ANALYSIS OF NARCOTIC DRUG PREVENTION LAWS IN INDIA

By Gaurav Kataria

The book describes and analyses the law related to narcotic drug and psychotropic substance abuse and its prevention in India. It focuses on the various Indian laws and regulatory regimes on drugs, their objectionable possession, quantities, and abuse. Further, it covers many case studies relevant to the topic. Overall, the book is a good reference to the law students, researchers, academic community and anyone interested in the multidisciplinary research or wishes to enhance the understanding on the subject.

• Language: English
• Publisher: Lulu.com
• Release date: Jun 9, 2020
• ISBN: 9781716864087

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ANALYSIS OF NARCOTIC DRUG PREVENTION LAWS IN INDIA

DR. GAURAV KATARIA

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ANALYSIS OF NARCOTIC DRUG PREVENTION LAWS IN INDIA

1st Edition

Copyright © 2020 (Dr. Gaurav Kataria & Ethiopian Civil Service University, Addis Ababa, Ethiopia)

All rights reserved.

ISBN: 978-1-71686-408-7

1

INTRODUCTION

Addiction to a narcotic drug has always been enormously harmful to the users, to the society and finally to the nation. The problem of narcotic drug abuse has emerged as one of the vital concerns of the human race with far-reaching socio-medical and economic consequences. The process of industrialisation and consequential urban drift, stresses and strains of modern life have rendered individuals more vulnerable to substance abuse than ever before. Due to this, the clandestine manufacture of various narcotic drugs and psychotropic substances has started in India. India is a vast country with land borders extending over more than 15,000 km and a coast line of over 7,000 km and is flanked on the east and the west by two regions which are internationally acknowledged as major sources of illicit Narcotic Drug namely, South West Asia (Afghanistan and Pakistan) and South East Asia (Myanmar, Laos and Thailand). Nepal, which fringes on the North, has been a traditional producer of cannabis, both herbal and resinous. Apart from this the smuggling of contraband in India is an age-old phenomenon. The intoxicating properties of cannabis preparations were known in India more than 2000 years ago the reference to this fact can be read atharva veda, a religious text (2000-14000BC). A number of Hindu saints took cannabis to overcome hunger and thirst that help concentration during meditation, cannabis in the form of drink is offered in some Hindu temples. Large quantities of drugs are consumed in the holy cities of India such as Haridwar, Varanasi, Puri, Mathura and Vrindaban.

We are going through a vital problem of this era i.e. drug danger. India and other Asian countries like Pakistan, Afghanistan, and Bangladesh have become transit point of illicit drug trafficking¹. Abuse of drugs is a social evil, which destroys not only our society but also adversely affects the economic growth of the country. Illicit trafficking of drugs is increasing in India day by day. The generated money is used for various anti-social, anti-national and terrorist activities. Drugs, which are mostly abused, are cannabis, opium, cocaine, nicotine, caffeine, alcohol, etc.² Swanstrom³ quoted drug trafficking as:

It is a demographic disaster, or at least has the potential of being a demographic disaster, since it affects mostly young people, We don’t see any new [economic] trades coming out because why should you start focusing on something that would earn you $100 when you can get $1,000 for smuggling drugs?⁴

Contemporary international drug policy seeks to control both the demand and supply of drugs through the criminalization of production, trafficking and use. Opium has been cultivated traditionally in India for medicinal and scientific purposes. The climate is conducive for cannabis cultivation. India also has a fairly advanced and large chemical industry manufacturing and using a wide range of chemicals for legitimate purposes. Some of these chemicals are also the precursors and essential chemicals required as inputs by the illicit drug manufacturing industry. India was considered as a ‘drug-free’ country in the seventies but the problem of drug production, trafficking and addiction is causing concern of late. The narcotics trafficking and production are on the rise. India now tops the list of opium producers in the world for medicinal purposes. It produces about 400 metric tons of opium per annum under licensed cultivation. Licensed cultivation of opium in India has reduced by half in the last decade but illegal cultivation has been steadily rising. Illegal production of opium was estimated to be around 1160 metric tons. Internationally India is recognized as an important drug- producing nation.

