NDPS ACT 1985 Salient features Narcotics Control Bureau

NDPS ACT, 1985 Salient features Narcotics Control Bureau GUWAHATI

Salient features of NDPS Act (1985) as amended § Prior to the enactment of NDPS Act, 1985, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930, were applicable. §These Acts were made applicable by virtue of Opium and Revenue Laws (Extension of Application) Act, 1950. §The scheme of punishment was not sufficiently deterrent to meet the growing challenge

• Maximum punishment was upto 3 yrs of imprisonment (4 yrs. for repeat offence) • No maximum punishment was prescribed • Drug traffickers have been let off by the courts with nominal punishment • The laws did not provide for investing the officers of a number of agencies with the power of investigation of offences • A vast body of international law have evolved and India has been a party to these Conventions and treaties

• Abuse of psychotropic substances • Increasing problem of transit traffic • There was a need to remove deficiencies and inadequacies in the old laws • To provide for deterrent punishments for drug trafficking offences and strengthen control measures over trafficking and abuse • To consolidate the earlier enactments • The NDPS Act, 1985, was enacted that came into force from 14 th November, 1985

SALIENT FEATURES OF THE ACT 1. Enacted and came into force from 14 th November, 1985. 2. Extends to whole of India, of citizens of India outside India. 3. To all persons on ships and aircrafts registered in India. 4. It has 83 sections and a schedule. 5. Schedule contains a list of psychotropic substances.

6. Provides for special court. 7. Punishment graded into 3 categories for small medium and commercial quantities. 8. Amended twice in the year 1988 and 2001. 9. Provides forfeiture of property acquired through drug traffic. Provisions for pre-disposal of seized contrabands.

CHANGES BROUGHT THROUGH AMENDMENT 1988 • Un Convention of 1988 to which India had just become a signatory • Emphasis on tracing, identifying, freezing and forfeiting assets of drug traffickers • Need to control precursor chemicals • The Cabinet Committee constituted for combating drug traffic and preventing drug abuse recommended amendment

• The Preamble provides forfeiture of property and for implementation of the provisions of the International Conventions • A new Chapter IIA relating to the constitution of a National Fund for Control of Drug Abuse was introduced • New Sec. 31 A providing death penalty was introduced • Sec. 32 A was introduced which provides that no sentence awarded (other than Sec. 27) should be suspended, remitted or commuted • Constitution of Special Court was provided in a new Sec. 36 A

• Sec 37 was substituted to make offences cognizable and non-bailable • New Sec. 64 A provided immunity from prosecution to an addict on condition • A new Chapter VA was introduced to cover all aspects relating to forfeiture of property derived from, or used in, illicit traffic • To regulate and control precursor chemicals, Sec 9 A was introduced • New sec 25 A provided punishment in relation to precursor chemicals • It came into force w. e. f. 29 th May, 1989.

AMENDMENTS IN 2001 • There was a need to • Rationalize the sentence structure • Differentiate serious & less serious offence • Restrict the application of strict bail provisions

• Empower officers in certain cases to strengthen law enforcement efforts • Provide for Controlled Delivery operations • Make provisions so that addicts take advantage of it • Remove inadequacies in various provisions of the Act

CHAPTER II (AUTHORITY AND OFFICERS) • Central Government to take measures for preventing and combating abuse and illicit traffic in Narcotic Drugs. • Empowers the Central Government to constitute a authority or hierarchy of authorities for exercising powers and function under this Act. • Appointment of Narcotics Commissioner. • Appointment of Consultative Committee.

CHAPTER IIA NATIONAL FUND CREATION OF NATIONAL FUND FOR DRUG ABUSE The Fund can be used for 1. Combating illicit traffic in narcotics drugs. 2. Controlling abuse of narcotic drugs. 3. Identifying, treating and rehabilitating addicts. 4. Preventing drug abuse. 5. Educating public against drug abuse. 6. Supplying drugs to addicts on medicinal necessity. 7. Governing body to sanction money from the fund.

