INTRODUCTION–

Drug abuse has become a global and emerging issue of concern to human society. The illicit drug trafficking have multiple consequences to health, society, economy and
specially to youth these days. The issue is so complex that it not only involve illegalities
but also leads to disintegration of nation, mental social physical disorder. It also give rise
to many other organized crimes including murder, prostitution, drain on national resources
and loss of productivity and growth of nation. Seeing the serious repercussions of the use
of drugs and illicit activities related to it the parliament of India introduced the act called
The Narcotic Drugs and Psychotropic Substances Act 1985 commonly known as NDPS
Act, which came into force on 14 November 1985 extend to whole of India and it applies
also on to all the citizen outside India and to the person on ship and aircraft registered in
India. The NDPS Act prohibits a person the production, manufacture, cultivation,
possession, sale, purchasing, transporting, storage and consumption of any narcotic drug
psychotropic substances.

CONSTITUTION OF INDIA–

Article 47 of the Constitution of India says, “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 endeavor to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health”.

CONVENTION ON PSYCHOTROPIC SUBSTANCES 1971–
India is a signatory to the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988. The Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 was enacted by Parliament. It came into
force on July 4, 1988. This Act was enacted under Article 253 of the Constitution of India
Government of India constituted the Narcotics Control Bureau (NCB) on the 17th of
March, 1986 by using power conferred under Section 4 (3) of NDPS Act, 1985. Sections
272 to 276, IPC were not sufficient. So special law was enacted. NDPS Act, 1985 is
special law and it comes under classification of Criminal Law.
IMPORTANT DEFINITION UNDER NDPS–

Section 2(xiv) and section 2(xxiii) of NDPS defines-
• Narcotic drug as coca leaf, cannabis (hemp), opium, poppy straw and
includes all manufactured goods.
• Psychotropic substance as any substance, natural or synthetic, or any natural
material or any salt or preparation of such substance or material included in
the list of psychotropic substances.

Section 4 authorizes the central government to take measures necessary to prevent
and combat drug abuse and illicit trafficking, including identification, treatment,
education, aftercare, rehabilitation and social reintegration of addicts. Subsection 3
of section 4 also authorizes the central government to constitute an authority or
hierarchy of authorities for the purposes and objectives mentioned in details in the
different subsections.

Section 6 empowers the central government to constitute an advisory committee
called “The Narcotic Drugs and Psychotropic substances Consultative committee” to
tender advice on matters referred to it.The act empowers Central Government to permit and regulate by rules-
(i) the sale of opium and opium derivatives from the Central Government Factories
for export from India or sale to State Government or manufacturing chemists;
(ii) the manufacture of manufactured drugs, not including manufacture of medicinal
opium or any other preparation containing manufactured drug from materials which
the maker is lawfully entitled to possess.

Section 15 to 40 sets out the penalties for offences under the Act. These offences are
essentially related to violations of the various prohibitions imposed under the Act
on the cultivation, production, manufacture, distribution, sale, import and export etc.
of narcotic drugs and psychotropic substances. 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 monitory fines.The Act, however, makes a distinction between possession for
personal consumption and trafficking, the punishment for the former being limited to
between six months and one year only. The application of this provision is subject
to the qualification that the quantity of the drug involved in the offence should be a
small quantity as specified by the Central Government.

DRUG QUANTITY AND PUNISHMENT–

Small quantity– Heroin 5mg, Opium 25mg, Morphine 5mg, Ganja 1000mg, Charas
100mg, Cocaine 2mg, Methadone 2mg, Amphetamine 2mg, LSD0 .002gm.
Punishment– Maximum of 6 months rigorous imprisonment or a fine up to Rs. 10,000 or
Both.
Commercial quantity– Heroin 250mg, Opium 2.5kgs, Morphine 250gms, Ganja 20kgs,
Charas 1kg, Cocaine 100gms, Methadone 50gms, Amphetamine 50mg, LSD 0.1gm
Punishment- Rigorous imprisonment from 10 years(min) to 20 years(max) & a fine from
Rs 1 lakh to 2 lakhs.