Geographically, India is flanked by Golden Crescent and Golden Triangle - the two main sources of opiates in the world - and Nepal, which is the major source of cannabis. All these factors have provided a conducive environment for the development and growth of drug trafficking and drug abuse in the country. Thus, over the years, India emerged as a major transit country for the movement of narcotic drugs from these areas to other parts of the world. From early eighties, India started becoming vulnerable to trafficking in drugs as a transit country for movement of drugs from the neighbouring countries to other parts of the world and the problem assumed alarming proportions. At that point of time to cope-up with this problem Opium Act of 1857, Opium Act of 1878 and the Dangerous Drugs Act of 1930 were enacted subsequently. But these antiquated laws were not vigorous enough to combat growing menace of drug trafficking. To meet this challenge, the Government of India took various legal, administrative and preventive steps.

This research thesis analyses various legal measures taken by the Indian government. The aim of the thesis is to determine the competence of the existing regulatory framework to curb the existing narcotic drug abuse menace in India. The major issue is whether the domestic legal regime is sufficient to prevent the drug abuse and related problems like smuggling, illegal trafficking and money laundering or some changes in the existing framework are required. To discuss the issue, the research work has been divided into seven chapters.

The first chapter deals with general introduction of the problem and the scheme in which the research work is moving from one contour to the other of the research theme.

The second chapter is about narcotic drug abuse, its meaning, nature and scope. This chapter discusses what narcotic drug is as it comes under the drug family. After that briefly the concept, history and development of narcotic drugs’ abuse and non medical use are discussed. Further to understand the ill effects of narcotic drugs classification of drugs is dealt with. Some other groups of various drugs are also discussed as though they do not fall under the category of narcotic drugs, are heavily used as the alternative of the same.

Now the issue is that why at present illicit drug trafficking is a matter of discussion at worldwide? So, chapter three stresses upon the problem of illicit trafficking of narcotic drugs in India. Initially the chapter moves around the problem in its neighbouring countries. The reason is its geographical surroundings and connectivity with Golden Crescent and Golden Triangle - the two main sources of opiates in the world. Also, Nepal, which is the major source of cannabis is adjacent to Indian boundaries. Due to all this India emerged as a major transit country for the movement of narcotic drugs from one part to other parts of the world. So the current position of drug abuse and trafficking in India is discussed.

Chapter four is an attempt to examine the international measures taken to prevent the Dracula of narcotics which is galloping manpower all over the world. Here international protocols convention and other instruments are analysed. The chapter starts with pre-UN measures like Shanghai Opium Commission, Hague Convention etc. After that post UN International Drug Control Programs have been discussed

Chapter five then examines the domestic regulatory regime. It discusses various laws related to narcotic drugs and psychotropic substances, money laundering and preventive detention. Constitutional approach is discussed primarily and then penal provisions and procedural aspects are examined. NDPS Act and other important laws are also discussed at length.

Chapter six gives the development of law with the help of some leading judgments like Noor Aga, State v. Baldev Singh etc. Finally last chapter of the thesis concludes the research work. It contents the observations of the author and concluding remarks with suggestions.

2

NARCOTIC DRUG ABUSE: MEANING, NATURE AND SCOPE

Everybody understands what the word drug means. The term narcotic however is not so well known. This term is derived from the Greek word ‘narkotikos’, meaning benumbing or deadening, originally referred to a variety of substances that induced sleep (such state is called narcosis)⁵. Unlike drugs administered as part of medical treatment, narcotic drugs are in the nature of recreational drugs. They are either smoked, snorted, or self-administered by the more direct routes of subcutaneous (skin popping) and intravenous injections.

2.1 Meaning of Narcotic Drug

Narcotics

The Word Narcotics come from the Greek word meaning benumb. In its brooded sense, it may be applied to any substance that causes a numbing of the sense, stupor and sleep. Drugs that effect behavior have been known since antiquity. The word drug has its root origin from Zoroastrian term doors meaning principle of evil. Whether this fear of a master evil has descended from this very word, has yet to be determined.

According to The Concise Oxford Dictionary, Narcotic is defined as:

inducing drowsiness, sleep, stupor, or insensibility (of a substance)

affecting the mind(of a drug etc)

involving narcosis

Soporific.

According to the Webster’s New World College Dictionary, Narcotic is defined as:

A drug as opium or any of its derivatives (morphine, heroin, codeine, etc), used to relieve pain and induce sleep. Narcotics arc often additive and in excessive doses can cause stupor, coma or death.

Anything that lies a something lulling or dulling effect, (of like, or capable of producing narcosis, of, by, or for narcotic addicts).⁶

Even people of the Stone Age may have been familiar with opium, hashish and cocaine. Primitive people used these drugs to induce states of intoxication during religious rites or the case of hashish, to prepare warriors for battle. Opium has been used for its narcotics effects by mankind since the beginning of recorded history. With the advent of modern chemistry morphine, codeine, heroin and a number of other alkaloid derivatives were isolated from the crude opium.

