Narcotic Drugs and Psychotropic Substances Act, 1985

Single Convention on Narcotic Drugs Parliament of India Methadone

Narcotic Drugs and Psychotropic Substances Act, 1985
Narcotic Drugs and Psychotropic Substances Act, 1985
Parliament of India
CitationAct No. 61 of 1985
Territorial extentIndia
Assented to16 September 1985
Commenced14 November 1985
Legislative history
BillThe Narcotic Drugs and Psychotropic Substances Bill, 1985
Bill published on23 August 1985
Amended by
1988, 2001 and 2014
Related legislation
Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988
Status: Amended

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. The bill was introduced in the Lok Sabha on 23 August 1985. It was passed by both the Houses of Parliament, received assent from then President Giani Zail Singh on 16 September 1985, and came into force on 14 November 1985. The NDPS Act has since been amended thrice — in 1988, 2001 and 2014. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.

The Narcotics Control Bureau was set up under the act with effect from March 1986. The Act is designed to fulfill India's treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Background

India had no legislation regarding narcotics until 1985. Cannabis smoking in India has been known since at least 2000 BC[1] and is first mentioned in the Atharvaveda, which dates back a few hundred years BC.[2] The Indian Hemp Drugs Commission, an Indo-British study of cannabis usage in India appointed in 1893, found that the "moderate" use of hemp drugs was "practically attended by no evil results at all", "produces no injurious effects on the mind" and "no moral injury whatever". Regarding "excessive" use of the drug, the Commission concluded that it "may certainly be accepted as very injurious, though it must be admitted that in many excessive consumers the injury is not clearly marked". The report the Commission produced was at least 3,281 pages long, with testimony from almost 1,200 "doctors, coolies, yogis, fakirs, heads of lunatic asylums, bhang peasants, tax gatherers, smugglers, army officers, hemp dealers, ganja palace operators and the clergy."[3][4]

Cannabis and its derivatives (marijuana, hashish/charas and bhang) were legally sold in India until 1985, and their recreational use was commonplace. Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians as the poor man's intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961. However, India opposed the move, and withstood American pressure to make cannabis illegal for nearly 25 years. American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India.

[5][6]

Chapters

Chapter I:Preliminary

1. Short title, extent and commencement

The short title for the Act is the Narcotic Drugs and Psychotropic Substances Act, 1985. It extends to the whole of India. It came into force after the Central Government notified it in the Gazette of India on 14 November 1985.[7]

2. Definitions

Section 2 of the Act defines the various terms used in it, unless the context otherwise requires. Some of the definitions are listed below. Words and expressions used in the Act, and not defined, but defined in the Code of Criminal Procedure, 1973 have the meanings respectively assigned to them in that Code.

For the purposes of clauses "coca derivative", "coca leaf", "opium" and "opium derivative" the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one milliliter of substances, if liquid, is contained in every one hundred milliliter of the preparation and so on in proportion for any greater or less percentage, provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribe, by rules, any other basis which it may deem appropriate for such calculation.[7]

3. Power to add to or omit from the list of psychotropic substances

The Central Government may, if satisfied that it is necessary or expedient so to do on the basis of the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material; and the modifications or provisions (if any) which have been made to, or in, any International Convention with respect to such substance, natural material or salt or preparation of such substance or material, by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the Schedule such substance or natural material or salt or preparation of such substance or material.[7]

Chapter II:Authorities And Officers

4. Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc.

Subject to the provisions of this Act, the Central Government can take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic. These measures include with respect to all or any of the following matters, namely

The Central Government may also by order, published in the Official Gazette, constitute an authority or a hierarchy of authorities by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under this Act and for taking measures with respect to such of the matters referred to above as may be mentioned in the order, and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers and take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers and take such measures.[7]

5. Officers of the Central Government

The Central Government appointed a Narcotics Commissioner under this section of the Act, and may also appoint such other officers with such designations as it thinks fit for the purposes of this Act. The Narcotics Commissioner shall, either by himself or through officers subordinate to him, exercise all powers and perform all functions relating to the superintendence of the cultivation of the opium poppy and production of opium and shall also exercise and perform such other powers and functions as may be entrusted to him by the Central Government. The appointed officers are subject to the general control and direction of the Central Government, or, if so directed by that Government, also of the Central Board of Excise and Customs or any other authority or officer.[7]

