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EXPLAINED: Jail Term, Fines Based On Amount Seized: All You Need To Know About Stringent NDPS Act

Punishment under the NDPS Act is based mainly on the quantity of drugs seized

Punishment under the NDPS Act is based mainly on the quantity of drugs seized

The NDPS Act regulates and bans use of any drugs except for medicinal purposes, prescribing stringent punishment for violators

Over 72,000 cases were registered across the country under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, that is, more than 8 cases every hour through the year. The spotlight on drug use in the entertainment industry resulted in some high profile cases, including that related to the death of actor Sushant Singh Rajput. Here’s a look at the stringent drug law and what falling foul of it entails.

What Are The Drugs Banned Under NDPS Act?

The NDPS Act says that “narcotic drug" means “coca leaf, cannabis (hemp), opium, popy straw and includes all

manufactured drugs". Further, “psychotropic substance" refers to “any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic

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substances specified in the Schedule". The said schedule is appended at the end of the Act.

The aim of the NDPS Act is to prohibit “the manufacture, production, trade, use, etc. of narcotic drugs and psychotropic substances", except for medical or scientific purposes.

The Act provides for lawmakers to expand the list of psychotropic substances or remove items from it on the basis, of among other things, “information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural

material or any salt or preparation of such substance or material".

What Is The Punishment For Possession/Use Of Drugs Under NDPS Act?

Punishment prescribed under the NDPS Act is based on the quantity of drugs seized. Following amendments, it “grades punishment into three categories depending on the quantity of drugs seized and also provides for judicial discretion as far as the severity of punishment is concerned".

To take the example of cannabis, the punishment for the cultivation of any cannabis plant may extend to rigorous imprisonment for up to 10 years and can also involve a fine which may extend to Rs 1 lakh.

Further, the production, manufacture, possession, sale, purchase, transportation and illegal trafficking of cannabis envisages punishment based on the quantity seized. Thus, punishment for the seizure of a “small quantity" of cannabis can involve rigorous imprisonment of up to one year and include a fine of up to Rs 10,000. When the seizure is of a “quantity lesser than commercial quantity but greater than small quantity", the convict can be awarded rigorous imprisonment of up to 10 years and be asked to pay a fine of up to Rs 1 lakh.

Possession of a commercial quantity of cannabis is to be punished with rigorous imprisonment for a term that “shall not be less than 10 years but which may extend to 20 years" while a fine “which shall not be less than one lakh rupees but which may extend to two lakh rupees" can also be imposed with the court authorised to also “impose a fine exceeding two lakh rupees".

In Section 27, the Act also deals with punishment for consumption of “any narcotic drug or psychotropic substance", laying down that when the drug consumed is “cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance", the punishment would involve “rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees".

For any other drug not included in the above list, the punishment will be for up to six months, and can include a fine of up to Rs 10,000.

According to the Department of Revenue, possession of up to 1kg is termed “small quantity" of cannabis with “commercial quantity" involving a seizure of 20kg or more. For “charas/hashish", small quantity is up to 100gm while commercial quantity is 1kg or more. Separate small/commercial quantity thresholds have been prescribed for the various drugs banned under NDPS Act.

The Act takes a serious view vis-a-vis repeat offenders, prescribing rigorous imprisonment of up to “one and one-half times of the maximum term" of imprisonment for that offence and also a fine “which shall extend to one and one-half times of the maximum amount" of fine. Repeat offenders are also liable to even face the death penalty if they are convicted again of a similar offence depending on the quantity of drugs seized.

But Aren’t Many Countries Legalising Cannabis?

The enactment in 1985 of the NDPS Act by the Centre was to give effect to India’s commitments as a signatory to UN policies as spelled out, among others, in the Convention on Narcotic Drugs, 1961, and Convention on Psychotropic Substances, 1971, but the Centre notes that India’s “commitment to prevention of drug abuse and trafficking predates the coming into force of the… conventions".

A paper on the ‘National Policy on Narcotic Drugs and Psychotropic Substances‘ refers to Article 47 of the Indian Constitution, part of the non-enforceable Directive Principles of State Policy, which says that the “state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health".

It has, however, been pointed out that the use of cannabis has been recorded in ancient Indian texts and that millions of people in India regularly consume the substance. Further, not all forms of cannabis are banned in the country. As the policy paper notes, bhang, a common concoction prepared from cannabis leaves, “is not covered under the NDPS Act… [and its] production and sale… is permitted by many state governments", given its religious associations. The exception is based on the preparation of bhang, which is made from cannabis leaves, since it is not made from cannabis resin or from flowering tops, which are banned.

A recent paper, ‘A Case for De-Criminalisation of Cannabis Use in India’, by the New Delhi-based Vidhi Centre for Legal Policy, notes that “three-and-a-half decades after cannabis prohibition was implemented in India,

cannabis use has continued unabated" and that “far from deterring users, criminalisation of cannabis consumption has only led to stigmatisation and overburdening of an already crumbling criminal justice system". It refers to an 1893 study of the Indian Hemp Drugs Commission set up by the British colonial government, which is said to have made no “adverse observation and affirmed that moderate use of cannabis did not have any serious detrimental effect on physical, mental or moral health".

In recent years, the likes of Uruguay, Canada and several US states now permit recreational and medicinal use of cannabis with calls for “legalising" its use growing around the world. The Vidhi paper notes that the ban on cannabis use “has also created a strictly prohibitionist environment that has prevented effective utilisation of cannabis for commercial purposes".

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first published:October 03, 2021, 11:54 IST