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Legopedia

The Drug Policy In India

The inadequacy of the existing laws governing drug policy in India necessitated the requirement for an all-encompassing law on narcotic drugs. The efficacy of existing laws e.g., the Opium Act, 1878; and the Dangerous Drugs Act, 1930 had eroded over time. This led to the advent of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) in 1985.  

Over time, illicit drug trafficking and drug abuse has matured by leaps and bounds—both in India and abroad. Nonetheless, the country’s response by way of its drug policy, continues to be extraordinarily hypocritical. An International Drug Policy Consortium publication calls India’s drug policy as wrought with “tradition and modernity”; “widespread availability and stringent enforcement”; “tolerance and prohibition”; “production for medical use” and “lack of medical access to opiates”.

Let us delve deeper into this quagmire and try to understand why that is so.

What are Drugs and Psychotropic Substances?

The NDPS Act considers coca leaf, cannabis (hemp), opium, poppy straw, and all manufactured drugs to be narcotic drugs. A narcotic is a substance that dulls the senses, relieves pain, induces sleep, and/or causes physical dependence on it. However, the 2014 Amendment brings about a dichotomy.

We now recognize that certain drugs are essential elements of pain relief medication. Thus, any drug that is notified by the Central Government for medical and scientific use is an “essential narcotic drug”. Interestingly, the ‘Schedule’ to the NDPS Act lists 77 examples of “psychotropic substances”, without once defining the term in itself.    

Section 27 of the NDPS Act proscribes the consumption of any narcotic drug or psychotropic substance; while Section 27A condemns financers of illicit drug trafficking and those who harbor offenders.

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Consequently, rigorous imprisonment for up to 1 year, and/or a fine up to Rs. 20,000 awaits you if you are guilty of consuming the following;

  • cocaine,
  • diacetylmorphine,
  • morphine, or
  • any other drug or substance as specified by the Central Government.

Punishment for consuming any other substance is imprisonment of up to 6 months, and/or a fine up to Rs. 10,000.

Incidentally, Section 27A is a more stringent provision. Section 27A violators are liable for rigorous imprisonment of 10-20 years, and fine of Rs. 1 Lakh- 2 Lakhs. Thus, you commit a graver offence by financing illicit drug trade—whether directly or indirectly, or harbouring criminals engaged in such trade.

Nonetheless, do we prohibit all types of drug trade? No, not necessarily.

Controlled Delivery

The Government derives its power to regulate “controlled delivery” from Section 50A of the NDPS Act, the major drug policy law in India.  It refers to the supervised movement of illegal drugs and substances throughout India, with the knowledge of an authorized officer. Additionally, the objective of “controlled delivery” is to identify wrongdoers committing, or tending to commit a crime under this Act.

What is India’s Drug Policy?

India is a signatory to the following International Treaties:-

  • The Single Convention on Narcotic Drugs, 1961;
  • the United Nations Conference to Consider Amendments to the Single Convention on Narcotic Drugs, 1972 and;
  • the Convention on Psychotropic Substances, 1971.

Indeed, this shows the bona fide intent to work at a humanitarian level towards betterment of the country.

The NDPS Drug policy act encourages India to prevent and combat drug abuse. Additionally, the Central Government strives to ensure that only scientific or medicinal usage of drugs occurs.

India is intolerant towards personal consumption of drugs and/or psychotropic substances. Though the law considers the consumption of drugs or offences related to “small quantities” as bailable, yet they still are offences. We have adopted the quantity-based sentencing model. This means that the quantum of punishment varies according to the nature and type of the substance.

An addict, charged under Section 27 or with an offence relating to small quantity of narcotics shall be provided immunity from prosecution, under Section 64A. Nevertheless, if the addict does not complete the de-addiction treatment in entirety, the protection may be revoked.

Death Penalty

Sections 31 and 31A of the NDPS Drug Policy Act envisages enhanced penalty and death penalty respectively. Repeat offenders attract enhanced punishment. The aim is to promote the idea of healthy living. Furthermore, the commission of certain offences subsequent to a former conviction may attract the death penalty. For instance, a person previously convicted under Section 27A, may be awarded the death penalty if he is involved in a subsequent narcotic offence.

Though a drug-related offence is not considered as a heinous crime internationally, India has embraced the prohibitory principle. She has maintained a staunch argument in support of punishment by death, saying that drug offenders scar the entire society. One must realise that though there may be some truth in this belief, yet most of these offenders are addicts. Addiction is all about mentality and unhealthy addictions are signs of a weakened mind. It would consequentially, be a great service to the society to ensure that these offenders receive psychological and psychiatric help.

National Fund and Treatment Centres

Additionally, the law declares that the Government shall set up a fund to help finance our fight against drug abuse. Section 7A declares that the funding would prioritize the following;

  • controlling drug abuse;
  • parrying illicit drug trafficking;
  • locating, treating, and rehabilitating addicts;
  • thwarting drug abuse;
  • raising awareness about drug abuse;
  • supplying drugs to addicts for whom such is a medical necessity.

The Government holds the power to approve as many treatment centres and rehabilitation homes it deems necessary, to facilitate de-addiction. Section 71 allows the establishment of government hospitals, private de-addiction homes, NGOs, and psychiatric centres to tackle the drug menace.

Is this a Moral or Medical Issue?

Substance abuse is found to be closely associated with mental health. However, the current uproar regarding drug abuse shows that India views addiction as a moral, and not a mental, issue.

The ideal solution would be to consider addiction as a cry for help and mould the language of the law. Before changing the law however, one would have to change the perception of the society. India is a haven for drug manufacture and trade, but why is this so?

The beliefs of the society are intertwined in religion, and that is what makes this a scandalous topic of discussion. A country which normalises consumption of bhang, looks hypocritical indeed when penalising consumption of other forms of the cannabis plant.

Since the law does not recognize ‘addiction’ for what it is, it does not seek to understand what ‘withdrawal symptoms’ are either. The punishment for drug usage should not be death, but stringent pyschiatric treatment to remedy this mental disorder. No body is born a drug addict, it becomes an acquired trait. Unhealthy habits like drug abuse is detrimental to the overall wellbeing of the both the user and his/her peer group.

In conclusion, the law must adopt a preventive approach rather than a prohibitory approach. Furthermore, the administrators of law—the Police and other investigating agencies, must enforce the law intelligently. A Division Bench of the High Court at Calcutta lamented that the investigating agencies seemed to take no steps to unearth material evidence against bigger players. The kingpins are responsible for infiltrating drugs into the market. Unless these “bigger fish” are captured, we would never really be able to weed out the problem by its roots.

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by Biswaroop Mukherjee

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