Should the NDPS Act be amended?
Certain provisions could be changed to ensure a reformative approach towards addicts
The Union Ministry of Social Justice and Empowerment has proposed certain changes to some provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. The recommendations have assumed importance in the backdrop of some high-profile drug cases including the recent arrest of Bollywood actor Shah Rukh Khan’s son Aryan Khan following a raid on a cruise ship by the Narcotics Control Bureau a few weeks ago. One of the recommendations of the Ministry is to decriminalise the possession of narcotic drugs in smaller quantities for personal purposes. Another suggestion is that persons using drugs in smaller quantities be treated as victims. In a conversation moderated by Marri Ramu, Mahesh Bhagwat and Mazhar Hussain look at the implications of the changes suggested to tackle the problem of drug abuse and the abuse of the law. Edited excerpts:
First arrest and then investigate seems to be the principle for investigations under the NDPS Act. Is this justified?
Mahesh Bhagwat: That is not correct. The procedure of seizing narcotic drugs is important first. Section 50 of the Act (conditions under which search of persons shall be conducted) needs to be followed scrupulously. When officials stumble upon a person carrying drugs during raids or a routine check, the drugs must be seized in front of a Gazetted Officer or a Magistrate.
In cases of sudden development, the suspect is taken to the nearby Magistrate or the latter is brought to the spot and then only drugs are seized. If this is not adhered to, the court acquits the accused persons. Only then the next stage of investigation commences.
Is there not a possibility of people in power misusing the NDPS Act since the onus is on the accused to prove their innocence?
Mahesh Bhagwat: I don’t think so. You cannot manage all the people all the time. While tracking drugs cases, investigators go from consumers to drug suppliers. Since the seizure procedure is to be followed, there could be one Magistrate at the time of seizing drugs, another during further investigation and a different Magistrate at the time of trial. Moreover, governments can change.
What are the challenges that the police face in enforcing the NDPS Act to take drugs cases to their logical end?
Mahesh Bhagwat: The Act was brought in 1985. This is a stringent law where the death penalty can be prescribed for repeat offenders. Since drug peddling is an organised crime, it is challenging for the police to catch the persons involved from the point of source to the point of destination. Identifying drugs that are being transported is a challenge since we cannot stop each and every vehicle that plies on Indian roads. Most drug bust cases are made possible with specific information leads. In one instance, it was found that a ganja peddler had a secret chamber fabricated inside a lorry. We caught it only because we had specific inputs from a network of informants. Unless we check every vehicle with specially trained sniffer dogs, it is difficult to check narcotic drugs transportation. The main challenge is to catch those producing these substances.
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Going beyond State jurisdiction, finding the source of narcotic substances and destroying them is another big challenge. Catching the accused cultivating ganja in areas bordering the States too is turning out to be a herculean task. It gets tougher when ganja is cultivated in areas that are Maoist hideouts.
Securing conviction for the accused in drugs cases is yet another arduous task. There are frequent delays in court procedures. Sometimes, cases do not come up for trial even after two years of having registered them. By then, the accused are out on bail and do not turn up for trial. Bringing them back from their States to trial is quite difficult let alone getting them convicted.
Mazher Hussain: No doubt the NDPS Act is stringent, but we need to make a distinction between the drug peddler and the end user. The person using it in smaller quantities for personal use cannot be bracketed with the person producing narcotic drugs. We need to make a clear distinction between a drug supplier and an end user. A drug user needs to be seen as a patient. The Act as of now prescribes jail for everyone — the end user and the drug supplier.
How do you see the Ministry’s proposal to refer persons possessing drugs in smaller quantities to government-run rehabilitation centres instead of awarding them jail terms and imposing fines?
Mahesh Bhagwat: The proposal to send persons to rehabilitation centres is good on paper but do we have the infrastructure to ensure that it is properly implemented? The answer is ‘no’. We don’t have adequate de-addiction centre counsellors. We face an acute shortage of psychiatrists and counsellors. How many rehabilitation centres are there vis-à-vis the volume of persons involved in drug cases? I suggest that the States be consulted. Policing is a State subject. It is not in the Concurrent list. So, instead of suggesting proposals to change sections of the law for the entire country, I think it would be advisable to introduce this on a pilot basis in one State that faces an acute drugs-related problem.
