NDPS Act 

Basic Features of the Narcotic Drugs and Psychotropic
Substances Act, 1985

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 as follows:


a)


The cultivation, production, manufacture, possession, sale, purchase, transportation, warehousing, consumption, inter-State movement, transshipment and import and export of narcotic drugs and psychotropic substances is prohibited, except for medical or scientific purposes and in accordance with the terms and conditions of any license, permit or authorization given by the Government. (Section 8)

 

b)

The Central Government is empowered to regulate the cultivation production, manufacture, import, export, sale, consumption, use etc of narcotic drugs and psychotropic substances. (Section 9).

 

c)

State Governments are empowered to permit and regulate possession and inter-State movement of opium, poppy straw, the manufacture of medicinal opium and the cultivation of cannabis excluding hashish. (Section 10).

 

d)

All persons in India are prohibited from engaging in or controlling any trade whereby narcotic drugs or psychotropic substances are obtained outside India and supplied to any person outside India except with the previous authorisation of the Central Government and subject to such conditions as may be imposed by the Central Government. (Section 12).

 

e)

The Central Government is empowered to declare any substance, based on an assessment of its likely use in the manufacture of narcotics drugs and psychotropic substances as a controlled substance. (Section 9-A).

 

f)

Assets derived from drugs trafficking are liable to forfeiture (Chapter V-A).

 

g)

Both the Central Government and State Governments are empowered to appoint officers for the purposes of the Act.(Sections 4, 5 and 7).

 

The NDPS Act is in effect a comprehensive code not only for the control and regulation of Narcotics Drugs and Psychotropic Substances; but also for the control of selected chemicals - commonly known as precursors - which can be used in the illicit manufacture of narcotic drugs and psychotropic substances, as well as for the investigation and forfeiture of drug related assets.

ENFORCEMENT

Given India's size and the federal nature of our polity, a number of agencies both at the Centre and in 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 at 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 deaddiction, rehabilitation and social reintegration of addicts.

Section 4(3) of the Act envisages the creation of a Central Authority to coordinate the activities of the various Central and State agencies involved in drug law enforcement, to implement India's obligations under various international conventions, and to coordinate with international organizations and authorities in foreign countries in the prevention and suppression of the illicit traffic in narcotic drugs and psychotropic substances. In terms of this provision, the Narcotics Control Bureau was set up by the Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally.

The empowerment of a large number of agencies under the NDPS Act ensures that India's drug laws are enforced effectively on the ground. The NCB basically functions as the national coordinator international liaison and as the nodal point for the collection and for dissemination of intelligence. This system assures coordinated implementation within the parameters of a broad national strategy.

INVESTIGATIVE PROCEDURES

Chapter V of the NDPS Act (Sections 41 to 68) sets out the powers as well as the procedures for the investigation of offences under the Act. This Chapter empowers officers duly authorized by the Central Government or a State Government to issue warrants, to enter and search premises, to stop and search conveyances, to seize narcotic drugs and psychotropic substances, to take statements and to arrest persons suspected of having committed an offence, punishable under the Act.

The power to issue search and arrest warrants, is in terms of Section 41, been vested both in Magistrates as well as in specially designated (Gazetted) officers of the Central and State Governments. This is designed to ensure both timely and effective action in response to any information. In addition, both the Central and the State Governments are authorized to entrust any Officer duly empowered under the Act with the powers of an Officer-in-Charge of a Police Station for the investigation of offences under the Act. It needs to be noted, however, that while the powers to search, seize, arrest etc., are inherent in the Act, all these are subject to both the substantive and procedural safeguards mandated by the Code of Criminal Procedure, in relation, inter-alia, to the presence of independent witnesses at a search, the drawing up of search lists or panchanamas, and the constitutional obligation to produce an arrested person before a Judge within 24 hours etc.