6. The Narcotic Drugs and Psychotropic Substances Consultative Committee

The Central Government may constitute, by notification in the Official Gazette, an advisory committee to be called "The Narcotic Drugs and Psychotropic Substances Consultative Committee" (hereafter in this section referred to as the Committee) to advise the Central Government on such matters relating to the administration of this Act as are referred to it by that Government from time to time. The Committee shall consist of a Chairman and such other members, not exceeding twenty, as may be appointed by the Central Government. The Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure. The Committee may, if it deems it necessary so to do for the efficient discharge of any of its functions, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person (including a non-official) who is not a member of the Committee. The term of office of, the manner of filling casual vacancies in the offices of and the allowances, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint a person who is not a member of the Committee as a member of any of its sub-committees, shall be such as may be prescribed by rules made by the Central Government.

7. Officers of State Government

The State Government may appoint such officers with such designations as it thinks fit for the purposes of this Act. The appointed officers are subject to the general control and direction of the State Government, or, if so directed by that Government, also of any other authority or officer.[7]

Chapter IIA:National Fund For Control Of Drug Abuse

7A. National Fund for Control of Drug Abuse

The Central Government may, by notification in the Official Gazette, constitute a Fund to be called the National Fund for Control of Drug Abuse (hereafter in this Chapter referred to as the Fund) and there shall be credited thereto:

The Fund shall be applied by the Central Government to meet the expenditure incurred in connection with the measures taken for combating illicit traffic in, or controlling abuse of, narcotic drugs and psychotropic substances for all or any of the purposes specified in sub-section (1) of section 71 of the Act. The Central Government may constitute a Governing Body as it thinks fit to advise that Government in regard to the application of the Fund. The Governing Body shall consist of a Chairman (not below the rank of an Additional Secretary to the Central Government) and such other members not exceeding six as the Central Government may appoint. The Governing Body shall have the power to regulate its own procedure.[7]

7B. Annual report of activities financed under the Fund

The Central Government shall, as soon as may be, after the end of each financial year, cause to be published in the Official Gazette, a report giving an account of the activities financed under the previous section during the financial year, together with a statement of accounts.[7]

Chapter III:Prohibition, Control And Regulation

8. Prohibition of certain operations

This section prohibits any person from cultivating any coca plant or gathering any portion of coca plant; or cultivating the opium poppy or any cannabis plant; or producing, manufacturing, possessing, selling, purchasing, transporting, ware-housing, using, consuming, import inter-State export inter-State import into India, exporting from India or transshipment of any narcotic drug or psychotropic substance, except for 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 and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization.[7]

Nothing in this section applies to the export of poppy straw for decorative purposes.[7]

9. Power of Central Government to permit, control and regulate.

Subject to the provisions of section 8, the Central Government may, by rules, permit, regulate and prescribe any other matter requisite to render effective the control of the Central Government over any of the matters specified below:

In particular and without prejudice to the generality of the foregoing power, such rules may:

9A. Power to control and regulate controlled substances

If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. An order made thereunder may provide for regulating by licenses, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled substance.[7]

10. Power of State Government to permit, control and regulate Subject to the provisions of section 8, the State Government may, by rules, permit, regulate, and prescribe any other matter requisite to render effective the control of the State Government over any of the matters specified below:

  1. the possession, transport, import inter-State, export inter-State, warehousing, sale, purchase, consumption and use of poppy straw.
  2. the possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of opium;
  3. the cultivation of any cannabis plant, production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of cannabis (excluding charas);
  4. the manufacture of medicinal opium or any preparation containing any manufactured drug from materials which the maker is lawfully entitled to possess;
  5. the possession, transport, purchase, sale, import inter-State, export inter-State, use or consumption of manufactured drugs other than prepared opium and of coca leaf and any preparation containing any manufactured drug;
  6. the manufacture and possession of prepared opium from opium lawfully possessed by an addict registered with the State Government on medical advice for his personal consumption

