NDPS Act: a drafting error, its implications, and an amendment

News: Recently, The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021 was passed by Lok Sabha.

About the Narcotic Drugs and Psychotropic Substances (Amendment) Bill

The 2021 Bill amends the Narcotic Drugs and Psychotropic Substances Act, 1985 and seeks to rectify a drafting “anomaly” created by a 2014 amendment. The bill amend Section 27A and change Section 2(viii)a mentioned in that section to Section 2(viii)b.

About the 2014 amendment

Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harbouring offenders. Before 2014, Section 2(viii)a contained a catalogue of offences for which the punishment is prescribed in Section 27A.

Section 27A reads: “Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2….shall be punishable with rigorous imprisonment” not less than 10 years(may extend up to 20 years) and fined not less than one lakh rupees.

In 2014, an amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.

-In Section 2(viii)a the amendment defined “essential drugs”. The amendment shifted the offences earlier under Section 2(viii)a to Section 2(viii)b.

-Under Section 9, it allowed the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.

Read more: Drug usage and the NDPS Act – Explained, pointwise
What were the error and its outcome?

The 2014 amendment failed to amend Section 27A from changing Section 2(viii)a mentioned in that section to Section 2(viii)b. This made Section 27A inoperable since 2014.

In 2016, an accused had sought bail in West Tripura in Agartala, citing this omission in drafting. The district judge then referred the legal question to the High Court.

The government had argued that the drafting error cannot be grounds to seek bail and must be overlooked. The court agreed with the government. But the court said the reading could not be applied retrospectively, as this would violate Article 20(1).

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 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.
What is the issue with the recent amendment bill?

Earlier, the government brought in an ordinance to rectify the drafting error. But the recent bill mentioned, “It shall be deemed to have come into force on the 1st day of May 2014”. Thus, the amendment makes the law retrospective. The government clarified that the retrospective application is permitted in “clarificatory amendments.”

But the bill is criticised for introducing a substantive sentencing provision in criminal law that has been given retrospective effect by a legislative declaration, 2. Making penal provisions retrospective will lead to more constitutional questions.

What are the other issues missed out by the bill?

Failed to decriminalize marijuana: There are many benefits associated with Marijuana. For instance, 1. Multiple sclerosis patients could benefit from therapeutic drugs derived from marijuana. 2. It may also help control pain, seizures and other afflictions, 3. Its commercial cultivation could offer more than medicinal value.

Further, the Global Commission on Drugs, a panel of leaders and thinkers, called for countries to regulate rather than ban cannabis (and narcotics). So, India should decriminalise Marijuana.

Must read: Decriminalising Marijuana in India

Source: This post is based on the following articles

“NDPS Act: a drafting error, its implications, and an amendment” published in Indian Express on 15th December 2021.

“A liberalized marijuana policy would do us good” published in Live Mint on 15th December 2021.

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