Report No. 155
Narcotic Drugs and Psychotropic Substances Act: a Review
4.1. The Context.-
The law relating to narcotic drugs was being administered in India by three Central Acts, namely: (a) Opium Act, 1857, (b) Opium Act, 1878, and (c) Dangerous Drugs Act, 1930, besides the State Legislation, which provided for punishment for the offences but not commensurating with the increasing menace of drug addiction.
It was felt that drug addiction and illicit trafficking in drugs have taken such an alarming proportion that it had not only affected the health of the individual citizen but had shaken the entire Nation. Noticing this menace the Indian Parliament realised the gravity of the situation and the need for stringent provisions for the control and regulation operations relating to narcotic drugs and psychotropic substances.
Accordingly, the NDPS Act was enacted by repealing the earlier Acts thereby prescribing punishment of rigorous imprisonment for a term which shall not be less than ten years and a fine which shall not be less than one lakh rupees in respect of most of the offences. As per the preamble of the NDPS Act the aim of the Act is-(a) to consolidate and amend the law relating to narcotic drugs; (b) to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances; and for matters connected therewith.
The NDPS Act was enacted as the penalties under the previous Acts were not sufficiently deterrent to meet the challenge of well organised gangs of smugglers. For example, Dangerous Drugs Act, 1930 provided for maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine with respect to the subsequent offences and no minimum punishment was prescribed as a result of which drug traffickers have been very often let off by the courts with nominal punishment.
With the passage of time, a vast body of international law on narcotic drugs and psychotropic substances has emerged through various international treaties and protocol to which India was a party which entailed several obligations, which were not either fully or partly covered by the NDPS Act. Therefore, it was felt that the Act of 1985 required further amendment to make it more stringent to curb the menace of drug abuse and drug trafficking. Accordingly, the NDPS (Amendment) Act (No. 2 of 1989) was passed and the salient features thereof are as under:
(a) Insertion of new section 31A providing for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs.
(b) No sentence awarded under this Act, (other than section 27) should be suspended remitted or commuted.
(c) Offences punishable under the Act shall be tried by a Court of Sessions until a Special Court is constituted under the new section 36A.
(d) Insertion of new section 36A providing for constitution of special courts.
(e) Insertion of new section 37 which replaced the old section 37 of the principal Act providing that every offence punishable under the Act shall be cognizable and non-bailable.
(f) Empowering officers authorised under section 42 of the principal Act to order attaclunent/destruction of illicit crop.
(g) Insertion of new section 52A to provide for disposal of seized Narcotic Drugs and Psychotropic Substances.
(h) Insertion of new section 53A to provide that a statement made and signed by a person before any officer authorised under section 53 for the investigation of offences shall be relevant for the purpose of providing an offence under the Act.
(i) An officer on whom any duty has been imposed under the Act or any person who has been given the custody of any addict or any other person charged with an offence under the Act, and who wilfully aids in or connives at the contravention of any provision of the Act shall be punishable with the same punishment as that awardable to drug trafficking offenders.
(j) Immunity from prosecution to an addict volunteering for treatment for de-addiction or de-toxification once in his life time. The immunity may be withdrawn if the addict does not undergo the complete treatment for the purpose.
(k) Addition of new chapter to cover all aspects relating to forfeiture of property derived from, or used in, illicit traffic. This Chapter, inter alia, prohibits holding of illegally acquired property which has been defined as property acquired from illicit traffic in Narcotic Drugs or Psychotropic Substances. It also provides for identifying, seizure or freezing of illegally acquired property. It further provides for setting up of Offices of Competent Authority to deal with all aspects relating to forfeiture to appoint officers as Administrators for the management of properties seized or forfeited and an Appellate Tribunal for such properties.
(l) Insertion of new section 74A to empower the Central Government to give directions to State Governments for implementing the provisions of the Act.