Narcotic Drugs & Psychotropic Substances - Supreme Court of India

Narcotic Drugs & Psychotropic Substances
Y.K.Sabharwal
Chief Justice of India
This National Seminar organised by Delhi High Court in
collaboration with Government of Delhi is of utmost significance on
account of gravity of the problem and issues that will be discussed in
various sessions today and tomorrow.
Drug abuse is a social evil. It destroys not only vitals of the
society but also adversely affects the economic growth of the country
because this is a trade which generates large un-accounted money
which, in turn, leads to adoption of several means of money
laundering. The money generated is used for various purposes
including anti-national and terrorist activities and even clandestine
trading in arms and ammunition. Drug trafficking activities have
sharply increased over the years and unscrupulous persons dealing
in drugs have flourished despite hard punishments provided under
the law because they have been able to evade the process of law.
Just as any virus, use of drugs and drug trafficking knows no
bonds or limitations. It spreads all over a country; from nation to

nation; to the entire globe infecting every civilized society irrespective
of caste, creed, culture and the geographical location.
Looking back at time, many of you may recollect that the edict
of the Chinese Government in 1800 AD prohibiting import of opium
as it constituted a threat to the health of the Chinese people resulted
in the infamous Opium War in the name of right of free trade.
European powers organised massive smuggling of the substance
into China which was resisted by the Chinese resulting in the Opium
War.
As early as in 1917, Mahatma Gandhi while addressing the All
India Social Service Conference in Calcutta, had said :
“The cocaine habit was sapping the nation’s
manhood, and that like the drink habit, it
was on the increase in its effect more
deadly than drink.”
Unfortunately, the kingpins and the carriers of these drugs at
the international and national level are concerned with only large
undue financial gains and not with massive ill effects of use of drugs
on society. In recent times, there has been significant development
of the communication systems and means of transportation. This
has also led to considerable increase in Narcotics drug trafficking.
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The drug traffickers have been able to flourish despite stringent
punishments provided under the ‘Narcotic Drugs & Psychotropic
Substances Act’. They are able to evade the process of law and
cause great harm to the social and economic growth of the country
and particularly the young generation. This resulted in seriously
hampering the socio-economic growth and multi-dimensional
development of the country. The punishment for drug trafficking
became more and more stringent by the passage of time, but it has
not been able to provide real solution to the basic problem.
Today, world opinion and effort is united in fighting illicit
production, trade and trafficking in drugs as the view is unanimous,
that its effects are disastrous.
In recognition of the need to globally check the menace and
for international cooperation for investigation, chasing the offenders,
prevention and punishment, countries across the globe have joined
hands and subscribed to conventions and conclaves convened
under the aegis of the United Nations. India is also a party to the
United Nations Single Convention on Narcotic Drugs, 1961 and the
U.N. Protocol, 1972 amending the Single Convention and the U.N.
Convention on Psychotropic Substances, 1971.
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The United Nations Convention against illicit trafficking in
Narcotic Drugs & Psychotropic Substances which was held in
Vienna, Austria in 1988 was perhaps one of the first international
effort to take action against the illegal proceeds of drug trafficking
throughout the comity of nations and manifested the desirability of
mutual legal assistance between Member States to deal with the
menace so as to provide for confiscation of the moneys and for
extradition of the offenders. The Government of India has ratified
the Convention.
India has long recognised the problems of drug trafficking and
abuse. The Opium Act of 1857, and of 1878 and the Dangerous
Drugs Act, 1930 manifest the same. As a result of experience
gained on account of India’s participation in various international
conventions and realising gravity of the problem and the need to
enact laws in tune with times, the Narcotic Drugs and Psychotropic
Substances Act of 1985 was passed by Indian Parliament as a
comprehensive legislation on narcotics, providing for stringent and
long term prison sentences and heavy fines for offenders. Offender
under this Act includes the cultivator, supplier, seller as well as the
drug consumer. Bail provisions were made very stringent. The
minimum sentence is ten years. The amended Drugs and
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Cosmetics Act and Rules also provide for deterrent punishment and
stringent control over manufacture, sale, distribution of psychotropic
substances. Despite these measures, the crime is on rise.
The criticism levelled against NDPS Act is that it treats the
drug user and trafficker on par. The Government has fixed the
quantity possessed for personal use as an offence and provided a
punishment for possession of quantities beyond such limits. One of
the criticism to this provision brought by way of amendment is that
the quantity fixed is so small that it may not suffice for even a single
use and that such provisions make it difficult for drug addicts to
openly seek medical help and rehabilitation. It is also said that one
of the cause of low conviction rate is the steep minimum sentence
under the Act. How far these are relevant to ultimately check the
problem of Drug Trafficking is for experts to examine.
Stringent laws and severe punishments have been able to
control the menace to some extent but still it is one of the most
pertinent threats in the progress of any developing country. Do we
need comprehensive legislative changes or is there need of
implementation of existing laws with greater precision and concerted
effort by all concerned to resolve this issue? Laxity or pathetic
attitude from any quarter in dealing with this issue is bound to prove
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disastrous for the society. All departments of the State are expected
to work in unison and with utmost coordination to give an impressive
display of the will to control, if not, completely eliminate this evil from
the society.
