By Shreevatsa Lakhotia and Harishankar Raghunath 

International pressure forced India to hastily conform to a global regime on drug control and formulate laws that focused on penalisation. This resulted in a drug policy that was not tailor-made for the country and left open significant loopholes in the statute, which subsequent amendments either partially addressed or failed to deliberate upon completely. In this context, the essay argues that reform is imperative and it is crucial not only plug the legal loopholes but also reevaluate the punitive nature of the law on narcotics.

Introduction

After ratifying the 1961 UN Single Convention on Narcotic Drugs, India had a small window of 25 years to enact legislation in line with the international agenda. This meant passing a law to control the production of drugs, simplify the legal system, and ensure rehabilitation for drug addicts. The result was the 1985 Narcotic Drugs and Psychotropic Substances (NDPS) Act (Hereinafter ‘the Act’), which signaled a shift away from indigenous ‘drug use management’ to blanket prohibition.[1] The objectives of the Act flow from Article 47 of the Constitution,[2] which reads “…the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”, stressing on the prohibitory nature of drug control in India.

While the harsh penal provisions of the original draft have been toned down slightly by subsequent amendments, its intention to enforce a restrictive regime on drug use in line with the drug trafficking measures laid down in the Single Convention and the 1912 International Opium Convention has been kept alive by the Parliament. The Act confers upon the State wide powers to prohibit and punish cultivation, production, sale, purchase, trade, use and consumption of narcotic drugs and psychotropic substances.`

However, even after multiple amendments[3] and supplementary legislations[4] enacted over the thirty years the law has been in force, a clear and comprehensive policy regarding drug abuse, trafficking and rehabilitation has not yet been produced. A detailed examination unearths grave fault-lines in the letter of the law, lack of ground-level implementation, and an almost blind focus on punishment, rather than rehabilitation; all of which the legislature is yet to address. If the law fails to achieve its objectives, whatever they may be, then reform is imperative.

Pressure Points and Issues

Reforms are required, in the first place, where definitional discrepancies exist, which rule out conviction on technicalities. Secondly, there is a need to rectify the procedural problems that inhibit efficient action by the police and central agencies. Thirdly, certain sections of the Act overlap with other legislations, which create inconsistencies in the law. The last and perhaps the gravest issue is with regards to the harshness of punishment, raising human rights concerns. The act focuses on the punitive aspect of drug abuse, rather than reformation, even though little evidence supports such lawmaking.

Technicalities of Language: The Bhang Complication

In Sami v. State of Uttar Pradesh[5], the police caught a person with 25 kilograms of unlicensed Bhang (a cannabis preparation) on him. His counsel argued that Bhang was neither a narcotic nor a psychotropic substance according to the Narcotic Drugs and Psychotropic Substances Act. Under §2(iii), cannabis (hemp) means either “Charas, that is the separated resin, in whatever form, whether crude or purified, obtained from the Cannabis plant and also includes concentrated preparation and resin known as Hashish oil or liquid; Hashish” or “Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves, when not accompanied by the tops), by whatever name they may be known or designated; and any mixture, with or without any neutral material of any of the above forms of cannabis or any drink; prepared.”[6]

It was held that while the Act defines cannabis (hemp), there is no explicit inclusion of Bhang under this definition and that it was not a narcotic or psychotropic substance. Thus, its possession would not lead to a conviction under the NDPS Act. Bhang still comes under the purview of the excise acts of different states but the dividing line between it and cannabis is thin. A cartload of Bhang with a few flowering tops is ganja. Moreover, tetrahydrocannabinol (THC), which is a psychotropic substance, is a component of Bhang and if the Bhang tests positive for THC, it will be treated as a psychotropic.[7]

