Criminology
Socio Economic Offences: Nature and Dimensions Drug Trafficking
Role Name Affiliation
Principal Investigator Prof. Bajpai NLU, Delhi
Paper Coordinator Dr. Kavita Singh Associate Professor, West Bengal National University of Juridical Sciences, Kolkata Content Writer/Author Dr. Kavita Singh Associate Professor, West Bengal National
University of Juridical Sciences, Kolkata Content Reviewer Prof. (Dr.) N. K.
Chakraborty
Director, KIIT Law School, Bhubaneswar
DESCRIPTION OF MODULE
Items Description of Module
Subject Name Criminology
Paper Name Socio Economic Offences: Nature and Dimensions Module Name/Title Drug Trafficking
Module Id
Objectives The objective of this module is:
To discuss in details the offence of Drug trafficking.
To elucidate the varied and detailed nature of the Offence of Drug trafficking. .
To inculcate within the readers in-depth knowledge of law related to Drug trafficking.
To explain most basic of concepts required for better understanding of the module.
To provide for answers to important issues related to Drug trafficking..
Prerequisites General understanding of the fundamental principles of criminal law; basic knowledge of crimes and the differentiation of the crimes as per the ingredients and the nature of effect on the society and a tertiary idea about the provisions of the
NDPS, Opium Act, Drugs and Cosmetics Act and the related parliamentary debates and discussions.
Module Title: Drug Trafficking
SYNOPSIS
1. Introduction 2. Learning Outcome
3. What is Drug Trafficking?
4. Causes of Drug Trafficking
5. Economic and Social Consequences of Drug Trafficking 6. Legal Framework
7. Judicial pronouncement on illicit drug trafficking and its socio-economic effect
8. Drug trafficking as socio economic perspective 9. Impact of Illicit Trade in Drugs
10. Summary 1. INTRODUCTION
The utterance of “DRUGS” transports one to the theatrical realm of ‘THE GODFATHER’ and ‘AL CAPONE’, of Power, Deceit, gun fights, Wealth etc., but romanticism apart, drug trafficking is the largest form of trans-international organised crime. Its effect, if left unabated, results in poor quality of life and a damaged social, economic and cultural seam of any country.
India with its wide span of 15,000 Kilometers across its borders and open sea line for about 70000 Kilometers provides ample access to illegal drug traffickers. Not to mention the fact that India is flanked by the proverbial ‘Golden Crescent’ Afghanistan and Pakistan, opium producer, in the South West, along with ‘Golden Triangle’ comprising of Laos, Myanmar and Thailand with an additional Country Nepal, marked producer of Cannabis, thrown in for good measure!
In the earlier days the consumption of ganja, opium, marijuana, bhang etc. were done for medicinal purpose, during religious ceremonies, for entertainment and in some social ceremonies.1 Opium for medicinal purposes have been legitimately produced in mainly three states, i.e., Rajasthan, Madhya Pradesh and Uttar Pradesh in India under the control of the Narcotics Commissioner. Then there are the legit chemicals like acetic anhydride, acetyl
1Das, Pushpita, Drug trafficking in India: A Case for Border Security, (2012), p -7, Institute for Defence Studies and analyses, New Delhi, available at, http://www.idsa.in/system/files/OP_DrugTraffickinginIndia.pdf (last visited 20.04.2017).
anthracitic acid, etc. produced by Indian factories by which heroin are manufactured.2 Under the shroud of legitimacy illicit production of opium flourishes as and when the watchdog activities of the narcotics department wavers then with the help of the above chemicals, illegal heroin is manufactured.
India is used as a transit country to move drugs like heroin from Myanmar, Bangladesh, and hashish from Nepal and hashish as well as heroin from Pakistan. The major types of illicit drugs which are grown and which pass through India are opium, hashish, cannabis, heroin and methaqualon. The social and cultural fabric of Indian states like Punjab and Rajasthan are in tatters due to the flooding of drugs, as a spillover effect, in the local environment. The land of the braves has been reduced to a stupor filled populace. The economy has taken severe hit as people are unable to think and work due to their drug induced numbed senses.
