Unmasking the Narcotics Drugs and Psychotropic Substances Act, 1985 [Explainer on certain provisions]

Narcotics Drugs and Psychotropic Substances Act, 1985 – What is it?

The aim and purpose of introducing this Act has been to induct stringent provisions which would regulate and prohibit the operations relating to narcotics drugs and psychotropic substances.

Let’s understand the basics of NDPS through some of the definitions laid down under Section 2 of the NDPS Act, 1985:

CANNABIS

Section 2(iii) Cannabis (hemp):

(iii) “cannabis (hemp)” means—

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish:

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared thereform;

(iv) “cannabis plant” means any plant of the genus cannabis;

2[(iv-a) “Central Government factories” means factories owned by the Central Government or factories owned by any company in which the Central Government holds at least fifty-one per cent. of the paid-up share capital;]

COCA

(v) “coca derivative” means—

(a) crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of cocaine;

(b) ecgonine and all the derivatives of ecgonine from which it can be recovered;

(c) cocaine, that is, methyl ester of benzoyl-ecogonine and its salts; and

(d) all preparations containing more than 0.1 per cent of cocaine;

(vi) “coca leaf” means—

(a) the leaf of the coco plant except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed;

(b) any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine;

COMMERCIAL QUANTITY

(vii-a) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;

ILLICIT TRAFFIC

([ viii-b]) “illicit traffic”, in relation to narcotic drugs and psychotropic substances, means—

(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances;

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or

(v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv);

other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder, and includes—

(1) financing, directly or indirectly, any of the aforementioned activities;

(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and

(3) harbouring persons engaged in any of the aforementioned activities;]

(xii) “medicinal cannabis”, that is, medicinal hemp, means any extract or tincture of cannabis (hemp);

OPIUM

(xv) “opium” means—

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 8 talks about the prohibition of certain operations.

No person shall –

(a) cultivate any coca plant or gather any Portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant or

(c) 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

The said Sections contains the following exceptions:

Medical or Scientific Purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder.

Certain relevant case laws:

► Nature and Scope.— Section 8(c) lays down that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import, inter-State, export-inter-State, import into India, export from India or trans-ship any narcotic drug or psychotropic substance, except for medical or scientific purpose and in the manner and to the extent provided by the provisions of the Act, A. Vidya Prakash Goud v. State of A.P.,2003 SCC OnLine AP 1431

► Prohibition in relation to cannabis.— The Amendment Act does not create any new offence for the reasons that ingredients of the offence under the substantive provision, namely, Section 8 remain the same. The only quantum of punishment has been changed by the amending Act. Quantum of punishment has to be determined with reference to relevant provision in Section 20 as it stood at the time of the commission of offence, Supdt., Narcotic Control Bureau v. Parash Singh, (2008) 13 SCC 499.

► Exceptions.— Exceptions contained, held, must be judged on the touchstone of, first, whether drugs are used for medicinal purposes, and second, whether they come within the purview of the regulatory provisions contained in Chs. VI and VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985, State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356.

► Test for conscious possession.— Once an article is found in possession of accused, it can be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meanings in different contexts and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all statutes. A servant of a hotel cannot be said to be in possession of contraband belonging to his master, unless it is proved that it was left in his custody over which he had absolute control, Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347 : (2011) 3 SCC (Cri) 181.

► First-time offenders.— Appellants who were convicted under and sentenced to 15 yrs’ RI with fine of Rs 1.5 lakhs for carrying commercial quantity of brown sugar from one State to another as were first-time offenders, having no past antecedents of involvement in offence of like nature sentence deserves to be reduced to the minimum prescribed period of 10 yrs’ RI, Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570.

► Substances to which prohibition under Section 8(c), applicable.— Prohibition under Section 8(c) would be attracted to prohibited substances which are not mentioned in Schedule to NDPS Rules but are mentioned in Schedule to NDPS Act, and substances intended for medicinal and scientific purposes because they are prohibited under NDPS Act. NDPS Act does not contemplate framing of rules for prohibiting various activities dealing with narcotic drugs and psychotropic substances. It only contemplates framing of rules permitting and regulating any activity of dealing with such substances. Section 8(c) prohibits in absolute terms certain activities (like the present case involving import into and export out of India of any narcotic drug and psychotropic substances). Rules created under the NDPS Act cannot be understood to create rights and obligations contrary to those contained in the parent Act. Further held, mere fact that the dealing in narcotic drugs and psychotropic substances is for a medicinal or scientific purpose does not by itself lift the embargo created under Section 8(c). Such dealing (in present case import and export of prohibited substances for medicinal and scientific purposes) must be in the manner and extent provided in the NDPS Act, Rules or Orders. But the rules like Rule 53 or Rule 64, NDPS Rules cannot be the source of authority for prohibiting or dealing with narcotic drugs or psychotropic substances, Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1.

► Recovery of ganja.— It is enough to establish possession of place of recovery on part of accused and it is not necessary to establish ownership thereof on part of accused, Arutla Shankaraiah v. State of A.P., (2015) 15 SCC 235.

