Narcotic Drugs and Psychotropic Substances have a variety medical and scientific uses. However, they can be and are abused and trafficked. India's approach towards Narcotic Drugs and Psychotropic Substances is envisaged in Article 47 of the Constitution of India[1] which mandates that the:
State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

The same principle of preventing use of drugs except for medicinal use was also adopted in the three drug related International Conventions, namely, Single Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified the above-mentioned conventions.

In India, Cannabis smoking has been known since at least 2000 BC. Cannabis and its derivatives (marijuana, hashish/charas and bhang) were not prohibited in India until 1985, and their recreational use was commonplace.

Enactment of NDPS Act, 1985

Prior to the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the statutory control over narcotic drugs was exercised in India mainly through three Central Acts i.e. The Opium Act, 1857 Act (XIII), The Opium Act, 1878 Act (I) and The Dangerous Drugs Act, 1930 Act (II).

The Narcotic Drugs and Psychotropic Substances Act, 1985 Act (LXI) (hereinafter NDPS Act)was enacted taking into account India's obligations under the three UN drug Conventions as well as Article 47 of the Constitution. This Act prohibits, a person the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance, except for medical or scientific purposes. 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.

Aims And Object of the Act

The legislature has enacted the NDPS Act to achieve the following objectives:

• 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
• 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.

In other words, the NDPS Act aims to prohibit consumption of drugs and its trafficking including cultivation. Manufacture, distribution, sale & purchase. It is a special Act and it has been enacted with a view to make stringent provisions for the control and regulation of operations relating to the narcotic drugs and psychotropic substances.[2]

Narcotic Drugs and Psychotropic Substances-Meaning

Section 2[3] of the NDPS Act lays down definitions of various terminologies used in the legislation.The term 'narcotic' in the legal sense is quite different from that used in the medical context which denotes a sleep-inducing agent. Section 2 (xiv) of the Act defines narcotic drugas coca leaf, cannabis (hemp), opium, poppy straw, derivatives/concentrates of all the aforementioned substances and other narcotic substances notified by the Central Government in the official gazette.

Further, psychotropic substances denotes mind altering substance.Section 2(xxiii) defines 'psychotropic substances' as 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 of NDPS Act.

Offences Under NDPS Act
Section 8 of NDPS Act prohibits any person to cultivate 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 tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes.

Furthermore, NDPS Act punishes the production, manufacturing, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export from India or tranship of any narcotic drug or psychotropic substance.[4]Any use of narcotic drugs and psychotropic substances for scientific or medicinal purposes are exempted from the rigour of the law. It further exempts export of poppy straw for decorative purposes. However, even in those cases, one needs to obtain the required permit or authorisation.[5]

Quantity

The prosecution and quantum of punishment of an individual depends on quantity of drugs found in possession.
NDPS Act has categorised quantity in three categories:

1. Small quantity- any quantity lesser than the quantity specified by the Central Government[6]
2. Less than commercial quantity - any quantity lesser than commercial quantity but greater than small quantity
3. Commercial quantity - any quantity greater than the quantity specified by the Central Government[7]

The quantity of different drug and its category is not uniform, rather it is different for every drug as specified by the Central Government. For instance, 1kg of Ganjais small quantity and 20 kg commercial, whereas, 5 grams of Heroineis small quantity and 250 grams commercial.

Punishment And Penalties

Chapter IV of the NDPS Act delas with offences and penalties against contravention to the provision of this Act.It lays down punishment for contraventions relating to various substances, for possession, purchase, sale, use etc.in various quantities.
 

Quantity	Punishment
Small	Rigorous imprisonment for a term upto 1 year, or with fine upto Rs 10,000, or with both
Less than Commercial	Rigorous imprisonment for a term upto10 years,or with fine uptoRupees 1 Lakh, or both
Commercial	Rigorous imprisonment for a term of 10 to 20 years, or fine of rupees 1 Lakhs to 2 lakh

The Courtis empowered to impose fine exceeding two lakhs by recording reasons for the same in the judgement.[8]

Habitual Offenders

For habitual offenders who are convicted of an offence with the same amount of punishment after a previous conviction, the punishment will be enhanced to one and half times the maximum term of imprisonment and fine both.[9]

The NDPS Act also provides provision of death penalty for certain offences to habitual offenders for commission or attempt of certain offences specified in Section 31A.[10]
Consumption of any narcotic drug or psychotropic substance.

According to Section 27, for consumption, the punishment is imprisonment of six months to one year or fine of ten to twenty thousand rupees or both, depending upon the types of drugs used.[11]

Allowing use of premises for an offence

Section 28 of the NDPS Act make even the attempt to commit an offence under the Act punishable with the same punishment provided for the offence actually committed.[12]Similarly, Section 25 states that if an owner or occupier or others of the same nature, knowingly permit it to be used for the commission of an offence in their premises by any other person, they will be punishable with the same punishment as if the offence was committed by them.[13]

Furthermore, Owing to the serious nature of the offences, by 1989 amendment to the Act, the sentence awarded under the NDPS Act was made non commutable except the sentence awarded for consumption.[14]

Provision For Bail Under NDPS Act

It is well settled law that liberal approach in the matter related to the Narcotic Drugs and Psychotropic Substances is uncalled for.[15] The Hon'ble Supreme Court in many Judgments has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act.

