Chandigarh act 061 of 1985 : The Narcotic Drugs and Psychotropic Substances Act 1985

lJA\V (.~OMMISSI().N ()1{ INDIA

ONE InJNI)I{J,~D FrFrry-Fll('l~~l I~J.~·PO'J\l'

()N

.NAIlCX)T'lC: DI{l.JC;S ANI) PSYC:I JcrI'R(~PIC' SlJ 13Sl'r~A'N(~ES AC':"I'~ 1985

(/\C:'T'N(). 61 ()F 1(85)

.Jl}I.",Y~ 1997

1

JUSTICE

Tn!. Ofr. :

; ~ .. ' "... D.O.~o.G(3)(35)!96-LC(LS) Deal- 11011 r ble ivLlnister, ita ve gt-eat

l~CPOl-t Oil the i'-Jcu-cotlc pleaslwe In forwat-ding here-xi ti~ i!l(' Drugs Clnd Psycnott-OplC Sl1b~t(';ICC:; i\'l. !kug c.lbusc has become one of the Cut-::,cs of t\H~ scc:; c- IS a I11CI1"C(, \\lhicit tht-eatens public ,life ane! ,[cads to ,k::-;i- '"

ne,t only 01 the family but also of the sodety. Thcr-c j:; Ct '".

co I1t t- 0 1 t Ii i s I1l a1a d y • I t has bee n f e 1 t t hat t Ii e Na 1- cot j c rk I; 1 ... P s y c hot r 0 pic Sub s tan c e s ;-\ c t , I 98 5 , cI e s pite a me 'l c: in c n t t ic r: 'i' , - 1988, hJS not yielded the desired cesuJts. Til·e: La\\' Cu.," ';:1

has, thereion~, considered it neccssat-y to undet-take a n:,;;c' J"

i\arcotic DL-UgS and Psychotropic Substances ;-\ct, is::;'5.

In ot-der to elicit public opwlOn on the s;;)~>

COlllmission circulated a questionnaire setting out \lancus a:~

the suoject [maet- study. The Commission also ol-ga.nlsccl :l\\'

at Goa cJIC! a NaUonal Semi.nar on Criminal Justice i;, I,Hlli;

Delhi '\'!le'!'cin the Val-.lOliS aspects of law relating tn c:nrltni!'1 (:,

hL1VC been c:.i.scussed ..

The rccomITlcnd3tlons have been made with C\ loophclcSJ'ld :ll2.ke the [Kov.isions rnore effective. CO:::O,ll iW:i: c; " ti ,; 115, ,If .i ill P1e me nte cJ , will co 11 tr 01 C01-1s.i~cra!)lC eX-lent.

"Vi Th regards, ,~

I j{'

v;(o\\- ., ! i \\c l\C;' 1i t ;1 e fl) 11 ! :, 'i -.;'

K .. J,:\ /\(=f-l/\~-~:D!~/\ .~. Hon' ble Shci Ral'1akant D. Khalap, \\1 n j s t ere f State f 0 r- La \1/ & Jus tice , SildStt-i jjhavan,

;\ e w D('~ h .i .

2

CHAPTER I

CHAPTER II

CHAPTER III

CHAPTl::H IV

CHAPTER V

CHAPTER VI

INTRODUCTION

MENACE OF DRUG ABUSE AND DRUG

TRAFFICKING.

CONSTITUTIONAL GOALS AND THE

INTERNATIONAL CONVENTION ON DRUGS.

NAliCU 11 C lJHUGS AND PSYCIIU IIWlll (;

SUBSTANCES ACT: A REVIEW.

MANDATORY AND DIRECTORY PROVISIONS:

DUTIES OF EMPOWERED OFFICER.

CONCLUSIONS AND RECOMMENDATIONS.

ANNEXURES

PAGE:S

1 11)

1 1-- 1 6 1 7 --~) 0 ANNEXlIl"\/: I THE QUESTIONNAIRE ON Till:: Nf)Pf~ ACr,^(J:~1()I)

ACT, 1905 ISSUED BY THE LAW COMMISSION.

ANNEXURE II

ANNEXURE III

1\ NN[; XUm~ 1V

ANNEXURE V

f\NNeXUnE VI

COMMENTS RECEIVED ON THE

QUEST lONNA I RE ISSUEO BY Tiff: LI\~I

COMMISSION.

THE PUNISHMENTS PROVIDED FOl OFF ENe ESUN DER NDP5 AC r I 1~w ~i (1\ ~~

AMENDED BY ACT NO.2 OF 1989).

NI\"frONI\L DRUG ENFORCEMENT

STATISTICS AS ON 31.8.1996

(PROVISIONAL).

PROCEEDINGS OF THE WORKSHOP H[LO

I\T GOI\.

PROCEED I NGS OF THE WORK,SHOll II ELD 1\ T N~:w D[un .

101- 120

l?l--1?l

1:n-l"~-;

3

CHAPTER I

1.1 Administration of Criminal Justice System. With the evolution of mankind from primitive stage to the stage of social welfare state, the administration of criminal law has assumed great importance. As long as the human beings were "God-fearing" and had faith that their actions were being watched by the "ALMIGHTY" the need for the administration of criminal justice was not felt. However, with the passage of time and the people becoming more materialistic, a section of the society consisting of misguided and disgruntled human beings lost faith in the

"ALMIGHTY" and started thinking that their actions could not be seen by anybody. These misguided persons lndulged ln criminal activities which led to the necessit; for administration of criminal justice. In addition, activities to be termed as "criminal activities' flave also undergone change with the passage of time. What was regarded not harmful fifty years ago has become the greatest evil of the day in Vlew of changed circumstances, new researches, new thinking and modern way of life.

4

-' 2 '-

1.2 Emergence of white collar crimes. The crimes are generally of two kinds:

(a) Traditional crimes affecting individual persons, like murder, theft, assault, etc.;

(b) White Collar Crimes or Socio Economic Crimes affecting the public at large like smuggling, hoardings, adulteration, illicit trafficking and sale of narcotic drugs and psychotropic substances etc. White collar crimes are of recent origin and may be defined as all illegal acts committed by unlawful means -the purpose being to obtain money or property or business or personal gain or profit. Such crimes are committed by the organised gangs having influence. Some of the salient features of the white collar crimes are as under:-

(a) there is no social sanction against such white collar crimes;

(b) these crimes are committed by organised gangs equipped with most modern technology;

(c) there is generally a nexus between the politicians, law enforcing agencies and the offenders indulging directly in such crimes;1

(d) there is no organised public opinion against such crimes; and

5

...-:3

(e) the traditional crimes are isolated crimes, while the white collar crimes are part and parcel of the society.?

1.3 Drug Trafficking and illicit use of Narcotic Drugs and Psychotropic Substances.

The genesis and development of the Indian drug trafficking scenario are closely connected with the strategic and geographical location of India which has massive inflow of heroin and hashish from across the Indo-Pak border originating from "Golden Crescent"

comprising of Iran, Afganistan and Pakistan which is one of the major illicit drug supplying areas of the world. ³

On the North Eastern side of the country is the "Gold Triangle"

comprising of Burma, Loas and Thailand which is again one of the largest sources of illicit opium in the world. ⁴

Nepal also' is a traditional source of cannabis, both herbal and resinous. ^s

Cannabis is also of wide growth in some states of India. As far as illicit drug trafficking from and through India is concerned, these three sources of supply have been instrumental in drug trafficking. Prior to the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments. The principal Central Acts were (a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) the Dangerous Drugs Act, 1930.

6

4

The preamble to the Narcotic Drugs and Psychotropic Substances Act, 1985 provides as under:

"An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating 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 matters connected therewith."

The Statement of Objects and Reasons for the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) laid down as under:

- "The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The Principal Central Acts, namely, the Opium Act, 1857, The Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level many deficiencies in the existing laws have come to notice, some of which are indicated below:

· ~

(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well organised gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine with repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighbouring countries and destined mainly to western countries.

(ii) The existing central laws do not provide for investing the officers of a number of important central enforcement agencies like narcotics, customs, central excise etc., with the power of investigation of offences under the said laws.

(iii) Since the enactment of the aforesaid three Central Acts a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these

8

6

treaties and conventions which enta i 1 several obligations which are not covered or are only partly covered by the present Acts,

eiv) During the recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the convention on Psychotropic Substances 1971 to which also India has acceded,"

In view of what has been stated above, an urgent need was felt for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which, inter-alia, should consolidate and amend the existing laws relating to narcotic drugs, strerigthen the existing controls over drug abuses, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances, to which India is a party,

_.., '-

1.4 The effect of illicit trafficking and use of Narcotic Drugs and Psychotropic Substances.

The illicit trafficking in Narcotic

Psychotropic Substances has led to drug addlction. The [\I1gui~~ll of the Supreme Court of India W()S f~xpn:;ssed lr) C:,'J1

"Durand Didier v. Chief Secretary, Union Ten'itory^{ofGoo. 8"} in ttw follovllnq w()rrl~;:-

"With doop concern, we mny

po in [, nut thnt tIle organised activities of the underworld and the cl nndo~3t i no

~;muggl i ng of-' ^{rwr-(;()tic- drIJq~;;m} psychotropic substances into this country and ille~al t r a f f i c 1<, i n9 in such dr'ugs^andsub:=:; lances huve^J(1(Jto d rug add i ct i on among a s i zeab 1e sect i on (J f t.lin pUll lie I

both sex os an d the men aco has as~:;urn0(i so r i oU'; nnfJ I h (! r {. f r H (. ,

in order to effectively control And erf1dicnl.n 111"

proliferrlt:ing and booming dcwnetatillg fIIfJnaC8, (.;!tJ~,It1rJ doloterious effects and deadly impact on thr~ r;()cir~ty as n v."ho18, the Pnrliarnent in its wisdom, hw; rrlndr:l effective provision by introducing this Act G1 of l~)n!) L:poclfyil1y rlJt:lIlrJoLury rnltllrllllJrI Irnpr iUHlfflrl!ll, ;ltj(j f i 11(\. T1)(1 :,on 1.011(;(\ 1,1'11

dnf';iull. cll\lJ~;C1, ;tr; rnodifinrJ hy l.hr. Iliqh (;r'IHI., I ) () L c;\ 11 r 0 r' i 11 Lor for 0 11 co. "

10

1 • !i e . - IIU~ (1,1, L ;\ ^c. amended i n

19B~1^,the menace of drug traffickinq and drug a bus e 1SOn t I)(':) i tl C r' e CI seD.n d the con vic t i () tl n1 u~ undcOIr this Act is 0xtr'Grnely low. r r () rn t h i^~~itap^p(>11rc;t hat o i t.Il()I' [.flO j 11n()(:l\nl. IH!r'!\()tl:', I1t n ilq 11\f! 1:1'1\1. 1.0 !.fll· (.Iillt I.', (Ir there is some procedural defect or deficiency which b'~nrJfits

till) nccLJsod t.u ~JoL ncqu I Lta 1 rnJIlI LlI(' (;i)IJII,S.^!1)1I(~vl()r the deep concern at the growi ng '1 nci dr"!nce of drug abus8 occLJI"r"ing in cJiff(-')r'enl~ parts of UI(~ country to plulJ Uv, loopholes in the law and procedure for cornbating illicit t r:l f f i C I~ i 11 9 0 n cJ, arn 0 ngot f1 e t' S, toe f fee t i vel y d e a I Vii Lh rl r 11 9 ofFelldl·t"S the Lay/ Commission hossuo motu t8Ken up t.he. ,~tudl

or t Ii G F0 1 '1 m"i n9 : -

(;1) L(} st.LJtly Lf1n llillililC:O ()! !.fll' clllif) fllliUJ' :tllr! drlllJ t r CI f fi C 1\ i tl q n n di Ln n r f () c t. on y() \1I. h In 1t \ rl iii;

(b) to scrutin1se t'.Iw Dir(:)ctivI~ IJrincip!r.': (J! '":1.;11.(· Pol icy enshrined in t.he Constitution of TnrJin Ilrjf1 thn pr-o vi s i 0 11 S 0 r I t1 t ern;') ti 0 11 n 1 C(J n v (') I ) t i () 11 S (JI\ rIii r u) f, i '-, Drugs and Psychotropic substances;

( c ) t \) un d e r s tan d the In a 9nitu rJ e 0 f UH~ Pr () rI 1r~ rn () f ill i cit t r a f fie ~\ i n 9 and use 0 f n arc() tic; rJ rug S i] n d p ('; y l: 11 () Lr l.l p I (. ~) ub ~·1 t til )c n r: V in", n - vi!; If )1\ ill lit TIl i t. i ",; i 11 U 1n N[') I) :~ i\ c t ;

( Ii) I, () I' :', , IrTI I 1\ II LI II' , t ' I I I fl V: I I ) t. P t ( )vi', I ( )11 r ; i ) I

11

9 --

Act and their interpretation by the Courts and (I') to i cJl't1 t i fy th0 nrn~nrJrnnt1t~~ rnqtJi r ()(j f (it rnrJr (J 8ffective implementation of the NDPS Act.

1.6 In order to elicit public opinion on the subject, the Commission circulated a questionnaire on t'JDPS Act to the Reg i s t r a r s 0 f f1i gh Co u r" t s , Presidents of High Court Bar Associations and District Courts Bnr Associations, Horne Secretaries of all States and Union Territories, Police officials and Chairmen of State Law Commissions, setting out various aspects of the subject under study. Comments received on the questionnaire are summarised in Annexure II. The Commission had also organised Seminar on "Crimin31 and Narcotic Drugs Psychotropic Substances" in collaboration with the Government of Goa on 18th January, 1997 at Panaji, Goa and "National Seminar on Criminal Justice in India" at Vigyan Bhavan, New Delhi. on 22nd & 23rd February, 1997. In the seminar, judges, jurists, advocates, law professors, magistrates, public prosecutors and police officers expressed their views on various aspects of the subject. The Commission while formulating this report has taken into consideration the views expressed at the seminars.

12

-' 10

FOOT NOTES

CHAPTER-I

1. Barowalia J.N., commentary on the Narcotic Drugs and Psychotic~ic

614-615.

2. Ibid. Substances .Act, 1985 (1992) pp.

3. S.V.Joga Rao, "Law and Policy on Drug Trafficking: A Phenomenological study with special reference to Bangalore City", 35 JILl (1993) p.56.

4. Ibid.

5. Ibid.

6. A. I .. R. 1989 S.C. 1966 at 1971.

13

-' 11 . -

CHAPTER II

MENACE OF DRUG ABUSE AND DRUG TRAFFICKING

2.1 The use of narcotic drugs for scientific and medicinal purpose.

The use of narcotic drugs and psychotroGic substances for scientific and medicinal purpose is indis~Bnsable. For the preparation of a number of life sav;ns drugs like morph i ne, pethad i ne and tranqu iii sers, thes e drugs and substances are required. India is one of the leading producers of opium in the world for medicinal a~d scientific purposes. Due to the use of narcotic drugs ana psychotropic substances for scientific and medicinal p~rposes, the production of the same cannot be banned altoget~er, but the production can be controlled and regulated by t~e government to prevent i1licit trafficking and illicit use of the same.

