NDPS Act : An Overview

Introduction
The Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 was passed with the intent of regulatory drug abuse and prohibiting the use, dispersal, manufacture, and trade of drugs. Moreover, NDPS does not differentiate between drug users, drug dealers, and hard-core criminals involved in this trade. Any individual is barred from manufacturing, producing, cultivating, possessing, selling, purchasing, transporting, storing or consuming any drug or substance that is considered without permission from the appropriate authorities.

NDPS Act - Punishment
The NDPS Act proposes punishment according to the quantity of seized drugs. Depending on the severity of the offence, the degree of punishment will vary. A lesser punishment may be executed if the drugs were used for personal purposes. In response to alterations, it now divides punishment into three categories depending on the number of drugs seized, as well as allowing judicial discretion in terms of punishment severity. In the case of cannabis, punishments for the cultivation of the plant may include hard imprisonment for up to 10 years, in accumulation to a fine that may be as high as Rs.1 lakh.

As long as the quantity is less than a commercial quantity but greater than a small quantity, the convict may face an intense jail term of up to 10 years and a fine of up to Rs.1 lakh. The Act provides for rigorous punishment of recurrence lawbreakers, counting jail time of up to one and one-half times the all-out term of imprisonment, as well as a fine of up to one and one-half times the maximum fine.

Important sections under the NDPS Act

The following are the important sections under the NDPS Act:

Section 3
In Section 3 of the NDPS Act, the Central Government has the right to add or remove such substances or natural ingredients or salts or preparations of such substances or materials from the list of psychotropic substances. In a very simple way, the government can do so at any specified time simply by informing in the official gazette without passing any legislation or amending the laws based on available information or a decision based on an international convention.

Section 7A and Section 7B
The Central Government is empowered under Section 7A to form a fund called the National Fund for Control of Drug Abuse. Specifically, the fund is intended to be used to cover expenses incurred in connection with the measures taken to combat illicit trading in narcotic drugs and psychotropic substances. Among the provisions of Section 7B, the Central Government must submit an annual report on the activities that are funded by this fund.

Section 8(c)
According to Section 8(c), It is illegal for anyone to nurture any coca plant or gather any Portion of coca plant, or cultivate the opium poppy or any cannabis plant or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance.

However, the following is an exception to the section:
‘Medical or Scientific Purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder.’ In State Of Uttaranchal vs Rajesh Kumar Gupta (2006), it was held that the exceptions must be judged on two criteria: first, whether the drugs are used for medicinal purposes, and second, whether they fall within the scope of the regulatory provisions contained in Chapters VI and VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985.

In Union of India & Anr vs Sajeev V. Deshphande (2014), the Court held that under Section 8(c), the prohibition would be attracted to drugs that are not mentioned in Schedule I to NDPS Rules but are mentioned in Schedule I to NDPS Act, and to the drugs intended for medicinal and scientific purposes, because they are prohibited by NDPS Act. It is not contemplated in the NDPS Act to write any rules prohibiting various activities that involve narcotic drugs and psychotropic substances. With regards to dealing with such substances, it merely involves the framing of rules that permit and regulate such activities. Under Section 8(c), certain activities are expressly prohibited (such as the import and export of narcotic drugs and psychotropic substances out of India in the present case). The rules adopted under the NDPS Act should not be interpreted in a manner that overrides the rights and obligations found in the parent act. Furthermore, the Court made it clear that just because narcotic drugs and psychotropic substances are being dealt with for medical or scientific purposes, it cannot itself lift the prohibition created under Section 8(c). The dealing must be done in accordance with the NDPS Act, Rules and Orders, in the manner and to the extent specified.

Section 27
Various punishments are laid out in this section for the consumption of narcotic drugs or psychotropic substances, such as harsh imprisonment up to 1 year, or a fine that could reach twenty thousand rupees, or both, and upon consumption of a narcotic drug or psychotropic substance other than cocaine, diacetyl-morphine, or any other narcotic drugs or psychotropic substances, a prison term up to 6 months may be imposed, or a fine of Rs 10,000 may be imposed, or both.

In Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, the Court held that in order to satisfy Section 27, the following requirements must be met:

• An individual has been found in possession of any narcotic drug or psychotropic substance, even if the quantity is ‘small’;
• The possession of such goods should, therefore, be in violation of any provision of the Act, any rule or order made under it, or any permit issued thereunder; and
• Any such narcotics or psychotropic substances that were in his possession were intended for his personal use and not for resale/distribution.

In Anil Kumar v. State of Punjab (2017), the Court stated that if a person who is already imprisoned is convicted of a subsequent criminal offence, the prison term would normally begin when the person has served the original sentence. A court can only run the sentence concurrently with an earlier sentence if it is appropriate, considering the specific facts of the case. It is necessary that the court exercise such discretion in accordance with sound judicial principles and not mechanically. It depends on the nature of the offence/offences and the facts and circumstances of each case as to whether discretion is to be exercised in directing sentences to run concurrently.

Section 36A
A clause in Section 36A of the NDPS Act called ‘non-obstante’ empowers the Special Court to hear cases punishable by imprisonment for more than three years.