In Union of India v. Ram Samujh and Ors[16] the Hon'ble Supreme Court observed that:
"….It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of 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."

Hence, the jurisprudence of bail in narcotics cases is opposite to general one. In general bail is rule and jail is exception whereas, in NDPS cases, jail is rule and bail is exception.

Section 37 of the NDPS Act deal with the aspect of offences to be cognizable and non-bailable. This section states every offence punishable under the NDPS Act shall be cognizable, and no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond, unless the certain conditions are met.

The following conditions are required to be met for granting bail:

1. That there are reasonable grounds for believing that the accused is not guilty of such offence
2. That if bail is granted he is not likely to commit any offence while on bail

It was observed by the Apex Court in State of Kerala v. Rajesh[17] 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[18], but is also subject to the limitation placed by Section 37[19] which commences with non-obstante clause.

The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied.[20]

1. That the prosecution must be given an opportunity to oppose the application; and
2. That the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence.[21]

If either of these two conditions is not satisfied, the ban for granting bail operates.[22]
It is pertinent to note that in case of inconsistency, Section 37 of the NDPS Act prevails over Section 439 of CrPC.[23]
Judicial Precedents With Respect To Provision of Bail Under NDPS Act.

Hakim@pilla v. State of Rajasthan S.B.[24]

In this case, the Court observed that though, in the heading prefixed to Section 37 it is mentioned offences to be cognizable and non bailable. But the section begins with a non-obstante clause notwithstanding anything contained in Cr.P.C. every offence punishable under the Act shall be cognizable. There is nothing in the body to make every offence non-bailable. Para II of Schedule I to Cr.P.C. deals with the offences under other laws. Item No.3 in the list (in Part II of the First Schedule) provides that if the offence concerned(under the other law) is punishable with imprisonment for less than three years, it is bailable and noncognizable.

Now the offence of possession of a small quantity (upto 1 kg) of Ganja, under Section 21 of the NDPS Act, if proved, can lead to a sentence upto six months, and fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable, however, as per Item No.3 in the list (In Part II of the First Schedule) offence is clearly bailable.

Rhea Chakraborty v. The Union of India and Ors.[25]
The Supreme Court in State of Punjab v. Baldev Singh[26] observed that:
Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for 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. In fact, the situation has become worse. Therefore, these observations apply to today's scenario with more force,hence observations made by the Hon'ble Supreme Court in Baldev Singh[27] are binding and all offences under the NDPS Act are non-bailable."

Presumption Of Culpable Mental State Under NDPS Act

Presumption of Innocence is one of the fundamental principles of criminal jurisprudence which enunciates that an accused is presumed to be innocent until proven guilty. This fundamental principle is derived by the maxim semper necessitas probandi incumbitei qui agit, meaning the necessity of proof lies with the person who levels the charges.[28]

Section 35[29] deals with presumption of culpable mental state of an accused requiring the Court to presume the existence of such mental state for a prosecution under the Act.
Furthermore, an explanation is provided in the provision which states:
In this section culpable mental state includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.

This essentially means that a person charged with an offence under the NDPS Act would have to rebut the presumption against him and the burden of proof would lie on him to show that he has not committed the act constituting an offence.[30]

In Naresh Kumar alias Nitu v. State of Himachal Pradesh[31], the Hon'ble Supreme Court held that:
the presumptions against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt.

Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.

Further, in Noor Aga v. State of Punjab and Ors.[32] the Apex Court held that "Section 35 and 54 of the Narcotics Act which imposes a reverse burden on the accused is constitutional as the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution."

Conscious Possession And Presumption With Respect To Conscious Possession Under The NDPS Act

The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P.[33] possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.

The word 'possession' means the legal right to possession.[34] In Sullivan v. Earl of Caithness[35]it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.

Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

Aryan Khan's Case

The Narcotics Control Bureau (NCB) recently arrested Bollywood actor Shah Rukh Khan's son Aryan Khan and seven others, accusing them of violating several provisions of the NDPS Act. The eight people were allegedly involved in a drug bust on a cruise ship, according to the NCB. The NCB has invoked four sections of the NDPS Act so far.

Those are sections 8(c), 20(b), 27, 28, 29 and 35 of the NDPS Act. Section 8(c) prohibits possession, purchase, sale, transport, consumption etc. of a narcotic drug or psychotropic substance. Section 20(b) deals with possession, purchase, sale, transport, consumption etc. of cannabis. The punishment for this is dependent upon the quantity of cannabis recovered and since the quantity recovered is small, punishment could be rigorous imprisonment up to one year, or fine up to ten thousand rupees, or both.

