Report No. 155
4.5. Infirmities in the Narcotic Drugs and Psychotropic Substances Act.-
From the above discussion it is clear that the enactment of the NDPS Act has not yielded the desired results to curb the menace of drug trafficking and drug addiction in India. The reasons are the inherent weaknesses in the enforcement of NDPS Act which required to be tackled by proper amendment to the Act. The weaknesses and the remedies therefor are detailed as under:-
(a) Lack of social sanction against such offences.-There is lack of public opinion and public awareness qua the impact of such offences on the society and nobody bothers to bring the matter to light unless somebody in the family is affected by the problem of drug addiction.
Therefore, the need is to create social awareness through education and publicity qua the dangers of drug abuse and conducting of training programme and seminars more frequently by publishing the reports in newspapers and even the dangers of drug abuse may be incorporated in education curricula of Senior Secondary School and colleges to create awareness amongst the students. Further, in order to meet the situation, it is desirable that sub-section (2)(d) of section 4 of the NDPS Act may be substituted as under:-
"(d) identification, treatment, education, aftercare, rehabilitation, social re-integration of addicts, creation of social awareness qua dangers of drug abuse through education, publicity, training programmes and seminars with wide publicity to the deliberations and the reports thereof in the media."
(b) Wild growth of coca plant, opium poppy and cannabis plants.-While the unnoticed wild growth of cannabis or coca plant or opium poppy is not the offence under the Act, unlicensed cultivation thereof is an offence. This leads to cultivation of these plants on the government land/forest land on the pretext of wild growth by unscrupulous drug traffickers.
Therefore, it is required that wild growth of such plants should be reported by the forest department regarding growth on forest land and by revenue officers regarding growth on the government land, on information, and take stern steps regarding systematic destruction of growth in a phased manner. Accordingly, a new section 47A be inserted in the NDPS Act on the following lines:-
"47A. Duty of the Forest officer and Revenue officer to take action.-Every Forest officer and Revenue officer shall give immediate information of the wild growth of coca plant, opium poppy or cannabis plant on the forest land or government land within his jurisdiction, as the case may be, when it may come or brought to his knowledge at any stage, to the Metropolitan Magistrate, Judicial Magistrate of the First Class or any Magistrate specially empowered in this behalf by the State Government or any officer of a gazetted rank empowered under section 42 who, upon receipt of such information, may pass such appropriate order including order to destroy the plants as he thinks fit, and every such forest officer or revenue officer who knowingly neglects to give such information, shall be liable to punishment."
(c) The inherent infirmities in procedural laws.-Chapter V of the NDPS Act provides for procedure to conduct search and seizure. As a deterrent punishment is provided, the Legislature has made the procedure more strict. Some of the High Courts have held that the procedure laid down in Chapter V is mandatory, while others have held the same to be directory.
However, the controversy has finally been resolved by the Supreme Court in State of Punjab v. Balbir Singh, AIR 1991 SC 558 by holding some provisions to be mandatory and others to be directory. Thus, the amendment is required to be made in the procedural law incorporated in Chapter V keeping in view the land mark judgment of the Apex Court in Balbir Singh's case to make the law more effective.
(d) Change of Investigating Officers during the investigation of case.-It has been seen that many times the investigation of narcotic cases is carried out by more than one Investigating Officers with the result that the proper investigation is not there and some lacunae creeps in the investigation benefiting the accused on technical grounds thereby making the stringent provision of the Act redundant. Therefore, it is required that investigation of the case under the Act, should be conducted and completed by one Investigating Officer, as far as possible, and a new section 67A be inserted in the NDPS Act on the following lines:-
"67A. Completion of the investigation by an empowered officer.-Every empowered officer who is making investigation of a case under the provisions of this Act or who takes any step under Chapter V thereof shall be incharge of the investigation till it is completed, unless there are compelling reasons to be recorded requiring a change and it shall be his duty to take such step under the law fur speedy investigation and submit the case to the competent court without any unnecessary delay."
(e) Non-establishment of Special Courts for speedy trial under Narcotic Drugs and Psychotropic Substances Act.-Section 36 of the NDPS Act provides for establishment of Special Courts for the trial of the cases under the Act. Under this Act, the Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the official gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. A Special Court shall consist of a single judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.
Although the aforesaid section inserted by the Amendment Act No. 2 of 1989 came into force with effect from 29th May, 1989 vide notification No. 2/89 dated 29-5-1989, issued by the Government of India, yet even after the lapse of about eight years, most of the State Governments have not constituted the Special Courts thereby making the provision redundant.
The Central Government should, therefore, take up the matter with the State Governments so that these Special Courts under the Act are constituted for the speedy trial of the offences under the NDPS Act in each and every State without any delay. It must be remembered by every State Government that the administration of criminal justice is the primary duty of every State Government and the constitution of the Special Courts envisaged in the Acts passed by the Parliament should not be held up due to financial constraints.
The State Government cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. Therefore, mandatory provisions should be incorporated for the creation of appropriate number of special courts in every State of the country without any delay. Accordingly, after sub-section (1) of section 36 of the NDPS Act, the following proviso shall be inserted, namely-
"Provided that at least one special court shall be constituted by the Government as soon as the number of pending cases under the Act exceeds one hundred and fifty."
(f) The sentencing structure in the Act.-In the NDPS Act, the minimum punishment of 10 years rigorous imprisonment and fine of rupees one lakh is prescribed for most of the offenders without taking into consideration whether the recovered contraband is of less quantity or commercial quantity; except in case of recovery of small quantity from any person for personal consumption under section 27 of the NDPS Act.
The Department of Revenue in its recommendations on the amendment of the Act has suggested rationalization of the sentencing for offences committed under the Act and for effective implementation of the Act, particularly in cases of possession of small quantities. It is a well recognised principle that punishing is an art which involves the balancing of several factors like gravity of the offence and other circumstances.
It is also accepted by the jurists that the provisions of the Indian Penal Code, 1860 have fairly stood the test of the time in the matter of awarding punishment. The Law Commission is of the view that on the same lines the provisions in the NDPS Act prescribing sentences require a fresh look on the basis of sentencing methods reflected in the Indian Penal Code and other amendments.
It is needless to mention that a lenient sentence does not always meet the needs of justice, but at the same time the courts also are generally reluctant to award always a severe sentence irrespective of the gravity. Likewise section 27 providing punishment in respect of the persons found in possession of small quantities under the circumstances stated therein need to be amended by inserting a new sub-section (3) therein on the following lines:
"(3) Where a person who is shown to have been in possession of a small quantity of narcotic drug or psychotropic substance fails to prove that it was intended for the personal consumption of such person and not for sale or distribution, such person shall, notwithstanding anything contained in this Chapter, be punishable-
(a) Where the narcotic drug or psychotropic substance possessed or consumed is 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 deliberately join with him respectable inhabitants of the locality.
The Supreme Court rejected this plea by holding that where the witnesses to search and seizure of contraband drugs from the accused at midnight were inhabitants of the locality in which police outpost was situate and nothing brought out in the cross-examination of these panch witnesses so as to discredit their testimony, the fact that the witnesses were not residing in the vicinity of place of seizure is immaterial and the plea that there was violation of statutory safeguards relating to search and seizure was untenable.
On the other plea of the counsel for the accused that the accused was found in possession of small quantity for personal consumption, it was held by the Apex Court that the substances seized from the possession of the accused cannot be held to be in small quantity so as to bring him only within the mischief of section 27(a) of the Act in view of Explanation I to the section and the notification thereunder.