This provision is intended to ensure speedy trials. Following are some of the features:

• Under the NDPS Act, the government can set up Special Courts to speed up the prosecution of offences.
• Through a notification to the official gazette, it will be set up in particular areas or areas.
• The Special Court shall be considered to be a Court of Session.
• There shall be one judge of the Special Court, who will be appointed by the government with the concurrence of the Chief Justice of the High Court. To qualify for an appointment as a Special Court judge, a judge must first be a sessions judge or additional sessions judge.
• Under the NDPS Act, all of the offences punishable with a term of imprisonment over three years can be tried by a Special Court.
• By reviewing a police report or a complaint made by a state official or a central official, a Special Court will determine whether there was an offence.
• Besides the offenses under the NDPS Act, the Special Court has also been empowered with the authority to try an accused who has also been accused of other criminal offences under the Code of Criminal Procedure, 1973 (CrPC).
• Proceedings before a Special Court will be governed by the provisions of the CrPC, including those pertaining to bail and bonds.
• In the case of a Special Court, the person prosecuting the case shall be considered a public prosecutor.

Section 41
In Section 41 of the Act, magistrates have the authority to issue search warrants as well as specially designated Gazetted officers of the central excise department, narcotics department, customs department, revenue intelligence unit, or any other department of the state. As a result, actions can be taken promptly as well as effectively when receiving information.

Section 50
Section 50 of the NDPS Act provides that a person can request a search be conducted by a magistrate or gazetted officer and that the officer can detain the person until the magistrate is brought in. It is, however, possible for the officer to proceed to search the person pursuant to Section 100 of the Code of Criminal Procedure, 1973 if he has reason to believe that the person cannot be taken to the nearest constituted officer or magistrate without the likelihood of the person being found in possession of any narcotic drugs or psychotropic substances. The search warrant shall state the reasons for such belief, and a copy thereof shall be sent to his immediate supervisor within 72 hours.

Section 64A
This is an appreciable initiative on the part of the government whereby addicts are offered a chance to seek medical treatment and for which they are not liable. In order to make use of Section 64A, an addict must be charged under Section 27 of the NDPS Act or with an offence involving a small number of narcotic drugs or psychotropic substances. Moreover, he shall seek voluntary medical treatment for de-addiction; if he undergoes medical treatment for de-addiction, he will not be indicted under the provisions of section 27 or under any other provision for offences involving a small number of narcotics or psychotropic substances. However, if the addict doesn’t receive complete treatment to overcome the addiction, this immunity can be lost.

Bail under the NDPS Act
As a matter of law, it is well established that a liberal approach in the area of narcotics and psychotropic substances is inappropriate. The Supreme Court has laid down parameters in its various judgments through which it has been provided as to what is required to be considered when the accused is seeking bail for an offence under the NDPS Act.

The Apex Court in the case of Union of India v. Ram Samujh and Ors. (1999) observed that “….It should be borne in mind that in a murder case, the accused murders one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death−blow on several innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely.” Accordingly, bail is treated differently in narcotics cases than it is in general. Generally, bail is a rule and jail belongs to the exception category, whereas, in cases of NDPS, jail belongs to the rule category and bail belongs to the exception category. It should be noted that Section 37 of the NDPS Act deals with the issue of cognizable and non-bailable offences. In Section 27 of the NDPS Act, it is stated that all offences punishable under the Act are cognizable and that no person accused of an offence punishable under the Act will be released on bail or his bail unless certain conditions are met. This section applies to offences under Section 19 or Section 24 or Section 27A and also to offences that involve commercial quantity.

The following conditions must be met before bail can be granted under the Act:

• The accused has reasonable grounds to believe that he is not guilty of the offence.
• The fact is that if bail is granted, the defendant is unlikely to commit any crime while out on bail.

In another case of State of Kerala v. Rajesh, the Apex Court observed that, “The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with a non−obstante clause.”

Under said section, the operative part is in the negative form which prescribes that no person accused of commission of an offence under the Act is entitled to an extension of bail unless both of the following conditions are met:

• The prosecution must have a chance to object to the application.
• The decision can only be made if the court is satisfied that there are reasonable grounds to believe that he is not guilty of the offence.

It is not possible to grant bail if either of these conditions is not met. The pertinent point to note is that, when there is a conflict between Section 37 of the NDPS Act and Section 439 of the Code of Criminal Procedure, 1973 (CrPC), Section 37 of the NDPS Act prevails.

In the case of Hakim@pilla v. the State of Rajasthan S.B (2019)., the Court noted that Section 37 of the NDPS Act is titled ‘offences to be cognizable and non-bailable. The section, however, begins with a non-obtante clause that states that whatever offences are punishable under the Act will be cognizable. The legislation does not prohibit bail for every crime. There are also offences under other laws discussed in Schedule I of the CrPC. In Part II of the First Schedule, item No.3 stipulates that if the offence in question is punishable with imprisonment for less than three years under other law, it is bailable and non-cognizable.

Under Section 21 of the NDPS Act, the offence of possession of a small quantity of Ganja (up to 1 kg) can result in a six-month prison sentence and a fine. The offence is cognizable by virtue of Section 37(1) of the NDPS Act, however as stated in Item No.3 in the list (in Part II of the First Schedule), the offence is bailable.

