Control of Narcotics and Psychotropic substances: Governance issues -Dr. Subhash Chandra Pandey

Narcotics Control Bureau (NCB) has of late been subject of intense media scrutiny for targeting celebrity drug users. Shorn of this glare and glitz, what are the challenges faced by NCB in discharging its mandate and difficulties in enforcing the law on drugs?

World Drug Report 2021 released by  United Nations Office on Drugs and Crime (UNODC) in June had estimated that around 27.5 crore people used drugs last year while over 3.6 crore suffered from drug use disorders. Globally, over 1.1 crore people are estimated to inject drugs, half of whom are living with Hepatitis C. Drug addiction and accompanying trade is a global problem with links to terror finance and money laundering.

Most people are addicted to something or the other. Some addictions are beneficial, igniting minds, ushering dreams and ambitions, bringing success and achievements. Others harm body and mind. Some are mild some are beyond self-control.

We talk about digital addiction; about common cravings for tea, coffee, sugar, chocolate, soft drinks and fast food.

We talk about stronger and more harmful addiction to tobacco and alcoholic liquors. Nevertheless, most governments are content with issuing statutory warnings ‘injurious to health’ and collecting huge revenues taking advantage of somewhat inelastic demand of these commodities.

Use of intoxicants for seeking pleasure (or mitigating pain, flip side of coin) has been prevalent for centuries as mankind improvised upon chance discoveries to create more potent concoctions to get ‘high’.

While societal norms and tolerance for these substances vary, a general consensus has evolved around undesirability of most contentious of addictions – to ‘narcotic drugs and psychotropic substances’.

These are covered by three United Nations Treaties-  Single Convention on Narcotic Drugs 1961, UN Convention on Psychotropic Substances 1971 and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. These Treaties are enforced in India under the three Central Acts: Drugs and Cosmetics Act, 1940, Narcotic Drugs and Psychotropic Substances Act, 1985 and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Narcotics Control Bureau, Ministry of Home Affairs, as created as a specialised agency to coordinate implementation of these Treaty obligations as per the Acts.

Narcotic Drugs and Psychotropic Substances are intoxicants derived mainly from three plant varieties: Cannabis, Opium and Coca. These have decreasing threshold of acceptance. Lab-synthesized versions have also emerged.

Cannabis are a group of three plants with psychoactive properties: Cannabis Sativa, Cannabis Indica, and Cannabis Ruderalis yielding 5 types of intoxicants – Bhang, Ganja, Charas, Hashish and Marijuana

Opium is dried latex secreted by poppy flowers (Papaver Somniferum) – yields alkaloids such as morphine, codeine, thebaine and papaverine. Heroin is derived from the morphine.

Third plant is coca whose leaves yield Cocaine, a recreational drug and euphoriant.

Narcotics Control Bureau was created in 1986 under Narcotic Drugs and Psychotropic Substances NDPS Act, 1985 that regulates cultivation of all narcotics plants, consumption and trade of these substances with exceptions for medical and scientific purposes.

NCB faces huge challenges. A glimpse of some issues.

Large scale drug trafficking across national borders is controlled by crime syndicates and these have been found closely linked with terrorist networks and money laundering network. Therefore, the NCB officials have to contend with great threat to personal safety. Coordination with Intelligence agencies, border patrolling para-military and Customs officials is very important.

Recently, Central government amended the Border Security Force Act to expand the area in which BSF is empowered to conduct search and seizure operations. BSF recently recovered heroin packets dropped by drones!!

Because of high financial stakes involved, drug traffickers keep evolving newer forms of evasion. Scanning container cargo is a major challenge. Drugs may be camouflaged in a manner to avoid detection by sniffer dogs.

It is heartening to note that advanced data analytics tools and technology is being used to profile and intercept drugs as India is reported to be a major transit point for drugs trade.

On September 15, Directorate of Revenue Intelligence Ahmedabad seized about 2990 kilogrammes of heroin mixed up with talcum powder from two containers at Mundra Port, which were declared as containing talc powder or “semi-processed talc stones”, originating in Afghanistan and loaded in ship at an Iranian port. (assessed market value about Rs.20,000 crore).