CHAPTER – III PROHIBITION, CONTROL AND REGULATION Section – 8 Provides for prohibition of certain operations – No. person shall – • No person shall cultivate any coca plant or gather may portion of coca plant; • No person shall cultivate the opium poppy or any cannabis plant ; or • Produce, manufacture, possess, sale, purchase, transport, warehouse, consume, import, inter. State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance.

Section – 8 A Prohibition of certain activities relating to property derived from offence. • Convert or transfer • Conceal or disguise • Acquire, possess or use any property derived from an offence under the Act.

Section – 9 Power of Central Government to permit, control and regulate of : • Cultivation of coca, opium poppy. • Production and manufacture of opium and derivatives. • Production and manufacture of manufactured drugs. • Manufacture, transport, sale etc of psychotropic substances.

Section – 9 A Power to control and regulate controlled substances. Section – 10 Power of State Government to permit, control and regulate –

Section – 12. Restrictions over external dealings in narcotic drugs and psychotropic substances. • To engage in or control any trade of narcotic drug or psychotropic substances obtained and supplied outside India.

CHAPTER IV OFFENCES AND PENALTIES Section - 15. Punishment for contravention in relation to poppy straw. * Quantum of punishment graded according to small, medium and commercial quantities. Small – RI up to 6 month or with fine up to Rs. 10, 000 or both Medium – RI up to 10 yrs. and with fine up to Rs. 1 Lakh Commercial – RI not less than 10 yrs. & up to 20 yrs. and with fine not less then Rs. 1 Lakh up to 2 Lakhs.

Section – 16 Punishment for contravention in relation to coca plant and coca leaves R. I. upto 10 yrs OR fine upto 1 lakh rupees. Section – 17 Punishment for contravention in relation to prepared opium. Graded quantum of punishment for small, medium and commercial quantities. Section – 18. Punishment for contravention in relation to opium poppy and opium. Graded

Section 19 Punishment for embezzlement of opium by cultivator. R. I. for not less than 10 yrs which may extend to 20 yrs AND Fine not less than 1 lakh which may extend to 2 lakhs. Section 20 Punishment for contravention in relation to cannabis plant and cannabis. For cultivation – R. I. which may extend to 10 yrs and fine which may extend to 1 lakh rupees. For others – Graded according to small, medium, commercial quantum.

Section 21. Punishment for contravention in relation to manufactured drugs and preparations. Different punishments for small, medium and commercial quantities. Section 22 Punishment for contravention in relation to psychotropic substances. Graded punishment for small, medium and commercial quantities. Section 23 Punishment for illegal import in to India, export from India or transshipment of narcotic drugs and psychotropic substances. Different punishments for small, medium and commercial quantities.

Section 24. Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12. R. I. for not less than 10 yrs but may extend to 20 yrs AND Fine not less than 1 lakh but may extend to 2 lakhs Section 25. Punishment for allowing premises, etc. to be used for commission of an offence. Same punishment as provided for the offence

Section 25 A Punishment for contravention of orders made under section 9 A. R. I. which may extend to 10 yrs AND Fine which may extend to 1 lakh rupees. Section 26. Punishment for certain acts by licensee or his servants. Failure to maintain accounts, submit returns. Failure to produce license, permit or authorization. False accounts / statements. Breach of conditions of license, permit or authorization. Punishment which may extend to 3 yrs or with fine or both.

Section -27. Punishment for consumption of any narcotic drug or psychotropic substance Heroin, morphine, cocaine – R. I. which may extend to 1 yr or fine which may extend to Rs. 20, 000/Others – R. I which may extend to 6 months or time which may extend to 10, 000 rupees. Section -27 A Punishment for financing illicit trafficking and harboring offenders Same as for Commercial quantity. Section -28. Punishment for attempts to commit offences. Same as for the offence

Section 29 Punishment for abetment and criminal conspiracy. Same as for the offence Section 30. Preparation. Same as for the offence Section 31 Enhanced punishment for offences after previous conviction. One and a half times R. I. and fine.

