NDPS Act

The Legal Framework of the Narcotic Drugs and Psychotropic Substances Act,1985

• The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): It is a key legislation in India aimed at combating drug abuse and illicit trafficking of narcotic drugs and psychotropic substances. It regulates the production, possession, sale, and transport of such substances while aligning with international conventions. The Act prescribes strict penalties, including imprisonment and fines, to deter drug-related offenses and includes provisions for the rehabilitation of addicts. Enacted to address the growing menace of drug abuse, it empowers authorities to enforce stringent measures and ensures the legitimate medical and scientific use of these substances.
• Narcotic Drugs and Psychotropic Substances: Psychotropic substances, from a medical perspective, are chemical agents that influence an individual's mental state, encompassing both conscious and subconscious aspects. Similarly, narcotics are drugs known to induce drowsiness, promote muscle relaxation, and reduce or completely suppress sensation. The classification of substances as narcotics or psychotropics is determined by legal definitions. In most cases, this categorization is based on international frameworks such as the Single Convention on Narcotic Drugs or the Convention on Psychotropic Substances. Often collectively termed as Narcotic Drugs, these substances are regulated under stringent laws. Activities such as the production, sale, and transportation of narcotic drugs require prior authorization from the Ministry of Health.
• Difference Between Narcotic and Psychotropic Substances: Narcotic and psychotropic substances are distinct in both their medical purposes and the way they affect the human body and mind. These differences are also recognized legally, with specific regulations governing their use, possession, and distribution.
  • Narcotics: Medically, narcotics are substances that primarily serve to relieve severe pain. They work by binding to receptors in the brain and nervous system to block pain signals. In addition to pain relief, they often induce drowsiness, relaxation, and sometimes a loss of sensitivity or awareness. Due to their ability to create a feeling of euphoria or a "high," narcotics carry a high risk of addiction and misuse. Examples include morphine, heroin, and certain prescription opioids like oxycodone.
  • Psychotropic Substances: Psychotropic substances, on the other hand, are chemicals that affect the mind and mental processes. They influence the brain’s function, impacting mood, perception, behavior, and thought processes. These substances are used to treat various mental health disorders, such as depression, anxiety, bipolar disorder, or schizophrenia, especially when these conditions do not respond adequately to psychotherapy alone. Examples include antidepressants, antipsychotics, and mood stabilizers.
  • Key Differences
    • Primary Use: Narcotics are generally used for pain management, while psychotropic substances are used to treat mental health issues.
    • Effect on the Body: Narcotics affect the body by reducing physical pain and creating a sedative effect, while psychotropic substances primarily target mental states, altering how the brain functions to manage emotional and psychological well-being.
    • Risk of Abuse: Both types of substances carry risks, but narcotics are more prone to abuse due to their euphoric effects, whereas psychotropics are primarily associated with medical use under supervision.

Key Features of the NDPS Act

• Mandatory Minimum Sentence: The NDPS Act imposes a minimum punishment of ten years imprisonment for certain severe drug-related offenses. This reflects the strict stance the law takes to deter drug trafficking and related crimes.
• Presumption of Guilt and Burden of Proof: Unlike traditional criminal laws, where the prosecution must prove the accused's guilt, the NDPS Act shifts the burden of proof onto the accused. This means the person charged must prove their innocence if found in possession of drugs or involved in related activities.
• Stringent Bail Provisions: Granting bail under the NDPS Act is highly restrictive. Courts require substantial evidence to be satisfied that the accused is not guilty and is unlikely to commit another offense while on bail.
• Extended Pre-Trial Detention: The Act allows authorities to keep an accused person in custody for up to a year before the trial begins. This is intended to prevent further crimes and ensure proper investigation in serious cases.
• Prohibition on Sentence Suspension or Remission: Offenders convicted under the NDPS Act cannot have their sentences reduced, suspended, or commuted, ensuring they serve the full term of punishment imposed by the court.
• No Probationary Release: Convicted offenders are not eligible for probation, a leniency typically granted to first-time or less serious offenders in other laws. This underscores the strict approach of the NDPS Act.
• Harsher Penalties for Repeat Offenders: Those convicted more than once under the Act face increased punishments, which can extend to 30 years in prison. This provision aims to deter habitual offenders.
• Mandatory Death Penalty for Certain Repeat Offenses: In cases of repeated convictions for specific grave offenses, the law mandates the death penalty. This extreme measure is meant to curb the most serious violations of the Act.
• Additional Provisions under the NDPS Act’s Treatment Measures
  • Defines an "addict" as a person dependent on narcotic drugs or psychotropic substances (Section 2(1)).
  • Allows courts to direct addicts convicted of minor offenses, such as possession or consumption, to undergo detoxification treatment instead of serving a prison sentence (Section 39).
  • Provides immunity from prosecution to addicts who voluntarily seek treatment (Section 64A).