The government could also study some of the best practices in the world. In Iceland, for example, a community-led approach has worked wonders. Iceland witnessed acute drug abuse among its children and the youth. The government decided to tackle the issue right from the school level. From introducing aptitude tests which revealed the inclinations of students to persuading parents to keep liquor and cigarettes out of reach of the youth, the country took various measures to tackle the problem and weaned away 70-80% of its young population from drugs. It also helped drastically reduce the usage of drugs.
Mazher Hussain: We need to thoroughly examine why and how people are getting addicted to narcotic drugs. There is a growing hopelessness in society due to various factors. The COVID-19 pandemic, for instance, has aggravated anxieties among the youth. We need to redefine and redesign the law so as to tackle what acts as a trigger. An aspect of the Act which is least discussed is a national fund for rehabilitation. We need to allocate more money for the fund, help transform drug addicts and make the job of policing easier.
In the U.S., some States have started permitting the usage of narcotic drugs like marijuana in smaller quantities. Do you think the legalisation of drugs usage is the right step?
Mahesh Bhagwat: We cannot think of legalisation of drugs usage in isolation. We need to think of the harmful effects first. There are connected issues like absenteeism in schools, loss of jobs, income, depression and suicide. The crime rate could go up, throwing up yet another new challenge for the police.
Mazher Hussain: Legalisation of drugs usage will only compound the problem. It could lead to proliferation of drugs. It is dangerous. More and more people may start using them. At the same time, the solution is to decriminalise usage of drugs. If a person is caught for the first time in a drugs case, be it for possession or usage, they should be sent to a rehabilitation centre. There should be scope for reformation of such persons. Not anybody and everybody connected to drugs cases should be sent to prison. Only repeat offenders should be sent to prison.
There are many street children who use whiteners, glue, painting chemicals, etc. There is no focus on such children becoming victims of substance use.
Mahesh Bhagwat: There are three types of drugs — party drugs, prescription drugs and others, namely inhalants (also known as synthetic drugs). Some people even apply Zandu Balm on bread slices and eat them. We found people using cough syrups to get a high. Street children and labourers cannot afford to buy costly narcotic drugs like cocaine and so, they go after cheaper options like glue.
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With computers replacing typewriters almost completely, it is anybody’s guess how many are using whiteners. While the police have to focus on this, persons selling chemicals or whiteners are equally responsible. During my visit to the U.S., I went to a shop to buy a bullet-proof jacket; the vendor refused to sell it to me. As I was leaving, the shop owner noted details of the vehicle in which I was travelling. The question is do we have such responsible traders here.
Mazher Hussain: After noticing that many street children are getting addicted to whiteners, COVA filed a PIL petition in a High Court more than a decade ago. The High Court passed a direction instructing the government to ensure that whiteners are not sold to children below 18 years of age. It is for the police and others concerned to implement the court order and keep a tab on persons selling such chemicals.
Decriminalisation apart, what other steps can be taken to check the drug menace in the country?
Mahesh Bhagwat: There are three crucial factors we need to adopt to end the drug menace. While bringing up their wards, parents must be able to talk to their children and assure them of all support should they face a problem. Parents have to act as confidants first. Mutual trust should be so strong that wards come to them at the first sign of trouble. Sometimes, it could be a friend inducing them to take drugs once — once caught, they get trapped in a vicious cycle. So, our approach to tackling the problem should begin from home. Our experience shows that cigarette is an entry point for the young. To graduate from cigarette to drugs is not difficult if there is access to the drug. Watching a parent smoke, the child thinks it’s a cool act to emulate. From here, children go to the next level of taking out tobacco from a cigarette and filling it with weed to get a high.
Second, teachers should keep an eye on school surroundings to ascertain whether anyone is selling hookah pipes or ganja papers. Checking drugs usage is not the job of only the police. The police cannot enter every house and physically check if youngsters are using drugs. Everyone should have a proactive role.
Civil society support is equally important. If everyone joins hands, wiping out drugs usage is not an issue at all.
Mazher Hussain: We should examine the root cause of the problem. Why are people taking drugs? One has to ascertain why different sections of the society, be it street children or youngsters from rich families, are getting addicted to drugs.
Relying only on law-enforcing agencies, however hard they are at work to address the problem, is not going to solve it. Civil society and governments will have to work together to create an enabling environment to address the issue.
Mazher Hussain is Executive Director of Confederation of Voluntary Associations, a national network of voluntary organisations; Mahesh Bhagwat is Police Commissioner Rachakonda, Telangana