Provided that save in so far as may be expressly provided in the rules made under points 4 and 5, nothing in section 8 shall apply to the import inter-State, export inter-State, transport, possession, purchase, sale, use or consumption of manufactured drugs which are the property and in the possession of the Government, provided further that such drugs as are referred to in the preceding proviso shall not be sold or otherwise delivered to any person who, under the rules made by the State Government under the aforesaid sub-clauses, is not entitled to their possession.[7]

In particular and without prejudice to the generality of the foregoing power, such rules may:

11. Narcotic drugs and psychotropic substances, etc., not liable to distress or attachment

Notwithstanding anything to the contrary contained in any law or contract, no narcotic drug, psychotropic substance, coca plant, the opium poppy or cannabis plant shall be liable to be detained or attached by any person for the recovery of any money under any order or decree of any court or authority or otherwise.[7]

12. Restrictions over external dealings in narcotic drugs and psychotropic substances

No person shall engage in or control any trade whereby a narcotic drug or psychotropic substance is obtained outside India and supplied to any person outside India save with the previous authorization of the Central Government and subject to such conditions as may be imposed by that Government in this behalf.[7]

13. Special provisions relating to coca plant and coca leaves for use in the preparation of flavoring agent

Notwithstanding anything contained in section 8, the Central Government may permit, with or without conditions, and on behalf of Government, the cultivation of any coca plant or gathering of any portion thereof or the production, possession, sale, purchase, transport, import inter-State, export inter-State or import into India of coca leaves for use in the preparation of any flavoring agent which shall not contain any alkaloid and to the extent necessary for such use.[7]

14. Special provision relating to cannabis

Notwithstanding anything contained in section 8, Government may, by general or special order and subject to such conditions as may be specified in such order, allow cultivation of any cannabis plant for industrial purposes only of obtaining fiber or seed or for horticultural purposes.[7]

Chapter IV:Offences And Penalties

Chapter IV describes offences under the Act, and the punishments to be applied for contravening provisions of the Act. The various sections under this chapter prescribe a minimum term of rigorous imprisonment of 10 years, which may extend to 20 years for offenders, and also a fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. In all cases, the court may impose a higher fine, for reasons to be recorded in the judgment.

15. Punishment for contravention in relation to poppy straw

Any person who contravenes any provision of this Act, or any rule or order made or condition of a license granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

16. Punishment for contravention in relation to coca plant and coca leaves

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

17. Punishment for contravention in relation to prepared opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

18. Punishment for contravention in relation to opium poppy and opium

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

19. Punishment for embezzlement of opium by cultivator

Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

20. Punishment for contravention in relation to cannabis plant and cannabis

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, cultivates any cannabis plant; or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable:

21. Punishment for contravention in relation to manufactured drugs and preparations.

Any person who contravenes any provision of this Act, or any rule or order made or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

22. Punishment for contravention in relation to psychotropic substances.

Any person who contravenes any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, export inter-State, or uses any psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten year but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

23. Punishment for illegal import into India, export from India or transshipment of narcotic drugs and psychotropic substances.

Any person who contravenes any provision of this Act or any rule or order made or condition of license or permit granted or certificate or authorization issued thereunder, imports into India or exports from India or transships any narcotic drug or psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees.

24. Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12

Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such authorization granted under section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees.

25. Punishment for allowing premises, etc., to be used for commission of an offence

Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

25A. Punishment for contravention of orders made under section 9A

If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees.

26. Punishment for certain acts by licensee or his servants

If the holder of any license, permit or authorization granted under this Act or any rule or order made thereunder or any person in his employ and acting on his behalf:

27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance.

Any person who contravenes any provision of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable:

For the purposes of this section "small quantity" means such quantity as may be specified by the Central Government by notification in the Official Gazette. If a person is found to be in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person.

