LAWS PREVENTING DRUG ABUSE IN INDIA

Drug abuse is a serious social problem. The drug abuse is growing and an ever
increasing number of youth is becoming addicted. The smuggling of narcotic drugs and
psychotropic substances into India, and illegal trafficking in such drugs and substances
lave led to drug addiction among a sizeable section of the public, particularly the
adolescents has assumed serous and alarming proportions in the recent years. Drug
addiction threatens to kill the whole generation. No individual, family or community is
safe where illicit drugs take control. Drugs may control the body and mind of individual
consumers, the drug crop and drug cartels may control farmers, illicit trafficking and
crime may control communities. Drugs destroy lives and communities, undermine
sustainable human development and generate crime. Drugs affect all sectors of society; in
particular, the young people.
CONSTITUTIONAL MANDATES
India's approach towards Narcotic Drugs and Psychotropic Substances is
enshrined in Article 471 of the Constitution of India. Which mandates the government to
prohibit the use and consumption of intoxicating drinks and drugs which are injurious to
health. The right to health has been perhaps the least difficult area for the court in terms
17 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.

of justifiability, but not in terms of enforceability. Article 47 of Directive principles of

state policy provides for the duty of the state to improve public health. This Article is
based on Gandhian principles. However, the court has always recognized the right to
health as being an integral part of the right to life guaranteed by Article 21 of Indian
constitution.in the case State of Punjab v Mohinder Singh, 2 the Supreme Court held that
Right to health is a fundamental right guaranteed under Article 21
Article 2533 of the Constitution empowers the Parliament to legislate for the
purpose of discharging obligations under international conventions and foreign treaties.
Accordingly, the Narcotics Drugs and Psychotropic Substances Act, 1985 was enacted in
November, 1985, to give effect to the provisions of the existing UN Conventions. It
contains stringent provisions for the control and regulation of narcotic drugs and
psychotropic substances, and provides an essential framework and appropriate provisions
for administrative action.
ANTI-DRUG LAWS
The statutory control over narcotic drugs in India is exercised through a number of
Central and State enactments. The Opium Act of 1857, Opium Act of 1878 and the
Dangerous Drugs Act of 1930 were enacted a long time ago. However with the increase
in drug abuse and illicit drug traffic certain deficiencies in the existing laws surfaced
which made it necessary for the Parliament to enact a comprehensive legislation to
AIR 1997 SC 1225
Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries or any decision made at any international conference, association or
other body.
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combat this challenge. For e.g. the Dangerous Drugs Act, 1930 provides for a maximum
term of imprisonment of 3 years with or without fine and 4 years with or without fine for
repeat offences. As a result of experience gained on account of Indias participation in
various international conventions that are single convention on Narcotic drugs,1961,
Convention on psychotropic substance 1971, Convention on illicit traffic in Narcotic
Drugs and Psychotropic substance 1988 and realizing Indias obligation under Article
2534 of the Universal Declaration of Human Rights 1948 and Article 12 of the
International Covenant on Economic, Social and Cultural Rights 19665 , which are reflect
the concern of the international community for the protection of the individual's right to
the enjoyment of the highest attainable standards of physical and mental health and the
gravity of the problem and the need to enact laws in tune with times, the Narcotic Drugs
and Psychotropic Substances Act of 1985 was passed by Indian Parliament as a
comprehensive legislation on narcotics, providing for stringent and long term prison
sentences and heavy fines for offenders. Offender under this Act includes the cultivator,
supplier, and seller as well as the drug consumer6.The amended Drugs and Cosmetics Act
2008 and Rules also provide for deterrent punishment and stringent control over
manufacture, sale, and distribution of psychotropic substances. The amended Act
provides that any drug deemed to be adulterated or spurious when used by any person for
or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is
likely to cause his death or is likely to cause such harm on his body as would amount to
Everyone has the right to a standard of living adequate for the health and Well-being of himself and of his family.
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the
Highest attainable standard of physical and mental health.
Supra, n.10
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grievous shall be punishable with imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life and shall also be liable to fine
which shall not be less than ten lakh rupees or three times value of the drugs confiscated,
whichever is more. The fines realized in such cases will be paid to the relative of the
deceased or the aggrieved person7. Despite these harsh punishments, the crime is on rise.