What is a Narcotic Drug?⁷

The word narcotic originated from the Greek word narkos, meaning sleep. Therefore, narcotics are drugs that induce sleep. Specifically, that means the opiates such as heroin, morphine and related drugs. Cocaine and meth are not narcotics. They are stimulants, the exact opposite of a narcotic. They cause people to be more awake and more active, not sleepy. Calling them narcotics makes as much sense as calling coffee a narcotic.

The classification of other drugs such as marijuana, alcohol, and others is open to question. Some might call them tranquilizers, depressants, or even hallucinogens. Marijuana and alcohol may even have a tendency to induce sleep at times. However, calling them narcotics simply shows a lack of understanding of the different effects.

The problem is that the Indian Government officials, and others who enforce and support drug prohibition, tend to refer to all illegal drugs as narcotics. They do so as they are genuinely ignorant about these drugs and their effects.

Meaning of narcotic as a ‘Noun’

1. An addictive drug, such as opium, that reduces pain, alters mood and behaviour, and usually induces sleep or stupor. Natural and synthetic narcotics are used in medicine to control pain⁸.

2. A soothing, numbing agent or thing: There was the blessed narcotic of bridge, at the Colony or at the home of friends (Louis Auchincloss).⁹

3. (Medicine / Pharmacology) any of a group of drugs, such as heroin, morphine, and pethidine, that produce numbness and stupor. They are used medicinally to relieve pain but are sometimes also taken for their pleasant effects; prolonged use may cause addiction¹⁰

4. Anything that relieves pain or induces sleep, mental numbness, etc.¹¹

5. Any illegal drug¹²

6. Narcotic¹³- a drug that produces numbness or stupor; often taken for pleasure or to reduce pain; extensive use can lead to addiction.

Drug

The word drug is originally derived from Zoroastrain term droos meaning Principal of evil. Whether this fear of a master evil was descended from this word, has yet to be determined. According to The Encyclopedia America, drug is defined as:

A name applied to all substances, vegetables, animals, mineral used for medical purpose though the term should perhaps be strictly confined to what called simples, balsams, guans, resins and exotic products are used as medicaments in a drug state.¹⁴

The World Health Organization (WHO) expert committee on drug dependence defined drug as:

Any substance that, when taken into the living organism may modify one or more of its functions.¹⁵

According to the Dictionary of Psychology, by Warren, C.H., drug is defined as:

A substance, in a state of minute division, introduced into the body for the purpose of counteracting the effect of disease, or of restoring normal function to tissues which have been pathologically altered Narcotic drugs, by reason of their depressant, action on the nervous system, diminish or abolish nervous and mental activity. (Warren, 1962).

According to The Webster’s New World College Dictionary Drug Addict is defined as:

(a)  Any substance used as a medicine or as an ingredient in a medicine    which kills or inactivates germs, or effects anybody function or organ

(b)  Any substance used in chemistry dyeing etc

(c) Narcotic, hallucinogen etc. esp. one that is habit forming international control. In some parts of the world prescription drugs are the principal cause of drug abuse, and this phenomenon will be analyzed where appropriate. Volatile solvents such as those found in glue, although not under international control, are frequently used by young children.

Drugs which are not psychoactive but are taken for non-medical reasons, for example by athletes who take anabolic steroids to improve their performance, are not included. However, since this does not purport to be a drugs encyclopedia, but a report on the effects of drugs on individuals and on society, the principal focus is on people.

Licit/Illicit Drugs:

The UN drug control Conventions do not recognize a distinction between licit and illicit drugs and describe only use to be licit or illicit. For the sake of readability, the World Drug Report also uses the term illicit drugs to describe drugs which are under international control {and which may or may not have licit medical purposes) but which are produced, trafficked and/or consumed unlawfully or illicitly.

Use/Harmful Use/Abuse/Misuse:

Until 1968 WHO defined drug abuse as:

Persistent or sporadic excessive drug use inconsistent with or unrelated to acceptable medical practice. but the term was felt to be ambiguous and was replaced with harmful use, defined as:

A pattern of psychoactive substance use, that is causing damage to health, physical or mental.

WHO only uses the terms abuse and misuse when individual psychoactive drugs are discussed in the context of international control, for the sake of consistency with the three United Nations International Drug Control Conventions of 1961, 1971 and 1988. The UN Conventions do not in fact define drug abuse and use a variety of terms including abuse, misuse and to use ... illicitly. These terms are understood to mean the use of illicit substances and, for licit substances, use without prescription and/or in contravention of the specified dose.