2.2 The menace of drug abuse. Drug addiction has become one of the ~urses of our times a ~enace whicn threatens public heal~h anc results in the diss~1ution of human personality, prcmoti-g conditions for Yaric~s for~s of human degradation, wnose consequences spread t~ crime and lawlessness. One of ,~s t~agedies lies in its mc~bid assaul~ on youth resulting mere o;~en than not

14

-' 12 . -, in mental disorientation and emotional derangement, pushIng the vlctim towards a fate from which therE") IS S81dOrf) ;)t)y hope of recovery. The ev i 1

IS insidious and ooerates secretly and it often comes to be known to others only after the Addict Ilas cr'ossed the point of 1)(; return. if I"

r il r' -, r' e I) chi t 1q ,

becnUSH ^{innLtil(:,.1rI'} nat ion's f u t U t' e . His tor y p to 0 V 1d8 S rn all y il/ilful subversion of a nation's culture- its / "l i Ile', and its integrity by the systematic corruption of its youth through smuggled drugs. The dangers f (l 1 1() vJl n q i 'II 1 r:1 t traffic in narcotic drugs have been recognised worldwIde, and s 0 :1 9 ita ted i s the con sci e n c (; 0 f the vJO r 1(j r;r:j nHI I m 1 t Y t hn t. the y a r"l-:! now the sub j e c t 0 f 'I n t ern i"I t j (l n il leo t1V (" 11, i {j 11 • 1 r~or the effective implementntion of Ir)qi1'1 nnlJ ';()rlil'!

measures to tackle the problem of drug addiction, it 15

necessary to ascertain the causes of dr'ug addiction ~'Ihich

call l)(-l det.nj led I;\S under-:

(a) Drug War.

The drug war is being fought by some other c()unt:ri(!~. on OUt- land ivith our men, money and our rnater'ials. ^ffledlug E\ddict,0,d boy is more prone to be [\ crimina" :In(j thr· r',1:lrnnl ^r,c, are tllere that the Indian youths are be ing made d,ug ijrJrj ir;ts rind t 11"1) (11 Vt)" dr'lI(1~:, fwd wflnfi()n~, \tIll I It, «'Ild j I)q Ulfqfl IJ,'11 i' 1.(, II1(j1[\I1 terTitOt,y to use tile smne t.o mnH; morr:~ ()ddH:;t~, find try \.:t' I' ; \ \. t' t. I' I f\.) I i ~: L :\(; till iLl 0 ~) . 1 1'110^Ic',,.^()III,';t.Ii (I,^:1',I,i,^itII!; r0Clll i l13d to checl< the~;e act i v i t 1 e~;.

15

1 ^'1...

(b) Organised gangs of the smugglers. lJ I U \:J add i caL i () I) i s Lher'e s ul L of Lh 0 1'10 r V u f qn tI q.s () f smuqglfH's who want to crente demand for the supply C)f U'leir narcotic drugs and psychotropic substances and if the demand is mor'e the prices for the narcotic druqG wou!d be higher' ;\1111 III 1.1\1 ,^I"IIIJ(.IUI (,^tn^i'ltht,,~"r)()t^I~,1I) I" f (, r rJ r^tjIJ addiction. ^ThistyP(~^ofactivitjer.; or srnugg)or/; il!rc,(j

(c) Personal or family reasons. There are some personal or family reasons leading to drug addiction which can be detailed as new experiment, curiosity, bad environment, lack of family care, lack of discipline, hippy or peer cult, to escaplng from their realities of life and having some pl()~]~~ure and Lhrillinq experience. This type of drug FlcJdiction l'l"~quires rofonnE\tivo approAch to bring Elddicts r){\ck stroam of 1if0. ²

int.o thn rn81n

? r,

'- .....) The menace of drug trafficking. The trafficking in illegal druC]s means to 8mass il 1t" \.1'\1 Wl) 11 1t hit) i I f, 11 () t~ t. I. j rn FI I Wri i c f 1 i r; illl II (; t. ( I f wh i eri no soc i ety can condone. T r a f f i c k P t' ~; i nil 1i r; i t, cJ rug r; hi j t, ; I rJ r I J ()

LI,llricl\n/' d(\:;t.t()y,~ ttl!) livl![; (ll LlIOU:;;IllrJ:, 1)1 tJ(jY:. ;'rI,1 fJirl',

16

I tl them to a stage from where there is no return and thereby not only ruining UiGrn and their fnrnili8s but ;l]';(j Lhp nelt i un.

2.4 Drug abuse and AIDS. The menace of drug abuse flas become more ~;er- i ()u~:,: in r () cell t ti 1110 S rJ u 0 L() s pro 0 cJ 0 f I-I I V vir Uc;i tl [n rJ i ;L victims of AIDS can be linked with drug abuse.

!'. O~l{, (, f

HIV Cfln be

acqulr'eJ in three v'Jays - (a) througfl sex, (b) through bl\)od and (c) by bit-til from parents suffering from HTV.

ac:qulrlng of IllV til rough sex -is concenwd, 1.ho. dnHj ;)ririir;Lr. ar-e more exposed to the same because a drug addicted boy or' g'lr-l CH~) PHY (lIlY pr'ice Clnd umritlc'fully Cd" CJI) Lu Lh<-· (,/',"'11, cf even in i ndu 1gi ng i j; sex abuse.

by t.ho

ci ,"uq

Addicts Lh r'ougll blood wfl i

1c~

';lin r i^11q()f^UI(~ !lead 1C':-C; •

II

stnqe COlnOS

v-,'hf'lli

dnJIj

(,)(J(I^jcu,^{r('qI):r n} i tl tl':lvunous^{injoct-iOI\S of}

dr'LI 9

to geL

I\i cl', ^{,1Ill] qu1cl/ r~}r^f(~r;L Bnc.i such [ttl addict is not fnontEllly 8011l)cJ ilL t.rlnt ';l;:VV' :)llrJ C a tl liS e an y II e e d 1e ti me 1y a v ail a b 1e and the r e h y p r () IV~ t () acqulre HIV if the needle was previously LJsed by any rpr~on i i) r\' C L0 cJ \'1 i t 11 Ii 1V .

2.5 An Appraisal. II i (, It,

17

-" 15 "- sources for illicit opium and its derivatives, their markets being in western countries, the danger of India being a transit rout is always there which has its own impact and effect locally particularly on the youth because the supply for them becomes easier. Therefore, it is imperative to take stringent measures by bringing about suitable amendments in the NDPS Act by making it more effective to combat this menace.

18

-' 16 '-

FOOT NOTES

CHAPTER - II

1. See foreward of Mr. Justice R.S. Pathak, former Chief Justice of India 'and former Judge, International Court of Justice, to Barowalia's Commentary on the Narcotic Drugs and Psychotropic Substances Act, 1985 (1992)

2. Barowalia J.N. 's lecture in National Seminar on Drug Abuse held in Sardar Vallabh Bhai Patel National Police Academy, Hyderabad (3rd May,

1974).(Unpublished)

19

-" 17 "-

CHAPTER III

CONSTITUTIONAL GOALS AND THE INTERNATIONAL CONVENTION ON

DRUGS

3.1. The Directive Principles of State Policy. The Directive Principles of State Policy enshrined in part IV of the Constitution of India are fundamental in the governance of the country as la~d down in Article 37 of the Constitution, which is reproduced below:

"The provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws."

The Directive Principles can be described as sacared and inalienable as they represent the policies and the programmes which the State s~ou1d achieve. While the Fund~nental Rights impose a duty on the Sta~e not to violate them, the Directive Principles of Statae Policy impose corresponding duty on the State to apply them in making the laws for the welfare of the people. The objectives underlying both in the Fundamental Rights and in the

20

18 .- Directive Principles of State Policy are equaliy important and go together and represent the kind of the society which we wish to create in India. One of the Directive Principles of the state Policy enshrined in Article 47 of the Constitution of India lays down as under:

"The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, 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."

3 .2. International

1912-1953.

Conventions on Narcotic Drugs

To control and regulate the supply of opi~m and other narcotic drugs, the following International Conventions were entered into between 1912-1953:-

(the Hague,1912.

1925

International Opium Convention 2-3,1912).

Agreement Re manufacature, i~ternational trade and use of prepared o~ium (Geneva,

13.7.1925).

21

193 1 Concention manufactaur8.e Rnd distribut.ion of narcotic drugs

Re Op i urn sinai" i ng

27.11.19~j1).

in the rar-East

( Bangko!\

1 ()::: G

convention for' the :;upn!ssion of ^jI li ,; i^1, Prol,ocol Ampndll1g thrc' 1CJ12,^1'I~i1 1 • 1 ~). 1 (\11 r, j

1948 Protocol extendlng the 1 ~J 31 Convention to synthetic narcotic drugs (P;:Jr;s, 19.11. ⁱ

Q/\'fI)

22

effective measures against require co-ordinated and 20 .-

the preamble of which briefly out-lined the importance of effective measures against abuse of narcotic drugs in the following words:

"The parties, concerned with the health and welfare of mankind, Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes,

Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind, Conscious of their duty to prevent and combat th is ev i 1 ,

Considering that

abuse of narcotic drugs

universal actaion,

Understanding that such universal action calls for international co-operation guided by the same principles and aimed at common objectives, Acknowledging the competence of the United Nations in the field of narcotics control and desirous that the international organs concerned should be within the framework of that organisation. Desiring to conclude a generally acceptable

23

-' 21 '- international convention replacing existing treaties on narcotic drugs, limiting such drugs to rr~dical and scientific use, and providing for continuous international co-operation and control for the achievement of such aims and objectives."

The Convention after laying down in Article 33 that the party was not permitted the pos3ession of drugs except under legal authority provided fer action against the illicit traffic in Article 35 and for penal provision in Article 36 of the convention which nrovide as under:

"Article 35 Action against the illicit traffic. Having due regard to their constitutional. legal and admi~istrative systems, the parties shall:

,(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;

(b) Assist each other in the compaign against the illicit traffic in narcotic drugs;

(c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated

24

22

compaign against the illicit traffic; Cd) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and

(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejUdice to the right of a party to require that legal papers be sent to it through the diplomatic channel;

Article 36

PENAL PROVISIONS

1. (a) Subject to its constitutional limitations, each party shall adopt such measures as will ensure' that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, despatch in transmit, transport, importation and exportation of drugs contrary to the provisions ~~ this convention, and any other action which in the opinion of such party may be contrary to the provisions of th~s Convention, shall be punishable offences

when committed _. 23 .-

intentionally, and that serious offences shall be liable to adequate punishment pa~ticularly by imprisonment or other penalities of deprivatior of liberty.

(b) Nothwithstanding the preceding subparagraph, when abusers of drugs have committed such offence, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social rein~egration in conformity with paragraph 1 of article 38.

2. Subject to the constitutional limitations of a Party, its legal system and domestic law,

(a) (i) Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

(ii) Intentional participation, in ccnspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations in cornection with the offences referred to in this article, shall be punishable offences as provided in paragraph 1;

(iii) Foreign convictions for such offences snall be taken into account for the purpose of establishing recidivism; and

( i v ) Serious offences heretofore r~ferred

to committed either by nationals or by foreigrers shall be

26

_. 24 .- prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the party to which application is made, and if such offender has not a1ready been prosecuted and judgment given.

(b) (i) Each of the offences enumerated in paragraphs 1 and 2 (a) (ii) of this article shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them;

(ii) If a party which makes extradition conditional on the existence of a treaty receives a request for extradition

.

from another party with which it has not extradition treaty, it may at its option consider this convention as the legal basis for extradition in respect of the offences enumerated in paragraphs 1 and 2(a) (ii) of this article. Extradition shall be subject to the other conditions provided by the law of the requested party;

(iii) Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences enumerated in paragraphs 1 and 2(a) (ii) of this article as extraditable offences between themselves, subject to the conditions provided by the law of the requested party; and (lv) Extradition shall be granted in conformity with the law of the party to which application is made, and. notwithstanding subparagraphs (b) (i),

(;;) and (;i;) of

27

-" 25 ,'- this ~arasrapn, ~he party sha'l have the ri9ht to refuse to grant the extradition 1n cases where the competent authorities consider that the offence is not sufficiently serlOUS.

3. The. provisions of this article shall be subject to the provisions of the criminal law of the party concerned on questions of jurisdiction.

4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined prosecuted and punished in conformity with the domestic law of a party.

3.4 The Convention on Psychotropic Substances 1971. Thereafter the Convention of Psychotropic Substances 1971 was adopted to which India is a party and thA 0ronmhlA to said convention provide as under:-

"The parties, Being concerned with the health and welfare of mankind.

~jot i ng with conce rn the pu b 1 i c hr~Fll U' ilnd social problems resulting from the nbu!>fl of cr.·rLain psychott'opic substances;

Determined to pr&vent and combat ,abuse of

28

-" 26 "- such substances and the illicit traffic to which it gives rise;

Considering that rigorous measures are necessary to restrict the use of such substances to legitimate purposes;

Recognising that the use of psychotropic substances for medical and scientific purposes is indispensable and that their availability for such purposes should not be unduly restricted; Believing that effective measures against abuse of such substances require co-ordination and universal action;

Acknowledging the competence of the United Nations in the field of control of psychotropic substances and desirous that the international organs concerned should be within the framework of that organization;

Recognising that an international convention is necessary to achieve these purposes; After providing for special provision regarding the control of preparations psychotropic substances, the convention provide for measures against the abuse of psychotropic substances in article 20, action against the illicit traffic in article 21 and the penal provision in article 22 in the following words:-

29

_. 27 .- Article 20

MEASURES AGAINST THE ABUSE OF PSYCHOTROPIC SUBSTANCES

1. The parties shall take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, the rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends.

2. The parties shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation and social reintegration of abusers of psychotropic substances.

3. The parties shall assist persons whose work so requires to gain an understanding of the problems of abuse of psychotropic substances and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of such substances will become widespread.

Article 21

ACTION AGAINST THE ILLICIT TRAFFIC

Having due regard to their constitutional, legal and administrative systems, the parties shall:

(a) Make arrangements at the national level

30

-" 28 "- for the co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;

(b) Assist each ocher in the campaign against the illicit traffic in psychotropic substances, and in partic~lar immediately transmit, through the diplomatic channel or the competent authorities designated by the parties for this purpose, to the other parties directly concerned, a copy of any report addressed to the Secretary-General under article 16 in connection with the discovery of a case of illicit traffic or a seizure;

(c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;

(d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and

(e) Ensure that, where legal papers are transmitted internationally for the purpose of judicial proceedings, the transmittal be effected in an expeditious manner to the bodies designated by the parties; this requirement shall be without prejudice to the right of a party to require that legal papers be sent to it through the diplomatic channel.