In the case of Rhea Chakraborty v. The Union of India and Ors. (2020), the Supreme Court took precedents from the State of Punjab v. Baldev Singh (1999). According to the Court, Section 37 of the Punjab Incarceration Act makes all offences under the Act to be cognizable offences and non-bailable offences as well as provides stringent conditions for the grant of bail. Relying on the same, Justice Kotwal noted that “the situation has not changed since 1999 when these observations were made by the Hon’ble Supreme Court”. These observations are therefore applicable to today’s scenario with greater force, which is why the Hon’ble Supreme Court’s ruling in Baldev Singh is binding and all offences under the NDPS Act are non-bailable.

Presumption of culpable mental state under the NDPS Act
In criminal law, there is a fundamental principle known as the ‘Presumption of Innocence’, which states that an accused is innocent until proven guilty. This fundamental principle is derived from the maxim “Semper necessitas probandi incumbitei qui agit”. This means that the burden of proof lies with the person who is charging you. Section 35 of the NDPS Act deals with the presumption of the culpable mental state of an accused. This implies that the court will presume that the accused has such a mental state to proceed with the prosecution.

The Supreme Court of India in Naresh Kumar alias Nitu v. State of Himachal Pradesh held that the presumption of guilt under Section 35, and the requirement of satisfactory explanations of possession under Section 54, are rebuttable. Nonetheless, the prosecution remains responsible for proving the charges beyond any reasonable doubt. Specifically, Section 35(2) states that a fact can be regarded as proved if it is established beyond a reasonable doubt and not by the preponderance of the probabilities.

Furthermore, in Noor Aga v. State of Punjab and Ors (2008), the Apex Court held that Sections 35 and 54 impose a reverse burden on the accused, and thus, are constitutional. The standard of proof required by the accused to prove his innocence is lower than that required by the prosecution.

‘Conscious’ refers to a deliberate or intended state of mind. In Gunwantlal v. the State of M.P., it was pointed out that possession in a given instance need not necessarily be physical, but maybe constructive such that the person who physically holds it, shall be subject to such power or control. ‘Possession’ refers to the right to possess. As stated in Sullivan v Earl of Caithness, wherein a person kept his firearm in his mother’s apartment, which was in a safer environment than his own home, he should be considered to be in possession of that firearm. Upon establishing possession, the person claiming that it was not conscious possession must demonstrate its nature, since his knowledge of how he came to be in possession enables him to do so. Section 35 of the Act provides statutory recognition to this position based on the legal presumption. In accordance with Section 54, it is also possible to draw a presumption of guilt based on the evidence that is in possession of illicit objects.

There have been numerous judicial pronouncements made concerning the said term. All of them are interconnected but vary according to facts and circumstances. In the case of Dharampal Singh v. the State of Punjab (2010), it was discovered that the co-accused was driving a car that contained 65 kilograms of opium. It was acknowledged by the court that the automobile was not a public conveyance, therefore it could not be said that the passenger was in conscious possession of the recovered substance. Further, it was stated that once possession is established, the court may presume that the accused possessed a culpable state of mind and the offence was committed.

It should also be noted that in Solabkhan Gandhkhan Pathan v. the State of Gujarat (2003), there were issues of validity of conscious possession when the accuser was simply a travelling passenger on an autorickshaw as well as carrying illicit drugs with him. The court, however, upheld the validity of conscious possession. It was ruled that the suspect did not possess either physical possession or the preconceived notion or motive to commit the offence under the prescribed statutory provision. The accused was acquitted. The court concluded that both physical and mental possession was necessary for an offence to occur under the NDPS Act.

Further, in Madan Lal and Anr v. State of Himachal Pradesh (2003), the court held that the same act would not be considered a criminal offence under Section 20 of the NDPS Act until physical possession is coupled with a mental state of mind, and the possession is taken without cognizance of the nature of the possession.

Therefore, the courts have repeatedly held that physical possession must be coupled with mental control over illicit drugs or psychoactive ingredients. In addition, the court even stated that the expression ‘possession’ has a multitude of different meanings, depending on the context in which it is used. It can, therefore, be deduced that the term ‘conscious possession’ is subjective and therefore needs to be handled accordingly and with some caution in various case scenarios.

Conclusion
The drug problem in India is much worse than it appears. In ancient India, ganja, charas, and other psychoactive substances were used for healing, pain relief, and even psychotherapy. India had no law criminalizing possession or use of drugs prior to 1985. Now, it is important to note that the NDPS Act contains several provisions that specify serious punishments. For example, according to Section 37, the right to bail cannot be granted for more serious offences. Compared to the Unlawful Activities (Prevention) Act, 1976 (UAPA), this legislation was more draconian and the courts tended to be hesitant to release people on bail as a result.

Numerous laws are intended to solve societal problems, however, when they are misused, they can become brutal. It is more likely for draconian legislation to emerge when the legislation becomes more stringent. In light of its strict nature, the NDPS has the potential to be misused even more. Therefore, the Courts are required to ensure the law does not become weaponized and justice is administered to all segments of society.