What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?
What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?
According to Section 2 of NDPS Act:
‘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.
‘Small quantity’, in relation to Narcotic Drugs and Psychotropic Substances, means any quantity lesser than the quantity specified by the central government by notification in the Official Gazette.
Intermediate Quantity: that although the terminology “Intermediate Quantity”, is nowhere defined in the Act in definition part, but the terminology used is “lesser than commercial quantity but greater than small quantity”, when it comes to stipulating the punishment for the offences.
Offences under commercial quantities are non-bailable U/S 37 NDPS Act 1985. However, if the court finds that the accused is not guilty of offence or is not likely to indulge in sale/ purchase of narcotic drugs, bail can be granted.
The punishment for many offences under Sections 15–23 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, Intermediate Quantity, i.e. quantity more than small and lesser than commercial quantity.
The punishment prescribed for different quantities is as follows:
Where the contravention involves small quantities, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.
Where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to Rs. 1,00,000.
Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than Rs. 1,00,000 but which may extend to Rs. 2,00,000s.
Section 27 of NDPS Act: Punishment for Consumption of Any Narcotic Drug or Psychotropic Substance.
Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,-
Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the central government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 20,000; or with both.
Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.
Brief legislative history
Vidhi Centre for Legal Policy issued a report entitled: ‘From Addict to Convict’: Working of the NDPS Act in Punjab’. The Report, which is based on a review of 13,350 cases from Courts trying NDPS cases in Punjab from 2013 to 2015, concludes that the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) has not deterred drug use or drug trafficking and is in need of reform.
Possession for personal use v/s small quantity
The Report examines the law in relation to ‘small quantity’ and possession of drugs for personal use without appreciating the legislative history of section 27 of the NDPS Act.
The NDPS Act, as it stood in 1985, prescribed a minimum punishment of rigorous imprisonment for 10 years along with a fine of Rs 1 lakh for most offences with the exception of offences involving ganja and the cultivation of the cannabis plant, which attracted punishment upto 5 years imprisonment and fine of upto Rs 50,000.
The other exception was contained in section 27, which prescribed punishment of a maximum term of 6 months/1 year imprisonment (depending on the drug) or fine or both for consumption or illegal possession of any narcotic drug or psychotropic substance in ‘small quantity’, if the drug was proved to have been intended for personal consumption and not for sale or distribution. ‘Small quantity’ meant “such quantity as may be specified by the Central Government by notification in the Official Gazette.” The onus of proving that the drug was intended for personal consumption and not for sale or distribution lay on the accused person.
After the amendment in 1989, the Central Government issued fresh Notifications specifying the ‘small quantity’ of 220 narcotic drugs and psychotropic substances for the purposes of imposing lesser penalty under section 27 of the NDPS Act. The Report contains the recommendations of the Committee constituted by the Ministry of Health and Family Welfare for this purpose.
Though beneficent, section 27 was not used
In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantities. Despite the possibility of imposing a lesser sentence under section 27 of the NDPS Act, persons caught with small quantities of drugs were still sentenced to 10 years imprisonment and hefty fines, as most of the time; the accused the person was unable to prove that the drug was meant for personal consumption and not for sale.
In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantity. For instance in Raju v State of Kerala, the Appellant was found with possession of 100 mg heroin worth Rs. 25. The Appellant’s plea that the drug was for personal use was rejected by the lower Courts on the ground that he showed no symptoms of withdrawal while he was in custody and not using heroin. The Supreme Court expressed doubt whether such a small quantity of heroin could have been intended for sale to make profit. Ultimately, the Court invoked section 27 of the NDPS Act and modified the punishment from 10 years imprisonment to 1 year on the basis that the heroin was meant for personal use, even though the same was not ‘proved’.
Another reason why drug users did not invoke the plea of personal use under section 27 of the NDPS Act was that it would amount to an admission of being in possession of drugs and risk certain conviction.
The requirement of ‘admitting’ to illicit drug-possession and ‘proving’ personal use made section 27 of the NDPS Act inaccessible. As a result, a large number of persons including those who use drugs languished in jail without the possibility of bail and/or lenient sentences.
It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities
It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities.
Object and import of the 2001 Amendments – far reaching
The NDPS (Amendment) Act of 2001 was a watershed moment, as Parliament, in a rare occasion, acknowledged the harmful consequences of harsh provisions of the NDPS Act and sought to correct course by introducing graded penalties, on the basis of whether the offence involved drugs in ‘small’, ‘intermediate’ or ‘commercial quantity’.
Though the proposed changes were criticized in Parliament for being ‘soft on drug offenders’, Shri Yashwant Sinha, the then Finance Minister who introduced the Amendment Bill, remained firm and saw through its adoption by the House.
The Report however, faults the 2001 Amendment by stating that that it resulted in treating “anyone caught with drugs, whether for self-use or for sale, as a criminal.” This criticism is misplaced.
The NDPS Act has always criminalized consumption and possession of drugs for personal use. Drug users did not become criminals as a result of the NDPS (Amendment) Act, 2001.
Doing away with ‘personal use’, extended protection of the law. The Legislature’s decision to do away with the requirement of proving possession for personal use for imposing lesser punishment and adopting the uniform criteria of ‘small quantity’ offences must be seen in the context of non-application of section 27, discussed above.
The 2001 Amendments were far-reaching in that they extended lenient sentencing (imprisonment upto 6 months and/or fine of Rs 10,000) and diversion (under sections 39 and 64A) to ‘anyone’ caught with a small amount of drugs, irrespective of whether the drug was meant personal use or sale. This also helped drug users who may be involved in sale or supply of small quantities to peers.
Problem is that quantity alone determines penalty
The real drawback of the NDPS Amendment Act, 2001 is that quantity was made the sole determinant for the severity of penal measures imposed under the law including restrictions on bail, pre-trial detention and sentencing. Other factors such as the role and involvement of the accused in the crime – whether he is a mere carrier or controls the illicit trade are rendered irrelevant. The Report fails to examine this aspect completely.
Bail under NDPS act when small, intermediate and commercial quantities are involved
Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798
Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:
“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.
It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.
But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”
Therefore, even in commercial quantity if the courts are satisfied of the reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.
Punishment for Offences
The NDPS Act views drug offences very seriously and penalties are stiff. The quantum of sentence and fine varies with the offence. For many offences, the penalty depends on the quantity of drug involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Small and Commercial quantities are notified for each drug.
Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence attract the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases death penalty. Since the penalties under this Act are very stiff, several procedural safeguards have been provided in the Act. Some immunities are also available under the Act.
The penalties for various offences under the NDPS Act are as follows.
|SECTIONS OF THE ACT.|
|Cultivation of opium, cannabis or coca plants without license||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 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 quantities but less than commercial quantities – 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 harboring 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 drug 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
|Drug||Small Quantity||Commercial Quantity|
|Amphetamine||2 grams||50 grams|
|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|
|Morphine||5 grams||250 grams|
|Poppy straw||1 kg||50 kg|