How much is too much?
NDPS Act, despite being amended thrice since its inception, has failed to curb drug abuse; a careful re-examination is the need of the hour
It is said that every time you cross a barrier, the drug increases in value — and rightly so!
This statement aptly explains how the drug trade has grown into such a gigantic criminal enterprise sprawling across the globe. All drugs have a market value that not only depends on their composition but also on their geographical location, for example, in Columbia, producing a gram of cocaine costs less than producing a pound of coffee, however, the price of cocaine ends up to be much higher due to the risk involved in transporting and selling it. The market value of drugs also depends on the laws of demand and supply. As the demand for drugs is inelastic due to it being addictive, the suppliers have the luxury of charging whatever they want for their goods
Indians were first introduced to drugs by the Arab merchants who brought with them Opium that was initially meant to be used as a medicine for curing diseases but later started being used as a drug by people due to its addictive qualities. With the advent of the British, the cultivation of Opium came to be looked upon as a great business opportunity.
The Narcotic Drugs and Psychotropic Substances Act, 1985, prohibits production/manufacturing/cultivation, possession, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. Since its inception, the NDPS Act has been amended thrice — in 1988, 2001 and 2014.
The NDPS Act stems from the Opium Act, 1857 — passed in the context of 'Opium Wars' between British and French; Britain wanted India to grow more opium. In 1878, the British revised the law, which was revised again 52 years later to the Dangerous Drugs Act. In 1961, the Single Convention on Narcotic Drugs was held, and all signatory nations at the convention, including India, resolved to pass laws within 25 years to ensure that the drug menace goes away.
The NDPS Act provided for the death sentence to anyone found with a substantial amount of a banned drug. This law was reformed for the first time in 1988 to distinguish between substance abuse and possession. Punishment for personal consumption was reduced to one to two years jail term and possession was given a more stringent punishment in 1989 under 'American pressure', to include forfeiture of property.
In 1994, a committee was set up to avoid exploitation of this law. The Act was then amended to state that it was the quantity of drugs that would determine the extent of punishment.
In 2001, the law was amended again to distinguish between personal consumption and commercial use. Six years ago, the death sentence was also done away with.
"The problem with this law, unlike other laws, is that while in other laws the rule is innocent until proven guilty, here it is guilty until proven innocent." On the other hand, loopholes in the NDPS Act, 1985, enable the drug mafia to go scot-free even after being arrested by the police.
The drug mafia, through their peddlers, exploits the weak links of the Act. The Act is stringent for peddlers who are caught with higher quantities of drugs and are booked under non-bailable offences, but those peddlers who are caught with less quantity are booked in bailable offences and come out of prison within days. The law allows possession of cannabis up to 1 kg. Mafia and peddlers are well aware of the fact that even if they are caught in the process, they will be out within days and it will not affect their business. In the recent case, Aryan Khan and seven others have been charged with various sections of the NDPS Act. The NCB has invoked four sections of the NDPS Act so far, including sec 8 (c) that has wide provisions for producing, manufacturing, possessing, selling, purchasing, transporting, using, consuming, importing, exporting narcotic drugs or psychotropic substances. Sec 8 (c) has been read with three other sections namely Section 20 (b) which relates to the use of cannabis; Section 27, which relates to the consumption of any narcotic drug or psychotropic substance; and Section 35, which is a presumption of culpable mental state. The NCB has also claimed that among the seized drug at the cruise ship are 13 grams of cocaine, 5 grams of mephedrone, 22 pills of MDMA (Ecstasy) — all categorized as in "intermediate" quantity, and 21 grams of charas, which falls in the category of "small" quantity. The court was told that the offences against Khan are bailable. It is also noteworthy that since the category of cannabis is "small" as per the NDPS Act, the maximum punishment would be six months or a fine of Rs 10,000 or both. Section 27 which is a charge for consumption has a maximum charge of one year.
The Central government has to take the initiative to amend the NDPS Act as the drug menace is spreading across states. We must learn from UAE and other Muslim countries where drug menace is very low due to stringent laws. There are several laws in India that do not serve any legal purpose and are easily misused. The need of the hour is not only to formulate legislation but also stricter implementation. The answer lies in re-examining the NDPS law carefully. Opinions and views of experts should be incorporated within the law so that practical aspects of a problem are not ignored. Defective legislation not only shatters the hopes of the legislators but also leads to chaos, miscarriage of justice, and injustice to the victims of such a poorly drafted law.
The writer is an Advocate on Record practising in the Supreme Court of India, Delhi High Court and all District Courts and Tribunals in Delhi. Views expressed are personal