2Sing, Shankar Prasad, Transnational Organised Crime: The Indian Perspective, p -572, available at, http://www.unafei.or.jp/english/pdf/RS_No59/No59_38PA_Singh.pdf (last visited 20.04.2017).
2. LEARNING OUTCOME
3. What is Drug Trafficking?
Drug trafficking primarily refers to transactions regarding contraband substances which are either banned or restricted. In case of restricted substances, drug trafficking takes place when transactions are carried out without obtaining requisite permits. Such transactions include but are
Illegal Drug Trafficking in India
Understand the various types of drugs and their misuse
Appraise the various nature and constituents of the offence of Drug Trafficking.
Appraisal of law s to combat trafficking of illegal drugs, and
judicial prouncement of Apex Court
not limited to the cultivation of weeds and plant which are known to act as hallucinogens when consumed, manufacture of narcotic substances, distribution of drugs both locally and internationally, and their unlicensed and illegal sale.3 The most infamous drugs in this respect include heroin, cocaine and LSD. These drugs have been banned in most countries around the world due to their psychedelic properties which may result in weakening of memory and cognition besides negatively impacting physical coordination.4
Certain other drugs such as Morphine, Amphetamines, Codeine, and Methadone are categorised as controlled substances.5 This means that possession of such drugs requires a valid medical prescription while supply and production of these substances mandatorily requires a license.6 The usage and supply of these drugs is restricted but not entirely prohibited due to their medicinal properties. These drugs play an important role in various medical and scientific processes, however non-medical or recreational usage of such drugs may lead to adverse consequences and hence their availability is strictly scrutinised.7
3 See Drug Trafficking' (United Nations Office on Drugs and Crime) <https://www.unodc.org/unodc/en/drug- trafficking/> accessed 24 April 2017.
4 See also Canadian Police Association submissions to the Senate Special Committee on Illegal Drugs, 'Drugs Are Illegal Because Drugs Are Dangerous' (2001) <http://www.drugwatch.org/resources/publications/testimonies-and- speeches/159-drugs-are-illegal-because-drugs-are-dangerous.html> accessed 24 April 2017.
5 See List of Controlled Drugs' (Release) <http://www.release.org.uk/law/list-controlled-drugs> accessed 24 April 2017.
6 See Government of United Kingdom, 'List of Most Commonly Encountered Drugs Currently Controlled Under the Misuse of Drugs Legislation' (2016) <https://www.gov.uk/government/publications/controlled-drugs-list--2/list-of- most-commonly-encountered-drugs-currently-controlled-under-the-misuse-of-drugs-legislation> accessed 24 April 2017.
7 See also 'Controlled Drugs' (Health Products Regulatory Authority, Ireland, 2017)
<https://www.hpra.ie/homepage/controlled-substances/controlled-substances> accessed 24 April 2017.
Drug trafficking not only impacts individual health but also creates risks for the society as a whole. Individuals addicted to drugs have often been reported to engage in other illegal activities to fund the rising costs of these substances. Drug abuse is thus frequently related to violence against innocent individuals in the community. Drug trafficking also causes diversion of workers from productive activities and youth from education or vocational training.8 Cross border drug transactions also make national borders vulnerable. It is one of the most widespread organised crimes contributing to the growth of criminal networks. The money earned from illegal drug trafficking is often laundered and routed through illegal channels for the purpose of facilitating other organised crime systems involved in activities such as arms trade and human trafficking. In order to combat the negative impact of drug transactions, governments therefore seek to control trafficking through strict regulations and enforcement mechanisms. Over time, there has been an active effort to include other stakeholders such as families, educators and employers of those who are involved in drug peddling and/or consumption to deter such individuals.9
4. Causes of Drug Trafficking
Drug trafficking can simply be understood as the illegal supply of contraband substances in response to the demand for restricted or banned drugs. The demand for drugs has been particularly on the rise among the youth who are prone to the effects of peer pressure alongside their own individual curiosity. The widespread availability and large scale social acceptance of addictive substances such as cigarettes and alcohol have paved the way for normalising drug use to a large extent. In various youth groups, drug use has become one of the requisites of entry into
8 See Drugs and development: the global impact of drug use and trafficking on social and economic development, Int J Drug Policy. 2008 Dec;19(6):467-78
9 See 'Chapter I The Impact Of The Drug Trade' (Schaffer Library of Drug Policy, 2017)
<http://www.druglibrary.org/schaffer/govpubs/amhab/amhabc1.htm> accessed 24 April 2017.
