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On 2nd December, 2020, the United Nations Commission on Narcotic Drugs (CND), by a vote of 27-25 with one abstention, agreed to follow the recommendations of the WHO and delete cannabis and cannabis resin from Schedule IV of the 1961 Convention but maintain it in Schedule I of the 1961 Convention.[1]

An article on the official UN website states that, ‘the CND has opened the door to recognizing the medicinal and therapeutic potential of the commonly-used but still largely illegal recreational drug’.[2]

Schedule IV is for that category of drugs which are considered to have particularly dangerous properties and limited or no therapeutic purposes. By removing cannabis from Schedule IV, therapeutic qualities of cannabis have been acknowledged, thus strengthening the international imperative for ensuring access to cannabis-based medicines[3]. However, the drug is still classified under Schedule I therefore, it’s sale and production etc will still be under strict controls.

India was among  the majority at the United Nations which voted to remove cannabis and cannabis resin from the list of most dangerous substances. 27 out of 53 member states including US and most European states voted to remove from Schedule IV where it was listed alongside deadly, addictive opioids, including heroin. The vote was close as 25 nations including China and Pakistan voted against the move, with Ukraine abstaining.

Under India’s Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, following the 1961 Convention, the production, manufacture, possession, sale, purchase, transport, and use of ganja (flowering or fruiting tops) and charas (separated resin) is illegal but use of seeds and leaves (for making bhaang etc) is not prohibited but under Government control.

The reclassification of cannabis from Schedule IV to Schedule I by the UN agency will not immediately change its status worldwide as individual countries continue with existing regulations. As many nations follow the lead of international protocols while legislating, this may bring a change to local laws of states in the future.


Nilufer Bhateja, Associate Editor has put this story together 

[Image by David Gabrić/Unsplash]

[1] United Nations Commission on Narcotic Drugs, Press Statement – 2 December 2020 

[2] UN commission reclassifies cannabis, no longer considered risky narcotic. UN News, 2 December 2020

[3] UN green lights medicinal cannabis but fails to challenge colonial legacy of its prohibition ,TNI, 02 December 2020

Also read: Cannabis: Your guide to what’s legal and what’s not in India

Op EdsOP. ED.

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.


† Legal Editor, EBC Publishing Pvt. Ltd.

OP. ED.

Differing from the earlier policy of marijuana prohibition for recreational purposes as it wasn’t working, the Canadian government passed a legislation legalizing pot or recreational marijuana on 17-10-2018. The amendment was introduced through the Cannabis Statute Law Amendment Act, 2018 (Bill No. 36)[1]. However, medical usage of cannabis has been legal in the country since 2001.

Highlights:

  1. Adults will be able to buy cannabis from licensed producers and retailers.
  2. The legal age for marijuana use will be 19 in most provinces, and 18 in Quebec.
  3. The permissible possession limit of cannabis public is 30 grams (dried or equivalent form)
  4. It will be illicit to possess an amount, more than the prescribed limit, in public.
  5. It will be illegal to grow more than 4 plants at one’s place or buy from an unlicensed dealer.
  6. It is a criminal offence to sell marijuana to minors with a penalty of up to 14 years in prison.
  7. Giving flexibility to provinces to modify laws on possession and age restrictions and household cultivation.
  8. Drug impaired driving is still against the law.
  9. A special marijuana excise tax, to be divided up between the federal government and the provinces, will be included in the price; sales tax will be added at the cash register.
  10. Standards and rules for cannabis manufacturing industry (quality, packaging etc.).
  11. Tracking requirements to keep the procured amount out of illegal markets.
  12. Provision for proper educational awareness, counselling and law enforcement to counter harmful effects.
  13. Cross border transportation is a penal offence.

Howbeit, use of Cannabis in enclosed workplaces is still prohibited.

 

Benefits:

  1. Reducing burden on police system and criminal system as a plethora of crimes are non violent and only involve possession of marijuana.
  2. Targeting unlicensed dealers and keeping them from profiting and hence bringing down organised crime.
  3. Preventing consumption of spiked marijuana or inferior quality marijuana that affects the health of an individual..
  4. Keeping the drug out of hands of minors and youth.
  5. Harnessing economic growth out of the industry.
  6. Preventing people from getting a criminal record for mere possession of marijuana.