31

-' 29 '- Article 22

PENAL PROVISIONS

1. (a) Subject to its constitutional limitations, each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty;

(b) Not-withstanding the preceding sUb-paragraph, when abusers of psychotropic substances have committed such offences, the parties may provide either as an alternative to conviction or punishment or in addition to punishment that such abusers undergo measures of treatment, education, after care, rehabilitation and social reintegration in conformity with paragraph 1 of article 20.

2. Subject to the constitutional limitations of a party, its legal system and domestic law:-

(a)(i) If a series of related actions constituting offences under paragraph has been committed in different countries, each of them shall be treated as a distinct offence;

(ii) Intentional participation in, conspiracy to commit and attempts to commit, any of such offences,

32

-" 30 and preparatory acts and financial operations in connection w~th the offences referred to ln this article, shall be punishable offences as provided in paragraph 1;

(iii) Foreign convictions for such offences shall be taken into account for the purpose of establishing recidivism; and

(iv) Serious offences heretofore referred to committed, either by nationals or by foreigners shall be prosecuted by the party in whose territory the offence was committed, or by the par-ty in whose territory the offender is found if extradition is not acceptable in conformity with the law of the party to which application is made, and if such offender has not already been prosecuted and judgment given.

(b) It is desirable that the offences referred to in -

paragraph and paragraph 2(a)(ii) be included as extradition crimes in any extradition treaty which has been or may hereafter be concluded between any of the parties, and, as between any of the parties, which do not make extradition conditional on the existence of a treaty or on reciprocity, be recognized as extradition crimes; provided that extradition shall be granted in conformity with the law of the party to which application is made, and that the party shall have the right to refuse to effect the arrest or grant the extradition in case where the competent authorities consider that the

33

-' 31 '- offence is not sufficiently serious.

3. Any psychotropic substance or other substance, as well as any equipment, used in or intended for the commission of any of the offences referred to in paragraphs 1 and 2 shall be liable to seizure and confiscation.

4. The provisions of tilis article shall be subject to the provisions of the domestic law of the party concerned on questions of jurisdiction.

5. Nothing contained in this article shall affect the principle that the offences to which it refers sha 11 be def i ned, prosecuted and pun i shed in conformity with the domestic law of a party.

3.5. The Protocol of 1972 amending the single Convention on- narcotic drugs (Geneva, 25.3.1972). with the passage of time, it was found that the illicit trafficking and illicit use of narcotic drugs is on the increase at the international level and, therefore, resolutions were adopted by United International Conference to consider the amendment of Single Convention on narcotic drugs, 1961, had passed the following resolutions II and I1I:-

Resolution II

Assistance in Narcotics Control.

The Conference

34

32

Recalling that assistance to developing countries 18 ncot1 ere t e IT1 ani res tat i 0 11 of the WIII () I the international community to honour the commitment contained 1n the United Nations Charter to promote the social and economic progress of all people; Recalling the special arrangements made by the United Nations General Assembly under its resolutiorl 1295

(XIV) with a view to the provision of technical assistance for drug abuse control; Welcoming the establishment pursuant to United Nations General Assembly resolution 2719(XXV), of a United Nations Fund for Drug Abuse Control; Noting that the Conference has adopted a new article 14 viz. concerning technical and financial assistance to promote more effective execution of the provisions of the Single Convention on Narcotic Drugs, 1961;

1. Declares that, to be more effective, the measures taken against drug abuse must be co-ordinated and universal;

2. Declares further that the Tulfilment by the developing countries of their Obligations under the Convention wi 11 be faci 1 itated by adequate technical ard financial assistance from the internationa' community.

-' 33 '- Resolution III· Social Conditions and protection against drug addiction The Conference;

Recalling that the preamble to the Single convention on Narcotic Drugs, 1961, states that the parties to the Convention are "concerned with the health and welfare of mankind" and are "conscious of their duty to prevent and combat" the evil of drug addiction,

Considering that the discussions at the Conference have given evidence of the desire to take effective steps to prevent drug addiction; Considering that, while drug addiction leads· to personal degradation and social disruption, it happens very often that the deplorable social and economic conditions in which certain individuals and certain groups are living predispose them to drug addiction;

Recognizing that social factors have a certain and sometimes preponderant influence on the behaviour of individuals and groups;

Recommends that the parties:

1. Should bear in mind that drug addiction is often the result of an unwholesome social atmosphere in which those who are most exposed to the danger of drug abuse live;

2. Should do everything in their power to combat the

36

-' 34 spread of the illicit use of drugs; and

3. Should develop leisure and other activities conducive to the sound physical and psychological health of young people.

Apprehension about the sharp increase in drug problems during the late seventies led to formulation by the General Assembly in 1981 of an International Drug Abuse Control Strategy and a five year action programme (1982-86). It provided for a series of policy measures dealing with various aspects of drug control, traffic and treatement of addicts. The six-point strategy called for, (i) improving the international drug control system through wider adherence to existing treaties; (ii) co-ordinating efforts to ensure balance between supply and demand of drugs for legitimate use; (iii) steps for eradication of illicit drug traffic including finding income producing alternatives for illicit drug producers; Civ) intensifying efforts to detect and dismantle clandestine laboratories and trafficking organisations; and (v) measures to prevent drug abuse and promote treatment, rehabilitation and social integration of drug abusers. The programme of action set out specific activities for UN and member governments to achieve these objectives. The Commission on Narcotic Drugs was asked to monitor and co-ordinate their implementation.'

37

The ¹⁹⁸⁴

35

Declaration on the Control of Drug Trafficl<.ing and Dt-ug Abuse viewed drug tr"afficking and drug abuse as "an international criminal activity" a grave threat many countries andto the security and development peoples which should be combated by

of

all moral, legal and

institutionnl ^file[IIIS1at the nati ana 1 ,

international levels. It identified the eradication of this e vi 1 a ~ LII e collective responsibility a r a 1 I S l () t e ~) and affirmed the willingness of member States to intensify effor-ts mId co-ordini1te thei r strategies in that orea.;> Further the Commission on Narcotics was called upon in I 984 to begin preparing a new International Convention agninst Ill"icit Truffic in Narcotic Drugs and rnychotropic. Substances to Address areas that seemed to be in8.dsCluately covored by exi~)ting "instrumonts. ³

3 .6. The Convention Against illicit traffic in Narcotic Drugs and Psychotropic Substances 1988 (Vienna,

20. 12. 1988) .

Finally, the convention against illicit traffic in narcotic drugs and psychotropic substances was held by United Nations in 1988 and preamble to the said convention recalls deep concern on illicit traffic in narcotic drugs and ps y c hat r 0 pic subs tan c esin t hn f 0 1 low i n9 w0 ni s : --

38

-" 36 "-

"The part.ies to this Convention, Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traff·ic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of socie~y; Deeply concerned also by the steadily lncreasing in-roads into various social groups made ~y illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as the illicit drug consumers market and for purposes of illicit production, distribution and ~rade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity; Recognizing the links between illicit traffic and other related organized criminal activi~ies which undermine the legitimate economies and threaten the stability, security and sovereignty of States; Recognizing also that illicit traff~c is an international criminal activity, the suppression of which demands urgent attention and the highest priority;

Aware that illicit traffic generates large financial profits and wealth enabling transnationa· criminal organizaticns to penetrate, contaminate an= corrupt the structures of government, legitimate commercial

39

itsand society at allbusiness,and financial levels;

Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive fOr doing; Desiring to eliminate the root causes of the problem of absue of narcotic drugs and psychotropic substances, including the illilcit demand for such drugs and substances and the enormous profits derived from illicit traffic;

Considering that measures are necessary to monitor certain substances, including precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs and psychotropic substances, the ready availability of which has led to an increase in the clandestine manufacture of such drugs and substances; Determined to improve international

co-operation in the suppression of illicit traffic by SOil;

Recognizing that eradication of illicit traffic is a collective responsibility of all States and thnt, to that end, coordinated nction within the frnrnewor'I< or i nternat i ana 1 CO-OPEJr ati on i~) nocJ!ssary; I\c I~ now 1edg i ng th8 cOmpo t0t1C8 () r thn I J t1 i l.nr1 Nn L i ()I)~; i^I)Lh(l r i nl d () r con Lr () lor ,,11r cu^I,i^r,rJt IHj'; IltlrJ organs concerned with such control

p~;ycll

international

[) II tl n 1.111) c: (j ~1

find

40

-' 38 .- should be within the framework of that organization; Re-affirming the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the syst:m of control which they embody;

Recognizing the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, the 1972 protocol Amending the Single Convention on Narco~ic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and its grave consequences; 'Recognizing also the importance of

strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic;

Desiring to conclude a comprehensive, effective and operative international convention that is directed specifically against illici~ ~raffic and that considers the various aspects of the problems as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances;"

41

-' 39 '- In article 3, the Convention provide for offences and sanctions as under:-

Article 3

OFFENCES AND SANCTIONS.

1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:

(a) (i) The production, manufacture, extraction, ( i i )

preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatcn, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961

Convention, the 1961 Convention as amended or the 1971 Convention; The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Conven~ion and the ( iii )

1961 Convention as amended,

The possession or purchase of any narcotic drug or psychotropic substance for the ( i v )

purpose of any of the activities enumerated in (i) above;

The manufacture, transport or distribution of equipment, materials or of substances listed

42

40

in Table I and Table II knowing that they are to be used in or for the illilcit cultivation production or manufacture of narcotic drugs or psychotropic substances;

(v) The organization, management or financing of any of the offences enumerated in (i),

(iii) or (iv) above; ( i i ) ,

( b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for t~e purpose of concealing or disguising the illicit origin of the property or of assistance any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions;

( i i ) The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph;

_. 41 .-

(c) Subject to its constitutional principles and the basic concepts of its legal system-

( i ) The acquistion, possession or use of property, knowing at the time of receipt, that such property was derived from an offence or offences, established in

( i i )

accordance with subparagraph (a) of this paragraph or from an act of participation in such offence or offences;

The possession of equipment or materials or substances listed in Table I ?nd Table II, knowing that they are being or are to be used in or for the illicit cultivation production or manufacture of narcotic drugs or

( iii )

psychotropic substances;

Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotrpic substances illicitly;

44

( i v ) 42 "- Participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.

2. Subject to its con~titutional principles and the basic concepts of its legal system, each party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drug or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.

3. Knowledge, intent or purpose required as an element of an offence set forth in paragraph I of this article may be inferred from objective factual circumstances. 4 (a) Each party shall make the commission of the offences establishd in accordance with -

J

paragraph I of this article 1 i ab 1e to sanctions and take into accoun~ the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty,

confiscation.

pecuniary sanctions and

(b) The parties may provide, in addition to

45

-" 43 0- conviction or punishment, for an offence established in accordance with paragraph I of this article, that the offender shall undergo measures such as treatment, education, aftercare, rehabilitation or social reintegration.

(c) Notwithstanding the preceding subparagraph, in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare.

Cd) The parties may provide, either as an alternative to conviction or punishment, of an offence established in accordance with paragraph 2 of this article, measures for the treatment, education, after care, rehabilitation or social reintegration of the offender.

5. The parties shall ensure that their courts and other competent authorities having jurisdiction can take into account factual circumstances which make the commission of the offences, established in accordance with paragraph I of this article particularly serious, such as;

46

_. 44 .-

(a) The involvement of the offence of an organized criminal group to which the offender belongs;

(b) The involvement of the offender in other international organised criminal activities;

(c) The involvement of the offenders in other illegal activities facilitated by commission of the offence;"

(d) The use of violence or arms by the offender;

(e) The fact that the offender holds a public office and that the offence is connected with the office in question;

(f) The Victimization or use of minors;

(9) The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational,

activities;

sports and social

( h ) Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a party.

6. The Parties shall endeavour to ensure

47

A ,- ·t,) that any discretionar'y legal power's under r81atinq to ^t.h(-j

prosecution of persons for offences established in accordance with this article are exercised to maXlmlze the effectiveness ul 1111'1 onrorcGlnent rnensur'(J;, ¹n r(J~;p(~c^t()f those offences and with due regard to the neod to doter tho commission^ofsuch

offences.

7 . The P2rties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph I of this article and the circumstances enumerated in paragrnph 5 of this nrticle whon con sid 0 ri n CJ tho eventua 1i ty of ear 1y re 1ease or' par'ol e of porsons convicted of such offences.

8. Each Party shall, where appropriate, establish under its domestic law long statute of limitations period in which to commence proceedings for any offence established in accordance with paragraph I of this nrticlo, and a longer period where the alleged o ,. r() nd 0 r IHE; (. v L\ d 0 cI tho i\ rJ min i ~: Lr ;\ ti () tl ( ) f jllstico.

Each Party shal I

lakE~ appropriale rnOflSlIros, conr;istent with its lnqnl ^'~yr;t.(jrn, t:. a ens urethat n per s () n r; ha r' ge rJ, 'vI i t h () r

48

-" 46 "- convicted of an offence established in accordance with paragraph I of this article, who is found within its territory, is present at the necessary criminal proceedings.

10. For the purpose of co-operation among the Parties under this Convention, including, in particular co-operation under articles 5, 6, 7 and

9, offences established in accordance with this article shall not be considered as fiscal offences or as political offences or regarded as politically motivated, without prejudice to the constitutional 1imitations and the fundamental domestic law of the Part~es.

11. Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is received to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law.

3.7 Controlled delivery. Article 11 of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 provides for use of 'Controlled delivery', if permitted by domestic legal system.

of convenience:-

Article 11 is reproduced below for the sake

"1. If permitted by the basic principles of their respective domestic legal systems, the Parties shall

49

_. 47 .- take the necessary measures, within their possibilities, to allow for the appropriate use of controlled delivery at the international level, on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in offences established in accordance with article 3, paragraph 1, and to takaing legal action against them.

2. Decisions to use controlled delivery shall be made on a case-by-case basis and man, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the Parties concerned.

3. Illicit consignments whose" controlled delivery is agreed to may, with the consent of the Parties concerned, be intercepted and allowed to continue witb the narcotic drugs or psychotropic substances intact or removed or replaced in whole or in part." \

Therefore, it is imperative to give effect to this provision of the Convention, to which India is a party, by bringing out suitable amendment by incorporating a new section 50A in the Act to trace the onward movement of the consignment and to apprehend, arrest and prosecute the persons including the ultimate persons taking delivery of the consignment.