► Heroin.— Heroin is a chemical composition, not a Nitrogen-based compound, Laxmi Nagappa Koli v. Narcotic Control Bureau, (2015) 13 SCC 598 : (2016) 1 SCC (Cri) 656.

► Reversal of conviction.— In case of Alleged recovery of contraband from suitcase, statement of official witness, found impaired due to infirmities, is not safe to rely upon and pass conviction order. When statements of independent panch witnesses, depicting a different picture than one portrayed by official witness, as to recovery and seizure and recovery of narcotic substance, not proved beyond reasonable doubt, reversal of conviction by High Court, confirmed, Union of India v. Leen Martin, (2018) 4 SCC 490.

► Transportation of poppy straw.— Conviction under Section 8 r/w Section 15(c) for transportation of poppy straw (commercial quantity) in contravention of licence, confirmed. Furthermore, sentence cannot be reduced below the statutory minimum of 10 yrs mandated in Section 15(c), Gangaram v. State of M.P., (2019) 6 SCC 244.

Section 27 elaborates on the punishment for consumption of any narcotic drug or psychotropic substance.

• Rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both; and
• where the narcotic drug or psychotropic substance consumed is other than cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance with imprisonment for a term which may extend to 6 months, or with fine which may extend to Rs 10,000, or with both.

► Nature and scope.— Section 27 is in the nature of exception with reference to Section 20(b)(ii) of the Act and the burden to bring the case within the scope and ambit of Section 27 of the Act is certainly on the accused as compared to the burden on the prosecution, Arun Kambli v. State of Goa, 1999 SCC OnLine Bom 602.

► Condition precedent for applying Section 27(a), held, is that accused must show that seized goods had been kept for his personal consumption and not for sale, Karim Hussain Sohra Sindhi v. State of Gujarat, (2003) 10 SCC 49.

► Section 27: Ingredients of.— Under Section 27 the following ingredients should be fulfilled.—

(a) The person has been found in possession of any narcotic drug or psychotropic substance in ‘small quantity’;

(b) Such possession should be in contravention of any provision of the Act or any rule of order made or permit issued thereunder; and

(c) The said possession of any narcotic drug or psychotropic substance was intended for his personal consumption and not for sale or distribution. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145 (150): 1993 SCC (Cri) 803.

► Section 27, Explanation (1): Small quantity.— Where two pieces of charas weighing 7 gms and 5 gms respectively were recovered from the accused, but only one piece weighing less than 5 gms was sent for chemical analysis it could not be said 12 gms of narcotic drug was recovered from the accused. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145: 1993 SCC (Cri) 803.

► Section 27, Explanation (2): For his personal consumption and not for sale or distribution.— Where the quantity of the narcotic drug seized from the accused was proved to be less than 5 gms and the prosecuting case itself and the version of the accused was that it was meant for personal consumption of the accused, his conviction under Section 27 and not under Section 20(b)(ii) of the Act is proper. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, (1993) 3 SCC 145: 1993 SCC (Cri) 803.

► Commencement of subsequent term of imprisonment.— When a person already undergoing a sentence of imprisonment sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of imprisonment to which he was previously sentenced. Only in appropriate cases, considering facts of the case, can court make the sentence run concurrently with an earlier sentence imposed. Investiture of such discretion presupposes that such discretion be exercised by court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently, would depend upon nature of offence/offences and facts and circumstances of each case. Anil Kumar v. State of Punjab, (2017) 5 SCC 53.

One of the drawbacks of that this Act brings with it is that it presumes the guilt of the accused which brings complete responsibility of proving an individual’s innocence on him. Bail cannot be given to accused of offences which fall under Sections 19, 24 or 27A of the NDPS Act and those relating to commercial quantities of drugs.

Drugs	Small Quantity	Punishment	Commercial Quantity	Punishment	Intermediate (In-between smaller & commercial quantity)
		Maximum of 1-year rigorous imprisonment or a fine up to Rs 10,000 or Both.		Rigorous imprisonment from 10 years (min) to 20 years (max) and a fine from Rs 1 lakh to 2 lakhs.	Rigorous imprisonment that may extend to 10 years & fine that may extend to Rs 1 lakh.
Heroin	5g		250g
Opium	25g		2.5kg
Morphine	5g		150g
Ganja (cannabis)	1kg		20kg
Charas (cannabis resin)	100g		1kg
Coca leaf	100g		2kg
Cocaine	2g		100g
Amphet-Amine	2g		50g
LSD	2mg		100mg

Offences under commercial quantities are non-bailable under Section 37 NDPS Act 1985. However, if the court finds that the accused is not guilty of offence or is not likely to indulge in the sale/ purchase of narcotic drugs, bail can be granted.

Further, punishment for several offences under Sections 15–23 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, lesser and immediate quantity,

NDPS Act has been in the news and several media reports for past few weeks due to some high profile cases being on the radar, hence to get clarity on certain important provisions of the Act, the above short explainer will definitely give an understanding of what the NDPS Act is all about.

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† Legal Editor, EBC Publishing Pvt. Ltd.