Procedural Bottlenecks: The Mephedrone Problem

A graver issue lies in the process of adding new drugs to the list of substances in the schedule of the Act. In 2013, a new drug, mephedrone, was introduced in Mumbai and it grew rapidly in popularity as a party drug.[8] Its effects were similar to cocaine, but it was less expensive and could be ordered through online sites posing as pharmacies. However, it initially evaded the law as it did not fall within the ambit of the NDPS Act. The police could not, per se, arrest either consumers or traffickers involved under the Act because the drug was not illegal. Though they made representations to central authorities, the procedure to add a new drug to the schedule is long and slow. Only when the Central Government is satisfied that there is abuse or scope of abuse of a particular substance, can it include a drug by notification in an official gazette.[9] The police were thus forced to begin arresting suspects under §328 of the Indian Penal Code, which deals with “causing hurt by means of poison”. It reads – “Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person… shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.[10] Intention to cause harm is required to be proved to convict a person charged under this section, but the act of buying or selling drugs is almost always consensual and simply possessing the drug would not meet the standard of proof. Thus, a successful charge became near impossible, apart from being bad in law. Mephedrone was added to the list only in 2015 and the Mumbai Police is yet to obtain detection kits for the drug.[11]

Conflicting Approaches to Admission of Evidence

The process of admitting illegal seized substances under §50 of the Act is immensely complex. There must be strict compliance, and a failure to do so means a loss of critical evidentiary value. The conduct of the officer prior to the arrest is looked at and if they did not have a “reason to believe” that the crime had been committed, §50 wouldn’t be applicable.[12] Moreover, “suspicion” is not the same as “reason to believe”, with the latter having a higher threshold of proof.[13] If the conditions are not met, the search becomes illegal and can lead to the acquittal of a guilty person. Alternatively, if a case is admitted only on the basis of the Indian Evidence Act, even an illegally obtained contraband is admissible.[14]

Doctrine of Onus Probandi

Traditionally in criminal law, the burden of proving a claim lies on the one making it, and this is reinforced by the Indian Evidence Act. However, §54 of the Act lays down that when the alleged crime committed is the possession of illicit articles, the onus of proving the contrary lies on the accused.[15] Moreover, the prosecution does not need to prove illegal possession either.[16] The repercussion of this special section is that the focus rests on physical possession and not conscious possession[17], which could at times result in injustice.

Severity of Penalty

Proportionality is a concept that is implicit in the rule of law[18] ; the penalty imposed must be commensurate with the offence. When the statutory penalty imposed is disproportionate, it is deemed to be an arbitrary statutory provision in violation of Article 14 of the Constitution.[19] The Supreme Court has clarified the proportionate nexus required between the penalty and the offence- the measures taken by the statute to achieve its objective must be necessary, with there being no other way to achieve the same result.[20]

On this line of jurisprudence, it is difficult to justify § 31A of the Act, which punishes certain repeat offences with a sentence one and a half times the maximum term of imprisonment and quantum of fine, or the death penalty. The Supreme Court has relegated capital punishment to the ‘rarest of the rare’ cases and punishing an economic offence such as drug trafficking[21] with the death penalty is grossly disproportionate. This opinion has been shared by the UN, who has gone on record to say that “curbing drug crimes more of a matter of reforming justice systems and investing in prevention through the public health system…”[22] The futility of the death penalty is mirrored in statistics, which have been unable to prove any link between capital punishment and deterrence.[23]

The rest of the world is gradually moving towards the decriminalization of personal drug use, which has no detrimental impact on either society or the individual. However, the 2014 Amendment to the NDPS Act put in place a harsher penalty for ‘small drug’ offences through a hike  from six months to one year of imprisonment. This only reinforces the assertion that the Act is regressive and out of step with global consensus by continuing to follow a policy based on the failed ‘War on Drugs.’

Punitive or Reformative?

As evidenced by the harsh prison sentences and fines meted out by §27 and §31, the NDPS Act operates on the premise that punitive measures deter trafficking and drug use.[24] If the parliamentary debate on the issue is any indication, the lawmakers only focused on the retributive aspect, stressing the need to evolve harsher punishments. They did not engage in any discussion on the effectiveness of. However, even if we exclude the merits of the law from consideration and limit ourselves to prohibition, the insistence on an ambiguous notion of deterrence defeats the objectives of the legislation because its boundaries are undefined.[25]