Before I make a brief mention of some data, let me broadly
state the issue according to my perception. The persons involved in
drug cases, primarily fall in four categories. First category of persons
are those who produce these drugs; second are the kingpin who
procure from the producers and deal in trade of drugs at a large
scale; third are the carriers; and in the fourth would fall the
consumers, namely drug addicts.
Experts, I am confident, would consider whether all deserve to
be similarly treated or differently. Take the example of carriers. For
tackling the problem, should carriers deserve to be similarly treated
as those falling in first and second category? Take also the example
of drug addicts. Do they not need different treatment? Is it not a
disease as far as they are concerned? Do they not deserve to be
treated with love and compassion as a part of treatment of their
ailment? These are some of the questions which I have posed on
which the experts in this Seminar may focus their attention. Let us
now see some facts and figures.
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In a national survey conducted by the Ministry of Social
Justice and Environment and the United Nations Office of Drugs and
Crimes, it was stated that abuse of different drugs is prevalent in
different states of India. Rajasthan, has the highest proportion of
opium users (76.7%), followed by Haryana (58.0%). So far as
heroin is concerned, 43.9% of its users are found in Uttar Pradesh
while Orissa and Himachal Pradesh, at 43.9% and 37.3%
respectively top in alcohol consumption. This indicates not only the
dimension and diversity of the social problem that is facing our
country, but also that the problem does not relate only to
investigation and law in relation to drug abuse and drug-related
crimes.
The statistics released by the Narcotic Bureau also indicate
the magnitude of the problem facing our nation. Let us see last ten
years track record. From the year 1996-2006, amongst others
21895 kgs of Opium, 855667 kgs of Ganja, 48278 kgs of hashish
and 10147 kgs of heroin have been seized by various enforcing
agencies. In the cases arising from these seizures, a total of 142337
persons were involved including the foreigners. Out of these, 38030
persons stand convicted for offences while 44656 persons have
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een acquitted. The rate of acquittal has, varied from 27.7% to
59.1% annually during this period.
In its annual press conference, the Central Jail, Tihar,
indicated that amongst the undertrials and convicts (both male and
female) arrested under the NDPS Act, there are 10.70 % male
undertrials and 5.37% male convicts and 16.12% female undertrials
and 13.28% female convicts. There are nearly 340 NGOs run or
aided by the Ministry of Social Justice and Empowerment,
Government of India, to take reformative and remedial steps.
Increase in de-addiction centres is an encouraging step taken by the
concerned authorities.
The Narcotics Control Bureau was set up in May 1986 as a
primary enforcement agency to deal exclusively with drugs. This
high powered body which is controlled by a Director General has
direct liaison with the United Nations Narcotics Control Bureau and
other international agencies working against drug trafficking. A
number of the other enforcement agencies have been provided
effective support with the Narcotics Control Bureau acting as a nodel
agency to enforce the law which includes the central excise,
customs, border security force, CBI, Directorate of Revenue
Intelligence and Food and Drug Control officers.
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For the first time in the history of the country, all concerned
that is the prosecuting agencies, the legislature, the judiciary,
scientists, eminent persons from various walks of life as well as
students from various schools have been brought together to
participate in this national level Seminar-cum-Workshop. Their
varied experiences and knowledge would form a special thought
process for evolving a system to implement programmes which are
in the interest of administration of criminal justice and would serve a
public purpose of high order. When crime goes unpunished, the
criminal is encouraged while the society suffers. The criminal justice
delivery system is already under immense pressure and needs
better support. The criminal and the victim both need succour,
rehabilitation and support. The statistical data furnished by different
authorities suggests that the various limbs of the State
administration involved in this field, have to show much better co-
ordination; the investigation has to be scientific and techniques need
large scale improvements. Witnesses turn hostile during trial and
lack of proper application of law by concerned authorities are
amongst others the few causes for high rate of acquittals.
The situation needs remedial measures at once so that rule of
law and effectiveness of the criminal justice delivery system are not
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only maintained but improved. The rate of acquittals is a matter of
great concern as it elucidates the gap between the investigation and
the law. As an illustration, take position in Delhi. There are six
courts of Session Judges dealing with the cases under the NDPS
Act. During the period August 2003 to 2005, in 1938 cases challans
were filed, out of which 875 have been disposed of. Out of these,
there were 479 convictions, while 391 cases ended in acquittal and
in 12 cases the accused persons were discharged. This itself shows
that we need to take multi-dimensional steps to improve the quality
of investigation as well as increase effectiveness of criminal justice
delivery system. It also underlines the fact that justice can be
delivered only when there is total support by an effective and
efficient investigation and administration.
The topics for discussion, on this Workshop-cum-Training
Programme provide provocative mental exercises to discernly find a
solution to this cataclysm. Every limb of the State administration has
to play a definite and pragmatic role to achieve the object underlying
the provisions of the NDPS Act and the social cause behind it.