social circles. As consumption of drugs becomes a social symbol among today’s youth, the demand for drugs also seems to be rising among this demographic.10
The media also plays a vital role in popularising drug consumption. As teenagers look at their favourite movie stars consuming drugs and enjoying the resultant ‘high’ on the big screen, they too are inspired to replicate the image that they see in the movies. The depiction of drugs in movies and popular sitcoms as a means of escape from worldly troubles also motivates persons suffering from mental disorders or failures in life to resort to drug use instead of approaching mental health professionals for help. The glorification of drug use and the rampant availability of images of drug addiction within pop culture are thus fuelling the demand for drugs in general.11
The business of drug trafficking is risk prone with high chances of prosecution. Based on the anti drug policies adopted by most governments, the punishment upon conviction also tends to be on the higher end of the spectrum. Despite the risks involved, drug peddling remains consistent due to the supply of labour willing to undertake such risks in return for the incentives offered. The chief members of the drug mafia employ youths primarily from poor localities to carry out the various transactions involved in drug trafficking. These youths hailing from poor economic backgrounds characterised by want and need, are motivated to join the drug trade due to the lucrative monetary offers that it presents. The drug mafia offer youths far more income per transaction than a conventional job. Moreover in poorer neighbourhoods where most youths are uneducated, good employment remains a dream for many. Drug trafficking then becomes the mode of sustenance for such persons, some of whom later grow up to absorb more youths within
10 See Asempa Abankwa Okyere, 'Drug Menace: Causes, Effects And Solution' (Modern Ghana, 2015)
<https://www.modernghana.com/news/641451/drug-menace-causes-effects-and-solution.html> accessed 24 April 2017.
11 See 'Conflicting Messages: The Glorification of Drug Use' (Christian Drug Rehab, 2012)
<http://www.christiandrugrehab.com/the-family/glorification-of-drug-use/> accessed 24 April 2017.
the system. This vicious cycle forms the foundation of the drug supply mechanism which is utilised by drug cartels.12
The supply of drugs through cultivation and manufacturing is based on a cost-benefit analysis. In third world nations of Africa, Asia and South America whose economies are primarily agrarian, farmers are incentivised to produce plants like cannabis and opium instead of regular food crops due to the promised returns. The production and trade in cultivated opiates yields larger returns for farmers as compared to regular cash crops. Moreover drug lords offer substantial advances in return for the cultivated plants which require lesser efforts to grow. This in turn provides farmers with a safer option as compared to other crops which are volatile to environmental conditions and whose demands tend to fluctuate based on market conditions. The drug mafia reaps advantages off the misery of poor farming households and thereby maintains a steady supply of the raw materials required for production of large quantities of hallucinogenic and psychedelic substances.13
Corruption among officials particularly those involved in inter-border transactions, customs and anti drug law enforcement also helps in flourishing of the drug trade. Transactions across borders and coastlines are allowed to take place by means of bribing key officials and using the subsequent quid pro quo relation which develops. In nations with unstable political regimes and high crime rates, the rates of drug trafficking are also markedly high. Nevertheless
12 See Daniel Lombardi, 'Does Poverty Lead To Drug Trafficking? The World's Notorious Trafficker Says Yes' (Deseret News, 2016) <http://www.deseretnews.com/article/865645435/El-Chapo-explains-the-possible-link- between-poverty-and-drug-trafficking.html> accessed 24 April 2017.