LICIT OPIUM CULTIVATION

Section 8 of the NDPS Act, inter-alia, prohibits the cultivation of the opium Poppy, except for medical and scientific purposes and in accordance with the terms and conditions of a license, permit or authorization given by the Government. Section 9, inter-alia, empowers the Central Government to permit and regulate the cultivation of the opium poppy. Section 5 requires the Central Government to appoint a Narcotics Commissioner who shall exercise all powers and perform all functions relating to the superintendence of the cultivation of the opium poppy and the production of opium.

India is the largest licit producer of opium in the world, which is both exported as well as used by the domestic pharmaceutical industry. The licit cultivation of opium in India is regulated and controlled by the Narcotics Commissioner of India in terms of the provisions of Sections 8, 9 and 5 of the NDPS Act. The Central Government announces an opium policy each year which sets out the terms and conditions subject to which licenses for the cultivation of opium shall be given, the areas where cultivation shall be allowed, the prices at which the opium crop shall be purchased by the Government and the minimum qualifying yield for a license in the ensuing crop year. The crop cycle runs from October to May. Based on this policy, the Narcotics Commissioner of India issues licenses to individual cultivators for specified tracts of land. The key elements of the licit opium control regime in India are as follows:

 

i)

Opium can be cultivated only on fields specifically licensed for the purpose.

ii)

The entire crop must be tendered to the Central Government at prices fixed by the Government.

iii)

Failure to tender the minimum qualifying yield can disentitle the cultivator to a license in the following crop season.

 

These policy controls are backed by strict enforcement on the ground which include the measurement of fields, periodical crop surveys and physical checks to prevent diversion. Failure to tender the entire yield to the Government is treated as a serious offence and any cultivator who embezzles or otherwise illegally disposes of the opium produced by him, is in terms of section 19 of the Act, punishable with rigorous imprisonment for a term of between 10 to 20 years and a fine which shall not be less than Rs.100,000/- but which may extend to Rs.200,000/-.

SPECIAL PROVISIONS RELATING TO FORFEITURE OF PROPERTY.

A new Chapter, Chapter V-A, was introduced into the Act in May 1989 to provide for the investigation, freezing, seizure and forfeiture of property derived from or acquired through illicit trafficking in narcotic drugs and psychotropic substances. This Chapter prohibits any person from holding any property derived from drug trafficking and authorizes officers empowered under the Act to investigate, identify and seize such property. The Chapter also sets out a quasi- judicial procedure for the forfeiture of such property consequent to which it shall vest in the Central Government.


OFFENCES AND PENALTIES

Chapter IV, (Sections 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 monetory fines. In addition to persons directly involved in trafficking narcotic drugs and psychotropic substances, any person who finances trafficking or harbours a person involved 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 Act was amended in May 1989 to mandate the death penalty for second offences relating to contraventions involving more than certain quantities of specified narcotic drugs and psychotropic substances.

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 following two qualifications:

 

i)

The quantity of the drug involved in the offence should be a small quantity as specified by the Central Government.

ii)

The onus is on the accused to establish that the drug in question was meant for personal consumption and not for sale, distribution etc

 

PRECURSOR CONTROL

The 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to which India is a signatory, requires Parties to impose controls on the manufacture, internal distribution and import and export of chemicals which can be used in the illicit manufacture of narcotic drugs and psychotropic substances. In order to implement India's obligations under this Convention, the NDPS Act was amended in 1993 in order to empower the Central Government to declare any substance as a controlled substance and to regulate its manufacture, import and export etc. (Section 9-A). Violations relating to such substances were established as criminal offences punishable with imprisonment for upto 10 years (Section 25-A). In 1993, the Government of India promulgated the NDPS (Regulation of Controlled Substances) Order, to regulate the manufacture, distribution etc., of any substance declared to be a "Controlled Substance".

In exercise of its powers under the Act, the Central Government has so far notified Acetic Anhydride, which is used in the processing of opium into heroin, N-Acetylanthranilic acid which is used in the illicit manufacture of Methaqualone and Ephedrine and Pseudoephedrine, which are used in the illicit manufacture of amphetamine type stimulants, as controlled substances.