Since 1990 when this Convention came into effect a

50

-' 48 '- large number of countries have ratified the Convention. Many States have legislated new laws or have amended the existing ones and introduced regulations to implement money laundering coun~er-measures. Some countries have gone a step further and adopted the recommendations made by the Financial Action Task Force (FATF) which was established by the heads of state or government of the 'Group of Seven' major industrialised countries and the President of CEC.4 Notwithstanding the foregoing efforts and measurres, money laundering continues unabated in most parts of the world, though the cost of money laundering has considerably gone up in some parts of the world on account of effective counter-measures by some states. ^s

3.8 Suitable legislative amendments.

The study of the Directive Principles of State policy -

enshrined in the Constit~tion of India and the International Conventions has been done with the object to incorporate necessary amendment in the law dealing with control and regulations of Narcotic Drugs and 'Psychotropic Substances in India because the directive principles of State Policy enshrined in the Constitution of India must guide the Government to frame suitable law in consonance with Article 47 of the Constitution of India and International Conventions, to which India is a Party, and its provisions should duly find place at the time of amendment of the domestic law especially in view of the provisions of section 4(2)(b) of the Narcotic Drugs and Psychotropic Substances

51

.'

_. 49 '- Act, 1985, which nrovides as under:-

4 . Cen t r a 1 Go v ern TIl e nt to t a i<.e mGas u res for preventing and combating abuse of and illicit traffic in narcotic dr'ugs, etc.

(1) Subject to the provlslons of this Act, the CelltrFll Government shall t.i1I<,e Elll [~uch rflOF.l.'lure!·; as it deems necessary or expodient for thF! pUr[)0r3e of preventing and combating abuse of narcotic drugs and psychotropic

therein.

substnnces and thfJ i 11 i cit tr aff i c

(2) In particular and without nrejudice to the genera 1 i ty of the provi s ions of sub-sect ion (1), the measu f'es wll i cl1 the Cen t rn 1 Gown nrnen t mn y trt ko under that sub-section include measures with resnect Lo fill llt nny of thA following IflnLLnrfl, nnrJlnl'l:

(a) Co-ordination of actions by various officers, State Governments and OU1(~r' rwthorities

(i) Under this Act, or

(ii) Under any other' law for the time being in force in connection with the Gnforr.:ernGnt of tho Drovinjons of t.hls Act;

( b )

( I ~ )

( d )

(e)

Obligntions

Convontions

undor thfl

fnt",prllnLintlrtl

52

_. 50 "-

FOOT NOTES

CHAPTER-III

1. S.V.Joga Rao, "Drug Addiction Penal Policy" 34 JILl (1992) P.277-278.

2. Ibid

3. Ibid

4. D.1.8. Saleem Tariq Lone, "Assets Forefeitures as an effetive strategy against Drug Trafficking", Paper presented in the Third Asia Money Laundering Symposium, 12-14, December, 1995.

5. Ibid

53

-' 51 '-

CHAPTER IV

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

54

-" 52 "- regulation of operations relating to narcotic drugs and psychotropic

therewith.

substances; and for matters connected

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 vario~s 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.

55

-" 53 .-

(b) No sentence awarded under this Act, (other than section 2?) 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 attachment/ destruction of illicit crop.

(g) Insertion of new section 52A to provide for disposal of seized Narcotic Drugs and Psychotropic Substances.

..·.1

~

56

_. 54 .-

(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

57

55 '- illegally acquired property which has been defined as property acquired from illicit traffic in Nar~otic 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 aStJects relating to forfeiture; to ap~oint officers as Administrators for the management of properties seized forfeited and an Appellate Tribunal for such properties.

(1) Insertion of new section 74A to empower the Central Government to give directions to State Governments for implementing the provisions of the Act.

4.2 Punishments for offences under the Act. The NDPS Act provides stringent punishment for the offences. The punishments for the offences under the NDPS Act as amended by Act No.2 of 1989 are detailed in Annexure

I II.

4.3 The Magnitude of the problems of illicit trafficking. In spite of the provisions for deterrent punishment including death penalty provided under section 31A of the NDPS Act, the menace of illicit trafficking and use of

58

narcotic increase. -' 56 '- drugs and psychotropic Every day we learn from substances

the media

is on

that

the

huge

quantities of heroine, charas, opium or some other narcotic drug or psychotropic substances have been caught in one or the other part of India. Drug addiction has become one of the curses of our times, a menace which threatens public health and results in the dissolution of human personality, promoting conditions for various forms of human degradation whose consequences spread to crime and lawlessness. The explosive escalation of the illicit use of narcotic drugs and psychotropic substances, which account for more deaths than the most deadly diseases, has become a lethal phenomenon everywhere today, and India is not an exception. The impact of this tragic development has not been fully met by the existing law with the result that the rich and the poor alike, including students of both sexes, are falling a prey in the hands of the powerful organised smugglers of these drugs and substances who amass wealth in no time. This is mainly due to the fact that there are still some inherent i~firmities in the procedural law which require immediate amendments for making the Act more effective to tackle the problems of drug addiction and drug trafficking in India.

:.

59

-' 57 '-

4.4 The latest trends in narcotic cases detected. A summary of seizure of Narcotic Drugs, Psychotropic Substances and Controlled Substances (Acetic Anhydride) reported during the month of August, 1996 (Provisional), the preceding month and that of the corresponding period of the previous year is as under:

QUANTITY IN KG/LTRS.

DESCRIPTION AUGUST,96 DURING THE DURING

PRECEDING CORRESPONDING

MONTH PERIOD LAST

(JULY,96) YEAR

(AUGUST, 95)

., .

HEROIN 113.181 54.026 84.946

OPIUM 23.915 65.610 55.173

CHARAS/HASHISH 236.207 40.463 638.495

COCAINE

MORPHINE

GANJA 431.525 831.550 5240. 105

60

-" 58 '- METHAQUALONE/

MANDRAX

ACETIC ANHYDRIDE 140 LTRS 140 LTS

Source: Govt. of India, Narcotics C~ntrol Bureau, Drug Situation Report, August, 1996. j'

The table at Annexure IV shows the quantity of various drugs seized in kilograms with number of cases during the years 1992, 1993, 1994, 1995 and 1996.

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

61

I

,.,. ,." ~ -' 59

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 cnnn~bi8 or coca plant or opium poppy is not the offe~ce under

62

_. 60 '- 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

"I , land or government land within his juri sdi ct ion, 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

63

-' 61 every such forest officer or revenue officer who '~noW"ingly neglects to giv0 such information, shall be 1 iable to punishment".

(c) The inherent infirmities in procedural laws. Chapter V of the NDPS Act provides for proceduro to conduct search and seizure. As a deterrent punishment is provided, the Legislature has made the procedure more str i ct. Some of the fl i gh Courts have held that the procedure laid down ln Chapter V is mandatory, while others have held the same to be 'directory. However, the controversy has finally been resolved by the Supreme Court ;nSta_t~ 9~~~QjA~V BqlQir__$jn~1 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 fJalbir Singfl'f) Cf.l60 to mtlke tho law mora flffor;tivo.

(d) Change of Investigating Officers during the investigation of case.

1 t has be€1l seen tha t mLlny t i mas thf') 'lllvestigation of narcotic cases is carried out by more than one Investigating Officers with the result

64

tha. t the p r'ope r i Iwes t i ga t ion 1 s not the r'e and sOlne lnClIlWO (Tn0p:~ 111 tho itw()"tiqntion hpnnfit.i,lq \,1'1(:

accused on technical grounds thereby making the stringent provision of the Act redundant. Therefore, it is required that investigation of the case under the /I.e L shou 1d bo conduc ted and eomp 1fJtr~d by (JnfJ I 11V e ~~ Li gaL i n 9 0 r ric 8 r', us far asp 0 s sib I 8, an cJ u tl e w section 67/1. be inserted

following lines:-

in the NDPS /l.et on the

"67A. Completion of the investigation by an empowered officer- Every ernpow(~rorJ off ir;er who is making investigation of a case under the provisions of this Act or who takes any s t e pun derehap t e r V the r' e 0 f s hal 1 tH'! incharge of the investiqation till i 1.1 ~ completed, unless there are compelling reasons to be recordecJ requ i r' i n9 a chan'Jo and it shall be his duty to take such step under UH~l~'l.w f()r ~)peecJy invor;Li(jelLion and !,ubrnit the case to the competent court without any Utll1eCessary de 1ay. "

65

_. 63 .- establishment of Special Courts for under Narcotic Drugs and Psychotropic Non^(e)

speedy trial 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 consituted 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

66

-' 64 '- 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

....

j

taking into consideration whether the recovered

67

-' 65 '- 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

"1

68

-^, 66 '- 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, dia~etyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notifi~ation in the official gazsette, with imprisonment for a term which may extend to two years or with fine or with both; and

(b) Where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to one year or with fine or with both."

69

67 '-

(g) Establishment of centres as provided under section 71 of the Act.

Although provision has been inserted in the -I

Act for the establishment of centres for identification, treatment and rehabilitation of addicts, but it has been observed that some of the Sta~e Governments have not established adequate number of such centres with the result that the addicts are running after drug traffickers for getting the drugs require and the purpose of this provision for de-addiction and rehabilitation has been frustrated. Thus there is need for the Government to see that the object underlying the section is achieved by utilising the services of Non-governmental organisations and if necessary by establishing a wing in Government hospitals. Conclusion.

In view of the above discussion, it is imperative that the changes suggested by the Commission be implemented by carrying out suitable amendments in the NDPS Act to make it more effective to check the evil of drug trafficking and drug addiction.

70

(1) AIR 1991 SC558.

-' 68 '-

FOOTNOTES

CHAPTER IV

71

-" 69 '-

CHAPTER V

MANDATORY AND DIRECTORY PROVISIONS

OFFICERS

DUTIES OF EMPOWERED

5.1 There are generally five stages in the investigation and trial of a case, under the NDPS Act.

(a) information

(b) Investigation

(c) search, seizure and arrest

(d) submission of final report to the court and

(e) trial of the case in the Court. In these the possession and search are of vital importance. As stringent punishments ~ave been provided for the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 with minimum punishment of rigorous imprisonment for ten years and fine of rupees one lakh for most of the offences, the Parliament, in its wisdom, has imposed corresponding strict special procedure to be adopted at the time of search, seizure and arrest of the culprits in Chapter V of the Act. It is not out of place to mention here that the experience has shown that the Act has not yielded the desired results and a large number of cases instituted for various offences under the Act have ended in acquittal not on merits but on technical grounds of non-compliance of mandatory provisions of sections 42 and 50 of the Act and in some cases on the prejudice caused to the accused for non-compliance of the directory provisions of

72

-' 70 '- sections 52, 55 and 57 of the Act and the like. Tho investigating officer must understand before s t D I' L i "\3 t.11 \} ii' Vn:. Li 9i1 t I 011 (> r [\ C Cl a0 un U0 r tllO 1\ C t Lh Ci t t h'] i IlVOS t i gnt>i all is not nn ond but menns to f i nei out tho t ru th. A good investigatlng officer must know right steps to be

tal,sn for conducting the search and seizure in strict

conformity of the relevant provision. To avoid acquittal on

t(~Clm"1Cal gnJul1ds of non-compliance of mandatory or

directory provisions, he should not only strictly comply

V.J i t Ii 1112.\11 d a to I" Y P r' 0 vis ion s 0 f sec t ions 4 2 and 50 0 f the Act but also the dlrectory provisions incorporated 1n sections

52,55,57 and the like in the Code of Criminal Procedure as

far as applicable: Moreover, he must ensure that the link

ov"idollCG of tho snmplo, being analysorJ by tho ch8rnical

examiner, should be complete including taking of the sample

and property to the S.H.a. and sealing by S.H.a. with his

seal I deposit of the same intact in the malkhana and sending

of the sample to chemical examiner etc. It is necossary to

examine some of the judgments of the courts on various

provisions of the Act.

111 the fir" s t C L1 S e (Du rand Di d j 0 r v. Chi 0 r Soc r 0 LIJ r Y I Ullion Territory of Goal Which came up in the Supreme Court,

tho nee u" 0 d t) l.lI"' Oil d DI die r I [l Fr en c h n D t I 011 a I was np pre hen rJ eU t)y tllA pol ice At Co 1v F\ (GOFt) Ftn(j was foundi n f1()~-H'H'1r; r; i nn nf 51 grtllll~ of hrown sugar (heroine), 45 grams of ganjn nil .JnrJ

[)[) ornnlS of Or);lHn. Tho cOl.Jnsel for l.hA BCC;I1RnrJ t()()J' up tr:n

plea tllnt tIle investigating officer did not del i,berately

73

-' 71 '- 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.

5.3 Interpretation qua the bail provisions under the NDPS Act

On the question of grant of bail to the persons accused of the commission of the offences under the Act, in Narcotic Control Bureau v. Kishan Lal and others,2 the Supreme Court laid down the following propositions of law:-

74

72

"Section 37 of the Narcotic Drugs and Psychotropic 1')/\'>

r~t.'lr^Lr~wiLli r, non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed thet'Gill shall be t-eleased on bail unle[;[> the condi tiorls contained therein are satisfied. The NlJPS Act is a special enactment and was enacted with 8. view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C regarding bail, it can not be said that High Court's powers to grant bail under section 439 Cr.P.C. are not subject to the limitations mentioned under Section 37 of the NDPS Act" .

and _-Enot her v.

lo_teJljg~Hc:;§'~OJft(;_~cL__Ni3.Lc:;oti~_~on_tr:o l_Bureau I __ NS\

IJ

S\lh:--'L~\I1C0~; /\ct, 1~JnI) won) 0n1Clrgo(j on bnil by the rnaqi~tr!]tn \)1\ (:till/In n( Ull) IH(l~~cH,lllj()1) tn IH'n:J'nl. tI,n r.h;ll1:ltl v,il.hi'l 90 days under proviso to section 167(2) Cr.P.C. The High Court cutfcelled the bai larder. Whi le upholding the order of the High Court, the Supreme Court observed: ^"Anorder

for !'l'!C'[lSG 01) belil under' proviso (n) to S. lG7(?) rnw/ appropriately be termed as an order-an-default. Indeed, it

1 S (1 r"e 1ense on ba i 1 on the defau 1t of the prosecut i on In filing charge-sheet within the prescribed period. The right to bail, under 5.167(2) proviso (a) thereto, 1S absolute. It 1 s legislative cOlllmand and not court's di~;cr·et;()n.

I r the exp i ry of 90/60 days, as t,he case may be, the accused in custody should be released Ot1 bu.i I. But at thut stage, merits of the case are not to be examined. Not at all. In the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.

