Analysis of the offenses under the NDPS Act, 1985

By Adv. SUDHEESH S KUMAR

 



INTRODUCTION:

Cannabis has been used in India for thousands of years and finds mention in many ancient scriptures for medicinal purposes and otherwise.  Bhang, which is made using the leaves of the cannabis plant, has close ties to the worship of Shiva in Hinduism as well as the celebration of the festival Holi across India in the form of a drink called ‘thandai’. The sale and consumption of bhang is permitted under law in India due to the NDPS Act’s definition of cannabis.  Unlike western countries India has a cultural connection of adapting certain natural forms of narcotic substances for celebrating some religious festivals. Thus, this cultural difference is an important aspect to be considered while framing and forcing any drugs laws in India.

 In1961, the international treaty,” Single Convention on Narcotic Drugs “classified cannabis as a hard drug. The Indian delegation opposed this because of the social and cultural use of cannabis in India. Finally, the definition of cannabis included ‘flowering or fruiting tops (excluding seeds and leaves when not accompanied by tops) from which resin is not extracted’. This allowed India to continue its large scale consumption of bhang and after 25 years of the exemption period, India passed the NDPS Act adopting the same definition of cannabis. Drugs covered under this act include cannabis, coca, opium, or any other narcotic substance.

Main aims for enforcing this law were to control the manufacturing and distribution of drugs, to keep a check on the quality of drugs, to mandate the display of ingredients of drugs and to prevent substance abuse in society.

Meaning of cannabis:

 1.      According to section 2(iii) Act, the cannabis (hemp) means; 

   (a) Charas, that is, the separated resin, in whatever form, whether crude   or purified, obtained

        From the cannabis plant and also includes concentrated preparation and resin known as   

               Hashish oil or liquid hashish;

         (b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the  

             Seeds and leaves when not accompanied by the tops), by whatever name they may be  

             Known or designated; and

         (c) Any mixture, with or without any neutral material, of any of  the above forms of  cannabis

               Or any drink prepared there from;  

2.       Notably, the Act specifically prohibits the sale and production of cannabis resin and flowers, while the use of seeds and leaves is allowed. 

3.       As per section 10 of the Act , subject to the section 8 of the Act the state government may by rules can permit and regulate the cultivation of any cannabis plant, production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of cannabis (excluding charas).

4.        By using the provision Uttarakhand became the first state in India to allow commercial cultivation of hemp in 2018. And Assam outlaws the purchase, consumption and possession of ganja as well as bhang using Assam Ganja and Bhang Prohibition Act.

Section 8 talks about the prohibition of certain operations.

 No person shall –

 (a) cultivate any coca plant or gather any Portion of coca plant; or

(b) Cultivate the opium poppy or any cannabis plant or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance

Medical or Scientific Purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under are excepted by the section.

Offences under the Act: 

 

Section 15 Poppy straws:

  1.    “Poppy straw” means all parts of the opium poppy after harvesting except the seeds whether in the original, crushed, cut, powdered, juice form.

2.       Hence whoever produces, possesses transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw shall punished as follows;

·         If it involves small quantity – punish with rigorous imprisonment up to one year or with fine up to 10000 rupees or both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - punishes with rigorous imprisonment for a term up to 10 years and with fine up to one lakh rupees. 

·           If it involves commercial quantity -  punishes with rigorous imprisonment for a term which Shall not less than 10 years and may extend up to 20 years and shall also be liable to fine which shall not less than one lakh rupees and may extend to  2 lakh rupees.

 Section 16 Coca plant and coca leaves:

 whoever, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves shall be punishable with rigorous imprisonment up to 10 years, and with fine up to one lakh rupees.

 Section 17 Prepared opium:

 1.      whoever , manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall punished as follows;

·         If it involves small quantity - then punish with rigorous imprisonment up to one year or with a fine of up to 10000 rupees or both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - punishes with rigorous imprisonment for a term up to 10 years and with a fine of up to one lakh rupees.

·         If it involves commercial quantity then punishes with rigorous imprisonment for a term which Shall not less than 10 years and may extend up to 20 years and shall also be liable to fine which shall not less than one lakh rupees and may extend to 2 lakh rupees.

  Section 18 Opium poppy and opium:

 1.       Whoever, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases,                     transports, imports inter-State, exports inter-State or uses opium shall punish as follows ; 

·         If it involves a small quantity – punish with rigorous imprisonment up to one year or with a fine of up to 10000 rupees or both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - punishes with rigorous imprisonment for a term up to 10 years and with a fine of up to one lakh rupees.

·            If it involves commercial quantity -  punishes with rigorous imprisonment for a term which Shall not less than 10 years and may extend up to 20 years and shall also be liable to fine which shall not less than one lakh rupees and may extend to  2 lakh rupees.

 

Section 19 embezzlement of opium by cultivator:  

 Any person licensed to cultivate the opium poppy by central government; embezzles or illegally dispose the produced opium or any part of it shall be punished with rigorous imprisonment not less than 10 years which may extend to 20 years and shall liable to fine, not less than one lakh and may not extend 2 lakh rupees.

 Section 20 cannabis plant and cannabis:

 1.       The section punishes the cultivation of any cannabis plant with rigorous imprisonment up to 10 years and shall also be liable to fine extend up to one lakh rupees

2.       Also, the section punishes the production, manufacturing, possession, sale, purchases, transportation, imports inter-State, exports inter-State or uses of cannabis as follows;

·         If it involves small quantity - rigorous imprisonment up to 1 year or with fine up to ten thousand rupees, or with both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - rigorous imprisonment for a term up to 10 years, and with a fine of up to one lakh rupees.

