APPLICABILITY OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 IN THE RECENT INVESTIGATIONS PERTAINING TO THE DEATH OF SUSHANT SINGH RAJPUT

In recent times the Investigation on the #SushantSinghRajput’s Death case has taken a complete turn after the Narcotic Drugs Bureau (#NCB) joined the #Investigations regarding the cause of the death of the late Actor. Investigation by the NCB has opened a pandora’s box of celebrities who are either taking restricted drugs or peddling the same.

This paper seeks to give an overview of the offences committed and penalties that can be levied. The Author does not cast aspersions on any of the celebrities who are being named or shortlisted in the investigations by the NCB.

The Indian law and Regulations regarding the control of #Narcotic #Drugs and #PsychotropicSubstances is based on the country’s obligations towards the United Nations (#UN) Conventions where India is a signatory and where various countries have entered into these Conventions for controlling and limiting the use of narcotic drugs and psychotropic substances for medical and scientific purposes. The following Conventions by which India is bound is as follows:

1. The UN Single Convention on Narcotic Drugs 1961,
2. The Convention on Psychotropic Substances, 1971 and
3. The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988

The law pertaining to use and abuse of drugs is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The NDPS Act is very stringent and drug offences invite heavy penalties including imprisonment.

The quantum of sentence and fine depends on the quantity of drugs involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Commercial quantities that are allowed are notified for each drug and if a person is found to have the notified quantity for Commercial use, it will not be deemed to be an Offence.

Under the NDPS Act, abetment to an offence will fall within the definition of criminal conspiracy and will attract penalties and prosecution. The penalties can range from a fine to a death penalty in the case of repeated offenders. Though the NDPS Act provides for some immunities depending on the facts.

The penalties for various offences under the NDPS Act are as follows[1]:

Offences	Penalties	Sections of the Act
Cultivation without license  of opium, cannabis or coca plants	Rigorous imprisonment-up to 10 years + fine up to Rs.1 lakh	Opium – 18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmer	Rigorous imprisonment -10 to 20 years + fine of Rs. 1 to 2 lakhs (regardless of the quantity)	19
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substances	Small quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantity but less than commercial quantity – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 Lakhs	Prepared opium-17   Opium – 18   Cannabis-20   Manufactured drugs or their preparations-21   Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substances	Same as above	23
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside India	Rigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)	24
Knowingly allowing one’s premises to be used for committing an offence	Same as for the offence	25
Violations pertaining to controlled substances (precursors)	Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs	25A
Financing traffic and harbouring offenders	Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs	27A
Attempts, abetment and criminal conspiracy	Same as for the offence	Attempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offence	Half the punishment for the offence	30
Repeat offence	One and half times the punishment for the offence. Death penalty in some cases.	31 Death – 31A
Consumption of drugs	Cocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution	27 Immunity – 64A
Punishment for violations not elsewhere specified	Imprisonment up to six months or fine or both	32

Small and Commercial Quantities

For several offences under the NDPS Act, the punishment depends on whether the quantity of drugs involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified. The quantities for some common drugs are as follows[2]:-

Drug	Small Quantity	Commercial Quantity
Amphetamine	2 grams	50 grams
Buprenorphine	1gram	20 grams
Charas/Hashish	Charas/Hashish	1 kg
Cocaine	2 grams	100 grams
Codeine	10 grams	1 kg
Diazepam	20 grams	500 grams
Ganja	1 kg	20 kg
Heroin	5 grams	250 grams
MDMA	0.5 gram	10 grams
Methamphetamine	2 grams	50 grams
Methaqualone	20 grams	500grams
Morphine	5 grams	250 grams
Poppy straw	1 kg	50 kg

Who gets immunity?

A person gets immunity from the applicability of NDPS under Section 64 and 64A. As per these Sections, a person can get immunity from prosecution and penalties if he/she makes a full and true disclosure of the whole circumstances relating to such contravention of the NDPS Act.

As per the law, if any addict, who is charged with an offence punishable under Section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment, then he/she shall not be liable to prosecution under Section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

Punishment for repeat Offenders

As drug abuse is generally habitual in nature, the NDPS Act aims to discourage repeated misuse and abuse by imposing often far stricter punishment on repeat offenders. Generally, punishment is decided by the offence and in case of a repeated offence the punishment can range anywhere from 18 months to 30 years. Similarly, the fine also increases in case of a repeated offence.

There is a provision that even invites death penalty for repeated offences. This provision is often criticized. But one cannot lose view of the larger picture which is, that the Government wants to discourage and eradicate the use of drugs and psychotropic substances from society. In recent times, a movie called Udta Punjab shows that drugs are being used as soft terrorism to harm the youth of Punjab which adjoins Pakistan. In this movie, the Director endeavours to show the harmful effects of substance and drug abuse and the helplessness of the family of the victim.

The Indian Government in a move that was widely hailed by the Human Rights Community in the 2014 Amendment, clarified that the death penalty can be imposed only as a substitute for the other punishments. However, on a close inspection of the drug market globally, it seems that even the drug penalty does not act as a sufficient deterrent for drug dealers and prevent them from surreptitious practices that these laws seek to control.

Procedural safeguards in the NDPS Act

Since the NDPS Act gives extensive powers to law enforcement agencies there is a need for providing adequate safeguards to prevent innocent civilians from being unnecessarily harassed. An authorised person who makes an arrest under the NDPS Act has to report all details to his immediate superior. Similarly, the Code of Criminal Procedure 1973 (CrPC) requires that a Police Officer who makes a search for drugs to do so in the presence of 2 panchas i.e. witnesses and these panchas must be persons who are considered respectable in society. Thereafter, a statement containing the details of the search and seizure, with the signature of the panchas, must be given to the accused for his perusal.

Another Section that provides safeguard is Section 50 of the Act that gives the accused the right to be searched in the presence of a Magistrate or a gazetted officer. The Hon’ble Supreme Court of India in the case of State of Punjab v. Balbir Singh 1994 AIR 1872 upheld this right and held that the police officer must, inform the accused about this right.

Finally, Section 58 of the NDPS Act imposes strict punishments on people making vexatious or frivolous complaints.

Though the NDPS Act allows drugs for scientific or medical purposes the provisions are very stringent thereby making it virtually impossible for the health sector for the use of such restricted drugs for scientific or medical purposes. There are times that such drugs are required for terminally ill patients who cannot tolerate the pain.

The Medical Institutions require licenses from various regulatory agencies. Hence, the 2014 Amendment seeks to provide a single window clearance system, so that they could have an easy access to these drugs and thus these Institutes have been given the status of Recognized Medical Institution (RMI).

Therefore, a special category of drugs called Essential Narcotic Drugs has been created and its use is regulated by the Central Government. Hopefully, it will help in giving some relief to the terminally ill patients who require drugs.

Sushila Ram (Varma)

Chief Legal Consultant

The Indian Lawyer and Allied Services

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[1] Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences

[2] Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences