NDPS Act

Legal Framework of the Narcotic Drugs and Psychotropic Substances Act

• 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.
• Difference Between Narcotic Drugs and Psychotropic Substances 
  • Narcotic Drugs: 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, opium and its derivatives, oxycodone, etc.
  • 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

• Presumptions: Section 54 of the Act outlines the presumption of guilt for the possession of illicit articles such as narcotic drugs, psychotropic substances, and controlled substances, until and unless the contrary is proved. However, Section 35 of the Act outlines the culpable mental state required for an accused to be found guilty of any offense under the Act.  
• Bail Provisions: Section 37 of the Act outlines the conditions that must be satisfied for granting bail in cases involving severe offenses under Section 19, 24, and 27A, as well as for offenses involving a commercial quantity of narcotic drugs or psychotropic substances. The conditions include a bail opposed by the public prosecutor, as well as the court's reasonable satisfaction that bail should be granted. The minimum punishment for such offenses is 10 years in prison. However, offenders in cases of small quantities are eligible for bail. 
• Sentence Suspension or Remission: According to Section 32A of the Act, Offenders convicted under the NDPS Act are not eligible for sentence reduction, suspension, or commutation, ensuring they undergo the full term of punishment imposed by the court, except for the offenses under Section 26 and 27, and in the case of minors.
• Repeat Offenders: Section 31 provides for enhanced punishment. Those convicted more than once under the Act face increased punishments, which can extend up to 30 years in prison. This provision aims to deter habitual offenders.
• Death Penalty: Section 31A provides for the death penalty. In cases of repeated convictions for specific grave offenses, such as under Section 19, 24, and 27A, the law mandates the death penalty. This extreme measure is meant to curb the most serious violations of the Act.
• Additional Provisions 
  • Section 2(i) defines an "addict" as a person dependent on narcotic drugs or psychotropic substances. 
  • Section 39 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 64A provides immunity from prosecution to addicts who voluntarily seek treatment.

List of Controlled Substances

• There are more than 250 narcotic drugs and psychotropic substances that are listed under the Schedule of the NDPS Act. However, the Ministry of Finance, Government of India, under the powers granted by Section 2 of the NDPS Act, 1985, has designated the following substances as controlled substances under the Act through Notification No. S.O.834(E) dated 29-03-2013
  • Ergometrine and its salts
  • Ergotamine and its salts
  • Isosafrole
  • Lysergic acid and its salts
  • 3, 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

International Framework 

• Single Convention on Narcotic Drugs, 1961: India is a signatory to this Convention, and the country aligns with the Convention's provisions to limit the use of narcotic drugs and psychotropic substances for medical and scientific use. 
• Convention on Psychotropic Substances, 1971: This Convention focused on the regulation of scheduled drugs through medical prescriptions for individual usage. India is a member of this Convention and has implemented its objectives through the NDPS Act in the country.  
• United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988: The Convention aims to prevent illicit trafficking of narcotic drugs and psychotropic substances by criminalizing the acts. The member countries agreed upon mutual legal assistance for investigation, evidence sharing, and prosecution sharing for this purpose. India is a member and aligns with the obligations of the Convention, as reflected in the provisions of the NDPS Act and government initiatives. 
• SAARC Convention: India is a member of this Convention. This Convention focused on promoting cooperation among member states for the prevention and control of drug abuse and suppressing the illicit trafficking of such drugs and psychotropic substances.
• The International Narcotics Control Board (INCB): The INCB is an independent quasi-judicial body established by the Single Convention on Narcotic Drugs, 1961. India is a member of the INCB; however, the country has its own Narcotics Control Bureau to implement rules and regulations. India aligns with the objectives of INCB, i.e., for limiting the manufacturing and regulating the distribution of narcotic drugs. 

Significant Amendments

• NDPS (Amendment) Act, 1989: Definition of illicit traffic was added through Section 2(viiib). 'National Fund for Control of Drug Abuse' was added through Chapter IIA. A provision for the death penalty was inserted under Section 31A. Also provided that no suspension, remission, or commutation of sentences shall be granted under Section 32A. A few additional amendments were made to strengthen the provisions of the Act, including the insertion of Sections 52A, 53A, and 74A, as well as the creation of a new Chapter VA.
• NDPS (Amendment) Act, 2001: Under Section 2, definitions of commercial quantity, small quantity, controlled delivery, etc, were inserted. Provisions for certain activities related to properties derived from such offenses were inserted under Section 8A. Penalty provisions were also strengthened. A table mentioning the small quantity and the commercial quantity of narcotic drugs and psychotropic substances was added with a Notification No. S.O.1055(E) dated 19.10.2001.   
• NDPS (Amendment) Act, 2014: Under Section 2, definitions of central government factories and essential narcotic drugs were inserted. Several penalties were revised and enhanced as a result of these amendments. Section 27B was inserted regarding the punishment for activities related to properties derived from such offenses. Provisions were inserted for the preparation of reports of such properties. 