In the various United Nations Conventions and in the Declaration on Drug Demand Reduction it refers to substances subject to international control. In medicine, it refers to any substance with the potential to prevent or cure disease or enhance physical or mental well-being. In pharmacology, the term drug refers to any chemical agent that alters the bio-chemical or physiological processes of tissues or organisms. In common usage, the term often refers specifically to psychoactive drugs, and often, even more specifically, to illicit drugs. However, caffeine, tobacco, alcohol, and other sub-stances in common non-medical use are also drugs in the sense of being taken primarily for their psychoactive effects. For demand reduction purposes, it is clearly necessary to exclude food stuffs from the coverage of the term ‘drug’ even though these clearly alter mental state and increase a sense of well-being.

Abuse

Abuse is a term in wide use but of varying meanings. In international drug control conventions ‘abuse’ refers to any consumption of a controlled substance no matter how infrequent. In the Diagnostic and Statistical Manual of Mental Disorders¹⁶, ‘psychoactive substance abuse’ is defined as "a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following within a 12 month period:

(a) Recurrent substance use resulting in a failure to fulfil major role obligations at work, school or home.

(b) Recurrent substance use in situations in which it is physically hazardous.

(c) Recurrent substance-related legal problems.

(d)Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance".

It is a residual category, with dependence taking precedence whenever applicable. The term ‘abuse’ is sometimes used disapprovingly to refer to any use at all, particularly of illicit drugs. Because of its ambiguity, the term is only used in the ICD-10 Classification of Mental and Behavioural Disorders.¹⁷ ‘Harmful’ and ‘hazardous use’ are the equivalent terms in WHO usage, although they usually relate only to effects on health and not to social consequences. The term ‘abuse’ is also discouraged by the Centre for Substance Abuse Prevention in the United States, although the term ‘substance abuse’ remains in wide use and refers generally to problems of psychoactive substance use. The term ‘drug abuse’ has also been criticized as being circular when it is used without reference to specific problems arising from drug use. Recent economic cost studies use a definition whereby ‘abuse’ is defined as any use which involves social costs to the community in addition to the costs of the provision of the drug.

Drug abuse

International drug control treaties held on narcotic drug but they do not define drug abuse they make reference to a variety of terms, including abuse, misuse, and illicit use. In the context of international drug control, drug abuse constitutes the use of any substance under international control for purposes other than medical and scientific, including use without prescription, in excessive dose levels, or over an unjustified period of time.

Drug abuse-related harm

Any adverse social, physical, psychological, legal or other consequence of drug use which is experienced as harmful to a drug user and/or those living with or otherwise affected by the actions of a drug user. This term is preferred by many to that of ‘drug problem’ because there is no implication of an enduring personal problem requiring treatment. It focuses attention on whether or not the use of a drug is related to measurable harm of some kind.

2.2 Nature and Scope of Narcotic Drug Abuse:

Drug abuse has been a major social problem and will most likely continue like that over the years. Recognising it as a social problem has been an important first step. The Department of Social Welfare has been declared as the Nodal Agency in several State Governments in India to co-ordinate all the measures and activities being undertaken by various Governmental and non-governmental agencies to prevent drug abuse and also rehabilitate drug addicts.  This is an important recognition to the fact that it is no longer just an issue of criminal justice. In UK much prior to the Drugs Act, 2005, the Crime and Disorder Act 1998 humanised the Drug Laws in UK. The said Act introduced, for the first time, enforceable drug treatment and testing orders, for people convicted of crimes committed in order to maintain their drug use. Incidentally, the number of persons dealt with for drugs offences fell by 15 per cent in 2000, following a fall of 6 per cent during the previous year. In total 104,400 persons were found guilty or cautioned.¹⁸ The following are some key statistics deduced from the 104,400 people who committed drug offences under the MDA in 2000.

Drug Abuse and Related Harm

Any of the range of individual and socially adverse accompaniments of drug use, particularly illicit drug use. ‘Related’ does not necessarily imply being directly caused by the drug’s effect. It includes such indirect and unintended consequences as the transmission of infectious diseases by the sharing of injecting equipment and injuries caused by broken beer glasses. ‘Drug abuse problems’ is an alternative term, but can be confused with ‘the drug problem’, meaning illicit drugs as an issue of general social concern. What a particular society perceives as a ‘drug problem’ is sometimes determined by attitudes and beliefs which may be unsupported by objective evidence of a drug’s potential for harm, i.e. to some extent ‘drug problems’ are socially constructed.

