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

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of the communication systems and means of transportation. This

has also led to considerable increase in Narcotics drug trafficking.

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

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U.N. Protocol, 1972 amending the Single Convention and the U.N.

Convention on Psychotropic Substances, 1971.

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

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drug consumer. Bail provisions were made very stringent. The

minimum sentence is ten years. The amended Drugs and

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

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effort by all concerned to resolve this issue? Laxity or pathetic

attitude from any quarter in dealing with this issue is bound to prove

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

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which the experts in this Seminar may focus their attention. Let us

now see some facts and figures.

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

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persons stand convicted for offences while 44656 persons have

been 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,

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customs, border security force, CBI, Directorate of Revenue

Intelligence and Food and Drug Control officers.

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.

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 The situation needs remedial measures at once so that rule of

law and effectiveness of the criminal justice delivery system are not

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

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sphere and at every stage so as to avoid unnecessary harm to the

society at large. Drug trafficking, trading and its use, affects the

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

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 organized societies. The pursuit of that
goal cannot realistically be confined within
national boundaries. That has long been
the case, but it is increasingly evident
today. (1989) 48 C.C.C. (3rd). 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

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towards expeditious and effective judicial pronouncements to ensure

punishment to the guilty and prevention and control of drug

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

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programme so as to control the production, supply, trafficking and

consumption of this noxious substance. Towards achievement of

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

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Justice of India while resolving issues and speaking for the

Constitution Bench of the Supreme Court.

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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