Functional and administrative improvements are called for in every
sphere and at every stage so as to avoid unnecessary harm to the
society at large. Drug trafficking, trading and its use, affects the
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economic policies of the State, corrupts the systems and destroys
the future of the country. More clearly, defining the powers, role and
the response required by and from a particular agency of the State
would be another aspect to be considered by the investigation and
scientific, experts and legal luminaries attending this programme.
They should define with greater clarity the drug related legislative
framework within which police or other agencies should optimally
operate and define the levels of discretion, they ought to exercise
within that framework. No single agency should be held responsible
for unenforceable legislation or not exercising discretion within the
prescribed framework, where it is not clearly indicated.
To emphasize the need for providing a panacea to this
problem while preventing retrogression of socio-economic values all
over the world, I would refer to the observations of the Supreme
Court of Canada in the case of United States of America versus
Cotroni :-
“The investigation, prosecution and
suppression of crime for the protection of
the citizen and the maintenance of peace
and public order is an important goal of all
organized societies. The pursuit of that
goal cannot realistically be confined within
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national boundaries. That has long been
the case, but it is increasingly evident
today. (1989) 48 C.C.C. (3 rd ). 193 at 215).”
Whatever be the origin or source of drug abuse, this deadly
practice gravely affects the most productive and dynamic section of
our society, that is the age group between 15-40. There is, thus,
inestimable loss to the social, economic and cultural life of the
people and to wealth of the nation. Drug abuse has been identified
as playing a significant part in the spread of diseases like AIDS.
Drug problems are part of the larger problems of disease,
poverty, unemployment, violence, economic disparity and styles of
living. The consequential creation of a growing population of victims
of drug abuse and addiction who have to be not only help wean off
this habit but also brought back into mainstream living.
It is heartening to note that various wings of the State
administration from all over the country are participating in this
seminar not to find fault with the others but to participate in this
Seminar-cum-Workshop programme as a joint venture to outline
corrective measures, perfect investigative mechanisms and aim
towards expeditious and effective judicial pronouncements to ensure
punishment to the guilty and prevention and control of drug
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trafficking. This would certainly help in achieving the object of the
common goal of such national importance and public welfare. A
note of caution, that while guilty has to be punished and stringent
punishment inflicted but at the same time it is equally necessary to
ensure that innocent are not involved by taking undue advantage of
stringent provisions of the Act.
Healthy discussion, brain storming and sharing of ideas brings
out clearly errors and weaknesses which hitherto may be hidden and
obscure to the light of reason and render them clearer for
ameliorating or improving or substituting any existing system.
Inconvenient points of view receive appreciation in their correct
perspective, lead to a path of solution, which normally may sound
impossible to achieve. One of the cardinal principles of any civilized
jurisprudence is to remove the cause of litigation and eliminate
heinous crimes from society. To find the cause of a cause which
causes the things caused is the responsibility of all concerned
without exception. A variety of reasons could be stated for the
repeated errors at different levels, but to really get to the root of the
defects in the system and society should be the basic aim of this
programme so as to control the production, supply, trafficking and
consumption of this noxious substance. Towards achievement of
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such end, we may listen to critics because often they are good
source of information for what you have to do differently.
Democracy essentially includes social democracy which
means a way of life with monumental liberty, equality and fraternity
as the principles of life. Such liberty cannot be divorced from
economic democracy. The widespread evil of drug trafficking not
only creates shackles on these principles but leads to a complete
impediment in the progress of the country in various fields. The
expression ‘reason to believe’ in the context of a provision of NDPS
Act has been a matter of great legal controversy. It does not mean a
purely subjective satisfaction on the part of the concerned officer
while he has to search a suspect carrying drugs, it has to be a belief
in good faith and not on a mere pretence. The provisions of
Sections 42 and 50 have been subjected to the principle of statutory
interpretation by various decisions of the Supreme Court including
that of a Constitution Bench in the case of State of Punjab v.
Baldev Singh [(1999) 6 SCC 172]. Some of the difficulties in
investigation and prosecution of such offences and conflicts in
judicial pronouncements were taken note of by the then Chief
Justice of India while resolving issues and speaking for the
Constitution Bench of the Supreme Court.
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Before parting, I may say that benefits of such seminar even
find manifestation in the figures which were received from the State
of Haryana where the conviction rate accelerated from 14% in the
year 1999 to 59% in the year 2005 after implementation of some of
the suggestions made and some legislative amendments. This is a
live example as to what can be achieved merely by more efficient
implementation of the existing laws and streamlining the
investigative procedures, and the usefulness of suggestions which
emerge from collective wisdom of such gathering.
As a Head of the Indian Judiciary, I assure this August
gathering of full cooperation from the judicial system of the country in
tackling this problem. I have no doubt that your deliberations shall
be of salutary significance and of utmost utility to the cause of
control and prevention, punishment and rehabilitation in relation to
the offences under this Act and for achieving the social goal of drug-
abuse free society. I wish you all the best in your endeavour.
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