Drug policy

The aggregate of policies designed to affect the supply and/or the demand for illicit drugs, locally or nationally. Drug policy covers a range of strategies on such issues as education, treatment, drug laws, policing and border surveillance. In this context, ‘drug policy’ may include pharmaceutical, tobacco or alcohol policies as well.

The British Government’s recent Drugs Policy aims to address the problem of drug abuse in both areas, viz. - social inclusion and a criminal justice. The strategy concentrates on preventing young people from becoming drug misuses; reducing the supply of illegal drugs; increasing the number of individuals accessing effective drug treatment; and reducing drug-related crime. The Drugs Strategy has shown better results than the traditional method of criminalizing the addict. The UK Drug Strategy is a cross-Government programme of policies and interventions that concentrate on the most dangerous drugs, the most damaged communities and the problematic drug users, who cause the most harm to themselves, their families and their communities.

Drug seeking

It is an action to acquire drugs and includes buying from licit suppliers (e.g. liquor outlets, cigarette vendors), illicit drug suppliers or dealers, forging medical prescriptions or presenting to medical practitioners in an attempt to acquire prescription medication for non-medical use.

Drug substitution

It is the treatment of drug dependence by prescription of a substitute drug for which cross-dependence and cross-tolerance exist. The term is sometimes used in reference to a less hazardous form of the same drug used in the treatment. The goals of drug substitution are to eliminate or reduce use of a particular substance, especially if it is illegal, or to reduce harm from a particular method of administration, the attendant dangers to health (e.g. from needle sharing), and the social consequences. Drug substitution is often accompanied by psychologi- cal and other treatment. Examples of drug substitution are the use of methadone for the treatment of heroin dependence and nicotine gum to replace smoking tobacco. Drug substitution can last from several weeks to many years, sometimes indefinitely.It is sometimes distinguished from tapering-off therapy.

Illicit (or illegal) drug

A drug listed in the schedules to the international drug control conventions can only be called an illicit (or illegal) drug if its origin was illicit. If the origin was licit, then the drug itself is not illicit but only its production, sale, or use in particular circumstances. The drugs listed in the schedules to the various drug control conventions are under control and their use for solely medical or scientific purposes is licit.

Drug Addiction/Dependence:

According To Webster’s New World College Dictionary Addiction is defined as:

"The condition of being addicted (to a habit) or of being an addict specifically, the habitual use of narcotic drugs."¹⁹

According to The Concise Oxford Dictionary Addiction is defined as:

"The fact or process of being addicted, especially the condition of taking a drug habitually and being unable to give it up without incurring adverse effects."²⁰

In 1963, WHO Expert Committee on Drug Dependence decided to abandon the terms addiction (derived from the Latin verb ‘addicere’, to bind a person to one thing or another) and habituation in favor of dependence, defined as:

"A state, psychic and sometimes also physical, resulting from the interaction between a living organism and a drug, characterized by behavioral and other responses that always include a compulsion to take the drug on a continuous or periodic basis in order to experience its psychic effects, and sometimes to avoid the discomfort of it Thompson, 1995s absence. Tolerance may or may not be present. A person may be dependent on more than one drug."

In 1992 further clarification was thought necessary, and the term was modified to:

"A cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of a psychoactive drug (or drugs) takes on a high priority. The necessary descriptive characteristics are preoccupation with a desire to obtain and take the drug and persistent drug-seeking behavior. Determinants and the problematic consequences of drug dependence may biological, psychological or social, and usually interact."²¹

According to The Dictionary of Psychology, by Warren. C. H, Addict/Addiction is defined as:

"Addiction is a state in which a person pathologically habituated to alcohol or narcotic drugs and unable to desist from their use".²²

Drug addiction is a state of periodic or chronic intoxication detrimental to the individual and to society, produced by the repeated consumption of drug (natural or synthetic). Its characteristics include:

(a) An overpowering desire on need (compulsion) to continue taking the dru g and to obtain it by any means.

(b) A tendency to increase the dose.

(c) A psychic (psychological) and sometimes a physical dependence on the effects of drugs.

Addiction is a state in which a patient develops needs for the continuation of the drug to such an extent that need for the drug has been the same urgency as the need for the food or other fundamental drives. This need is usually both physical and psychological. With addiction, the body acquires a physiological or functional need (as well as craving) for the drug and serious and disagreeable symptoms may follow the withdrawal