·         If it involves commercial quantity - rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall be liable to fine which not less than one lakh rupees but which may extend to two lakh rupees.

 Section 21 manufactured drugs and preparations: 

This section punishes the manufacturing, possession, sales, purchases, transportation, imports inter-State, exports inter-State or uses any manufactured drug, as well as its preparation as follows:

·         If it involves small quantity - rigorous imprisonment up to 1 year or with fine up to ten thousand rupees, or with both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - rigorous imprisonment for a term up to 10 years, and with a fine of up to one lakh rupees.

·         If it involves commercial quantity - rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall be liable to fine which not less than one lakh rupees but which may extend to two lakh rupees.

 Section 22 psychotropic substances:

 1.       “Psychotropic substance” means 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 substances specified in the Schedule. There are 76 items in the schedule and its salt and preparations are considered as Psychotropic substance.

2.       The section punishes the manufacturing, possession, sales, purchases, transportation, imports inter-State, exports inter-State or uses of these Psychotropic substances as follows:

·         If it involves small quantity -  rigorous imprisonment up to 1 year or with a fine up to ten thousand rupees, or with both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - rigorous imprisonment for a term up to 10 years, and with a fine of up to one lakh rupees.

·         If it involves commercial quantity -  rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall be liable to fine which not less than one lakh rupees but which may extend to two lakh rupees.

 Section 23 illegal import, export or transshipment of narcotic drugs and psychotropic substances:

 Whoever illegally imports, export, or transship any narcotic drug or psychotropic substance shall punish;

·         if it involves small quantity - rigorous imprisonment up to 1 year or with fine up to ten thousand rupees, or with both.

·         If it involves quantity lesser than commercial quantity but greater than small quantity - rigorous imprisonment for a term up to 10 years, and with a fine of up to one lakh rupees.

·         If it involves commercial quantity - rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall be liable to fine which not less than one lakh rupees but which may extend to two lakh rupees.

 Section 24 external dealings in narcotic drugs and psychotropic substances: 

 The person engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorisation of the government or otherwise than in accordance with the condition of such authorisation granted under section 12 shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees:

 

Section 25 using or allowing premises, etc. for the commission of an offence:

1.       The person who is the owner, or occupier having control or use of any house, room, place, animal, conveyance, enclosure, knowingly permit it for the commission of any offences under the Act.

2.       The person hence permits such commission shall be punishable with the punishment provided for that offence.  

 Section 26 acts by licensee or his servants: 

 The holder of any license or permit under the Act or any of his employees on his behalf shall be punished with an imprisonment for a term up to 3 years or with fine or with both –

·         If he omit to maintain accounts or to submit any return in accordance with the Act without reasonable cause.

·         Fails to produce license, permit or authorisation on demand of any officer authorised by the Central Government or State Government in this behalf without reasonable cause.

·         If he keep any false accounts or make any false statement or keep such accounts and statement which he believes as incorrect.

·         wilfully and knowingly does any act in breach of any of the conditions of licence, permit or authorisation for which a penalty is not prescribed elsewhere in this Act,

 

Section 27 consumption of any narcotic drug or psychotropic substance:

 1.       The section punishes the consumption of cocaine, morphine, diacetyl- morphine or any other narcotic drug or any psychotropic substance as may be specified by the Central Government by notification with rigorous imprisonment up to 1 year, or with fine up to twenty thousand rupees; or with both.

2.       Also the section punishes the consumption of those narcotic drug or psychotropic substance other than the above with 6 month imprisonment or fine up to ten thousand rupees or both.

3.      Ingredients of  Section 27 1:    

(a) The person has been found in possession of any narcotic drug or psychotropic substance in ‘small quantity

 (b) Such possession should be in contravention of any provision of the Act or any rule of order   made or permit issued there under

(c) The said possession of any narcotic drug or psychotropic substance was intended for his personal consumption and not for sale or distribution. 

 Section 27A financing illicit traffic and harbouring offenders:

The section punishes with rigorous imprisonment not less than 10 years which may extend to 20 years and shall also be liable to fine shall not be less than one lakh rupees which may extend to two lakh rupees to persons indulges in financing, directly or indirectly any of the activities under section 2 (viiia) (i) to (v)  or harbours any person engaged in any of the aforementioned activities.

 

 


1. Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145 (150): 1993 SCC (Cri) 803.


 

 

 


I am a Legal professional - practicing as a counsel before the High Court of Kerala and the Trial Courts Mainly in Kottayam Zone. I graduated with a bachelor’s degree in Bachelor of Commerce from Mahatma Gandhi University (2014-17) and a bachelor’s degree in law from University of Calicut (2018-21). From November 2021 onwards till July 2022 , I was a Junior trainee at the Firm Tharakan and George Associates. Now I am an Associate Litigator at Tharakan and George Associates. Civil Commercial litigation, Consumer Litigation , Drafting of Legal Documents , Preparation of Title deeds , Registration of Firms and Society are my primary areas of practice. Opinions expressed by me here are in my personal capacity, and may not be conclusive. My LinkedIn profile is available at https://www.linkedin.com/in/adv-sudheesh-s-kumar-632977234/

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