The accused cannot, therefore, claim any special ri'JhL to rnl1l<1in on bail. If the irwosLiqati()rl rnvr:n1~ that the accused has committed a serious offence and charge-sheet i s f i 1 f, d, t h (; LJ ail 'J r" a t1 t c·d un de r pro v 1 :; 0 ( ;j ) could be cancelled."

to '~. 1tJ7 ( 2 )

76

5.4

-' 74 On the question of discharge of the accused, the Supreme Court in State of Himachal Pradesh v. Pirthi Chand and another ⁴

has laid down the following principles:

"The evidence collected in a search ln violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal

Panchnama etc.

but the evidence collected i.e.

nonetheless would be admissible at

the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the , Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecutio~ to prove that the search was conducted in accordance with law. Even if search· is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the learned Sessions Judge was not justified in discharging the accused, after filing of the charge-sheet holding that mandatory requirements of Section 50 had not been complied with".

77

-' 75 '- In some of the responses received and also during discussions in the workshops it was pointed out that a plain reading of the above judgment, particularly para 3 regarding the applicability of section 50 would create a doubt whether the Supreme Court laid down that the provisions of section 50 would also apply to search of a place. It may be mentioned that it was a case of search of a place and not of a person. Therefore, the provisions of section 50 do not apply. The section itself makes it clear that the provisions contained therein would apply only to search of a person. The reference to section 50 here and there in the judgment was in the context of the discharge of the accused by the sessions court at a preliminary stage. We, however, feel that the Supreme Court may clarify the position by demarcating the parameters between "search of a place" and

"search of a person in the context of applicability of section 50 to the effect that it applies only to "search of a person" and not to the "search of a place", so as to make the law clear, particularly for the guidance of the lower courts.

., ,

78

_. 76 the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, .he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.

_. 77

79

officer or Sections -' 77 '- Likewise only empowered authorised officers as enumarated in duly

41( 2)

and 42(1) can act under the provisions of the NOPS Act. If such arrest or search 1S made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can glve the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there 1S a contravention, that would affect the prosecution case and vitiate the conv i ct ion. -

(2-C) Under Section 42(1) the empowered officer if has a pr10r information g1ven by any person, that __ should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the prov1so to Section 42(1) if such officer has to carry out such search between sunset and sunr1se, he must record the grounds of his belief.

80

78 '- To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. if there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CR.P.C. fails to strictly comply with the provisions of Sections 100 and 165 CR.P.C. including the requirement to record reasons, such failure would. only amount to an irregularity.

(4-8) If an empowered officer or an

authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the

81

-' 79 '- provisions of CR.P.C. namely Sections 100 and 165 CR.P.C. and if there is no strict compliance with the provisions of CR.P.C. then such search would not Qer se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence ln the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed

"

that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

82

-' 80 . -

(5) The provisions of Sections 52 and 57 which dea1 with the steps to be taken by the officers after ~a~~~9 arrest or seizure under Sections 41 to therr,se 1ves not manda-:::.ory. If there is non-ccmp~~ance or if t~ere are lapses like delay etc. then ~he same has to ce examined to see whether any prejudice has been caused to the accused and such failure ~ill have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

It may be pointed out at this stage that Kerala High Court in V.Mohd. Bashir v. State⁶

has misread the judgment of the Supreme Court in holding that the search made under Section 43 in respect of Section 50 is not attracted.

5.6 We have considered the proposal of the Department of Revenue that if the empowered officer, while searching a person is of the view that taking the person to the nearest gazetted off~cer/magistrate would result in the delay in search or would give opportunity to the person to disassociate him from the contraband, the search can be conducted before

persons of the

two or mere indepencent and respectful

locality or of the adjoining locality. We the view that to safeguard the interest of the ::::;en;ons, par:.~cularly wr:e:i there^1Sa mlnlmum manda~or~ ::::;~r~srment under :.he Act, suc~ amendment desirable.

'; s not·

83

The

81

discussion makes ^i~clear that the empo~ered officers have important duties ~o perform under the provisions of the Act, particularly w~en section 42 and section 50 are heic mandatory. Even ¹r, respect of the pro/isions held cirectory they cannot slacken, although mandatory provislcns of section 42 and section 50 are most important and m~st be complied with ~j the empowered officers. The responses to the questionnaire, and the views expressed in workshops also suggest that for carrying out search effectively in a practical and meaningful manner some changes in section 50 are necessary. We are of the view that the amendment of section 50 is necessary. The nature of non-compliance of s~ction 50 leading to many acquittals has to be examined carefully from the point of view of bringing about suitable amendments. Section 50 lays down that any duly authorised officer who is about to search any person, if he so requires, take him without unnecessary de 1 ay to the nearest Gazetted Off i cer of any , of the departments mentioned in section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the a~thorised officer concerned can detain him unt~ 1 he. can produce him before such Gazet:.ed Officer or the Magistrate and thereafter the search s~ould be conducted. It is held tha:. it is a valuable right glven to such a pe;s2~ and tha,: :'::2ugh the section does ne:. say so in cleE.r te;~s. yet the 2ersen must be told abo~:. his right and fa,-~re to Ce se results in non-complia~ee of section 50.

84

-------~-"~~- .-----------------

-: 82 '- Whether such person was informed or not would always be a question of fact depending upon the oral assertions and ofri<..:or [lIltJ tho Iloll-colllp-,'jallce has led to many acquitta-ls. The othGr types of non-compliance r(:lGu1tin(j In

acquittals as noticed by the courts are of highly technical nature. In some cases, the accused were acquitted on the grounds that the notice given by the investigating officer only mentioned the word "magistrate" and in some cases only the word "gazetted officer" yet in other cases words rn such U1!H!S, thn

accused wero acqllitted by holding that the notice was not complete atld in consonance with the provisions of Section 50 of the Act. Although taking of such technical view by the courts moy be a debatable issue but to check such lapses, on the part of the empowered officers, resulting in such acquittal, the Commission feels it necessary to suggest suitable amendments in Section 50 of the Act to clear all the misgivings of the scope of Section 50. Also keeping in view the difficulties expressed in the replies to the questionnaire and the discussions held in the workshops ronnrdillf] Uw p(l~.,!:;ibi 1itiss of throwing of tho contrflhrtnd by the per-~,()Il or- the planting of the same whllein transit to the r10 n res t Mn q i s t ratGar- Ga ze t ted 0 f f i C (-H, Wrc~ a r (:) () f LhI'J the following 1ines:-

85

( a ) ill sub-section fU ._-

(1), after the words · he shall' words shall be inserted, namely-

"inform such person that he has a right to be searched 1n the presence of a gazetted o r fi e e r 0 r t h 8 rn a g i s L r- ate n~ f e rT (~ U L0 ) n section 41; and"

(b) i n sul~-sect ion (1), for the words or to th8 the following words shall benearest magistrate", substituted, namely-

"or to the nearest magistrate referred to 1n sectioll 41 of the !let, as the empowe rf~cJ officer may deem fit."

Th is wou 1d amount to subs tant i a 1 cornp 1 i anee.

86

1 . AIR

1989

SC 1966.

2. AIR

1991

SC

558.

3. AIR

1990

SC

71 .

4 . 1996(1) Scale 48.

5 . ^{199 L (1)}

Crimes 753.

6. 1991 (2) Crimes 686. 84 .-

FOOT NOTES

CHAPTER V

CHAPTER - VI

CONCLUSIONS AND RECOMMENDATIONS

6. i INFIRMITIES IN tWPS ACT. The drug traffickers are fighting guerilla war aga~~st humanity and, therefore, deterre~~ pun,shment has beer! 8rGvided under the NDPS Act (as a~ended^byAmendment Act No.2 of 1989). The Act has provided for death penalty i

I

for s~ecified offences by the previous convict and for forfeiture of propertj derived from, or use 1 n illicit trafficking. However, even these provisions have not yielded fruitful resul~s in curbing and controlling illicit trafficking and use of narcotic drugs. Some of the infirm~ties found ln tne implementation of NDPS Act may be summarised below:-

(a) Lack of social awareness against offences of -,

illici~ trafficking and illicit use of narcotic drugs and psychotropic substances; ( b ) The severe punishment for small Quantity under section 27 of the Act if it is not for personal consumption;

(c) Non establishment of Special Courts for trial of the offences under the NDPS Act by some States ,n spite of specific directions in sectio~ 36 thereof;

l j " \

s~cwth of cannabis plant, ceca plan~ or

88

_. 86 .- op 1 um poppy and chances of cu 1t i '/at i on of such plants In the guise of wild growt~ by (s,

unscrupulous smugglers;

The inherent problems in the imp 1 ementa -: i or, of section 50 of the NDPS Act tJ make ~he search effec~ive and meaningful;

( -=

Frequent changes the offences; and in officers investiga-:ing establishment of the cerltres for identification, treatment, educat.ion and after care of the addicts by the Governme~t..

6.2 RECOMMENDATIONS.

After discussing the concern of the world community against illicit trafficking and use of narcot.ic drugs ar;c psychotropic substances as borne out from ~he

-, proceedir;~s of the International conventions, the procedural and other ~eaknesses of the present law on the s~oject to deal

ef:e=~ively to overcome the menace of drug abuse and trafficki~~ therein and after taking into consideration the landmark :_=gments of the Supreme Court of India, especiaily In State af Punjab v Balbir Singh and after consicering ~he valua=le s_~gest.ion, we feel that the NDPS Act requIres furthe- a-e-dments to make it more effective.

89

'de hereby -' 87

recc~menc the following amendments in the Narcst..ic Drugs and FSjchs~ropic Substances ^f.ct,¹⁹⁸⁵ nameiy:-⁴

rY

I,.

J .

I

'1

6.2. ~ AMENDMENT IN SECTION 4 OF THE ACT In c^1E;.'..1se of section 4 of the^~DPSAct, sub-clause (d) De subs~-tutes as follows:-

"Cc) ide!!tificatlon, -r.reatment, educat~on, rsroabilitation, social re-integration cf aftercare,

addicts,

creation of sc~ial awareness qua dangers of drug abuse through education, publicity, training programmes and seminars with wide publicity to the deliberations an:) the reports thereof in the media,"

[Chp.IV, Para 4.5(a)]

6,2.2 AMENDMENT IN SECTION 27 OF THE ACT

In Section 27, t~e following new sub-sec~ion 3 be inser-r.ed ^~oprovide :or a lesser punishmen~ for small quan~ities if not provec to De for personal consumotic!'l:-

"(3) Where a person,..!'lO 1S shown to have bee!! in pcssession of small quantity aT narCot1C crug or PS:C!'lotrcpi: sucstancs fails to pro\s that ':- was

,r.::e:ldec for t~e personal consumptio:l c~ s~ch =erson ar,c not :or sale or cistribution, suCh person snall,

90

nst~1tr.standing anything contained 1n ~his Chapter, Co2 ;::,un~shable-

'a: ~~e~e the narco~ic drug or pSjch~trc=ic substance cr consumed 1S c.GC~lne, morphine,

c"a=ety:-~orphine or any other narcoti= drug or any ~Sjcr.otropic substance as may be specif~ed

in tnis OJ the Central Government, bj nctifica~icn in t~e official gazsette, with imprisonment ~or a term wn~ch may extend to two years cr with fine or with beth; and

(2; Where the narcotic drug or psychotrosic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term nhich may extend to one year or with fine or with both. ^u

[Chp.IV, Para 4.5(f)J

6.2.3 AMENDMENT IN SECTION 36 OF THE ACT

After Clause (1) of Section 36 of the Prlncipal Act, the fo11c~~~g proviso shall be inserted, namely-

";::"'cviced that at least. one special cou ,t sha 1 1

be cc:stituted by the Government as soon ~~ the number of se:cing cases uncer the ~ct e~ceeds

cne huncrec

91

6.2.4

INS~RTION OF NEW SECTION 47-A IN THE ACT hf~~~ Sestion 47 of the NDPS Act, t~e follo~ins se::::ion s~e.;l ce inserted, ne.mely-

"4-:::'.

Duty of the Forest officer and Revenue officer to take action - Every Forest officer^a~dRevenue off~ser shall give immediate information ::f the wile grc~th of coca plant, opium poppy or canne.bis plan~ on the forest land or government lane within his jurisdiction, as the case may be, when it ~ay oome or brcught to his knowledge at any stase, to the Me~;opoli::an Magistrate, Judicial Magis::rate of the First Class or any Magistrate specially e~oowered in this behalf by the State Government or any officer of a gazetted rank empowered under section ~2 who, upon receipt of such information, may ;:>ass suer. appropriate order including order to destroy the plants as he thinks fit, and every such fores::

officer or revenue officer who knowingly neglects t~

such information, shall be I i ab 1e pL;r.~shme;:t".

(Chp.IV, Pa;2. 4.5(b))

92

~J (l 6.:2. ~j AMENDMENT IN SECTION50__.QI~_THE ACT In section 50 of the NDPS Act,

( n ) ins u b- sec ti on (1), a f tr~ r the w0 r rj s • he s h;] 11 ' Gild befot~e the words • if such person', the fo 11 Ovl i ng words :;1);:\ 11 boi l):;ortod, namn 1y-

"inform such person that he has a right to be searched ln the presence of a gazetted officer or the magistrate referred to in :,ocLioll ill; nnd"

(b) in sub-section neRrest nll1gistrate" , substituted, namely- ( 1 ) , for the words "or to the the f 0 1 low i n9 vJO r ds s h rl 1 1 h(j or to the nearest magistrate referred to in secLioll 41 or Lhe AcL,

officer may deem fit."

(Chp.V, Para 5.6)

93

6.25

_. 91 '-

INSERTION OF NEW SECTION TO GIVE EFFECT TO ARTICLE 11

OF THE CONVENTION AGAINST ILLICIT TRAFFICKING IN

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, 1988

REGARDING "CONTROLLED DELIVERY".

In orcer to;~ Ie effect to the aforesaid provisions con-::.a i ned 1 n :.. rt i :: 1 e l' of the aforesa ~ d Oonvent ion, the NDPS Act ~e suit=.bly a~ended by incorporating a new sectior thereunder tc trace the onward movement o~ the consignment and to aopreher.d, arrest, prosecute the persons includins the ultima~e ~ersons taking delivery of the consignment. (Chp.III, Para 3.7)

6.2.7 INSERTION OF NEW SECTION 67 A IN THE ACT

After Section 67 of the NDPS Act, the following new section shall be inserted, namely-

" 67,:0.. • Comp 1et i on of empowered officer- Every the investigation by empowered officer who an

1S

making investigation of a case under the provisions of ~his Act or who takes any step under Chapter V thereof shall be incharge of the investigation till it is cc~pleted, unless there are compelling cir::u~stances requiring a change anc it shall be his dut> tc ta~e s~c~ step under the law for speedy in\est~gat-on 2~d submit the case ~o the competent co~~~,.. itr,cut =.,~>. unnecessary de12Y. ,. (Chp.I\. Para 4.5(d))

94

92

6.2.8 EFFECTIVE IMPLEMENTATION OF SECTION 71 e,f( :!:-: ~I;'i"

ACT.