PROCEDURE OF ARREST IN NDPS ACT–
➢ Special Court – As per Section 36 of NDPS Act there is provision for establishment of
Special Court for speedy trial.
➢ Cognizable and non-bailable offence- As per section 37 of NDPS Act all offences
are cognizable under this Act. There are certain circumstances in which bail may be
granted.
➢ Publication of name & residence – As per section 38 of NDPS Act in certain cases, in
case of conviction name and residence of accused may be published. NDPS Act is
special law. So only those provisions of Cr.P.C. will be applicable which are not
inconsistent of NDPS Act, 1985.
➢ Arrest and production before Magistrate -The provisions of the Code of Criminal
Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of
this Act, to all warrants issued and arrests, searches and seizures made under this Act
under section 39. Several provisions of CrPC & Article 22 (2) of the Constitution of
India provides that arrested persons must be produced within 24 hours. Arrested person
under NDPS must also be produced before Magistrate within 24 hours.
➢ Report of arrest & seizure must be submitted within 48 hours. – Report of arrest &
seizure must be sent to immediate official superior within forty-eight hours. There is
provisions for confiscation of properties.
➢ Duties of Authorised Police Officer to inform suspected person- That when an
empowered officer or a duly authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the person concerned of his right
under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the
nearest Magistrate for making the search However, such information may not
necessarily be in writing. That failure to inform the person concerned about the
existence of his right to be searched before a gazetted officer or a Magistrate would
cause prejudice to an accused.
➢ Power to tender immunity from prosecution- Section 64 provides, ‘The Central
Government or the State Government may, if it is of opinion (the reasons for such
opinion being recorded in writing) that with a view to obtaining the evidence of any
person appearing to have been directly or indirectly concerned in or privy to the
contravention of any of provisions of this Act or of any rule or order made thereunder it
is necessary or expedient so to do, tender to such person immunity from prosecution
for any offence under this Act or under the Indian Penal Code (45 of 1860) or under
any other Central Act or State Act, as the case may be, for the time being in force, on
condition of his making a full and true disclosure of the whole circumstances relating
to such contravention’.

CASE LAWS-
• Joseph Fernandez v. State of Goa -A Bench of three Hon’ble Judges held that
even when the searching officer informed him that “if you wish you may be
searched in the presence of a gazetted officer or a Magistrate”, it was held that it
was in substantial compliance with the requirement of Section 50 of the NDPS Act, 1985.It is ‘Substantial Compliance’ of Section 50.

• Prabha Shankar Dubey v. State of M.P – In this case the following information
was conveyed to the accused: “By way of this notice, you are informed that we
have received information that you are illegally carrying opium with you, therefore,
we are required to search your scooter and you for this purpose. You would like to
give me search or you would like to be searched by a gazetted officer or by
Magistrate”. It is ‘Substantial Compliance’ of Section 50.

• Krishna Kanwar v State of Rajasthan– In this case Supreme Court held that
“What is necessary is that the accused (suspect) should be made aware of the
existence of his right to be searched in the presence of one of the officers named in
the section itself. Since no specific mode or manner is prescribed or intended, the
court has to see the substance and not the form of intimation. Whether the
requirement of Section 50 have been met is a question which is to be decided on the
fact of each case and there can not be any seeping generalization and/ or a straight
jacket formula.

CONCLUSION–

The past so many years have seen rapid growth in the combat against drug dependence especially the areas of policy formulation and growth of infrastructure.
This is commendable. Keeping in view the importance of the subject we request the
Supreme Court of India to appoint a Committee of Judges on the administrative side to
supervise and monitor progress made by the respective States in regard to the necessary
compliance whatever required, to issue appropriate directions for a speedy action on the
administrative and even on the judicial side in public interest. What now remains to be
seen is the effectiveness and impact of the various measures initiated. It is imperative to
have evaluation and subsequent modifications of plans and policies based on effective
research and a social awareness and counselling must be made for the youth against
consuming this harmful substances which not only ruin their life but the national assets
will also be in danger.

Aishwarya Says:

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