What is the NDPS Act?
Before 1985, the laws regulating drugs and other narcotic substances were The Opium Act of 1857, The Opium Act of 1878 and Dangerous Drugs Act of 1930. However, due to persistent pressure by the West thanks to their (failed) War Against Drugs campaign, it was important to have a cohesive and structured law, hence NDPS was enacted in the year 1985.
The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and excise laws in several states restrict people from consuming cannabis or any of its byproducts making it a punishable offence. Additionally, it prohibits cultivation, production, manufacture, possession, sale, purchase, transport, import, export, use and consumption of narcotic drugs and psychotropic substances, except for licensed medical and scientific purposes.
So what does the law say about possession and consumption of cannabis and other narcotic substances? How fair is it in comparison, considering decriminalisation of the same in other countries? Here’s a brief summary and analysis of the NDPS Act, for the layman to understand.
Objectives of the NDPS Act, 1985
- To take measures for preventing, combating and regulating operations related to narcotic drugs and psychotropic substances.
- To provide for the forfeiture of property derived from or used in, illicit traffic in narcotic drugs and psychotropic substances.
- To implement the provisions of the International conventions on narcotic drugs and psychotropic substances and for all the relevant matters.
- To add or omit the list of psychotropic substances, for which no separate bill or amendment has to be passed.
Offence/ Penalty & Bail Provisions
Punishment for small quantity is minimum 1 year rigorous imprisonment or a fine upto ₹10,000 or both. For commercial quantity, it is minimum 10 years to maximum 20 years of rigorous imprisonment and a fine from ₹1 lakh to ₹2 lakhs. For quantities between small and commercial, rigorous imprisonment that may extend to 10 years and fine that may extend to ₹1 lakh is liable.
All offences punishable under the NDPS Act 1985 are cognizable and non-bailable, which means they fall in the category of more serious crimes, hence a person can be arrested without an arrest warrant and cannot be bailed by the police without involvement of the court, unless certain conditions are met.The accused, however, has the right to demand search in front of a Magistrate. The NDPS Act also has a “guilty unless proven innocent” approach, unlike the reverse in crimes that are considered less serious.
Amendments
The NDPS Act has been amended in the years 1989, 2001, 2014 and recently, in the year 2021, a drafting error was corrected.
1989
Act amended with strict provisions, sections added include under 27 A for financing illicit traffic which includes production, possession, sale, purchase, transportation, warehousing, use.
2001
Act amended to rationalise sentencing by categorising quantity of drugs in possession as small or commercial, with different punishments for each. The legislature also showed a reformative approach towards addicts and liberalised bail.
2014
Act amended to ease restrictions on Essential Narcotic Drugs (Morphine, Fentanyl and Methadone), making them more accessible for use in medication for pain relief and palliative care by removing state barriers in licensing and transportation.
Shortcomings
Inadequate Distinction
The Act does not adequately distinguish between hard drugs and soft drugs neither does it see consumption or sale in a different light. As some drugs are more dangerous and addictive than the others, it is not fair to have the same punishment even if the quantity in possession are categorised separately. Lifting restrictions on less harmful drugs can prevent the dealers in switching to more harmful drugs which have better profit margins. Additionally, possession/ consumption/ sale etc. judged separately can encourage lesser of the two evils eventually preventing more serious substance related crimes.
Mental Health & Addiction
The mental health of the person in question is not the first thing that is considered, ignoring the fact that addiction is an actual mental health issue even if the person voluntarily consumed the substances at first. While the person, if found in possession of smaller quantities of drugs, can opt for de-addiction treatment voluntarily without any legal action, it can also be taken away if the medical treatment is not completed. The one time reprieve hence takes away the fair chance given to the person to improve as addiction relapses a few times before ultimately stabilising even with appropriate treatment.
Harsh Punishment
Not only is the offence cognizable and non-bailable, but the law surrounding certain repetitive and excess quantities of substances can also result in a life sentence or even a death sentence. While this is important in certain cases, it shouldn’t be uniformly followed as there are more heinous crimes that require such stringent action. As mentioned above, the law doesn’t adequately distinguish between an addict, a peddler, or larger groups involved. Hence, people from socially backward classes or poverty stricken individuals involved in drug trafficking/ abuse because of poverty or addiction in the first place, fail to pay the fine and might not get proper justice.
So, while the government is taking strict measures against drug abuse, it is no secret that India has a rich history of certain substances being used for medicinal and spiritual purposes, before foreign intervention. A lot of countries like Canada, UK and the Netherlands have already decriminalised these substances.
As a developing country, we might not be there yet, even if deep study about it lies in our roots long before any research started in the west. However, to raise awareness regarding harm reduction and rehabilitation is something that should not be made a taboo topic, it should be talked openly and to the common public, so as to educate the people. The Ministry of Social Justice and Empowerment launched Nasha Mukt Bharat Abhiyan (NMBA) in an attempt to do the same on a mass level.