13 See Devendra Dutt, 'Causes And Effects Of Production And Trafficking Of Illicit Drugs In Afghanistan' (ICAF International Conference “Indian and Central Asian Perspectives on Afghanistan” held at the India International Centre, New Delhi, 2011).
political commitment and a strong plan of action can help in tackling issues that arise in this respect as proven from the experience of various African and South American nations. 14
5. Economic and Social Consequences of Drug Trafficking
Drug trafficking has an adverse impact on the economy as well as the society. The perceived benefits of drug use for addicts are outweighed by the financial drain and health issues caused by regular drug consumption. In nations where the government subsidises medical costs, a large segment of money (figures of such expenditure run into billions of dollars) is spent on treating persons suffering from symptoms caused by prolonged drug abuse. Besides this, drug addiction causes an individual to spend a large part of his disposable income on the procurement of illegal substances. This consumption expenditure is not reabsorbed into the circular flow of income because the money from these illegal transactions is diverted to the black market. This causes considerable loss to the economy due to the leakage of resources. Further the promise of lucrative returns from drug trafficking, particularly in third world nations causes a large proportion of the potential workforce to become engaged in such illegal transactions. Over time the dependence of a major segment of the population on the illegal drug sector for their income, may lead to stagnation in other legally operating sectors of the economy. The government is also compelled to spend tax money on law enforcement dedicated to curbing drug trafficking. Costs of prosecuting and imprisoning drug offenders alongside rehabilitation efforts add up to a few billion dollars each year.15
Drug trafficking has also led to a rise in incidences of violence. This violence is caused due to multiple factors and perpetrated on multiple victims who are intertwined due to their resistance to drug abuse. A drug addict may act violently towards people, animals and property while being under the influence of these substances. Addicts may also attack innocent persons in
14 See Obert Chifamba, 'Poverty, Corruption Promote Drug Trafficking' (The Herald, 2013)
<http://www.herald.co.zw/poverty-corruption-promote-drug-trafficking/> accessed 24 April 2017.
15 See United Nations Office on Drugs and Crime, 'Economic And Social Consequences Of Drug Abuse And Illicit Trafficking' (1998).
order to commit theft and other crimes to fund their addiction. Drug cartels use violence to subjugate law enforcement officials and establish themselves in specific regions. Violent interactions between rival gangs over control of the turf are also common in regions where the drug trade is specifically prominent. Members of drug cartels also use violence to carry out activities like extortion. Important stakeholders like the police, politicians and influential persons are also terrorised by drug cartels through the threat of violence to ensure smooth operation of their trade. In times of relative calm, the junior members of drug mafias tend to turn to delinquent behaviour to keep themselves occupied. This perpetual violence impacts the economy of the affected regions and creates social alarm among the masses.16
The systematic corruption through which drug lords attempt to infiltrate government ranks can act as a force threatening and eventually weakening of the government’s position. This use of force allows criminal networks to grow and reduces the effectiveness of law enforcement.17 The war against drug mafia as witnessed in the case of Mexico can cost the government millions of dollars and become the cause for much bloodshed.18
Self harm caused by drug consumption at the individual level is reflected as social harm at the aggregate level. The transmission of infections, most dangerously HIV through syringes used to transmit drugs, is a cause of concern among health departments. Contagious infections may then be transmitted to non drug users, most commonly women and children who come into contact with the infected drug user. Studies have also indicated an increase in violent tendencies due to the consumption of drugs. Mood fluctuations and irrational behaviour following drug
16 See Gustavo Robles, Gabriela Calderón and Beatriz Magaloni, 'The Economic Consequences Of Drug Trafficking Violence In Mexico' (Poverty and Governance Series Working Paper, Standford University 2013)
<https://cddrl.fsi.stanford.edu/sites/default/files/RoblesCalderonMagaloni_EconCosts5.pdf> accessed 24 April 2017.
17 See United Nations Educational, Social and Cultural Organization, 'The Social And Economic Impact Of Drug Trafficking' (2002) <http://portal.unesco.org/en/ev.php-
URL_ID=6906&URL_DO=DO_TOPIC&URL_SECTION=201.html> accessed 24 April 2017.