Section 27 provides the punishment for consumption of any narcotic drug or psychotropic substance and it ranges from imprisonment of six months to one year or fine of ten to twenty thousand rupees or both, based on the drugs consumed. Section 28 punishes any attempt to commit an offence under NDPS Act with the same punishment as that of the offence attempted to be committed.

Similarly, Section 29 dealing with abetment and criminal conspiracy provides the same punishment as that of the offence abetted or conspired to be committed. As per Section 35, a culpable mental state is presumed while prosecuting an offence under NDPS Act and the burden to prove that no such intent or mental state existed, lies upon the accused.[36]

Conclusion
The drug problem in India is far more severe than it appears. Ganja, charas, and other psychotropic substances can be found playing important roles in ancient India, being used as a digestive catalyst, pain reliever, and even for psychotherapy. Prior to 1985, India did not even have a law that criminalised the possession and use of drugs. However, taking into account India's obligations under the three UN drug Conventions as well as constitutional provision, India by enacting NDPS Act in 1985 came up with stringent provisions and stricter punishments in order to tackle the drug menace.

The NDPS Act contains provisions with severe punishments. Provisions like Section 37 restrict the right to bail for more serious offenses. It gives the legislation a kind of a draconian overview much like the Unlawful Activities (Prevention) Act, 1976 (UAPA) and courts are hesitant to release people on bail.

Senior Advocate Rebecca John opined that the NDPS Act is ambiguous, and in parts, draconian. It hasn't moved with the times and is not in sync with international law. Authorities also use the NDPS Act to snoop into people's phones and look at their messages. This is a breach of privacy and should not be allowed without court orders. It leads to a fishing and roving exercise that is essentially meant to intimidate and target individuals.[37]

Every legislation is intended to be for the welfare of society, but if it is misused, it becomes draconian. The more stringent the legislation, the more likely it is for it to become draconian in nature. Since the NDPS is such a strict law, its misuse becomes even more dangerous. Hence, the Courts have to make sure the law is not weaponised and justice is administered to every section of society.

End-Notes:

1. India Constitution. art.47.
2. State of Rajasthan v. Udai Lal (2008) 11 SCC 408.
3. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 2 (India).
4. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 8(c) (India).
5. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 8(c) (India).
6. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 2(xxiiia) (India).
7. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 2(viia) (India).
8. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 15 (India).
9. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 31 (India).
10. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 31 A (India).
11. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 27 (India).
12. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 28 (India).
13. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 25 (India).
14. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 32A (India
15. State of Kerala v Rajesh AIR 2020 SC 721.
16. Union of India v. Ram Samujh and Ors (1999) 9 SCC 429.
17. State of Kerala v. Rajesh AIR 2020 SC 721.
18. Code of Criminal Procedure, 1973, Acts of Parliament, § 439 (India).
19. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 37 (India).
20. Union of India v. Niyazuddin&Anr, (2018) 13 SCC 738.
21. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721.
22. State of Kerala v. Rajesh AIR 2020 SC 721.
23. Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705.
24. Hakim@pilla v. State of Rajasthan S.B. Criminal Miscellaneous Bail Application No. 13195/2019
25. Rhea Chakraborty v. The Union of India and Ors. Criminal Bail Application (Stamp) No. 2386 of 2020 decided On: 07.10.2020
26. State of Punjab v. Baldev Singh (1999) 6 SCC 172.
27. State of Punjab v. Baldev Singh (1999) 6 SCC 172.
28. Study Material On The Narcotic Drugs And Psychotropic Substances Act, 1985 Rajasthanjudicialacademy.nic.in,
29. http://rajasthanjudicialacademy.nic.in/docs/studyMaterial17122020.pdf (last visited Nov 10, 2021
30. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61, Acts of Parliament, § 35 (India).
31. Study Material On The Narcotic Drugs And Psychotropic Substances Act, 1985 Rajasthanjudicialacademy.nic.in,
32. http://rajasthanjudicialacademy.nic.in/docs/studyMaterial17122020.pdf (last visited Nov 10, 2021).
33. Naresh Kumar alias Nitu v. State of Himachal Pradesh (2017) 15 SCC 684.
34. Noor Aga v. State of Punjab and Ors. (2008) 16 SCC 417.
35. Gunwantlal v. The State of M.P. 1972 CriLJ 1187.
36. Health v. Drown (1972) (2) All ER 561.
37. Sullivan v. Earl of Caithness 1976 (1) All ER 844.
38. Indian Law Dealing With Narcotics Drugs (NDPS Act): An Explainer Livelaw.in, https://www.livelaw.in/know-the-law/narcotics-drugs-and-psychotropic-substances-act-offences-punishment-bail-immunity-183550 (last visited Nov 10, 2021).
39. Does NDPS law have enough heft to tackle India's 'drug problem'? The Federal, https://thefederal.com/analysis/does-ndps-law-have-enough-heft-to-tackle-indias-drug-problem/ (last visited Nov 11, 2021)

Written By:

1. Navin Kumar Jaggi
2. Rekha Kumari, CNLU, Patna