AN OVERVIEW OF NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT
The NDPS Act, 1985 is one of the harshest laws in the country. It prohibits
cultivation, production, possession, sale, purchase, trade, use and consumption of narcotic
drugs and psychotropic substances except for medical and scientific purposes under
license.
The NDPS Act 1985 sets out the statutory framework for drug law enforcement in
India. The main elements of the control regime mandated by the Act are.
The Act prohibits the cultivation, production, manufacture, possession, sale ,
purchase, transportation, ware housing, consumption , interstate movement,
transshipment and import and export of narcotic drugs and psychotropic substances
except for medical or scientific purposes and in accordance with the terms and
conditions of any license, permit or authorization given by the government.8

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Section 12, Drugs and cosmetic (amended) Act 2008

Section 8 of the Act

 The central government is empowered to regulate the cultivation, production,

manufacture, import, export, sale, consumption, use etc. of narcotic drugs and
psychotropic substances.9
State governments are empowered to permit and regulate possession and interstate
movement of opium, poppy straw, the manufacture of medical of medicinal opium
and the cultivation of cannabis excluding hashish10
The central government is empowered to declare any substances, based on an
assessment of its likely use in the manufacture of narcotic drugs and psychotropic
substances as a controlled substance.11
Given Indias size and the federal nature of polity, a number of agencies both at
the center and the states have been empowered to enforce the provisions of the Act.
These agencies include the department of customs and central excise, the Directorate of
Revenue Intelligence, the Central Bureau of Narcotics and the central Bureau of
Investigation and the central level and state police and Excise departments at the state
level. The Union Ministries of social Justice and Empowerment and Health are
responsible for the demand, reduction aspects of drug law enforcement which broadly
covers health- care and the de-addiction, rehabilitation and social re-integration of
addicts.12
Chapter IV (15 to 40) of the Act deals with prohibition of offences and penalties
related to cultivation, production, transportation, selling, and purchasing of poppy
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Section 9 of the Act

Section 10 of the Act
Section 9 A of the Act
Malik, Commentaries on Narcotic Drugs and Psychotropic Substances Act, 1985. Law publishers (India) pvt. Ltd, 2012, p.5

straw13, coca plant14 , coca leaves15, prepared opium16, opium poppy17 , opium18, cannabis
plant19 and cannabis20. All these offences are triable by special courts and the
punishments prescribed range from imprisonment from 10 to 20 years for first offences,
to 15 to 30 years for any subsequent offences together with monetary fines. In addition to
persons directly involved in trafficking narcotic drugs and psychotropic substances, any
person who finances trafficking or harbors a person in trafficking or abets, or is a party to
a criminal conspiracy. Including a criminal conspiracy to commit an offence outside
India, is also liable to the same scale of punishments.
The most important mandate of this Act is that it provides punishment for the
consumption of any kind of narcotic drugs and psychotropic substances. 21The earlier
provisions of this Section made possession of small quantity of any narcotic drug or
psychotropic substance, which is proved to have been intended for personal consumption
and not for sale and distribution or consumes any narcotic drug or psychotropic substance
punishable under the Act.

. Section 2 (xviii) of the Act defines poppy straw" as all parts (except the seeds) of the opium poppy after harvesting whether in
their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.
Section 2(vi) (a) the Act defines "Coca plant" as the plant of any species of the genus Erythroxylon.
Section 2(vi)(a) defines coca leaf means as the leaf of the coca plant except of a leaf from which all ecgonine, cocaine and any
other ecgonine alkaloids have been removed
Section 2(xi)(b) defines prepared opium as any product of opium by any series of operations designed to transform opium into
an extract suitable for smoking and the dross or other residue remaining after opium is
smoked
section 2 (xvii)of the Act defines "opium poppy" as the plant of the species Papaver somniferous L.; and
the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can
be extracted and which the Central Government may, by notification in the Official Gazette,
declare to be opium poppy for the purposes of the Act
section 2 (xv) of the Act defines opium" as the coagulated juice of the opium poppy, S.2,(xv)
Section 2 (iv) of the Act defines cannabis plant" as any plant of the genus cannabis.
Section 2 2 (iii) defines Cannabis(hemp) as charas that is the separated resin, obtained from cannabis plant and ganja, that is, the
flowering or fruiting tops of the cannabis plant.
Section 27 of the Act.
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But the new provision clearly stipulates that whoever consumes any narcotic drug
or psychotropic substance shall be punishable. Thus, the provision of small quantity for
personal consumption has been completely deleted and substituted by provision of mere
consumption. Punishment varies accordingly to consumption. In the case Alpesh kumar v.
State of Rajasthan22, the accused was caught for illegally possessing two cigarettes
containing 500 ml.gm of heroin, the accuse argued that it was for his personal
consumption but interpreting section 2723 r/w S.8 of the Act the supreme court held that
the accused was guilty.
Prior to 2001, in cases pertaining to drug users, the Supreme Court, took into
account the actual drug content in calculating quantity and not the entire quantity
seized24. After the 2001 notification, the penalties were determined by the quantity of
drugs involved, but the NDPS Act did not provide any guidance of ascertaining the
quantity of narcotic drugs or psychotropic substances. In 2008, the Supreme Court in E.
Michael Raj v Intelligence Officer25, Narcotic Control Bureau held that in the mixture of
a narcotic drug or a psychotropic substance with one or more neutral substance/s, the
quantity of the neutral substances is not to be taken into consideration while determining
the small quantity or commercial quantity of a narcotic drug or psychotropic substance.
It is only the actual content by weight of the narcotic drug which is relevant for the
AIR 2004 SC 952
Section 27 states that Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,- (a) where the narcotic
drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic
substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous
imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and
(b) Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with
imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
Hussain v State of Kerala (2000)8 SCC 139; Ouseph v State of Kerala [2001, SC; reported in (2004) 4 SCC 446]
(2008) 5 SCC 161
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purposes of determining whether it would constitute small quantity or commercial