We fee 1 t hat the rei sane e d f 0 ! the G(J \' :'-~. '.-.' ~ "

see that the object underlyir,g the section be 8 ¹

:I'~' utilising the services of Non-governmental organiC'?:-j"""

if necessary by establ ishing a wing in GOVE,r'nment 1",,-, :.- [ Clio . I If, P a 1- 8 /l _ ,~ ( r

We recommend accordingly.

/ f ho t-'j /(' ~ceo c \A-- c...... t'-

JUSTICE K.JAYACHANDRA REDDY

CHAIRMAN

i] / U I , ,< ;/ Lk!-?----./'L----_- .)"--Y~ -----

(JUS. R.L.GUPTA)

MEMBER

)

Ao~\-( .l'-~'J-i'---f

. (CH.G.KRISHNAMURTHY)

MEMBE~

"if1) Lfl) I).(i ^c

( R. L. MEENA)

MEMBER-SECRETARY ./

(PROF, /\Uc:~ ;: :: •• I ,") : (-"-'.-

f- if ~

i

ANNEXURES

')

96

93

ANNEXURE-I

D.O.No.6(3)(35)/96-LC(LS)

DR.S.C.SRIVASTAVA

JOINT SECRETARY &

LAW OFFICER

Sir,

GOVERNMENT OF INDIA

MINISTRY OF LAW & JUSTICE

DEPARTMENT OF LEGAL AFFAIRS

LAW COMMISSION

SHASTRI BHAVAN

NEW DELHI-110 001. Dated 5.7.1996 This is to encroach upon your valuable time for the cause of national importance.

The Law Commission has undertaken a study on the examination of the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) in the light of the judgment of the High Court and particularly the landmark judgment of the Supreme Court in the State of Punjab vs. Balbir Singh AIR 1994 SC 1872 with the emphasis on the changes brought about in section 50 of the Act. It 1S felt there 1S a need to review the relevant provislons of the Act. Accordingly the

94

Commission seeks to elicit your considered oplnion on the

• questionnaire prepared by the Commission certain proposed amendment to the said Act. relating to

I would, therefore, request you to kindly spare some of your precious time in giving your valued opinion on the issues at your earliest convenience preferably by 14th August, 1996.

Looking forward to your co-operation.

With regards,

Yours sincerely,

Sd!

( S.c. Srivastava )

Encl: As above.

_11

-' 95

LAW COMMISSION OF INDIA

Shastri Bhavan, New Delhi-110 001. ~st i onna ire

on

amendment to the

Narcotic Drugs and Psychotropic Substances Act, 1985

( A=t No.51 of 1985

CHAPTER-II

Section 4 of the Act.

0.1 Do you agree that there is need to make specific provision for creation of social awareness qua dangers of drug abuse through education and publicity and conducting of -training programmes and seminars?

CHAPTER-IV

Section 15 of 25 of the Act.

,

J

0.2 Whether the existing penal provisions providing minimum punishment require any amendment? If so, to what extent?

99

96

Q.3 Whether the sentence to be awarded under the Act, should be according to quantum of seizure of the contraband?

Q.4 Whether there 1S need to delete the provision of minimum sentence provided in sections 15 to 25 of the Act?

Section 27 of the Act.

Q.5 Do you suggest that the benefit of section 27 shall given to all the persons found in possession of small quantity irrespective of the fact whether the same was intended for personal consumption or not?

Section 36 of the Act.

Q.6 Whether the State Government has not created separate courts of Special Judges for trial of cases under section 36 of the Act in your State?

Q.7 Do you agree that for speedy disposal of cases under the Act, the provision should be inserted in the section, for setting up of adequate number of independent courts of Special Judges for the trial of cases under the Act in every State?

•

97 '- CHAPTER-V Section 47-A Q.8 Whether you think it necessary that the duty should be cast upon the forest and revenue officers to report the wild growth of cannobis and opium plants on forest and other government land and to take steps -,

for its destruction,

direct?

Section 50

as the State Government may

Q.9 Do you subscribe to the view that section 50 of the Act requires amendment?

Q.10 Do you agree that in view of the landmark judgment in State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 section 50 of the Act should be redrafted as under by incorporating suitable amendment:-

"50- Conditions under wh.ich search of persons shall be conducted:-

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall (inform such person that he has a right to

J

101

98

be searched ln the presence of a gazetted officer or the magistrate referred to in section 41, and if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments (or the nearest magistrate referred to in section 41 of the Act, as the empowered officer may deem fit).

Provided that the Central Government may specify the form of notice to be given to such person, i nformi ng I) i m that he has a right to be searched in the presence of a gazetted officer or magistrate, for the purpose of this sub-section.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section ^(1);

(or if the empowered officer, for reasons to be recorded in writing, deems it necessary to summon the gazetted· officer or the magistrate referred above to the spot, he may requisition the services of such gazetted officer or the magistrate, and it shall be the duty of such gazetted officer or the magistrate, as the case may be to the spot without delay).

(3) The Gazetted off i cer or the. Mag i strate before whom any such person is brought (or whose services have been requisitioned) shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made.

( 3A )

The search shall then be made in the

99

presence of the gazetted officer or the ^-,~gis~rate,

• as the case may be, who mal ass:.<::.ⁱat'=: t.wo independent witnesses, if available, and ta~e two samples and after sealing the samp-es ana the recovered articles, keep the seal intact and hand over the samples, recovered artic-es a~d the sample of the seal used to the empowered o;ficer.

(4 )

No female shall be searche= ~j anyone excepting a female."

Q.11 Whether the empowered officer should given discretion that in case he is of the o=~~ion, for reasons to be recorded in writing, that is not practicable to take the person to be sear=~ed to the nearest magistrate or the gazetted

office~;

or the services of such magistrate or the gazet~ed officer cannot be requisitioned, the empowered o:ficer may -,

conduct search himself in the presen::e of two independent witnesses?

Section 50-A

Q.12 Do you suggest that new section sho~ld ';nse.-ted for the use of controlled delivery system :Jy certain officers, to trace the onward movemen~^of

the consignment under supervision anC to arrest and prosecute all the offende'-s, in='~~i~g the persons taking delivery of the conslgnment .... ; i"1~~cit drugs or substances at the destination?

100 '- Section 67-A

0.13 00 you agree with the suggestion tna~ ~(e e~powered officer, who commences the investiga~ls~ cf a case under the provisions of this Act, shall

::e incharge of the case till investigation is ccmplete~ as far as possible?

CHAPTER-VI

Section 71

0.14 Whether the state government has not establi~hed adequate centres for the identification aioS treatment of addicts in your state?

0.15 00 you agree that it should be made ma~datory by suitable amendment in the Act that atleas~ one centre for the identification and treatment of accict should be established in every district in the co~ntry?

GENERAL

Any other suggestion

0.16 00 you suggest any other amendment give your valuable suggestions. .,,~",\ the

,^-.._.'""""' -"- '-' . :::f so.

.,

'.

104

-' 101 "- Annexure-II Comments received on the~ Questionnaire issued PJ~be Law Commission

The Law Commission had circulated a questionnaire (Annexure I) regarding certain amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985 to elicit opinion from various quarters. In the said questionnaire the Law Commission formulated sixteen Questions on various aspects of the subject.

The Questionnaire was sent to the Registrars of sixteen High Courts, Bar Associations, Home Secretaries of twenty five States and Union Territories, twenty eight Police Officers and the Chairmen of five State Law Commissions. Responses were received only from seven Judges/ Registrar of High Court, three Advocates/ Prosecutors and twenty seven Police Officers and other expert officers as under -

Q. No.1 Six Judges, Registrars of various High Courts, two advocates,²¹Police Officers and one Acacdemician have responded in the affirmative. However, the Deputy Legal Adviser, Ministry of Finance, Govt. of India is of the view that sub-clause(e) of Section 4 of the N.D.P.S.Act serves the purpose. The Addl.Director General of Police, (C rime) , Punjab^1S

ln favour of retaining the existing provlsions under clause ld) of

105

102

sub-section (2) of section 4 of the Act. Zonal Director, NCB, Bombay, is of the view that Section 4 takes care of the issue involved in Question 1. However, he feel that there 1S a need to have a specific provision making it obligatory on the part of the State Government to take necessary steps for creating awareness in regard to the dangers of drug abuse among the targetted groups and also stressed the need for involving the Non-Government voluntary organisations. The Deputy Commissioner of Police Narcotics & Crime Prevention, Delhi is of the view that section 4 of the Act does not require any amendment. Q.No.2 About the suggestion for the amendment in the existing penal provisions providi~lg minimum punishment, four Judges, two advocates and ten Police Officers have agreed with the suggestion. They have also suggested that the rigorous imprisonment for a term which shall not be less than five years but may extend up to ten years and fine not less than rupess fifty thousand may be provided. It is also suggested that the minimum sentence may be reduced to seven years and thereafter the sentence should run in proportion to the quantity seized up to twenty years. However, D.G.P. Tripura has suggested that minimum punishment should vary having regard to the quantity of drug seized, the nature of offences and offenders etc. However, others have replied either in the negative or are satisfied with the existing penal

I

provlsions. Add^1.D.G.P.

(~~arcoti cs Wi ng), Bhopa¹is of the view that sections 15 to 20 do not need any amendment but section 21 to 25 should be amended to enhance the

103 '- punishment to life imprisonment and canfis~ation of property for subsequent offences. However, 1<::-;l.D.G.P., Crime, Punjab has suggested to reduce the amc~r~ of fine from rupees one lack to fifty thousand. Cne ju~~e of the High Court, Bombay has suggested that discretic ^r

be given to court to award lesser punishment for special ~easons to be recorded depending upon antecedents of accused, quantity of contraband etc ..... Two police off-cers have responded in the negative. According to an a=ademician maximum punishment should be life impriscr~ent, but minimum sentence should be left to the court's c'scretion. Q.No.3 A High Court Judge, Registrar of Hl;n Courts, an Advocate, Thirteen Police Officers and one academician have answered the question in negative whereas rest of the persons have agreed with the suggestion of imposing punishment proportionate to the quantum of seizu~e of the contraband.

Q.No.4 Most of the responses are in the ~egataive. But a Judge of the High Court, two Police Office~s and one academician have responded in the affirmative. Further the Hon'ble Judge has observed that there are ~umber of cases in which big bosses dealing in narcot·~ trading traffic have started using old men and wome~, widows, women having small children, crippled perS2ns a~= children by exploiting their poverty and other wea~nesses. Such people do not get arrested or indicted.

rlcwe\e~, due to such practice being adopted by big bosses. har2-2aps are required to undergo severe sentences. The Co~r~ does not

107

104

have the dissre~iGn ~~ deal with such handicap~ed persons at. the ^"':irne

r-'-'^,

se~:.encing them. According^~J~he~this They, t~erefore, sugSeste= that the ',,0r-::s used so fa~ as sentence 1S co~ser~e=.

:'01 ice officers and one ;oasemioians have res~once= ~~e =~esticn in negative. According to the Registrar HiS~ CJur~ of Madras, the ber,efit ^~,as

t:J

be given beoa~se

it is difficult to prcle tha~ the drug was not ~n~endej for personal consu~ption.

As the Director General of Police,

Jammu & the dr~gs have been notified by :.he Govt.o~ India fr:::>m ti'":'"e to time. However, accord"ng to one Advocate. Se~~ion

1S meaningless and liable La be struck down because ;or personal consump-::ion "licence is being iss'..lec. A ~ucge of the High Court has responded ir

the aff~rmat.~','e. Further the Add 1 . Special Public Prosecu:or,

--gft

Madras, is of the view tha:. le-::

section :7 re~a'n as ~t stands now. It is for ~he persor who clai~s tre bene~':' thereof to prove that he was having it for ^~.1S

oersona: consumption. This is irceej a very generous P ^r~', - , ^~S10:,

to take care of

ad::icts S~ mpathe~:ca' - .'

~.::::ording

to the I r~s:::'ector Gener:;; 1 of Police. :nanc';arn a~c the Addl.D.G. ^Cr1r:~e,

the benefit :::7 s'lould be given enly^f_~rpersona con sum P -:: . 2 n a - c ~i 0 t :: ~ ~l e r \'1 ' S e . However. a Juc;e of the

-' 105 High Court Bench, Indore 1S of the V1ew that the section 27(2) needs to be deleted. One Police Officer has opined that no benefit should be given to all persons found in possession of small quantity irrespective of the fact whether the

Two Judges

affirmative.

same was intended for personal

and one Police Officer have

consumption.

replied in

Q.No.6 Special Courts under Section.36 of the NDPS Act have not yet been created in Orisa, Sri B.Pande feels that there is no need for such courts at present in view of the small number of cases.

The Registry of Madras High Court and two Advocates, have responded saying that under the said Act, no special courts have been set up in Tamil Nadu. However, additional powers have been conferred on the essential commodities special courts.

In J&K every Session Judge is invested with the power to try cases under the NDPS Act, 1985. However, no separate courts of Special Judges have been created. Likewise the Principal Sessions Judge of each District is invested with the power of court of Special Judge in Kerala.

In Madhya Pr-adesh, in an order dated 14.11.94 passed 1n Misc.Cri. case NO.2901/94 by High Court Bench, Indore, the proposed attention of State Government was drawn and now to constitute nine speciul courts has been finalised.

109

106

~overnment of Goa and 7~ipura has create= cOGrt.s bL.:t U-,;:

High C::ur":

~urjab alod Haryana has refused to creat;:

speCla co~r~ C~ ~he groulod that number sf cases are less. Ii the S~a~s of Nagaland, separats courts of specia judges r.avs been created. the Ssss i or,s Courts r,ave

purpose.

::ee r-.

ceclared as Special Court.s for Ir Sik"-ir'"l D.·::;.P. has responded ln t.he affirmative t2 the Questic~ askej by the Law Commission.

Scecia-

~!uCgeS

have been appointed for conductin; trials of cases ~nder section 36 of NDPS Act in the Territcry c: ~encicherry.

Unio~

Ka-na:.a,,3.,

the State Govern~ent

"as net ye:. createc secarate courts under the Act. court

5=e=~a ~udge for trial of cases u~aer tre^NQF3 ::"ct. ^isof the \/lel-. that 3.,:le3.5:^or2 ~.... _ ........ :; -2 ,-

pencing cases ur~C2r- the ::"0":.

'107 '- =~ the State of Maharashtra, specia: cour~s hale been const~t.uted.

•

Sta:.e ^ofRajas~han^hascrea~ej se~arate courts for trial in Pajast.,....,an.