Section 31 A Death penalty for certain offences after previous conviction. * Conviction U/S 19, 24, 27 A or offences involving commercial quantity * Conviction for offence involving quantities more than mentioned in table given. Section -32 Punishment for offence for which no punishment is provided. Imprisonment which may extend to 6 months OR with fine OR both. Section -32 A No suspension, remission or commutation in any sentence awarded under this act.

Section - 32 B Factors to be taken into account for imposing higher than the minimum punishment. Section - 33 Application of Section 360 of the court of Criminal Procedure, 1973 & of the Probation of Offenders Act, 1958. Not applicable unless person convicted is • Less than 18 yrs. of age • Convicted U/S 26 or 27 of the Act Section - 34. Security for abstaining from commission of offence

Section 35 Presumption of culpable mental state. Section 36 Constitution of Special Courts * Govt. to appoint with the concurrence of Chief Justice of High Court. * He should be of the route of sessions Judge or Additional Sessions Judge. Section 36 A Offences triable by Spl. Courts. * All offences punishable with RI for more than 3 yrs. * Charge sheet / Complaint to be filed within 180 days for offences U/S 19, 24 & sec. 27 A or involving commercial quantity * Can be extended to 1 Yrs. By Spl. Court. Section 36 B Appeal and revision.

Section 36 C Application of Code to proceedings before a Spl. Court. Section 36 D Transitional provisions. Cases to be tried by Sessions Court if Spl. Court not constituted Section 37 Offences to be cognizable and non-bailable. • For offences under Sec 19, 24 & 27 -A and those involving commercial quantity • Bail cannot be given unless public prosecutor has been given opportunity to oppose the application. Where it is opposed by the PP, the court is satisfied that there is reasonable ground to believe that the accused is not guilty of offence and is not likely to commit any offence while on bail.

Section 38 Offences by companies Section - 39. Power of Court to release certain offenders on probation. Section - 40 Power of Court to publish names place of business, etc. , of certain offenders.

Chapter – 5 • Section – 41. Power to issue warrant and authorization. • Warrant can be issued by a Metropolitan Magistrate, Magistrate of first class, Magistrate of second class specially empowered by the State Government for arrest and seizure. • Authorization can be issued by officer of Gazetted rank of the department of Central Excise, Narcotics, Customs, Revenue Intelligence in other departments of Central Govt including paramilitary forces / armed forces as is empowered by the Central Govt. • Officer of revenue, drug control, excise, police or any other department of State Government empowered by the State Governments. • The authorization can be made to any officer subordinate to him but superior in rank to a peon, sepoy, constable for arrest and seizure.

Section 42: Power to entry, search, seizure and arrest without warrant or authorization. 1. Any officer ( superior in rank to peon, sepoy or constable ) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Govt including Paramilitary / Armed forces and any such officer of revenue, drug control, excise, police or any other departments of State Govts. specially empowered can search and arrest. 2. It is should be between sunrise and sunset. 3. Reason for not obtaining authorization should be recorded. 4. Information and grounds of belief for such seizure and arrest to be sent within 72 hours to immediate superior officer.

• • • • Section – 43 Power of seizure and arrest in public place. Section – 44 Power of entry, search, seizure and arrest in offences relating to coca plant, opium poppy and cannabis plant. Section – 45. Procedure where seizure of goods liable to confiscation not practicable. A notice to be served on the owner or person in possession of the goods not to remove, part with or otherwise, deal with the goods without permission from such officer.

• Section – 46. Duty of land holder to give information of illegal cultivation. Information to be given to police or any of the departments mentioned in Section 42. • Section – 47 Duty of certain officers to give information on illegal cultivation. Every person of Govt. and every panch, sarpanch and other village officers shall give immediate information to police or departments mentioned in Section 42.

• Section – 48. Power of attachment of crop illegally cultivated. • Section – 49 Power to search and stop conveyance. • Section – 50 i Conditions under which search of persons shall be conducted : Search of a person to be conducted by officers authorized under Section 42. ii If the person whose searched so requires, he should be taken to the nearest Gazetted Officer / Magistrate. iii If it is not possible, then search should be made under Sec. 100 of Cr. P. C. iv Female person should be searched only by a female.