27A. Punishment for financing illicit traffic and harboring offenders

Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbors any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

28. Punishment for attempts to commit offences

Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

29. Punishment for abetment and criminal conspiracy.

Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning for this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which would constitute an offence if committed within India; or under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

30. Preparation.

If any person makes preparation to do or omits to do anything which constitutes an offence punishable under any of the provisions of section 15 to section 25 (both inclusive) and from the circumstances of the case it may be reasonably inferred that he was determined to carry out his intention to commit the offence but had been prevented by circumstances independent of his will, he shall be punishable with rigorous imprisonment for a term which shall not be less than one-half of the minimum term (if any), but which may extend to one-half of the maximum term, of imprisonment with which he would have been punishable in the event of his having committed such offence, and also with fine which shall not be less than one-half of the minimum amount (if any), of fine with which he would have been punishable, but which may extend to one-half of the maximum amount of fine with which he would have ordinarily (that is to say in the absence of special reasons) been punishable, in the event aforesaid.

31. Enhanced punishment for certain offences after previous conviction.

If any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under section 15 to section 25 (both inclusive) is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence punishable under:

Where any person is convicted by a competent court of criminal jurisdiction outside India under any law corresponding to the provisions of section 15 to section 25 (both inclusive), section 28 and section 29, such person, in respect of such conviction, shall be dealt with for the purposes of point 1 as if he had been convicted by a court in India.

31A. Death penalty for certain offences after previous conviction
32. Punishment for offence for which no punishment is provided.

Any person who contravenes any provision of this Act or any rule or order made, or any condition of any license, permit or authorization issued thereunder for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

32A. No suspension, remission or commutation in any sentence awarded under this Act

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted.

33. Application of section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.

Nothing contained in section 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under section 26 or section 27.

34. Security for abstaining from commission of offence.

Whenever any person is convicted of an offence punishable under any provision of Chapter IV and the court convicting him is of opinion that it is necessary to require such person to execute a bond for abstaining from the commission of any offence under this Act, the court may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without sureties, for abstaining from commission of any offence under Chapter IV during such period not exceeding three years as it think fit to fix. The bond shall be in such form as may be prescribed by the Central Government and the provisions of the Code of Criminal Procedure, 1973, shall, in so far as they are applicable, apply to all matters connected with such bond as if it were a bond to keep the peace ordered to be executed under section 106 of that Code. If the conviction is set aside on appeal or otherwise, the bond so executed shall become void. An order under this section may also be made by an appellate court or by the High Court or Sessions Judge when exercising the powers of revision.

35. Presumption of culpable mental state.

In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

36. Constitution of Special Courts

The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. In this section, "High Court" means the High Court of the State in which the Session Judge or the Additional Sessional Judge of a Special Court was working immediately before his appointment as such Judge. A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.

36A. Offences triable by Special Courts

All offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. When a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate, provided that where such Magistrate considers when such person is forwarded to him as aforesaid; or upon or at any time before the expiry of the period of detention authorized by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction.

The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section. A Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in the behalf, take cognizance of that offence without the accused being committed to it for trial. When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.

36B. Appeal and revision

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.

36C. Application of Code to proceedings before a Special Court.

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

36D. Transitional provisions

Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted under section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session, provided that offences punishable under sections 26, 27 and 32 may be tried summarily. Nothing in this section shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session and the same shall be heard and disposed of by the Court of Session.

37. Offences to be cognizable and non-bailable

Every offence punishable under this Act shall be cognizable; and no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on granting of bail are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.

38. Offences by companies.

If an offence under Chapter IV has been committed by a company, every person, who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, provided that nothing contained in this section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

Notwithstanding anything contained above, where any offence under Chapter IV has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director (in relation to a firm, means a partner in the firm), manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

39. Power of court to release certain offenders on probation.

When any addict is found guilty of an offence punishable under section 27 and if the court by which he is found guilty is of the opinion, regard being had to the age, character, antecedents or physical or mental condition of the offender, that it is expedient so to do, then, notwithstanding anything contained in this Act or any other law for the time being in force, the court may, instead of sentencing him at once to any imprisonment, with his consent, direct that he be released for undergoing medical treatment for de-toxification or de-addiction from a hospital or an institution maintained or recognized by Government and on his entering into a bond in the form prescribed by the Central Government, with or without sureties, to appear and furnish before the court within a period not exceeding one year, a report regarding the result of his medical treatment and, in the meantime, to abstain from the commission of any offence under Chapter IV. If it appears to the court, having regard to the report regarding the result of the medical treatment furnished under this section, that it is expedient so to do, the court may direct the release of the offender after due admonition on his entering into a bond in the form prescribed by the Central Government, with or without sureties, for abstaining from the commission of any offence under Chapter IV during such period not exceeding three years as the court may deem fit to specify or on his failure so to abstain, to appear before the court and receive sentence when called upon during such period.

