INTRODUCTION
Narcotic drugs and psychotropic substances can be imported and exported subject to the following restrictions:
Import and export of narcotic drugs and psychotropic substances listed in Schedule I to the NDPS Rules is prohibited.
Import of opium, concentrate of poppy straw, and morphine, codeine, the Baine and their salts is prohibited except by the Government Opium Factory. However, certain manufacturers who require these substances only for export, and importers of samples of these substances up to 1 kg in a year can import the substances after following the due procedure, provided they are notified by the Government to do so.
Export of some psychotropic substances is not permitted to specific countries. These substances and the countries to which each substance cannot be exported are listed in Schedule II of the NDPS Rules, 1985.
To import any narcotic drug or psychotropic substance, one should apply for and obtain an import certificate from the Narcotics Commissioner for each consignment.
To export any narcotic drug or psychotropic substance, one should apply for and obtain an export authorization from the Narcotics Commissioner for each consignment.
Manufacturing of Narcotic Drugs.
Drugs whose manufacture is completely prohibited:
Crude cocaine, ecgonine and diacetylmorphine (commonly known as heroin) and their salts.
Drugs which can be manufactured only by the Government Opium and Alkaloid Works or when a license is issued if the Government determines it to be in public interest to issue a license:
Morphine, codeine, dionine, thebaine, dihydrocodeinone, dihydrocodeine, acetyldihydrocodeine, dihydromorphine, dihydromorphinone, dihydrocodeinone, pholcodine and their respective salts.
Drugs which can be manufactured after obtaining a license
Narcotic drugs other than the above can be manufactured after obtaining a license from the Narcotics Commissioner.
The Narcotics Commissioner issues a license only if the conditions are fulfilled including producing a manufacturing license from the Drugs and Cosmetics Act/Rules from the State Drugs controller and the licenses to be obtained from the State Government under the State NDPS Rules for possession, use and sale of narcotic drugs.
Narcotic drugs’ and ‘pharmaceutical drugs’ – no such distinction in the NDPS Act
The Report proceeds on the basis that ‘narcotic drugs’ and ‘pharmaceutical drugs’ are two distinct categories under the NDPS Act. The data in Volume II of the Report is presented on the same premise. This categorization suggests that there are illicit drugs [narcotics] and licit drugs [pharmaceutical] under the NDPS Act. This is simply not correct.
The NDPS Act distinguishes between ‘narcotic drugs’, ‘psychotropic substances’ and ‘controlled substances’ Narcotic drugs are further divided into plant based drugs i.e cannabis, coca and opium, each of which are defined and punished separately and their synthetic variants or derivatives, which are called ‘manufactured drugs’.The classification of drugs under the NDPS Act follows the classification under international conventions, where narcotic drugs are the subject matter of the 1961 Convention, psychotropic substances are scheduled under the 1971 Convention and controlled substances or precursors used to manufacture narcotic drugs are addressed under the 1988 Convention.
There is no separate class of ‘pharmaceutical drugs’ under the NDPS Act. Pharmaceutical drugs are ‘preparations’ and depending on their active pharmaceutical ingredient could be a ‘narcotic drug’ or a ‘psychotropic substance’ or a ‘controlled substance’.
This categorization also obfuscates the fact that most of the narcotic drugs and psychotropic substances have medicinal properties.
Controlled Delivery
Controlled Delivery means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision of an officer empowered on his behalf or duly authorized under Section 50-A with a view to identifying the persons involved in the commission of an offence under this Act.
In the context of the powers of controlled delivery under Section 50A of the NDPS Act, it shall be important and relevant to discuss the provisions of Section 109 A of Customs Act which is reproduced as below:
SECTION 109A. Power to undertake controlled delivery.-
Notwithstanding anything contained in this Act, the proper officer or any other officer authorised by him in this behalf, may undertake controlled delivery of any consignment of such goods and in such manner as may be prescribed, to—
- Any destination in India.
- A foreign country, in consultation with the competent authority of such country to which such consignment is destined.
Explanation.—For the purposes of this section “controlled delivery” means the procedure of allowing consignment of such goods to pass out of, or into, the territory of India with the knowledge and under the supervision of proper officer for identifying the persons involved in the commission of an offence or contravention under this Act.]
Section 2 (32) of Customs Act “prescribed” means prescribed by regulations made under this Act;
Positive Aspects of this Act.
An important feature of the act is that the method of adding and withdrawing narcotics and psychotropic substances from the lists was made quite straightforward. For this reason, no formal bill or amendment is necessary and the government has been empowered to make these changes on the basis of available information or a simple notification in the official gazette.
As regards subparagraph 3 of section 4, the Central Government created the Narcotics Control Bureau in 1986 with the specific task of coordinating drug law enforcement nationally. The NCB basically functions as the national international liaison coordinator and as the nodal point for intelligence collection and dissemination and ensures coordinated implementation within the parameters of national strategy.
The power to issue search and arrest warrants has been vested in both the Magistrates as well as in specially appointed Central and State Governments officers as per the terms of the act. It is intended to ensure prompt and appropriate action in response to any information and to eliminate the need for judicial satisfaction if a warrant is issued. Thus, both timely and effective action is ensured in response to any information.
Criticism
It treats hard and soft drugs as the same, for this many people opposed it during the discussion of the bill in the parliament.
The act was criticized in The Times of India, because due to the law offering the same penalty for all narcotics, the paper characterized the legislation as ill-conceived and poorly thought-out, which meant that dealers turned their attention to harder drugs, where profits are much greater.
In 2015, Lok Sabha MP Tathagata Satpathy attacked cannabis prohibition as elitist, and described cannabis as the poor’s intoxicant. He also thought the ban was an overreaction to a US-made threat.
Conclusion
It is commendable that the past 27 years have seen significant growth in the fight against drug dependency in particular in the areas of policy formulation and infrastructure development. What remains to be seen now is the efficacy and effects of the various steps which have been implemented. An assessment and subsequent adjustment of strategies and policies on the basis of successful research is imperative. Plans will be just that-plans, without any formal assessment. “Vidhi Legal Centre’s Report” is certainly a step forward in the inquiry into the working of the NDPS Act. But the reasoning and analysis of the law and consequently, the findings are substantially flawed. As a result, the recommendations which otherwise have been shown to be sound in other jurisdictions, e.g. Portugal, need to be further worked upon before concrete proposals to reform the NDPS Act can be made.
Author: Mohit Mathur
Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi
