NDPS Act of 1985 targets end-users, fails against drug dealers: Expert

By Shekhar Singh
New Delhi, April 2 The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985, which was once considered a vital tool in the fight against drug trafficking, is now facing criticism for being used to prosecute end-users while allowing major drug dealers to escape justice.

This special legislation criminalizes possession and consumption of drugs without the need to establish intent, with the aim of preventing drug abuse, which is the duty of the state under Article 47 of the Directive Principles of State Policy in the Constitution.

Article 47 mandates the state to improve public health and to endeavour to prohibit the use of intoxicating drinks and drugs. The use of the word "shall" in this article makes it a mandatory duty of the state to make efforts to prohibit drugs and alcohol.

The NDPS Act, passed by Parliament on November 14, 1985, aims to control drug abuse by prohibiting the use, distribution, manufacture, and trade of narcotic drugs and psychotropic substances. Narcotic drugs are those that induce sleep, while psychotropic substances are those that affect the mind positively. The NDPS Act has been amended in 2014 and 2021.

interviewed Manoj Kumar Sinha, Director of the Indian Law Institute, to discuss the NDPS Act.

Excerpts:

: Can you explain why certain substances are not completely banned under the NDPS Act?

Sinha: These substances, such as cannabis, poppy, and coca plants, have their place in the practice of medicine. The Act includes provisions for their cultivation and manufacturing in connection with the cultivation of these plants.

: What is the primary objective of the NDPS Act?

Sinha: The Act's objective is to make stringent provision for the control and regulation of oppressions relating to narcotic drugs and psychotropic substances and to provide for the forfeiture of property derived from or used in illicit traffic of NDPS, also to implement the provisions of international conventions on NDPS.

: As we have seen many foreign nationals are involved in drug trafficking and supplying, does the NDPS Act cover foreign nationals?

Sinha: Yes, the Act covers the whole of India, all Indian citizens living outside India, and all persons travelling aboard ships and aircraft registered in India. We have seen several foreign nationals indulging in illegal drug trafficking are now behind the bars.

: Can you explain the presumption of culpability under the NDPS Act?

Sinha: Section 54 of the Act establishes a presumption of guilt based on possession of illicit substances, placing the burden of proof on the accused to prove their innocence.

: What is the NDPS Act's stance on the presumption of intent and knowledge?

Sinha: The Act eliminates the requirement of dishonest intention and presumes a culpable mental state for all offences under the Act. It is a strict liability offence.

: Can you explain the punishment for attempting to commit an offence under the NDPS Act?

Sinha: Attempting to commit an offence under the Act is punishable the same as the offence itself under section 28.

: What is the punishment for knowingly allowing an offence to be committed on one's premises under the NDPS Act?

Sinha: Under section 25 of the Act, if someone knowingly permits an offence to be committed on their premises by another individual, they will face the same punishment as if they had committed the offence themselves.

: Can you explain the categorization of drugs under the NDPS Act?

Sinha: The Act divides drugs into small, medium, and commercial quantities, which are distinguished by purity level and quantification for personal use or commercial purposes.

: What are some of the negative aspects of the NDPS Act?

Sinha: Some of the negative aspects include the scope for misuse and draconian laws, chances of innocent people languishing in jail based on mere disclosure statements, or honest businesses suffering due to seizure of property, difficulty in getting bail, and the Act's punitive rather than reformative nature.

: What steps do you think can be taken to improve the implementation of the NDPS Act?

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