Various Issues Around NPDS Act

As per the NDPS Act, narcotic drugs include coca leaf, cannabis (hemp), opium and poppy straw. Psychotropic substance means any natural or synthetic material or any salt or preparation covered under the 1971 convention on Psychotropic substances.

Conventions for control of narcotic drugs

The following conventions various forms of control to limit the use of narcotic drugs and psychotropic substances:

• The UN Single Convention on Narcotics Drugs 1961.
• The Convention on Psychotropic Substances, 1971
• The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988

India is a signatory to all these three.

Narcotic Drugs and Psychotropic Substances Act, 1985

To give effect to the above international conventions and treaties, NDPS Act was enacted and came into force in 1985. The law was enacted hastily without much debate. Since then act was amended thrice (1988, 2001 and 2014).

NDPS Act has made stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. NDPS Act forbids production, manufacturing, cultivation, selling, possession, purchase, transport and consumption of any narcotic and psychotropic substance.

Why the provisions of the NDPS Act are considered harsh?

NDPS is considered as one of the harshest laws in the country.

As per the NDPS Act, the minimum sentence for dealing with drugs is 10 years rigorous imprisonment coupled with a fine of Rs. 1 lakh. On the other hand, the punishment for heinous crimes like rape and human trafficking is only 7 years imprisonment.

No bail is granted for those persons booked under this act. In addition, no relief can be obtained by the drug convicts through suspension, remission and commutation of sentences passed.

Even worse, NDPS Act prescribes capital punishment for repeat offenders of drug trafficking even though the offence cannot be called as a heinous crime. It is felt that death penalty is too harsh for the crimes of this nature. However, government defends death penalty by saying that even International Narcotics Control Board (INCB) has never objected to the death penalty offered to the drug convicts.

Amendments To NPDS Act

1989 amendment

It introduced very harsh provisions in to the act to act tough on drug convicts and drug use. It introduced mandatory minimum sentence of 10 years’ imprisonment, bar on suspension and commutation of sentences passed, restrictions on bail and mandatory death sentence for repeat offenders.

Consequence

People arrested for possessing few milligrams of contraband intended for personal use/medical use was made to languish in jail for over 10 years.

2001 amendment

It introduced grading of punishment on the basis of the quantity of drugs involved into small, commercial or intermediate. This classification was made on the criticism that the act offered disproportionate sentencing structure.

2014 amendment

It introduced the following provisions:

• It created a new category called “essential narcotic drugs” which will be regulated and specified by the central government.
• The objective of the law was expanded to include promotion of scientific and medical use of narcotic drugs.
• It made awarding death penalty for repeat offences discretionary. Instead, the courts can alternately impose 30 years imprisonment.

How the provisions of NDPS Act are misused? What are the consequences?

Even though the courts have clarified that drug convicts involving small quantities of drugs can avail a right to get bail, neither the convicts nor the police seems to be aware of the law. In many cases indiscriminate raids are conducted to book offenders’ especially street users.

Courts have clarified that people charged with offences involving small quantities of drugs have a right to get bail. Yet, neither police nor people who use drugs seem to be aware of the law, indiscriminate raids and arrests, especially of street users are not uncommon. For instance, after the Shakti Mills Incident, Mumbai police arrested 12,275 persons under the NDPS Act in 9 months compared to approximately 4000 arrests the police had made in the previous year.

Even though the law permits the use of narcotic and psychotropic substances for medical purposes, police seems to be unaware of this provision. A substance named buprenorphine was used to treat opiate dependence. But once Punjab police raided a clinic and charged the psychiatrist under the NDPS Act, the treatment was stopped in all the other clinics and now the patients have no other option than to cure themselves and are forced to use illegal and riskier drugs.

Due to lack of awareness, those manufacturers who manufacture the drugs legally are also sometimes not sparred by the enforcement authorities.

What are the difficulties drug convicts faces in jails?

Due to the absence of medical staff in jail, unending news of death inmates continue to be reported form the jails. These deaths are accused due to health problems and alleged negligence by jail authorities. It is found that drug users desperately need help but government facilities are limited and inadequate.

Treatment for Drug Dependence

National Fund for the control of Drug Abuse

This fund was created in May 1989 and the rules were notified in 2006. The fund receives contributions from central government, individual donors and proceeds from the sale of property forfeited from drug trafficking. NGOs and governmental departments can request grants from this fund for drug control activities, treatment, preventive education and for spreading awareness.

De-addiction centres

As per the provisions of the NDPS Act, De-addiction centres can be set up central government, state governments and voluntary organizations. The following centres provide treatment for drug dependence:

• Government hospitals
• NGOs: They receive grants from Ministry of Social Justice and Empowerment (MOSJE) to run integrated rehabilitation centres to treat drug addicts and make them gainfully employed.
• Privately owned de-addiction centres which are licensed by the Mental Health Act, 1987.

What is the way forward?

• Drug addicts need more medical and not jails. Putting them behind the bars without any treatment aggravates their condition and in many cases result in suicide of the inmates. A drug addict has to be given treatment, rehabilitation and social reintegration more than punishments.
• Law Commission which is presently reviewing criminal justice and sentencing should make note of the excesses and harsh punishments that NDPS Act provides and make appropriate recommendations to abolish disproportionate penalties like capital punishment.
• Enforcement agencies need to be sensitized and people who use drugs to access evidence-based treatment services should not be slapped with imprisonment and criminal prosecution.
• The use of narcotic and psychotropic medicines should be widened if its effectiveness is scientifically proven along with safeguards against illicit diversion.
• Government should consult psychiatrists, civil society organizations, academics and patients while issuing drug policy formulations.
• India is a country with long history cannabis and opium use. Instead of trying to create a drug free society, government should apply harm reduction principles to drug policy formulation.
• National Human Rights Commission and State Human Rights Commission should take suo-motu cognizance of the excesses committed by the enforcement agencies under NDPS Act.
• India can also emulate European and Latin American countries as and when applicable. These countries have decriminalised personal use and possession of drugs in varying degrees. They have found that decriminalisation has not led to any adverse consequences. Instead, non-punitive measures were found to have improved health and well being of drug addicts. For instance, in Portugal, overdose and drug related HIV infections got reduced after the decriminalisation of drug use. US is also reforming its laws.

Conclusion

Government should strive to frame laws in which the civil liberties, health and justice are not ignored. NDPS Act which was passed in haste needs to be reviewed hastily.