Name of the Act: The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2021

Purpose

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 1, 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.

Introduction

The Narcotic Drugs and Psychotropic Substances Act (NDPS) is an Indian law that was passed on November 14, 1985, to combat and prevent drug abuse in the country. 

The NDPS Act has been amended several times since its inception, the most significant being the addition of the death penalty for certain drug offenses, the addition of new substances to the list of prohibited drugs, and the inclusion of mandatory drug rehabilitation for drug users.

The NDPS Act was amended in 2021 to replace the Narcotic Drugs and Psychotropic Substances Ordinance, 2021, and to correct a drafting error in the 2014 amendment. 

The purpose of the NDPS Act, which was passed on November 14, 1985, is to prevent and control drug abuse in India by criminalizing the production, manufacture, cultivation, possession, sale, purchase, transportation, and consumption of narcotic drugs and psychotropic substances, except for medical and scientific purposes.

Context:

In India, drug abuse has a long history that dates back centuries. Even Atharvaveda mentions cannabis.  Cannabis was also commonly used in India for religious, medicinal, and recreational purposes. The use of opium for medicinal and recreational purposes was widespread in ancient India, and its use continued through the medieval and colonial periods.

In the post-independence era, drug abuse became more widespread, particularly among the youth. The use of cannabis and heroin became more prevalent, and the country also saw an increase in the abuse of pharmaceutical drugs. Drug abuse was primarily concentrated in urban areas, particularly in cities like Mumbai, Delhi, and Chennai.

In the 1970s, the government of India began to take notice of the growing drug abuse problem and began to take steps to address it. The Narcotics Control Bureau was established in 1986 to enforce the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Despite these efforts, drug abuse continued to be a significant problem in India, particularly in the 1990s and 2000s. The country became a major transit point for drug trafficking, particularly of heroin from Afghanistan and Pakistan, the area of the golden crescent, along with from the area of the golden triangle. In recent years, there has been growing concern about the abuse of prescription drugs and synthetic drugs, particularly among young people.

The government of India had previously attempted to address the drug abuse problem through a range of measures, including the Dangerous Drugs Act, 1930 and the Opium Act, 1857. However, these laws were seen as outdated and inadequate in the face of the growing drug abuse problem.

The Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed in 1985 in response to the changing drug landscape in India, which included the emergence of new drugs and drug trafficking networks. The act aimed to prevent and control drug abuse by criminalizing the production, manufacture, cultivation, possession, sale, purchase, transportation, and consumption of narcotic drugs and psychotropic substances, except for medical and scientific purposes.

The act also provided for the punishment of drug offenders, with a focus on rehabilitation rather than punishment for drug users, and the forfeiture of property acquired through drug trafficking. 

This act was also a response to several social and economic factors contributing to a growing drug abuse problem in the country. Some of these factors include:

Social factors: The use of drugs, particularly cannabis, and opium, had been a part of India’s cultural heritage for centuries. However, in the post-independence era, drug use had become more widespread, especially among the youth, leading to concerns about its impact on public health and social order. There were also increasing reports of drug-related crimes and violence, which further heightened public concern.

Economic factors: India has long been a major producer of opium and cannabis, which are used for both medicinal and recreational purposes. However, the growing demand for drugs in international markets was leading to an increase in their cultivation and trafficking, which was becoming a lucrative business. This was seen as a threat to the country’s economic stability and reputation.

Other legislations that regulate the use of drugs in India:

1. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988: This law complements the NDPS Act by providing additional measures to prevent and control drug trafficking. It includes provisions for the forfeiture of property used in drug trafficking, the interception of communication in drug-related offenses, and the establishment of special courts for drug-related cases.
2. Drugs and Cosmetics Act, 1940: This law regulates the manufacture, distribution, and sale of drugs and cosmetics in India. It sets standards for drug quality, safety, and efficacy, and provides for the licensing of drug manufacturers and sellers.

Key provisions of The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985:

The Act has been segmented into six chapters, each addressing different aspects of the legislation. 

Chapter I provides an overview of the Act’s jurisdiction and important definitions, as well as powers regarding the addition or omission of items from psychotropic substances. 