People who find themselves on the wrong side of the Act are marginalized due to the harsh penal provisions that lend to the stigma of being a ‘criminal’ at par with violent offenders. While the Act attempts to make a distinction between drug traffickers, who are strictly penalized, and individual consumers, who are pushed towards rehabilitation, the provisions governing the latter is ambiguous. The distinction between a casual drug user and a hard addict is not clearly made, and as a consequence the act imposes the same penalty upon soft and hard drugs. The concept of rehabilitation thus continues to be defined within the ambit of criminalization. This is evident from §64(A) of the NDPS Act, which grants immunity to offenders charged with small quantities of drugs who have voluntarily chosen to undergo medical treatment for de-addiction.[26] However, there is an ‘implied admission of guilt’ when choosing to take shelter under this provision, along with a need to provide ‘proof of addiction’. The wording of the provision also makes the framing of charges against the accused necessary, which makes the process of rehabilitation all the more difficult.

Conclusion

The inability of the law to encapsulate the variety of offences, owing to linguistic loopholes and the resulting inadequacy of institutional mechanisms to keep up with new challenges has rendered the statute ineffectual. Coupled with the stringent nature of punishments meted out and the lack of government-established rehabilitation programmes, the effective implementation of the statute has been hindered. Given the major scope for change in the currently unsuccessful Act, it is necessary to envision a statute which is based on reformation, eliminates technical absurdities and corrects procedural flaws, thus relieving the burden on the criminal justice system.

(The authors are second year undergraduate students of the National University of Juridical Sciences, Kolkata and this piece won third place at the First Essay Competition of the Journal last year)

[1] The Beckley Foundation Drug Policy Programme, Drug Policy in India: Compounding Harm?, Briefing Paper 10 (2005).

[2] The Constitution of India, 1950, Art. 47.

[3] The act was amended in 1989, 2001 and 2014.

[4] The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

[5] 1995 All LJ 1108.

[6] The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, § 2.

[7] P.K. Dalal and T. Sivakumar, Critical Appraisal of NDPS Act 1985, 19 Indian Journal of Behavioural Sciences (October, 2008).

[8] Haima Deshpande, On a Meow Meow High in Mumbai, Open Magazine (Mumbai) April 20, 2015, 45.

[9] The Narcotic Drugs and Psychotropic Substances Act, 1985, § 3.

[10] The Indian Penal Code, 1860, § 328.

[11] The Indian Express, More than two years after mephedrone ban, police to still get detection kits, August 1, 2017, available at http://indianexpress.com/article/cities/mumbai/more-than-two-years-after-mephedrone-ban-police-still-to-get-detection-kits-4776383/ (Last visited on March 16, 2018).

[12] Gurbax Singh v. State of Haryana, AIR 2001 SC 1002.

[13] State of H.P. v. Sunil Kumar, AIR 2014 SC 2564.

[14] Pooran Mai v. Director of Inspection, 93 I.T.R. 505 (1974).

[15] The Narcotic Drugs and Psychotropic Substances Act, 1985, §54.

[16] R v. Hunt, [1987] AC 352. Although a UK case, it is currently the position of law in India.

[17] Juhi Gupta, Interpretation of Reverse Onus Clauses, 5 NUJS L. Rev. 49 (penalty 2012).

[18] Bhagat Ram v. State of Himachal Pradesh and Ors., AIR 1983 SC 454.

[19] Id.

[20] Modern Dental College v. State of Madhya Pradesh, AIR 2016 SC 2601

[21] National Crimes Records Bureau, Annual Report, 2012-13, 120.

[22] Press Release, United Nations Organisation, October 9, 2015, available at https://www.un.org/press/en/2015/sgsm17203.doc.htm (Last visited March 17, 2018).

[23] David T. Johnson, Asia’s Declining Death Penalty, 69 The Journal of Asian Studies (May, 2010).

[24] The Narcotic Drugs and Psychotropic Substances Act, 1985, § 27, § 31.

[25] The Wire, India’s Anti-Narcotics laws show that harsh punishment may not necessarily deter crime, March 18, 2017, available at https://thewire.in/law/deterrence-as-justification-for-punishments (Last visited March 15, 2018).

[26] The Narcotic Drugs and Psychotropic Substances Act, 1985, § 64.

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