List of Psychotropic Substances under the NDPS Act

• The Ministry of Finance, Government of India, under the powers granted by Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has designated the following substances as controlled substances under the Act:
  • Ergometrine and its salts
  • Ergotamine and its salts
  • Isosafrole
  • Lysergic acid and its salts
  • 4-Methylenedioxyphenyl-2-propanone, its salts, and preparations
  • Methyl ethyl ketone
  • Norephedrine (Phenylpropanolamine), its salts, and preparations
  • 1-Phenyl-2-propanone
  • Phenylacetic acid and its salts
  • Piperonal
  • Potassium permanganate
  • Safrole and any essential oil containing 4% or more safrole
  • Preparations containing Ephedrine
  • Preparations containing Pseudoephedrine

Quantities Defined Under the NDPS Act

• Amphetamine: Small quantity – 2 grams; Commercial quantity – 50 grams
• Charas: Small quantity – 100 grams; Commercial quantity – 1 kilogram
• Cocaine: Small quantity – 2 grams; Commercial quantity – 100 grams
• Ganja: Small quantity – 1 kilogram; Commercial quantity – 20 kilograms
• Heroin: Small quantity – 5 grams; Commercial quantity – 250 grams
• LSD: Small quantity – 2 milligrams; Commercial quantity – 100 milligrams
• Methadone: Small quantity – 2 grams; Commercial quantity – 50 grams
• Morphine: Small quantity – 5 grams; Commercial quantity – 250 grams
• Opium: Small quantity – 5 grams; Commercial quantity – 2.5 kilograms

Bail Provisions for Minor Offenses

• Individuals caught with a small quantity of narcotic drugs or psychotropic substances under the NDPS Act, which constitutes a minor offense, are eligible for bail.

Punishments Under the NDPS Act

• Cultivation, production, possession, sale, transport, etc.
  
  • Section 15 (c): Poppy Straw: Punishment for the production, manufacture, possession, sale, purchase, transportation, warehousing, use, import, interstate import/export, or transshipment of poppy straw. Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakh.
  • Section 16: Coca Plants and Leaves Punishment for cultivating coca plants or possessing coca leaves without authorization. Rigorous imprisonment for a term which may extend to 10 years, or with a fine which may extend to ₹ 1 lakh.
  • Sections 17, 18, 19: Opium Poppy and Its Derivatives
    
    • Section 17: Penalty for the production or manufacture of prepared opium.
    • Section 18: Penalty for the cultivation of the opium poppy without a license.
    • Section 19: Penalty for officials responsible for supervising licensed opium cultivation who fail in their duties or falsify records.
    • Punishment: Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but may extend to ₹ 2 lakh.
  • Section 20: Punishment for production, manufacture, possession, sale, purchase, transportation, or use of cannabis other than ganja. Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakh.
  • Section 21: Manufacturing Drugs Punishment for manufacturing, possessing, selling, purchasing, or trafficking manufactured drugs such as heroin or derivatives of morphine. Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakh.
  • Section 22: Psychotropic Substances Punishment for the production, possession, transportation, or sale of psychotropic substances such as MDMA, LSD, and others listed under the NDPS Act. Where the contravention involves a small quantity with rigorous imprisonment for a term which may extend to one year or a fine which may extend to ₹ 10 thousand, or with both.
  • Section 23: Illegal Import/Export or Transshipment Punishment for importing/ exporting narcotics or psychotropic substances without proper authorization. Where the contravention involves a small quantity with rigorous imprisonment for a term which may extend to one year or a fine which may extend to ₹ 10 thousand, or with both.
  • Section 24: External Dealings in Contravention of Section 12. Punishment for dealing with narcotics internationally in violation of export/import permits. Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakh.
  • Section 25: Allowing Premises/Spaces for Illegal Activities. Punishment for allowing one’s premises to be used for offenses under the Act. Sentence as per the offense committed on the premises.
  • Section 25A: Controlled Substances:  Punishment for unauthorized manufacture, sale, possession, or transportation of controlled substances (chemicals used in drug production). Rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to a fine which may extend to ₹ 1 lakh.
  • Section 26: Offenses by Licensees or Employees: Punishment for license holders under the Act (or their employees) if they commit offenses such as the diversion of substances. Punishment is based on the nature and severity of the offense.
  • Section 27: Possession for Personal Consumption
    • For Cocaine, Morphine, or Notified Substances (27(a)):  Imprisonment for a term which may extend to one year, or with a fine which may extend to ₹ 20 thousand, or with both.
    • For Other Substances (27(b)): Imprisonment for a term which may extend to six months, or with a fine which may extend to ten thousand, or with both.
  • Section 27A: Harbouring offenders. Rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years, and shall also be liable to a fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakh.
  • Section 28: Attempting to commit an offense under the Act will be punished with the equivalent of the punishment for the specific offense.
  • Section 29: Abetment or conspiracy to commit an offense under the Act will be punished with the equivalent of the punishment for the specific offense.
  • Section 30: Preparing to commit an offense under the Act will be punished with half of the prescribed punishment for the specific offense.
  • Section 31: Enhanced punishment for repeat offenders. Double the prescribed punishment for the specific offense.
  • Section 31A: Punishment for repeat convictions involving specified drug quantities. Punishment: Death penalty.
  • Additional Provisions
    • Section 32A: Sentences for offenses cannot be suspended, remitted, or commuted except for minor personal consumption cases under Section 27.
    • Section 36: Establishment of Special Courts for the speedy trial of offenses under the Act.
    • Section 37: All offenses under the Act are cognizable (arrests can be made without warrants) and non-bailable.
    • Section 59: Punishment for enforcement officers who intentionally aid or abet offenders. Punishment: 10–20 years, Rigorous imprisonment and/or a fine ranging from ₹ 1 lakh to ₹ 2 lakh.
    • Section 64A: Exemption from prosecution for addicts who voluntarily seek treatment and rehabilitation.