Chapter II discusses the central government’s authority to control the trafficking of drugs, while also outlining the powers of officers from the central and state governments in investigating offenses. 

Chapter II A establishes a national fund to combat drug abuse, requiring an annual report of its finances. 

Chapter III outlines activities prohibited under the Act, along with measures to control and regulate the possession of Narcotic Drugs and Psychotropic Substances by the Central and respective State Governments. 

Chapter IV specifies offenses and their punishments under the Act, categorizing them as criminal offenses with stringent penalties. 

Chapter V lays out the investigative procedure to be followed, while Chapter V A describes the procedure for the forfeiture of illegally acquired property. 

Finally, Chapter VI addresses miscellaneous provisions, including the power of the government to operate addiction recovery centres, delegate authority to make rules, and notify Parliament of any changes to provisions under the Act.

Important Sections of the Act:

The Narcotic Drugs and Psychotropic Substances (NDPS) Act of India is a comprehensive law that prohibits the production, possession, sale, purchase, transportation, use, and consumption of narcotic drugs and psychotropic substances. 

Here are some of the important sections of the NDPS Act:

1. Section 2: This section defines the various terms used in the NDPS Act, such as “narcotic drug,” “psychotropic substance,” “manufacture,” “illicit traffic,” etc.
2. Section 3: This section gives the power to the Central Government to add or remove any substance from the list of narcotic drugs and psychotropic substances by notifying it in the official gazette.
3. Section 8: This section prohibits the production, manufacture, possession, sale, purchase, transportation, use, consumption, import, export, and transhipment of narcotic drugs and psychotropic substances. However, it also allows exceptions for medical and scientific purposes.
4. Section 15-29: This section deals with the punishment for contravention of various provisions of the NDPS Act, such as imprisonment, fine, or both.
5. Section 31 A: This section deal makes provision for the death penalty for certain offenses after previous convection.
6. Section 35: This section requires a culpable mental state to be there for the conviction under this act.
7. Section 36: This section deals with the setting up of Special Courts for the speedy trial of offenses punishable with imprisonment for more than three years.
8. Section 37: This section states that offenses under this act shall be cognizable and non-bailable. 
9. Section 42: This section provides for the power of the authorized officer to search and seize narcotic drugs and psychotropic substances, arrest persons, and conduct investigations. It also deals with the power of the police officer to arrest without a warrant any person who is reasonably suspected of committing an offense under the NDPS Act.
10. Section 50: This section deals with conditions under which a search of a person shall be conducted.

It is important to note that several other sections in the NDPS Act deal with various aspects of the prohibition and regulation of narcotic drugs and psychotropic substances, and their manufacture, production, possession, sale, purchase, transportation, use, and consumption.

Definitions under the act:

Section 2 of the act defines various terms used in the NDPS Act, such as “narcotic drug,” “psychotropic substance,” “manufacture,” “illicit traffic,” etc.

Under section 2 (xiv) of the act, “narcotic drug” means coca leaf, cannabis (hemp), opium, and poppy straw and includes all manufactured drugs;

Under section 2 (xxiii) “Psychotropic substance” means 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 specified in the Schedule;

Section 2 (x) “manufacture”, narcotic drugs or psychotropic substances, includes— (1) all processes other than production by which such drugs or substances may be obtained; (2) refining of such drugs or substances; (3) transformation of such drugs or substances; and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances;

Under section 2 (viiib) “illicit traffic”, about narcotic drugs and psychotropic substances, means— 

1. cultivating any coca plant or gathering any portion of coca plant; 
2. cultivating the opium poppy or any cannabis plant; 
3. engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances; 
4. dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or 
5. handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), 

other than those permitted under this Act, or any rule or order made, or any condition of any license, term, or authorization issued, thereunder, and includes— 

(1) financing, directly or indirectly, any of the aforementioned activities; 

(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and 

(3) harboring persons engaged in any of the aforementioned activities;

Implications of the Act:

The NDPS Act has had several positive impacts on society, some of which are:

1. Control over drug trafficking: The NDPS Act has helped in controlling drug trafficking by imposing strict penalties for drug-related offenses. This has led to a significant reduction in drug-related crimes and has deterred people from getting involved in drug trafficking.
2. Protection of public health: The Act aims to protect public health by regulating the manufacture, distribution, and sale of drugs. This has helped in preventing the misuse and abuse of drugs and has ensured that only licensed and authorized individuals are involved in the sale and distribution of drugs.
3. Rehabilitation of drug addicts: The Act recognizes drug addiction as a medical condition and provides for the rehabilitation of drug addicts. This has helped in reducing the stigma associated with drug addiction and has encouraged drug addicts to seek treatment and recovery.
4. International cooperation: The NDPS Act has helped India cooperate with other countries in the fight against drug trafficking. India is a signatory to several international conventions on drug control, and the Act has helped in fulfilling its obligations under these conventions.
5. Awareness and education: The Act has helped in creating awareness and educating the public about the dangers of drug abuse. This has helped in reducing the demand for drugs and has encouraged people to adopt a healthier and drug-free lifestyle.

While the NDPS Act has been instrumental in curbing drug abuse and trafficking in India, it has also had some negative impacts on society. Here are some of them:

1. Criminalization of drug addiction: The NDPS Act treats drug addiction as a criminal offense rather than a health issue, leading to the stigmatization of drug users and hindering their access to healthcare and rehabilitation services.                                                                                                                                                                                 
2. Harsh punishment: The Act prescribes harsh punishment for drug-related offenses, including imprisonment and fines, which can be disproportionate to the offense committed.                                                                                                                                                                                            
3. Increase in the illegal drug trade: Some experts argue that the Act has led to an increase in the illegal drug trade, as drug traffickers have become more sophisticated in their methods of smuggling and distribution.                    
4. Lack of emphasis on harm reduction: The NDPS Act focuses primarily on law enforcement and punishment, with little emphasis on harm reduction strategies such as drug education, rehabilitation, and harm reduction services.

Amendments to the Act:

The Narcotic Drugs and Psychotropic Substances (NDPS) Act has undergone several amendments over the years to keep up with the changing landscape of drug abuse and trafficking. Some of the key amendments to the act are as follows:

1. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1989: This amendment introduced the death penalty for certain drug offenses involving large quantities of drugs after a previous conviction. It introduced the concept of asset forfeiture, which allows the government to seize assets acquired through drug trafficking.
2. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001: This amendment increased the punishment for certain drug offenses and introduced new offenses, including financing illicit trafficking and using the property for the consumption of drugs.
3. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014: This amendment introduced provisions for the rehabilitation of drug addicts and established special courts for the speedy trial of drug offenses. It also reduced the minimum quantity of certain drugs required for prosecution, making it easier to bring drug traffickers to justice.
4. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2021: The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2021 was passed to replace the Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021.

Judicial Interpretation:

There have been several case laws that have expanded the scope of the NDPS Act. Some of them are:

State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 

In this case, the Supreme Court ruled that “possession” under the NDPS Act includes “conscious possession” and “knowledge of the nature of the substance,” in addition to physical possession. It also stated that all offenses are cognizable and non-bailable under Section 37. 

State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 

In this case, the Supreme Court held that the burden of proving that the accused is not guilty under the NDPS Act lies on the accused himself. The prosecution does not have to prove that the accused is guilty beyond a reasonable doubt.

Shiv Kumar v. State of Haryana, (2016) CWP No.17441 of 2013 decided on 3 August 2016: 

In this case, the Supreme Court held that the presumption of culpable mental state under Section 35 of the NDPS Act is rebuttable. The accused can prove that he had no knowledge of the nature of the substance and that he had taken reasonable care to avoid the commission of an offense under the Act.

Rajiv Sharma v. State of Haryana (2020) CWP No.1298 of 2020: 

The Supreme Court of India held that the recovery of contraband drugs from the possession of the accused, in the absence of any direct evidence connecting the accused to the seized drugs, would not be sufficient to convict the accused under the NDPS Act.

Rhea Chakraborty v. Maharashtra State (2020)– CRIMINAL BAIL APPLICATION (STAMP) NO. 2386 OF 2020: 

The Bombay High Court granted bail to Rhea Chakraborty, an accused in a drug-related case, in this high-profile case because the number of drugs allegedly involved was small and no evidence of her involvement in any drug syndicate or financing of illicit drug traffic had been produced.