Directorate General of Analytics and Risk Management at the National Customs Targeting Centre (NCTC) intercepted this suspicious cargo through their surveillance based on data analytics. NCTC team used several parameters such as the country of origin of imported goods, nature of goods, frequency of imports and registration details of the importer among others to identify the suspicious cargo. What aroused suspicion was that a Vijayawada company was using a far away port to bring in that too ‘talc stones’ originating from Afghanistan when top two talc stones producers are China and Brazil!

For ease of administration, the offences created under NDPS Act depend on quantity of drugs seized from the person of an accused. Issue of ‘small quantity’ for personal consumption’ and ‘commercial quantity for trade’ often gets contentious in courts. Whether gross weight or net drug content has to be determining factor etc. Ideally there should be more elaborate profiling of a drug user to identify a habitual drug addict rather than a chance discovery. These issues prolong prosecution.

The law expected that ideally any raid, search and seizure should be witnessed by two independent, respectable witnesses, who are not considered by courts as not STOCK WITNESSES of prosecution. Same guys appearing repeatedly. But how many respectable, independent persons would agree to become witnesses in such raids? It is also a practical difficulty.

The NDPS Act is a special legislation in which the basic principle of natural justice — that one is innocent till proven guilty — is reversed and the accused has to prove his or her innocence. Once somebody is found with possession of these substances, the burden of proof that it is not illegal possession rests on the accused. Prosecution has to merely prove possession.

Offences are cognizable and non-bailable with stiff limitations on courts’ discretion to grant bail. Offences invite strict punishments like minimum jail terms, forfeiture of property for illicit traffic and even death penalty for repeat offenders. However, multiple issues derail successful prosecution and conviction including effective absence of witness protection program.

Originally the NDPS Act did not differentiate between drug dealer and drug user. Through 2001 amendment, the Act was redesigned to become more tolerant of drug user.

The Act provides for an immunity from prosecution to such accused who turn approver to help prosecute bigger offenders (Section 64). Immunity may also be offered to those who undergo medical treatment for de-addiction. (Section 64A).

The law seems to be clear that a drug user ready for de-addiction should be treated as victim and helped. However, there can be no leniency to drug addicts who are inclined to turn criminals by way of facilitating popularising drug use and aiding trade.

Now the challenge befor enforcement agency NCB is how can in law public authorities decide and tag a person as pure personal user or as a user cum dealer, access facilitator, trade facilitator, advertiser influencer to bring additional users, as someone willingly or under coercion/inducement acting as trade conduit. The world of illicit trade and commerce is very complex and who is performing what role is not easy to decipher

Although no such case has been reported but elsewhere drug trafficking syndicates are reported to use terminally ill patients as drug couriers with promise of booty to family. They are innocent (?) hapless people risking death penalty in some countries. The ‘drug mules’ undertake these missions to provide for their families hoping that human rights activists will save them from death penalty. However, States face a dilemma: To execute such poor, desperate, unsuspecting or coerced/induced couriers while real criminals operate behind the scene.

Moderate and occasional use of cannabis is found to be much less injurious than opioids etc. It has had centuries old social cultural sanction. There is growing demand to legalise recreational and medicinal use of cannabis- particularly marijuana in USA and Bhang in India. In December 2020, UN has passed a resolution removing marijuana from Schedule IV of the Single Convention on Narcotic Drugs, 1961. India voted in favour of this resolution. Relaxation on hemp cultivation have led to startup industries coming up. Uttarakhand has become the first State to issue license for cultivation of industrial hemp containing THC no more than 0.3 percent,. (THC is the main psychoactive compound in cannabis).

Global fight against N/P drugs is increasingly becoming bloody. International cooperation and intelligence sharing is playing its role but it is a cat and mouse game. Enforcement agencies keep doing seize and destroy operations and druglords keep inventing newer ways to hoodwink them.

Some countries that have launched war against drugs have resorted to even indiscriminate extra judicial killings by masked commandoes. Some have had to rope in military to hunt down druglords holed inside multi-ring security deep inside jungles.

In the midst of all this, enforcement agencies have also to ensure that a mere drug consumer is not harassed but treated like victim deserving of sympathy.

Compassion, yes. Understanding, yes. Compromise with criminality, no.

These are just some of the challenges for drug law enforcement.