Reporting Procedure under the NDPS Act, 1985

• Identify the Appropriate Authority: Reports should be submitted to officers authorized under the NDPS Act, including personnel from central excise, narcotics, customs departments, or local police involved in drug law enforcement.
• Collect Relevant Information: Gather detailed information about the incident, including the type of narcotic drugs or psychotropic substances involved, the location, time, and details of individuals implicated.
• File a Written Report: Prepare a detailed written report with the gathered information and submit it to the concerned officer. This report must comply with Section 42(1) of the NDPS Act and be forwarded to a superior officer within 24 hours.
• Conduct Searches: If a search is required, secure authorization from a Magistrate or a Gazetted Officer. During the search, ensure the presence of two independent local witnesses. If they decline, a written notice can compel their participation.
• Document Arrests and Seizures: Any arrests or seizures must be meticulously recorded. The responsible officer must submit a comprehensive report detailing the arrest and seizure to their superior within 48 hours.
• Perform Chemical Analysis: Seized substances should be promptly sent to designated laboratories for chemical analysis, adhering to proper documentation protocols.
• Initiate Prosecution: To commence legal proceedings, a police report or complaint must be filed in a Special Court designated for NDPS cases within the prescribed timeframe, generally 180 days for serious offenses.
• Submit Follow-Up Reports: Heads of drug law enforcement agencies are required to submit quarterly reports to the Narcotics Control Bureau (NCB), detailing actions taken concerning seized narcotics and psychotropic substances.
• Raise Public Awareness: Individuals with information on drug-related offenses can directly report to the Narcotics Control Bureau through their official contact channels.

How Can Seasoned Advocates Help You?

• Expert Legal Counsel: Possesses a deep understanding of the NDPS Act's complex provisions, including its definitions, classifications of drugs, and penalties. Assess the severity of the charges, whether minor possession or involvement in trafficking, and develop a robust defense strategy.
• Navigating Stringent Bail Provisions: The NDPS Act imposes strict bail conditions, particularly for offenses involving commercial quantities. An experienced advocate can prepare and present strong arguments to satisfy the court that the accused is unlikely to re-offend or tamper with evidence.
• Shifting the Burden of Proof: Since the NDPS Act places the burden of proof on the accused, an experienced advocate can scrutinize the evidence presented by the prosecution and highlight procedural lapses, if any, such as improper handling of seized substances, failure to follow prescribed search and seizure protocols, or chain of custody issues.
• Mitigating Penalties: In cases where conviction is likely, a seasoned advocate can argue for mitigating factors, such as the accused being a first-time offender or being in possession of only a small quantity, to seek lesser sentences or alternative rehabilitation measures under Section 39 or Section 64A of the Act.
• Addressing Procedural Violations: The NDPS Act demands strict adherence to procedural safeguards. Can challenge the prosecution on non-compliance with Section 50, which requires the presence of a magistrate or gazetted officer during search operations, or deficiencies in documentation or evidence preservation.
• Rehabilitation and Voluntary Treatment: Can guide clients who are addicts toward voluntary treatment options under Section 64A, potentially avoiding prosecution for minor offenses.
• Appeals and Higher Court Representation: In cases of conviction, seasoned advocates can file appeals in higher courts, leveraging their expertise to argue on points of law and procedural errors.
• Advisory Role in Compliance: For businesses involved in the legitimate production, sale, or transport of substances regulated under the NDPS Act, seasoned advocates can provide advisory services to ensure compliance with licensing and reporting requirements.

Conclusion

The Narcotic Drugs and Psychotropic Substances Act of 1985 applies across India. It also applies to all Indian nationals living outside of India, as well as all individuals on ships and airplanes registered in India, wherever they are. To know more, contact us.