_ I

U~~ar ~rades~ and Bihar, no spec-al CQurts under secti~ 36 of ~he Act have teen constit.u~es. Courts of the Addl.Sessions Judge have been desig~at.ed as special court.s for trial the State of Gujarat.

such cases in

The State Government of Assam has not yet created separate court.s of s~ecial judges for trial of cases under section 36 of the Act.

-,

Scecial

De 1hi.

courts have already bee~ establisned in

Q.No.! Most cf the responses a-e in affirmative. One acvocate ,s of t.~e yie~ that the Spe::ial Cour-cs are failure at.::empt. to cispose of the cases. Superintendent, CE Panaji, Superinte~dent, CE, North Goa ~ave ~espcnded in the negative.

Q.No.2 MoSt. 2: the Judges. ::ol'::e c:ficers reso2nded in aff~r~a:ive.

Speci2:

ha\ e

Prcsecutor. High

-- -- i"... _.....^l..;

,-\dc' ~ional and

Addl.D.3.P. \Crime\ Punjab are of the \iew^~hatsection

111

108

47 of NDPS Act starts with every officer of the ~I

Government." which naturally includes even the Forest and Revenue officials. Hence, there is no need to have a separate Section 47 A.

Q.No.9 Most of the Judges/Officers/Advocates have agreed with the proposal of the Law Commission. However, the proposal did not find the approval of two judges of the High Court. They are of the view that the said provisions take care of the interest of the accused. A Public Prosecutor, High Court, Madras,Shri P.N.Prakash has referred to a number of judgements of the Supreme Court and High Courts viz. AIR 1956 SC 411, 1994 6 SCC 569 All Mustafa v. State of Kerala, 1995 (1) Crimes 77. Amarjit Singh v. De 1hi Admn, Punjab v. Jasbir Singh (1996 (1) scc 288), State of Punjab v. Balbir Singh (1995, 3 SCC 610), Saiyad Mohd v. State of Gujarat (1995 Crl.J. 2662, Raghubir Singh v. State of Haryana (1996(1) crimes page

55 SC) etc. He is of the view that Section 50 should read

"when any officer, other than such officer of gazetted rank mentioned in Sec.41(2) on prior information is about to .... " The Addl.D.G.P. (Crime) Punjab has suggested that the words "Non-Gazetted" should be inserted in Sub-section

(1) of Section 50 because if the officer making search of a person 1S himself a Gazetted Officer, then he is no~ requi red to take the person to be seclrched before some other Gazetted Officer/Magistrate. The Director Genera~ of Police, Bangalore and Commissioner, CE&C, Rajkot have responded in negative. A Judge of the High Court, Bombay, has suggested an amendment in the following lines -

-' 109 '-

"Notwithstanding that the procedure laid down in

• chapter V of NDPS Act (Section 41 to 68) is not foilowed it is hereby declared and clarified that the trial is not vitiated. Such non-compliance of prccedure shall be taken into consideration while ap~reciating the evidence of Investigating Officer. The said procedure is declared to be directory ln nat.:..Jre for the guidance of Investigating Officer."

Q. No.1 0

Twenty-six Judges, officers and advocates have agreed with the proposal by the Law Commission for re-drafting Section 50 of the Act by incorporating suitable amendment. Further, a lawyer feels that if a privilege is given why should it be waived by writing. He observes that if the accused is apprehended, he may immediately be taken before the Magistrate and seizure should ce before h

I

provided in Section 50 that the Gazetted Officer should not be the member of the raiding party .. Anothe r Judge after re~erring to Misc.Cri.case No. 2768/50 decided on 28.4.96 of Indore Bench, M.P.High Court finds no justific=.tion for making a special provision about Gazettec Officer or Magistrate. He is of the view that if section 50 is retained in whatever form, it should be made directo::. instead of being mandatory and plea should be permissi~le on prejudice or on failure of justice in

113

1 10 '- accard~~ce with Section 455 of the ~ade 0f Criminal ProcedL-re. The Commissicner, CE&C, Ra~~ot^~asresponded in the ~egative. Superintendent, CE, Pa~aji r~s sugges~ea that t~e G~zetted Officer/~he Magistrate anly ~e a wi~ness ta the search on the same ~oint.

a.No.1',

some c-

Most of the responses are a:firma~ive.

~hem have expressed it in nega~~ve

But

because

;

accord"~~ to them the discretionary powe~ may ~e misused. Q.No.12 All persons except the Re:istry of Madras High CCL-rt have agreed witr the proposal for ~he insertion of new section.

Q.No.13 Twenty nine persons have replied in the affirma~-jve.

A Judge of the M.P. High Court has suggestej that the incharge should be 1"ab1e to action in case of default in submission of charge-sheet within the statutory period. Four of them feels that the suggetions are no'C. practicable and if implemented, may lead to adminis~rative difficulties. The A::ditiona1 Special Public ~rcsecutor, High cOurt Madras however ajded that it would affect the werking of agencies like N.C.B./C_stoms/DRI because tbey are net po1~ce officers and the: c~llect materials from all sources anj submit it with a

ce;nplaint. The;. do not fi"e cr.arge sheet. Therefere. there is no need for stat_~ory

amen-:rr.ents. :.\,]c1.D.:;. (Crime) Pun:ab, has no:

ag~eed ~c: the s~gges:-=ns contained in t-,s question =ecause the same

114

1 1 1 '- according could be done by an executive/administrative order. The Superintendent, CE, North Goa, has responded in the negative.

Q. No. 14 The Registry and Addl. Sp 1 .

Public Prosecutor of Madras High Court and One Police Officer have replied in the affirmative. The State Government has created centres for the identifiction and treatment of addicts at the State capital and mOre would be created at other places depending upon the need and availability of finance.

The Director-General of Police,

replied in the affirmative.

J & K, has also

Thl~ Stu. te of Kera 1a and Madhya Pradesh have a 1so responded in the affirmative to the question. The Supdt. of Police,^ANC,Panjai, Goa has pointed

,

,- out that the State Government has established centers fnr identification and treatment of addicts in the State of Goa.

The Inspector-General of Police, Union Territory, Chandigarh has informed that the State Government has not established adequate centres for the identification and treatment of addicts.

115

-' 112 '- A Senior Supdt. of Police (Narcotics)Kohima, is of the view that there are very few centres in Nagaland which are not adequate at all.

No centre for identification and treatment of addicts has been established by the Union Territories of Pondicherry, Manipur and Sikkim .

. The State of Maharashtra^~asestablished centre for detoxication and rehabilitation of addicts. N.G.O. 's are also doing commendable service in this field in Mumbai and in other parts of Maharashtra.

The state Government has established rehabilitation centre in Rajasthan. However, according to Commissioner, C&CE, Jaipur, number of such centres should be increased. The number of centres for identification/dediction of addicts instituted by the State Governments (U.P. and Bihar) is negl igible as per Zonal Director, NCO, Varanasi, In Vududara, there is a centre for idellti f iC:JL iOIl and treatment of addicts in S.S.G.

Government of Gujarat.

Hospital run by the

Q.No.15 Mos t of. the pe rsons who responded to^OLlr questionnaire have agreed with tho suggestioll of tho La Commission. However, a few of them are of the view that there is no need to establish such centre 1n some di:,Lrictu/SLLlLUG. Thoy, Lhorororo, foo] t.ho!.

116

-' 1 13 accordlngly be left to the discretion of the State Government to establish centres according to the need. The following suggestions were made by various Judges, Advocates, Police Officials and Academicians:

(1) The application of Section 167 of the Code of Criminal Procedure be excluded.

( 2 ) Ex presspr 0 vis ion be mad e for t a ~\ i n g sec0 n d sample.

(3) Section 32A be amended in the light of ~yaD-Qhand

v. State of Rajasthan, 1993 Cr.L.J. 442.

(4) The Assistant Commissioner should be the Authorising Officer so far State is concerned. The Deputy Commissionerof Police should be the immediate superior officer.

(5) I Gazetted Officer' of the other Government

I

; department viz. School Head Master etc. may also be brought within the purview of section 41 of the NDPS Act.

(6) By making necessary amendment in the Act a duty should be cast on ~the State Government/Central Government for the purpose of giving training the

117

-' 114 officers of C.B.N., Central Excise Department and

,

.#- Police for detection of crimes and investigation in accordance with the provisions of NDPS Act.

(7) A duty should be cast on State Government/Central Government to open rehabilitation centres in each district of the State by appointing medical officers, psychiatrists and social welfare officers.

(8) Section 37 of the Act be amended on the lines of the proviso to section 437 of the Code of Criminal Procedure for releasing an infirm or sick person or a child,juvenile and a woman.

(9) The word conveyance may be deleted from section 42 since section 43 and section 49 will care of it.

take

(10) The words"Government offices" may be included in the explanation to section 43 of the Act. ( 11) Sect ion 36A (1) (b) and (c) of the Act requ ires to be redrafted so as to clearly State as to who should exercise the power of remand if detention is considered necessary.

118

I

; 115 .-

(12) Section 29 (2) limits the operations of section 29 (1). If the explanation in section 29 (2) lS made an inclusive one then it will take care of not only conspiracy/abetment in India but also bring operators who are abroad within its to)d.

(13) Chapter V A dealing with forfeiture of property should be amended so as to prevent drug traffickers from transferring away the wealth amassed due to illicit trafficking in Narcotic Drug and Psychotropic substances.

(14) Section 37 be amended to contain sufficient guidelines on which the public prosecutor may not oppose the application for release on bail.

(15) Section 360 (2) be amended to permit and provide transfer of pending cases to special courts despite telk i n~l of coqn i 7FlIICO nl so in v i ow of tho dAr. i s i on in (1993) 2 SCC 16 and and misc. Cri. Case No.2901/94 decided by M.P. High Court, Indore Bench.

(16) Section 32 A be deleted or amended/conferring discretio~ to court in appropriate cases in the face of judicial pronouncements for suspension of sentence.

(17) Policy of award merits to be mortalised so as to avoid possible registration of fake cases and introduce element of more fairness.

119

1 16

(18) Proper procedure be followed for sealing, sampling, deposit and despatch be provided for.

(19) Subsection (b) of section 36 A(1) may be deleted.

(20) There should be Uniformity in cash awarad to all the departments concerned with N.D.P.S.Act.

(21) Special training centres be opened to train Police personnels with regard to all the provisions of NDPS Act.

(22) More sniffer Dogs be employed and more training centres for them be opened.

(23) Cash award be given not only in the name of Sniffer - dog on seizure of Narcotics but also to the police personnel accompanying the dog.

(24) More incentives be given to informers.

(25) The definition of "illegally acquired property"

[Sec.GO-B(g)] be widened so as to include the proVI s 1 0 ns of ' i1 1ega 11Y a c qui r- e d property' de fin 1:"' d under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.

120

;

,

1 1 7

(26) Proviso of sub-section (2) of section 68(c) should be deleted.

(27) The words "has been charged with any offence punishable under this Act, whether committed in India or outside after the words "chapter applies" in sub-section (1) of section 68-E should be deleted.

(28) Selling of opium/poppy ganja etc. through authorised shops by the State Governments should be stopped.

(29) The amount of reward should be increased.

(30) The provisions of Sections 9, 41 & 42 of the Act be reviewed.

(31) Sect ions 68A vi s-a-v is 68E, of t-he NDPS Act be reviewed doubt/ambiguity about the word "charged" be removed.

(32) Licencing of "Bhang Thekas" by the State Excise Department requires ~o be looked into.

(33) More harsh punishment for drug syndicates be awarded.

(34) Provisions related to forfeiture of proverty (.:~Il. V. A) needi mrned i ate amendment as section 68-A and ( Cor' t 1 n n f) Po -- ~ :1 I P con t r d die tor' y .

121

( 35)

New -' 1 18 provisions be added to depute state officials to be utilised as witnesses in the NDPS Act cases by state enforcement agencies.

(36) Section 50(3) of proposed amendment (of the Questionnaire) should be deleted.

(37) Classification bet~een soft drugs and hard drugs must be made and pU'lishment should vary between them.

(38) No rewards for seizing drugs be given to the officers. It may be only in case of private parties who gave i nformat i on that su'ch reward be given.

(39) Simple possession of drugs should not be punishable unless he knowingly possesses the same. CONIRIBUTI";D _f\BJI_CLE;:S FQR THE NATIONAL SEMINAR,

1. Justice J.G.Chitre, Judge, High Court, Madhya Pradesh, Bench, Indore.

2. Justice A.R.Tiwari, judge, High Court Bench, Indore.

3. Registrar, High Court of Madras.

4. Shri M.N.Krishnan, Registrar, High Court of Kerala.

5. Justice (Smt.) P.D.Upasani, High Court of Bombay.

-' 119 G. ,) us tice (SrtI t.) /~. G. Vai d y an a t ha, H i gh Co u r t 0 f Bombay.

7. Sllt"i J.N.8arowalia, Senior Sessions Judge-cum-Chief J udie i a 1 Mag i s t r" ate, MandiD i s t ric t, Man d i (H. P ) .

8. Shri Syed Basir Ud Din, Jammu & Kashmir.

Registrar, High Court of

1. Dr.G.Kr;shnamurthy, Advocate, High Court, Madras.

2. Shri Binu Association, Kumar, Advocate, Trivandrum (Kerala). the President Bar

3. Shri P.N.Prakash - Addl.Special Public Prosecutor, Narcotics, Govt.of India, High Court, Madras.

4. Shri K.T.S.Tulsi, Senior Advocate, Supreme Court, New De 1hi.

1 .

Shri B.Pande Addl.D.G. Orissa, Cuttack. of Police, C.I.D.Crime,

2. Director General of Police, J&K Srinagar.

3. Shri M.C.Mehanathan - D.L.A., Ministry of Finance, Department of Revenue, N.C.B., New Delhi.

4. Shri A.K.Singh Panaji-Goa.

Superintendent of Police, ANC

5. Shr; S.K.Chaterjee - IPS, DGP Tripura

6. Inspector General of Police, U.T. Chandigarh.

7 .

;,I)!'i C.P.Cit'i, IPS Sr.SUf)dL. (N:lI'~:otics), N.JGa I and, Koh i lila. of

B. ~~ I \ I i Y.J Lis 11 CII and r" a I'() lieA 11 n nd q lHlr tor' ~ , - Addl.D.G.P.

nhopn 1 .

(Narcotics W;nr])

9. Shri Asllol\ Joshi, lAS - Secretary to Govt.of Madras.

10. Sflr; r.S.Ba.wa, IPS, - D.G.P., Sikk;m. 1 1 . Add 1 . D.G.P., Crime, Punjab.

12. Dir0ctor, Crime ~ocords 8ureau, ronclichorry.

13. Director General of Police, Bangalore, Karnataka.

15. ZOlllll Director, NCB, Bombay.

123

17.