quantity.
By the amendment in 1989 Section 31A was inserted in the NDPS Act which
imposes mandatory death penalty for certain repeat crimes involving a large quantity of
drugs. The death sentence is mandatory in that there is no punishment laid down in
Section 31A other than death. In June 2010, An NGO the Lawyers Collective challenged
this provision in Indian Harm Reduction Network v Union of India26 on grounds of
infringing fundamental rights under Articles 21 (protection of life and liberty) and 14
(equal protection of law) of the Constitution of India. It also questioned the
appropriateness of a death sentence for drug trafficking, which does not involve killing or
taking of human life and is merely an economic offence.
Section 64A of the NDPS Act provides immunity from prosecution to
addicts27volunteering for treatment, if they are charged with consumption or offences
involving small quantity. This provision is in keeping with International Drug
Conventions that encourage alternatives to penal sanctions where the offence is of a
minor nature or where the offender is dependent on drugs her/himself.28
The Act has been amended twice; in 1989 and 2001. The first amendments in
1989 leaned towards greater stringency by introducing mandatory minimum sentences of
10 years, restrictions on bail

and

mandatory

capital

punishment

for

repeat

AIR 2013 SC 562

Section 2 (i) defines addict as a person who has dependence on any narcotic drug or psychotropic Substance.
Article 36 (1) (b), Single Convention on Narcotic Drugs, 1961, as amended by the Protocol Amending the Single Convention on
Narcotic Drugs, 1972, https://www.unodc.org, accessed on 14.9.2014
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offenders. Following the amendments, persons caught with small amounts of drugs faced
long prison sentences, without the possibility of release on bail. Courts criticized the
harsh and disproportionate sentencing structure, which led to a fresh set of reforms in
2001 to rationalize punishment on the basis of whether the quantity of drugs involved is
small commercial or intermediate and provide some leniency towards drug
offenders who also use drugs.29
Though the NDPS Act provides for stringent provisions for curbing drug abuse
and illicit trafficking of narcotic drugs and psychotropic substances, the Act has certain
defects, for example Patients with severe pain in India are not able to get opioid
medicines for pain relief because the state NDPS Rules make it difficult for hospitals to
store and dispense opioids. Hospitals have to obtain licenses for stocking, import, export,
transport etc, each license requiring concurrence from different departments (Excise,
Drugs Control, Health administration). These licenses need to be valid at the same time,
though often the validity period of a license is as short as a month. By the time the
institution gets a second license, often the first would have expired validity. On the other
hand,though the NDPS Act allows medical use of narcotic drugs and psychotropic
substances, stringent regulations and onerous licensing procedures together with controls
under the Drugs and Cosmetics Act, 1940 have impeded access to opiates for millions of
patients.

29

The Narcotic Drugs and Psychotropic Substances act Ignoring Health; Infringing Rights, (Feb 12, 2014)

http://www.lawyerscollective.org, accessed on 14.9.2014

In order to rectify these disabilities of the Act, recently on February 2014 the
loksabha has passed the NDPS (amendment) Bill. The amendments make important, path
breaking changes for medical access to narcotic drugs by removing barriers that date
back to 1985, when the Act was first introduced. The amendments also include
provisions to improve treatment and care for people dependent on drugs, moving away
from abstinence oriented services to treating drug dependence30 as a chronic, yet
manageable condition.31This will now change as Parliament has adopted a new category
of essential narcotic drugs in section 2(viiia) of the Act a list, which the Central
Government can notify on the basis of expediency in medical practice. Drugs identified
as essential will be subject to Government Rules, which will apply uniformly throughout
the country, bringing to an end the unwieldy and inept practice of obtaining multiple
State licenses for possession, transport, purchase, sale, distribution, use and consumption.
And the amendments broaden the object of the NDPS Act from containing illicit use to
also promoting the medical and scientific use of narcotic drugs and psychotropic
substances
It is true that the efficacious provisions of the Act are worth for curtailing the
illicit trafficking of narcotic drugs and drug abuse but when we consider the changing life
style of people and growing demand for narcotic drugs for medicinal purposes these
provisions are inadequate and needs to be amended. And more than adopting a punitive

Drug dependence is the body's physical need, or addiction, to a specific agent. There is therefore virtually no difference between
dependency and addiction. Over the long term, this dependence results in physical harm, behavior problems, and association with
people who also abuse drugs, https://www.google.co.in, accessed on 15.9.2014
Lawyers collective Parliament passes the NDPS (Amendment) Bill, 2014: many gains; some losses,
http://www.lawyerscollective.org, accessed on 15.9.2014
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approach to the drug users the anti- drug laws should adopt means to rehabilitate them
and make them useful citizens to the country.