• Section – 50 A Power to undertake controlled delivery. The D. G. , NCB or any other officer authorized by him in this behalf can undertake controlled delivery of any consignment. • Section – 52 Disposal of persons arrested and articles seized. • Every person arrested under Section 41, 42, 43 & 44 shall be informed about grounds of arrest. • Every person arrested and article seized under Section 41(1) shall be forwarded to the concerned Magistrate. • Every person arrested and article seized under Section 41(2), 42, 43, 44 shall be forwarded to officer in charge of nearest Police Station, officer empowered under Section 53.

• Section – 52 A Provides for disposal of narcotic drugs before completion of trial in such a manner as prescribed by the Govt. • Section – 53. Power to invest officers of certain departments with powers of a officer in –charge of a police station. The Central Government by Notification can invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of central government including para-military/armed forces with powers of an officer in charge of a police station. State government may notify any officer of the department of drug control, revenue, excise or any other department with the powers of an officer in charge of a police station.

• Section 53 (A) Relevancy of statements under certain circumstances. Statements made and signed by a person before an officer empowered under Sec. 53 is admissible as evidence if such person cannot be examined in the Court. • Section 54 Presumption from possession of illicit articles. Presumption of the accused having committed an offence if found to possess contraband which he fails to account satisfactorily. • Section 55. Police to take charge of articles seized and delivered.

Section 56. Obligation of officers to assist each other. Section 57 Report of arrest and seizure shall be made within 48 hrs to the immediate superior officer. Section 58. Punishment for vexatious entry, search, seizure or arrest. 1. Without reasonable ground of suspicion. 2. Vexatiously and unnecessarily seizes the property of a person on the pretence of seizing and searching for narcotic drug. 3. Vexatiously and unnecessarily arrest a person is punishable with imprisonment upto 6 months or fine upto Rs. 1000 or both. 4. Willful and maliciously giving false information and so causing search, arrest is punishable with imprisonment upto 2 yrs or with fine or both.

• Section – 59 Failure of an officer in duty or his connivance at the contravention of the provisions of this Act. • Punishment prescribed for refusal, withdrawal to perform duty under the Act is imprisonment upto 1 year or with fine or both. • Punishment prescribed for aiding conniving, etc. – R. I. not less than 10 years but may extend to 20 years and fine not less than 1 lakh rupees and upto 2 lakh rupees.

Section – 60 Liability of illicit drugs, substances, plants, articles and conveyances to confiscation : Provides for confiscation to seized narcotics and psychotropic substances, etc. Section – 61 Confiscation of goods used for concealing illicit drugs or substances. Section – 62 Confiscation of sale proceeds of illicit drugs or substances.

Section – 63 Procedure in making confiscation. Court to decide on confiscation of article seized under this Act whether the accused is convicted, acquitted or discharged. Where accused is not know, the Court may enquire into and decide such liability and may order confiscation accordingly. No order of confiscation shall be made until the expiry of one month from date of seizure or without hearing in person who may claim it. Section – 64 Central Govt / State Government may provide immunity from prosecution of any offence under this act if he makes full and true disclosure.

Section – 64 (A) Immunity from prosecution to addicts volunteering for treatment. Section – 66 Presumption as to documents in certain cases – where any documenti) Is produced or furnished by any person or has been seized from the custody or control or any person, in either case, under this Act or under any other law, or ii) Has been received from any place outside India (duly authenticated by such authority or person and in such manner as any be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person, and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the Court shall- Consider it as relevant and admissible evidence

Section – 67. Power to call for information etc. Officer referred to in Sec. 42 authorized in this behalf by Central Govt. / State Govt may call for information from any person during the course of enquiry under this Act.

CHAPTER – V Forfeiture of property derived from or used in illicit traffic. Section 68 (A) to (Z). It deals with the forfeiture of property obtained from illicit sale of narcotic drugs and psychotropic substances.

CHAPTER – VI MISCELLANEOUS Section 69. Protection of action taken in good faith. Section – 76 Power of Central Govt. to make rules. Section – 78 Power of State Govt. to make rules.

SCHEDULES • A schedule to the NDPS Act contains a list of Psychotropic substances which numbers to 110.