40. Power of court to publish names, place of business, etc., of certain offenders. Where any person is convicted of any of the offences punishable under section 15 to section 25 (both inclusive), section 28, section 29 or section 30, it shall be competent for the court convicting the person to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person in such newspapers or in such manner as the court may direct. No publication under this section shall be made until the period for preferring an appeal against the orders of the court has expired without any appeal having been preferred, or such appeal, having been preferred, has been disposed of. The expenses of any publication under this section shall be recoverable from the convicted person as if it were a fine imposed by the court.

Chapter V:Procedures

Chapter VA:Forfeiture Of Property Derived From, Or Used In, Illicit Traffic

Punishment

Anyone who contravenes the NDPS Act will face punishment based on the quantity of the banned substance.

The table below lists the current definition of a small quantity and a commercial quantity for some popular drugs.[8]

Drug Small quantity Commercial quantity
Amphetamine 2 grams (0.071 oz) 50 grams (1.8 oz)
Charas 100 grams (3.5 oz) 1 kilogram (2.2 lb)
Cocaine 2 grams (0.071 oz) 100 grams (3.5 oz)
Ganja 1 kilogram (2.2 lb) 20 kilograms (44 lb)
Heroin 5 grams (0.18 oz) 250 grams (8.8 oz)
LSD 2 milligrams (0.031 gr) 100 milligrams (1.5 gr)
Methadone 2 grams (0.071 oz) 50 grams (1.8 oz)
Morphine 5 grams (0.18 oz) 250 grams (8.8 oz)
Opium 25 grams (0.88 oz) 2.5 kilograms (5.5 lb)

Criticism

During the discussion of the Bill in Parliament, several members opposed it for treating hard and soft drugs as the same. However, the Rajiv Gandhi administration claimed that soft drugs were gateway drugs.[9]

The NDPS Act was criticized in The Times of India. The paper described the law as "ill-conceived" and "poorly thought-out" due to the law providing the same punishment for all drugs, which meant that dealers shifted their focus to harder drugs, where profits are far higher. The paper also argued that the Act had "actually created a drugs problem where there was none." The Times of India recommended that some of the softer drugs should be legalized, as this might reduce the level of heroin addiction.[10]

In 2015, Lok Sabha MP Tathagata Satpathy criticized the ban on cannabis as "elitist", and labeling cannabis the "intoxicant" of the poor. He also felt that the ban was "an overreaction to a scare created by the United States". Sathpathy has also advocated the legalisation of cannabis.[11][12][13] On 2 November 2015, Lok Sabha MP Dharamvir Gandhi announced that he had received clearance from Parliament to table a Private Member's Bill seeking to amend the NDPS Act to allow for the legalised, regulated, and medically supervised supply of "non-synthetic" intoxicants including cannabis and opium.[14]

In November 2016, former commissioner of the Central Bureau of Narcotics Romesh Bhattacharji said of the law, "This needs to be debated in the face of such stiff ignorance which often takes root in the moral high grounds people take after being influenced by the UN conventions. This law [NDPS Act] has been victimising people since 1985".[15]

1988 amendment

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (Act No. 2 of 1989) received assent from then President Ramaswamy Venkataraman on 8 January 1989.[16]

2001 amendment

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act No. 9 of 2001) received assent from then President K. R. Narayanan on 9 May 2001.[17][18]

2014 amendment

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (Act No. 16 of 2014) amended the NDPS Act to relax restrictions placed by the Act on Essential Narcotic Drugs (Morphine, Fentanyl and Methadone), making them more accessible for use in pain relief and palliative care.[19][20] The Amendment also contained measures to improve treatment and care for people dependent on drugs, opened up the processing of opium and concentrated poppy straw to the private sector, and strengthened provisions related to the forfeiture of property of persons arraigned on charges of drug trafficking. The Amendment also removed the NDPS Act's imposition of a mandatory death sentence in case of a repeat conviction for trafficking large quantities of drugs, giving courts the discretion to use the alternative sentence of 30 years imprisonment for repeat offences. However, the Amendment increased the punishment for "small quantity" offences from a maximum of 6 months to 1 year imprisonment.[21]