18.- ..

19.

20.

21 .

22.

23.

24.

25.

26.

120

Commissioner, CE&C, Vadodara Commissioner, C&CE, Jaipur. Zonal Director, NCB, Varanasi. commissioner, CE&C, Rajkot. Spl .Superintendent of Police, CID, Assam, Gauhat i .

Deputy Commissioner of Police, Narcotics & Crime Prevention, Delhi.

Superintendent of Customs (Legal) Goa. Superintendent,CE, Panaji.

Superintendent, CE, North Goa, Champara, Goa. Commissioner, Customs & Central Excise, Chandigarh. 1 . Proof . Joga Rao, National Law School of India University, Banga 1or'e .

2. Prof. M.R.K.Pragad, Mahadevrao College of Law, Panaj i , Goa.

124

121

ANNEXURE-III 1111 I)UNISII~11-NTS PPOVIDED Fon Or-FENCES lJ~IDER NDr'S ACT, Fwr, (AS AM[NDED BY ACT NO.2 or 1989)

S.~os. DescrIptIon of Offences MinImum

Imprl sonment Fine

Man mum

Imprisonment FIne

(I'

1.

1.'

1

Cultl18tioll, production, manufacture, posseSSIOn, sale, purchase, transport- atIon, concealment, use or consumption, import/export lnter-state

al Poppy stra~ (Sec.15)

bl Caca pi ants and ceca leaves(Sec.16)

c) Opium poppy, opIum and prepared opIum ISees.17, 18,19)

d) CannabIs ather than ganjalSec,201

e) Ga1J3 (5ec,20)

f) Manufactured drugs and preparatIons ISection 21)

I J)

10 Years' R.I.

10 Years' Roi. to Years' R.I.

10 Years' R.I.

10 Years' R.I. ( <\ )

Ps,1 lakh

RSol lakh

Rs,l lakh

Rs,l lakh

Rs.11akh

I ~ i

20 Years' R,1.

20 Years' R.I.

20 Years' R. I.

20 Years' R,I. Upto 5 Years'

R.1.

20 Years' RoI.

1(,)

Rs,2 la~.hs Rs.2 1akhs Rs,2 lakhs Upto Rs,50,OOO, Rs,2 lakns

g) All psychotropIc substances (Sec.22) 2, l'Ul1lsllmoliL for 11)e~31 ImparL 111(0 IndIa, export from India, or

transhipment of narcotic drugs and psychotropIc substances (5ec.23). J. PUll1shment for external deal ings In narcotic drugs and psychotropIc substallces In contravention of se,:l1lln t2 15ec.24)

4. PurllshmenL fOl' al\o\\lng premises, enclosul'o, Sll.~C,', pineo, 8nlma) or CQIIIllplI\:l" hllowlllgly for cumml:;Sl(JlI of offence (5ec,25)

10 Years' R,I. RSo11akh 20 Years' R.I.

10 Years' R.I, RSollaHI 20 '(em' R.I, to Years' RoI. Rs,llaHI 20 Years' P.I.

10 Years' P.I. Psot la~.h 20 Years' P,I. Rs,2 la~ns

Plo 2 laHls

Ps,2 1arhs

5.

PunIshment^fOl'production, manufacture. pOSSeSSlc1!I, Import/export IIiLer sLaLe, 5,110, purchase, CQIISumptlon, us"., storage d\~;I' It'lIl.ll\ll, (11:ill(l~;,~1 or ncqulslLllI1I of ~II\ ,:,'11\ 'd 11,'d ;;lIli ^c,lilIiCr.( SIlC. ?',A I I ?un13~~eG: tor certalll acts by licensee \'1' I'::~ ~; :'1 1111 L; !;, t' I: . : 6) Upto 10 Years'

p, I.

'Jpto ~ Years'

Impr lo,nnl'l8nt,

Upto PS.1 1aH!

Or With fIne

IJr W1U' hot.h

, '.

122

I. la) rU:lhh~,l:liL for Illegal possessIon III s~,311 qUJnt ILy for pcrsona I consumpL Ion of rl)c~lne, mlHphlnD, olcntyl-morphlne or ,111) \1111111 1i."lULIl. dluq UI pl;p:huLropll. substance as may be notified by Central Government 15ec.27)

(b1 Punishment for illegal possession in small qu~ntltr for personal consumptIon of 11:\I'C\I\ 1\: dlugs or psycliot.rojJlc subst.ances other than those speCified In 7(a)(Sec.27) Upto I year

i mpn sonment

Upto 6 months'

Imprisonment

or wlt,h fine

or ~lth both

or WIth fIne

or WIth both

B. Punishment for finanCIng, directly or 10 Years' R.I. Indirectly, abetting or conspiring In the furtherance of an offence or harbouring persons en3aged in the aforementioned

actIvitIes ISec.27Al

Rs.l1akh 20 Years' R.I.

9. Punishment for attempts to commit any offence punishable under Chapter IV of the Act or As provlded for that particular offence. cause such offence to be committed and in

such attempt does any act towards the

commIssion of the offence( Sec.2B)

10. Punishment for abetment and crimInal As provided for that particular offe~ce. conSOlracy to commit, an offence punishable

under Chapter IV of the Act, whether such

offence be or be not committed In consequen~e

of such abetment or in pursuance of such

cri~inal conspiracy (Sec.29)

11.

12,

126

123

Death penalty has been provided under the NDPS (Amendment) Act, 1988 for the first time in the history of India. Under section 31A cited, where a person has been convicted by a competent court of criminal jurisdiction outside India, he shall be dealt with as if he had been convicted by a court in India.

2. Besides, as per the provisions of Section 32A, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force(but sUbject to the provisions of section 33), no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted.

3. Section 36 provides for constitution of Special Courts for the speedy trial and punishment of offenders.

4. Section 37 stipulates that offences shall be cognizable and non bailable.

5. Under Section 59, dereliction of duty cast on an officer under this Act or wilful abetment/connivance shal,l be punishable with 10 Year3" R.I./fine Rs.1 lakh extensible to 20 Years"

R.I./fine of Rs.2 lakhs. (The term 'officer' includes for the purpose any person employed in a hospital/institution maintained/recognised by the Government/local authority).

6. Section 64A provides for immunity from prosecution to addicts volunteering for treatment.

-. 124 .- ANNEXURE- IV - !M£UO©[M~[b ©[Fl(!:1J@ ~!M rF@ [Flc~[fjJ ~~u

~U~uO~uO~~ b.\~ ^(Q)~

IDOff@®J~@ ~[?[R©\\Ja~O@~1~[lJ -_.. - -.-

- Year 1992 1993 1994 1995 1996 - --

-- ^.- ---

._-"- -----_.

-_. _^.

---

.-

1. SEIZURES OF VARIOUS DRUGS IN KG WITH NO. OF CASES

OPIUM SEIZURES 1918 3011 2256 1339 1338

CASES 1286 1679 1171 871 349 --_._------

MORPHINE SEIZURES 35 36 51 4 1 -- CASES 158 105 145 35 20._--- ---------- _._---- --_.---------------------

HEROIN SEIZURES 1153 : 1088 1011 1678 877 ---------_._-

CASES 2779 3383 3331 3236 1245

.GANJA· SEIZURES 64341 98867 187896 121873 26531 CASES 5839,_ 5214 6827 5737 2309

HASHISH SEIZURES 6621 8~38 6992 31529 4825

CASES 2516 2827 2672 2691 986

COCAINE SEIZURES 0.420 2 1.58 40 0 -

CASES 4 4 6 6 2

NE~QOALONE SEIZURES 7475 15004 45319 20485 9

CASES 167 283 457 196 4

..._-

----- _._-" . '-'---"---~ -----

PHENOBARBITAL SEIZURES 118020 TABS.

-

- 0 0 ------

---_._------'--

-_.- ,-

CASES 2

- ^-

0 0

.-"- -

------- ^..__._---"

-------

L.S.D SEIZURES 50 164 256 113 1285

(Sq. Papera) CASES

-

1

-

1 7

ACETIC ANHYDRIDE SEIZURES

-

19758 47740 9282 2892 _. ----------

(in

Itra.) CASES

-

22 40 26 6

2. PERSONS ARRESTED

a) No.^ofPersons Arrested 12650 13723 15452 14673 5203 includin9 Foreigners

b) No. ^o~Foreigners 116 114 136 148 110 -----._-

--~. ---' _._----

I arre.ted -. -- ---- ---_.._---_.- --_.----

- ._--._-_. "-.-

------ -- ----

•. ' ,--0-

3. ACTION TAKEN AGAINST PERSONS INVOLVED IN DRUG TRAFFICKING

A)

No. o~ Persons prosecuted 7172 9964 9154 12918 5505 --- -------

b) No. o~ Peraona convicted 761 1488 1245 2"~6 1472 ---

.-_.

c) - No. o~ Persons acquitted 1762 1633 3165 3!lH

2285 - -_.

4. ACTION TAKEN UNDER PITNDPS(NDPS) ACT, 1988

No. o~ detention orders 97 116 156 111 45 - -- -

i.sued under PITNDPS A~t.r.lSl88

I

..-. - No. detained 80⁹²123 69³⁸- ---- ---._.-

.-

• ~_. ___ ._~O

-- -- --- ------- -

-_.- --~._--

NCB, NEW DELHI

< ,

125

.- ^.. - -y_z _.'

1992 1~93 1994 1995 1996 -S. DESTRUCTION OF NARCOTICS DRUG YIELDING PLANTS

a) Poppy Plant Ar." ^(.inA.cz:&s)^{19 67 0.550}, ?ote.nt.ial Yie1.d (in ^{leg5.)1357549}10 0.

b) Cannabis Plant Ar...

(.in Acre s ) 1219 2587 858 638 16 ?ote.nti..l Y.ie1.d (KgB.⁾1230209 3273661 1073334^694t;l79850

6. DESTRUCTION OF MANUFACTURING FACILITIES

~) Facilities detected an.,! ql!'!f!.~jty_!?f!i'!!~!2f!d ~0!.g~eized in Kg. ------_.- -----

BZilOIN 1.010 1. 27 6 0 -----

- -

- - .. .i'..~:iti••

detected 5

4

3 8 0

HASB:rSB -

- - 0 0 ---- - - hc:i.1:iti•• detected

-

-

- 0⁰ ~NE 3651.000 1.710 6091 7336 0 F~iti.•• detected 3- 2 8 4 1 WOIL"l:l'Hna: 0.760

-

0

0- - h~.iti•• detected 1

- -

0

0

b) No. of persons arrested ⁷3

25 17 1.

J) Incriminating materials seized in Kg.

.

I

:ACETIC AlmYDlUDE

-

21040

- a 0 ACETrL ANTBRANILLIC ACID

(Itr.)

-

-

- 561 0 ACE'rYL ~LLIC POWOE~ -

-

- 100 0

ACETYL CHLORIDE

- -

- 0 0 AlIWC:SItIN CRLOlUOE

- - 18.5 7 0 D:IrmYAL ETHER

- -

- 0 a ME'1'SENOL - - - 0 0 -- OP:Il:N 37.950 2.750 32

_ :1.0 0 ------ --------

OPION SOLUTION

(ltrs.)

-

- - 0 0 -_._~ -. - -_. --- -. -------_.- . --- - SODrt:lK CARBONATE -

-

- 0 0

7 . DISPOSAL OF SEIZED NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES

OP:n:N

254 4-49 33.3 5 15 ~ --

l«:lR:Snm 1 - -

°

0

BZRO~ 807 2'0 463 404 22 GAN.;:A 5962 106~9 12850 1809 46

HASH:::SH 1117 1115 2234 8709 99

COCA-~ 2 - 0.95 0 0

HrI'EAQOALON!: t14

173-45 9449 10852 U6 -

P~ITAL - - -

-

0 ---

~s.:) (Sq.P&pe:) - - - -

0- - . - ._- -

~ .. ACE~::C ANHYDRIDE

(1':.=5 _ ) - -

-

-

a --~-- ---

-- ------- -- - ^~_.

---

-

---~----_. -- ---~------ -- ---- - .._-----------~--_.----

------------

NCB, NE\\' DELHI

126

...------------.------------------------------1 Yea: ^{1992 199319941995}

8. FORFEITURE OF PROPERTY

A) VAlue ot property

888337 10=?4400 309479 274479 Forfeited (Ra.)

5 ^{13 1}

b) VAlUe ot property 37026070 904044 85067571

210428345 456000

Frosen (R•. ) No. ot C••es -4 7 17 17 2 1------_.:-_---------------..-:._----=---:.------.--------=::....--..........j

9. AGENCY-WISE NUMBER OF SEIZURES

ALI. INDIA

NARCOTICS CONTROL BUREAU B8^1169038

DIRECTORATE OF REVENUE 5 _.------ -----

76272417474518

INTELLIGENCE 1-------------------------------.------- -----------------1

COSTOM 5 CENTRAL EXCISE

CENTRAL BUREAU OF NARCOTICS 114 ^79706516

ORGANISATIONS

t---------------------------------- ---------------.--------1 B. S.P 42 125 laO 276 112 -----------;

c. B. I - 12 6 1 0

t---------------.-------~------------------------i STATE AGENCIES (TOTAL) 11984 12694 13865 12119 4671 t----------.:-----=-----------------------------------I POLICE - 12497 13526 11833 4649

I----------------------------_::....-::....-_--_:...-._--_--:_:...-._-~

I-_EX_C_I_S_E . .. - ._~~_7 _2~__

JOINT OPERATION

2B6 22

13

10. AGENCY-WISE BREAK·UP OF QUANTITY SEIZED (IN KGS.) A. NARconcs CONTROL BUREAU

OPIUM 50 166 1.4 40 11

MORPHINE - - - a a

R:EP.OJ:N B5 69 101 75 78

t-_GAN__JA 3_5_9 3_3_4_9 3~2__:.2_8 4_6_2::. ....:5:..::2:.-.-_~

HASHISH :2 347 261 27 29

COCAINJ: - 0 _06 - 0 0 ME'1'BAQUJ.LONE 14 91 5 i 7 6 67 6 1 ae: 4 0 t----~----------------------------------------------1 PHENOBARBITAL 63590 Tabs. - - - a

LSD - - - - a,\----------:...-----------------------------------------1 ACETII"" ANHYDRIDE lItre.) - - - 8BO 0

y ----------------------_----=--=..:-------=----~

B. DIRECTORATE OF REVENUE INTELLIGENCE

I---=::....--:-;~~...:.....~;.:....:..~-=--:-....::~.=..:..~-=-.:~::.....:::.==-=::.=.:....:....:~------------------------t

13

3508130

16 33

._-- - ..-- - _... - _.- -. ---_ .._._- -- .--

1340

1170703

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