Aryan Khan’s case:

The Aryan Khan case involves the Narcotics Control Bureau (NCB) arresting Bollywood actor Shahrukh Khan’s son, Aryan Khan, in Mumbai, India, in October 2021. Aryan Khan and several others were arrested for allegedly consuming and procuring drugs at a cruise ship party.

The case has been widely covered by the media and has sparked a national debate about drug abuse in India and the role of law enforcement agencies in combating it. Several legal issues have also been raised, including questions about the admissibility of evidence, the jurisdiction of the NCB, and the application of the NDPS Act.

As of March 2023, the case is still ongoing, and Aryan Khan and the other accused are out on bail. The NCB has filed a charge sheet in the case, and the trial is yet to begin. The case has also led to increased scrutiny of the NDPS Act and its provisions, with some calling for a review of the law and its implementation.

It is important to note that the interpretation and application of the NDPS Act by the judiciary are constantly evolving.

Criticisms:

The NDPS Act has faced criticism on various grounds, some of which are as follows:

1. Punishments: The Act imposes harsh punishments, including minimum sentences of 10 to 20 years of rigorous imprisonment and fines ranging from Rs 1 lakh to Rs 2 lakh or more. Possession of even a small amount of illegal drugs can lead to imprisonment for ten years. These provisions are impractical and disproportionately affect individuals from rural or poor backgrounds who cannot afford the fines or legal aid.
2. Bail provisions: The Act’s bail provisions are stringent, requiring reasonable grounds to believe that the accused is not guilty and is unlikely to commit further offenses while on bail. This provision, along with the High Court’s limited powers to grant bail, has resulted in long periods of imprisonment without trial, drawing criticism from human rights organizations.
3. Deterrence as a theory of punishment: The Act’s reliance on deterrence as a punishment theory has limitations and exposes a gap in our theoretical understanding of deterrence. Deterrence as a theory has been criticized for failing to account for the social realities that may drive individuals to commit drug-related crimes. A more nuanced approach is needed to address drug-related crimes effectively.
4. Guilty till proven innocent: The Act presumes the guilt of the accused, which places the burden of proving innocence on them. This goes against the principle of “innocent until proven guilty” in the Indian judicial system. Furthermore, bail is rarely granted to those accused of drug-related crimes, leading to long periods of detention during the investigation period.
5. Ambiguity: The Act’s provision of immunity for drug addicts seeking medical treatment has been plagued by ambiguity. Most drug addicts are denied immunity due to technical reasons such as requiring proof of addiction or waiting for the case to be framed. This undermines the Act’s objective of discouraging criminalization and encouraging treatment-seeking.
6. Delays: The Act’s provision of special courts to deal with drug-related cases is often hindered by the additional responsibility of handling other cases, causing undue delays in the disposal of drug-related cases. This delay, combined with the difficulty in finding witnesses, can lead to doubts about the accuracy of evidence and acquittals on insufficient evidence grounds.

Conclusion:

The Narcotic Drugs and Psychotropic Substances (NDPS) Act is a critical piece of legislation in India that aims to combat the country’s drug abuse and trafficking problem. The Act imposes severe penalties and punishments for offenses involving the manufacture, distribution, and use of narcotic drugs and psychoactive substances.

The NDPS Act has significantly reduced drug-related crimes and drug abuse across the country. It has given law enforcement agencies the authority to take harsh action against drug traffickers and has established a legal framework for the rehabilitation of drug addicts.

The Act’s implementation, however, has not been without difficulties. Concerns have been raised about law enforcement agencies abusing the Act and the lack of safeguards for the rights of the accused. There have also been discussions about the Act’s effectiveness in addressing the root causes of drug abuse and the need for a more comprehensive approach to the problem.

To summarize, the NDPS Act is necessary legislation in India to address the issue of drug abuse and trafficking. While the Act has been successful in reducing drug-related crimes, it requires ongoing review and improvement to ensure that it is not abused and that the rights of the accused are protected. At the same time, efforts should be made to address the root causes of drug abuse and to provide assistance for drug addict rehabilitation.