Proposal and enactment

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011 (Bill No. 78 of 2011) was introduced in the Lok Sabha on 8 September 2011 by then Minister of Finance Pranab Mukherjee. The Bill was referred to the Standing Committee on Finance, chaired by Yashwant Sinha, on 13 September. The Committee was scheduled to submit its report within three months, but actually submitted it on 21 March 2012. The Bill was passed by the Lok Sabha on 20 February 2014, and by the Rajya Sabha the next day.[22] It received the assent of then President Pranab Mukherjee on 7 March 2014, and was published in The Gazette of India on 10 March.[23][24]

See also

References

  1. ^ Marihuana and medicine, p. 3
  2. ^ P. Ram Manohar, "Smoking and Ayurvedic Medicine in India" in Smoke, pp. 68–75
  3. ^ Psychedelics encyclopedia By Peter G. Stafford, Jeremy Bigwood, Ronin Publishing, 1992 ISBN 978-0-914171-51-5
  4. ^ "Recreational use of marijuana: Always a way of life in our country - Times of India".
  5. ^ "The joint campaign: Should we not legalize recreational use of Cannabis? - Times of India".
  6. ^ "Recreational use of marijuana: Of highs and laws - Times of India".
  7. ^ a b c d e f g h i j k l m n o p q r s http://narcoticsindia.nic.in/NDPS%20Act,%201985.pdf Archived 2 November 2013 at the Wayback Machine This article incorporates text from this source, which is in the public domain.
  8. ^ "Archived copy" (PDF). Archived from the original (PDF) on 6 July 2016. Retrieved 1 May 2015.CS1 maint: archived copy as title (link)
  9. ^ "Legal Marijuana in India? Punjab Lawmaker Dharamvir Gandhi Set to Move Parliament". News18. 2 November 2016. Retrieved 26 March 2017.
  10. ^ http://articles.timesofindia.indiatimes.com/2012-11-10/india/35033489_1_bhang-marijuana-for-medical-purposes-charas
  11. ^ "Make cannabis consumption legal; ban is turning people alcoholic: BJD chief whip Tathagata Satpathy". The Indian Express. 11 December 2015. Retrieved 10 December 2016.
  12. ^ "Cannabis ban is elitist. It should go: Tathagata Satpathy". The Times of India. Retrieved 10 December 2016.
  13. ^ "BJD MP Tathagata Satpathy Tells How to Score Weed". The New Indian Express. Retrieved 10 December 2016.
  14. ^ "Bill for legalised supply of opium, marijuana cleared for Parliament". Hindustan Times. 19 October 2016. Retrieved 10 December 2016.
  15. ^ "Legal Marijuana in India? Punjab Lawmaker Dharamvir Gandhi Set to Move Parliament". News18. Retrieved 2 March 2018.
  16. ^ "Archived copy" (PDF). Archived from the original (PDF) on 4 March 2016. Retrieved 1 May 2015.CS1 maint: archived copy as title (link)
  17. ^ "Narcotics Drugs and Psychotropic Substances Act, 2001- Introduction".
  18. ^ "THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (AMENDMENT) ACT, 2001 – Lawyers Law".
  19. ^ Maya, C. "Passing of NDPS Act Amendment Bill will make morphine more accessible".
  20. ^ http://palliumindia.org/cms/wp-content/uploads/2014/01/FAQs-Amendment-of-NDPS-2014.pdf
  21. ^ "» Parliament passes the NDPS (Amendment) Bill, 2014: many gains; some losses". Archived from the original on 20 December 2016. Retrieved 1 May 2015.
  22. ^ "PRS - Bill Track - The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011".
  23. ^ "4857GI.p65" (PDF). Archived from the original (PDF) on 29 March 2017. Retrieved 11 December 2016.
  24. ^ "Home - High Court of Madhya Pradesh" (PDF). www.mphc.in.