Thus, the law on legalizing marijuana, sets standards for production of the same, so as to ensure the quality of the drug, keeping in mind public safety. It aims at constructing a specific distribution system so that the drug does not fall into young or wrong hands, and aims at spreading awareness about the harmful effects of the same. It is a national experiment that Canada has embarked upon which might reshape the economic, social and cultural anatomy of the country.


Ed. Note: Canada became the second country to issue a cannabis card to its citizens by legalizing recreational marijuana, following in the footsteps of Uruguay (first country to legalize the same).

 

Whereas, Netherlands, Colombia, Czech Republic and Australia have changed their laws to allow consumption for medical purposes, i.e. medical marijuana at the very least. In Colombia you can possess upto 20 plants/or can have upto 22 grams (for personal consumption), and in Jamaica it is legal to cultivate upto 5 plants for personal use.

Furthermore, the Drug Policy Alliance (DPA) has been advocating for legalization of marijuana in the U.S. and has proposed to regulate it on the same lines as tobacco and alcohol, in furtherance of which, it has been organizing campaigns in New Jersey, New York and New Mexico (to end the Marijuana prohibition).

 

As for India, it is illegal on a federal level, but is ‘tolerated’ in many states like West Bengal, Gujarat, Bihar, Odisha and the North East. Large tracts of cannabis grow unchecked in the wild in many parts of northern and southern India, and in holy cities like Varanasi and various north Indian states government-owned shops sell marijuana in the form of bhang.

In North Korea, Cambodia, California technically it is illegal, but the law is not followed in a strict sense.

And, in IsraelRomaniaMacedonia and Puerto Rico, cannabis is totally illegal, but available for medical use in very specific cases, such as severe or terminal illness.

 

[1] Bill No. 36 (Cannabis Statute Law Amendment Act, 2018), S.O. 2018, c. 12, w.e.f. 27-09-2018.

Case BriefsForeign Courts

Constitutional Court of South Africa: A 10-Judge Bench comprising of Zondo, ACJ., Cameron, Froneman, Jafta, Madlanga, Mhlantla, Theron, JJ., Kathree-Setiloane, Kollapen, Zondi, AJ., unanimously declared private use of cannabis a matter of privacy and thereby appeal was dismissed.

 The facts of the case are that High Court gave an order due to which Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992 read with Part III of Schedule 2 to the Drugs Act and Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act,1965 and Section 22A(10) read with Schedule 7 of GN R509, 2003 were declared to be constitutionally invalid. The above provisions prohibited an adult person to use, possess, purchase, cultivate cannabis for personal consumption and thus was declared as constitutionally invalid on the reasoning that it was against the right to privacy guaranteed under Section 14 of the Constitution.

Applicant State submitted that it is in public interest that the restriction is put for the health, safety and psychological well-being of cannabis users whereas respondent agreed to the invalidation of impugned provision. Further High Court suspended its declaration until parliament corrects the defects as pointed out in its order. Constitutional Court was of the view that High Court was not competent to suspend its declaration as the declaration was not yet confirmed by the Constitutional Court as is required under Article 172(2) of the Constitution of Republic of South Africa. On the question of infringement of right to privacy the Constitutional court found that the right to privacy of adults to use etc. in private was limited by these provisions.

Constitutional Court came to the conclusion that the prohibition on privately involving in any activity which is related to cannabis cultivation by an adult for personal consumption was not in consonance with right to privacy as entrenched in the Constitution and was constitutionally invalid. Since constitutional invalidity declared by High Court was being affirmed by the Constitutional Court this order of invalidity was suspended for the parliament to correct the constitutional defects as pointed by this court in the impugned provision. Therefore, this appeal was dismissed. [Minister of Justice and Constitutional Development v. Prince, Case CCT 108 of 17, decided on 16-09-2018]