ILLEGAL DRUG TRADE: LOOPHOLES

Author: Archita Srivastava

College: Shri Ramswaroop Memorial University


ABSTRACT:

This arcticle is all about drug trafficking. As this is the one of the most discussing topic these days. We will try to analysis drugs law in detail, functioning of NCB, NCD etc. and will also discuss some related case laws to make a clear view for the reader.

This article is all about the changes brought to drug laws and its loopholes. We will disscuss everything about it from past to present days.


HISTORY:

If we look at the history of India, drugs like bhang, ganja/marijuana, and hashish were used for medicinal purposes, recreation, and social ceremonies. Contrary to western countries India has a cultural and religious connection to adopting certain kinds of natural drugs. In a religious festival like Shivratri bhang is consumed. Soma is a Sanskrit word which means intoxicating, during Shivratri bhang is mixed in a drink and later consumed for intoxicating known as soma ras. The mention of the same can be found in ancient text.

After independence, India as a country had many big issues to resolve and it had a history of drug consumption so drug trafficking was not seen as a problem till 1980. Because till then consumption was low, demands were met locally and a very small amount was smuggled from Nepal and Pakistan. Things started to change after 1980 when Heroine came which had more widespread and disastrous consequences. Drug trafficking became a big issue in the early 1980s. From the last three to four decades India has become the nucleus for drugs produced in the ‘golden triangle’ (southeast Asia where most of the illicit opium has originated from 1950 till 1990) and ‘Golden Crescent’ (Iran, Afghanistan, Pakistan).

Why is it a problem? Drugs or substance abuse bring all sorts of problems like morality, health, psychological disorders as well as an economic issue. And not only the person who consumes drugs suffer but the whole family suffers with him/her. Keeping aside all these problems the biggest issue it creates is of national security. There is a connection between the so-called organized criminal drug trafficking network and terrorism for instance “it has been estimated that money generated from the illegal sale of narcotics accounted for 15 percent of the finances of militant groups in Jammu and Kashmir. It also helps in other heinous crimes like human trafficking and arms/ explosives trafficking because the routes used by them all are the same. To cite an example, the explosives used in the 1993 Mumbai terrorist attacks were smuggled into India using the same routes through which drugs and other contraband items were trafficked by the Dawood gang.


Indian Statutory provisions:

As already mentioned till 1980s it was not a big issue so we didn’t have any enactment until 1985 but before that also we were signatory to a number of international treaties. These international treaties and conventions are as follows: 1.Convention on NarcoticDrugs,1961. 2.Convention on Psychotropic Substances, 1971. 3.Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. 4. Transnational Crime Convention, 2000.


Indian Parliament has enacted two Central Acts: 1.TheNarcoticDrugsandPsychotropicSubstancesAct,1985, and 2. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988.


Legal bodies that enforce these laws: Government of India is taking very active steps to curb illegal trafficking of drugs in India.

  • Narcotics Control Division

  • Central Bureau of Narcotics (CBN)

  • The Narcotic Control Bureau (NCB)

  • Other Agencies- Directorate of Revenue Intelligence, Central Bureau of Investigation (CBI), Customs Commission, Border Security Force (BSF).

Narcotic Drugs and Psychotropic Substances Act, 1985

Following the Article 47 of the Constitution of India, government came up with the Narcotic Drugs and Psychotropic Substances Act, 1985. The NDPS Act came into force on 14 November 1985, replacing the Opium Acts and the Dangerous Drugs Act. It has been amended in 1989, 2001 and latest in 2014. The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law.

NDPS act has provision for search seizure and arrest of a person. The Act also empowers government to frame rules to allow some types of drugs for medicinal, scientific and research purposes. Amendment of 2014 allows private pharmaceuticals to use certain types of drugs but everything should be done for betterment of humankind only.

Harm Reduction Network v. Union of India is a landmark case for NDPS Act because in this case Bombay High Court held that capital punishment in drug trafficking is unconstitutional but at the same time time did not struck down the Section 31A of this Act. In case of Abdul Aziz v. State of Uttar Pradesh court allowed bail in case of person arrested for minor offences which did not exists first. Similarly, another very import case was of E. Michael Raj v Intelligence Officer Narcotic Control Bureau (NCB) where the Supreme Court held that in case drug is mixed with a neutral substance while giving punishment only the original quantity of drugs must be taken in account.


LOOPHOLES

DELAY IN TRIAL “Justice delayed is Justice denied.”

Research shows that many of those arrested on drug charges spend years in jail before their cases finally come up for hearing, a direct consequence of the notoriously slow pace of the Indian judicial system. Special courts have been set under NDPS Act but states have given them additional responsibility as result of which cases are delayed more. Apart from all this when minor offenders spent a lot of time in jail there is a chance of them being recruited in organized crimes and gangs.


STRIGENT BAIL RULES

Courts cannot provide bail to those accused of offences under Sections 19, 24 or 27A of the NDPS Act and for offences involving commercial quantities (Section 2). Generally, all are innocent till proved guilty. But this law says that you are guilty unless proven innocent! Section 35 presumes that an accused under this Act had the intent, motive and knowledge of and for his actions while Section 54 goes a step further to add that unless the contrary is proved it shall be presumed that the accused was in possession of the illicit articles seized from him.


HARSH AND DISPROPORTIONATE PENALTIES

Like many other countries who have formed laws under the pressure of international conventions have made the laws too harsh as we have already discussed even death penalty in some cases. Raju v. State of Kerala AIR 1999 SC 2139: the appellant had served 10 years of rigorous imprisonment and was imposed a fine of ₹1 lakh for possession of 100 mg of heroin worth ₹25. Absence of withdrawal was seen as evidence that the appellant was not drug dependent and therefore, the heroin was not meant for personal use. The Supreme Court finally held that such a small quantity could not have been meant for sale or distribution and reduced the sentence to that for possession for personal consumption.


ACCESS TO MEDICINE

NDPS Act allows the use of drugs as medicine. Yet, morphine and other opiates were unavailable to patients due to strict provisions and penalties. Until recent years all these were regulated by state governments which meant multiple licenses were required but from 1998 central government has taken this into its own hands but the situations have not improved. Western media questions regularly how is that India supplies morphine to the world when it can’t supply it back at home.


LACK OF CONSULTATION IN POLICY MAKING

The NDPS Act 1985 allows government to make a 20-member body NDPS Consultative Committee as a policy advisory body. The committee may prepare a special report on any topic of importance for the government consideration. Advice the government on policy matters, and other issue as requested by the government. The Committee can draw upon experts and civil society representatives to review and recommend changes in nearly all areas of drug policy.Sadly, these provisions have not yet been invoked.


CONCLUSION

Even though the intensions of this Act are good, there are many things that are needed to be addressed. Many times, it is seen that big players escape and only the last tier culprits are caught. There have been reports of how people who were merely sitting in the vicinity of drug users were caught and charged under this Act by the police. The Act also fails to provide an adequate distinction between minor and serious offences in terms of punishment. Finally, these loopholes must be plugged in order to protect our youth achieve the principles of the Constitution.


References:

1. https://idsa.in/system/files/OP_DrugTraffickinginIndia.pdf

2. https://doi.org/10.21922/srjhsel.v4i23.9707

3. http://fileserver.idpc.net/library/IDPC-briefing-paper_Drug-policy-in-India.pdf

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