Punishments Under the NDPS Act

• According to Sections 15, 17, 18, 20, 21, 22, 23, cultivation, production, possession, sale, transport, etc of Poppy Straw, Opium, Cannabis, and manufacture, possession, sale, transport, import-export, etc of drugs and psychotropic substances of narcotic drugs and psychotropic substances may result in 
  • Small Quantity: Punishment of up to 1 year of rigorous imprisonment, or a fine of up to ₹10,000, or both.  
  • Quantity Less than Commercial but Greater than Small: Punishment of up to 10 years of rigorous imprisonment and a fine of up to ₹1,00,000.  
  • Commercial Quantity: Punishment ranging from 10 to 20 years of rigorous imprisonment and a fine from ₹1,00,000 to ₹2,00,000.  
• According to Section 16, the cultivation, production, possession, sale, transport, etc. of Coca Plants and Coca Leaves may result in a punishment of up to 10 years of rigorous imprisonment and a fine of up to ₹10,000. 
• According to Section 24, punishment for dealing with narcotics internationally in violation of export/import permits may result in punishment ranging from 10 to 20 years of rigorous imprisonment and a fine from ₹1,00,000 to ₹2,00,000.
• Section 25 outlines the punishment for allowing premises/spaces to be used 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.
• According to Section 25A, punishment for unauthorized manufacture, sale, possession, or transportation of controlled substances (chemicals used in drug production) may result in punishment of up to 10 years of rigorous imprisonment and a fine of up to ₹1,00,000. 
• Section 27 outlines the punishment for personal consumption
  • For Cocaine, Morphine, or Notified Substances (Section 27(a)): Imprisonment for a term which may extend to 1 year, or with a fine which may extend to ₹20,000, or with both.
  • For Other Substances (Section 27(b)): Imprisonment for a term which may extend to 6 months, or with a fine which may extend to ₹10,000, or with both.

Reporting Procedure under the NDPS Act, 1985

• Appropriate Authority: Information should be provided to officers authorized under the NDPS Act, including personnel from central excise, narcotics, customs, armed forces, revenue, and local police departments involved in drug law enforcement, as designated by the central or state government.
• Relevant Information: Gather related information about the incident, including the type of narcotic drugs or psychotropic substances involved, the location, time, and details of individuals implicated.
• Search: If a search is required, obtain prior authorization from a Magistrate or a Gazetted Officer, as applicable. During the search, ensure the presence of two independent local witnesses. If they decline to participate, issue a written document to compel their attendance.
• Written Report: The Investigating Officer will prepare a detailed written report containing the gathered information and submit it to the concerned officer. This report must comply with Section 42(1) of the NDPS Act and should be forwarded to a superior officer within 48 hours in the event of arrest or seizure of property as outlined under Section 57.
• Analysis: Seized substances should be promptly sent to designated laboratories for chemical analysis, strictly following proper documentation protocols.
• Initiate Prosecution: To commence legal proceedings, a police report or complaint must be filed before the Special Court designated for NDPS cases within the prescribed timeframe, generally 180 days for serious offenses. If the investigation cannot be concluded within this period, the court may extend the period for up to 1 year, and in the meantime, detention may be continued if necessary. 

How Can Seasoned Advocates Help You?

• 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.
• Bail and Bonds: The NDPS Act imposes strict bail conditions, particularly for offenses involving commercial quantities. Prepare and present strong arguments to satisfy the court that the accused is unlikely to re-offend or tamper with evidence.
• Representation: Since the NDPS Act places the burden of proof to discharge the liability on the accused, 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. Such cases need a strong representation before the special court. 
• Compliance: Provide advisory services to ensure compliance with licensing and reporting requirements to businesses involved in the legitimate production, sale, or transport of substances regulated under the NDPS Act.

Conclusion

The Narcotic Drugs and Psychotropic Substances Act of 1985 applies across India. It also applies to all Indian nationals residing outside India, as well as to all individuals on ships and airplanes registered in India, regardless of their location. The NDPS Act is complex, and you require an expert to handle cases registered under the Act. To know more, contact us.