CASES WERE REGISTERED UNDER THE NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES
(NDPS) ACT.

BIHAR, MANIPUR AND NAGALAND ARE THE OTHER STATES WITH SIMILAR PROHIBITION LAWS. WHILE BIHAR
ACCOUNTS FOR 69,124 CASES REPORTED UNDER THE PROHIBITION ACT, A MINISCULE 124 WERE REGISTERED IN
NAGALAND, WHILE MANIPUR HAS NO SUCH CASES UNDER THE ACT.
 CONCLUSION
• INDIA HAS TAKEN EARLY AND DECISIVE STEPS TO ADDRESS DRUG PROBLEMS.
THOUGH THE GOVERNMENT HAS AN OVER-ENCOMPASSING BLUEPRINT,
COMMITTED WORKFORCE AND SEVERAL DEDICATED PROGRAMMES AND
POLICIES AT ITS DISPOSAL, THERE IS A NEED
• TO IMPROVE THE CURRENT PROGRAMMES (TO ADDRESS THE UNMET NEEDS),
• TO HAVE A COORDINATED EFFORT BETWEEN MINISTRIES, INCURRING
UNIFORMITY AT THE POLICY LEVEL,
• TO MAKE SCIENTIFICALLY INFORMED CHOICES AND TO STRENGTHEN THE
SUPPLY REDUCTION CHAINS.
• ADDICTION SHOULD NOT BE SEEN AS A CHARACTER FLAW, BUT AS AN AILMENT
THAT ANY OTHER PERSON COULD BE STRUGGLING WITH. THEREFORE, THE
STIGMA ASSOCIATED WITH DRUG TAKING NEEDS TO BE REDUCED THROUGH
SOCIAL AWARENESS AND VOLUNTARY PROCESSES LIKE MEDICAL HELP BY
PSYCHOLOGISTS, AS WELL AS STRONG SUPPORT FROM FAMILY.