{"id":235738,"date":"2020-09-13T21:19:04","date_gmt":"2020-09-13T15:49:04","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=235738"},"modified":"2022-05-12T18:07:51","modified_gmt":"2022-05-12T12:37:51","slug":"ndps-act","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/09\/13\/ndps-act\/","title":{"rendered":"Unmasking the Narcotics Drugs and Psychotropic Substances Act, 1985 [Explainer on certain provisions]"},"content":{"rendered":"

Narcotics Drugs and Psychotropic Substances Act, 1985<\/a> \u2013 What is it?<\/span><\/h3>\n

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.<\/p>\n

Let\u2019s understand the basics of NDPS through some of the definitions laid down under Section 2 of the NDPS Act, 1985:<\/p>\n

CANNABIS<\/strong><\/span><\/p>\n

Section 2(iii) Cannabis (hemp):<\/p>\n

(iii) \u201ccannabis (hemp)\u201d means\u2014<\/p>\n

(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:<\/p>\n

(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<\/p>\n

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared thereform;<\/p>\n

(iv) \u201ccannabis plant\u201d means any plant of the genus cannabis;<\/p>\n

2[(iv-a) \u201cCentral Government factories\u201d 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;]<\/p>\n

COCA<\/strong><\/span><\/p>\n

(v) \u201ccoca derivative\u201d means\u2014<\/p>\n

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

(b) ecgonine and all the derivatives of ecgonine from which it can be recovered;<\/p>\n

(c) cocaine, that is, methyl ester of benzoyl-ecogonine and its salts; and<\/p>\n

(d) all preparations containing more than 0.1 per cent of cocaine;<\/p>\n

(vi) \u201ccoca leaf\u201d means\u2014<\/p>\n

(a) the leaf of the coco plant except a leaf from which all ecgonine, cocaine and any other ecgonine alkaloids have been removed;<\/p>\n

(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;<\/p>\n

COMMERCIAL QUANTITY<\/strong><\/span><\/p>\n

(vii-a) \u201ccommercial quantity\u201d, 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;<\/p>\n

ILLICIT TRAFFIC<\/strong><\/span><\/p>\n

([ viii-b]) \u201cillicit traffic\u201d, in relation to narcotic drugs and psychotropic substances, means\u2014<\/p>\n

(i) cultivating any coca plant or gathering any portion of coca plant;<\/p>\n

(ii) cultivating the opium poppy or any cannabis plant;<\/p>\n

(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;<\/p>\n

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or<\/p>\n

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

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\u2014<\/p>\n

(1) financing, directly or indirectly, any of the aforementioned activities;<\/p>\n

(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and<\/p>\n

(3) harbouring persons engaged in any of the aforementioned activities;]<\/p>\n

(xii) \u201cmedicinal cannabis\u201d, that is, medicinal hemp, means any extract or tincture of cannabis (hemp);<\/p>\n

OPIUM<\/strong><\/span><\/p>\n

(xv) \u201copium\u201d means\u2014<\/p>\n

(a) the coagulated juice of the opium poppy; and<\/p>\n

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,<\/p>\n

but does not include any preparation containing not more than 0.2 per cent of morphine.<\/p>\n

Section 8 talks about the prohibition of certain operations.<\/strong><\/span><\/p>\n

No person shall \u2013<\/p>\n

(a) cultivate any coca plant or gather any Portion of coca plant; or<\/p>\n

(b) cultivate the opium poppy or any cannabis plant or<\/p>\n

(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<\/p>\n

The said Sections contains the following exceptions:<\/p>\n

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.<\/p>\n

Certain relevant case laws:<\/span><\/p>\n

\u25ba Nature and Scope.\u2014 <\/span>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.<\/em>,2003 SCC OnLine AP 1431<\/b><\/a><\/p>\n

\u25ba Prohibition in relation to cannabis.\u2014 <\/span>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<\/em>, (2008) 13 SCC 499<\/a>.<\/p>\n

\u25ba Exceptions.\u2014<\/span> 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<\/em>, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356<\/a>.<\/p>\n

\u25ba Test for conscious possession.\u2014<\/span> 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<\/em>, (2011) 11 SCC 347 : (2011) 3 SCC (Cri) 181<\/a>.<\/p>\n

\u25ba First-time offenders.\u2014<\/span> 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<\/em>, (2013) 1 SCC 570<\/a>.<\/p>\n

\u25ba Substances to which prohibition under Section 8(c), applicable.\u2014<\/span> 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<\/em>, (2014) 13 SCC 1<\/a>.<\/p>\n

\u25ba Recovery of ganja.\u2014<\/span> 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.<\/em>, (2015) 15 SCC 235<\/a>.<\/p>\n

\u25ba Heroin.\u2014<\/span> 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<\/a>.<\/p>\n

\u25ba Reversal of conviction.\u2014<\/span> 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<\/a>.<\/p>\n

\u25ba Transportation of poppy straw.\u2014<\/span> 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<\/a>.<\/p>\n

Section 27 elaborates on the punishment for consumption of any narcotic drug or psychotropic substance.<\/strong><\/span><\/p>\n