Inoperable Provision of NDPS Act: Tripura High Court

• 22 Jun 2021

Why in News

Recently, the Tripura High Court has discovered that an oversight in drafting the 2014 amendments to the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 had unintentionally rendered a key provision (Section 27A) of the Act inoperable.

Key Points

• Narcotic Drugs and Psychotropic Substances Act, 1985:
  
  • India is a signatory to the United Nations (UN) Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
    
    • They prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotic drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.
  • The basic legislative instrument of the Government of India in this regard is the NDPS Act, 1985.
  • The Act provides stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
  • It also provides for forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances.
  • It also provides for death penalty in some cases where a person is a repeat offender.
  • The Narcotics Control Bureau was also constituted in 1986 under the Act.
• Section 27A of the NDPS Act:
  
  • The provision reads that whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities.
  • He shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
    
    • Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
• Reason of Section 27A getting Inoperable:
  
  • The text of the provision says that offences mentioned under Section 2 (viiia) sub-clauses i-v are punishable through Section 27A.
  • However, Section 2 (viiia) sub-clauses i-v, which is supposed to be the catalog of offences, does not exist after the 2014 amendment.
  • So, if Section 27A penalises a blank list or a non-existent provision, it can be argued that it is virtually inoperable.
• NDPS Act 2014 Amendment:
  
  • It was made to allow for better medical access to narcotic drugs. Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals.
  • The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralised.
  • This was done by defining essential narcotic drugs, and allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
    
    • The amendment to add the definition of essential narcotic drugs re-lettered the old Section 2(viiia) that was the catalog of offences as Section 2(viiib), and under the Section 2(viiia), defined essential narcotic drugs.
    • However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viiia) to Section 2(viiib).
• High Courts Ruling:
  
  • It directed the Central Government, Ministry of Home Affairs to take appropriate steps for amending section 27A of the NDPS Act 1985.
    
    • It noted that the amendment is yet to take place. However, criminal laws cannot be amended retrospectively. So even if the amendment is brought in, the result of the drafting error could lead to more constitutional questions being raised.
  • Ordered that both the Central Government and the State Government shall publish a notification bringing about the content of this order in short for the public notice so that the requirement of Article-20 of the Constitution of India is not diminished.
    
    • Article 20 of the Constitution guarantees protection against double jeopardy.
    • Article 20(1) says that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Source: IE