18 See Helen Redmond, 'The Political Economy Of Mexico's Drug War' 90 International Socialist Review.
consumption have been consistently noted. Drug trafficking contributes to these issues by continuing the flow of substances which result in these forms of harm.19
Women involved in drug consumption often become victims of sexual assault and sexual slavery. Some women who continue their addictions within prison are exposed to more sexual violence where they have to submit to the depraved demands of their suppliers in order to satisfy their cravings for drugs within the confines of jail.20 Children whose parents chemically manufacture drugs and addictive substances are also put at risk due to the continuous exposure to toxic fumes. Children of drug peddlers and drug users are often found to suffer due to parental neglect in addition to physical and/or emotional abuse.21
Drug affected driving, especially driving after consuming a cocktail of drugs and alcohol has been a serious concern around the world. Driving after consumption of drugs is illegal in most countries regardless of whether the drugs themselves were legally or illegally procured.
However the penalty tends to be harsher for driving under the influence of illegal drugs.22
The manufacture of drugs and cultivation of bushes, weeds and plants which are later converted into drugs, significantly contribute to environmental degradation. The byproducts from the manufacturing process are often surreptitiously dumped into water bodies or buried. This may lead to considerable contamination which can ultimately impact public health. Cultivation
19 See 'Illicit Drugs: Social Impacts And Policy Responses' (United Nations Research Institute For Social Development 1994)
<http://www.unrisd.org/80256B3C005BCCF9/(httpAuxPages)/4C3D0BE90FAD550480256B6400419B57/$file/bp 2.pdf> accessed 24 April 2017.
20 See Nouthe-Djubgang J, Malonga JM, Mékoundé Al.The cultural and social consequences and effect on families of women's involvement in drug trafficking in Cameroon: crime and imprisonment, Bull Narc. 1995;47(1-2):31-7.
21 See also 'The Impact Of Drugs On Society - National Drug Threat Assessment 2006' (National Drug Intelligence Center 2006) <https://www.justice.gov/archive/ndic/pubs11/18862/impact.htm> accessed 24 April 2017.
22 See 'Drugs And Driving: The Law' (Government of United Kingdom, 2017) <https://www.gov.uk/drug-driving- law> accessed 25 April 2017.
of drug related plants also takes away land which could have alternatively been used for food production. In many cases, forest lands are cleared by the drug mafia to make way for the cultivation of illegal drugs. Further the new trend of indoor cultivation and/or manufacture of drugs pose a serious threat to residents of the same community as the manufacturer. The chemical run off from the manufacturing process which may be mixed with the general sewage can endanger the lives of persons living in the vicinity, particularly those of old people and children. The constant presence of persons connected with illegal activities within an otherwise peaceful community can also create a sense of intimidation besides exposing them to the risk of violence.23
Rampant drug trafficking also leads to a fall in productivity. Unemployed individuals who engage in drug consumption commonly become addicts since it provides them with a temporary source of relief from the despair and tension which is associated with unemployment and job searching. Since continuous drug abuse negatively affects mental and physical faculties, these persons find it even more difficult to find good employment. In order to earn money they are thus likely to resort to drug peddling where they transport and/or sell drugs to other drug users. In particularly poor regions, dangerous practices like flashing blood are also used to earn money. In this practice, a drug user injects drugs into his blood stream and then draws out syringes full of his blood which are sold to other users for injection of the drugged blood into their own blood stream. This can lead to compromise with health of drug users due to the potential transfer of dangerous infections and viruses. Among those who are employed, rising workplace stress is being used as a reason for them to turn to drugs for a ‘quick fix’ or ‘pick up’.
However such drug consumption not only adversely impacts their productivity in the long run, they also often become a safety concern in the workplace. Addiction among employed individuals can result in frequent absenteeism and illness. Individuals who are frequent drug
23 See ‘Economic consequences of drug abuse’, (2013) International Narcotics Control Board.
<https://www.incb.org/documents/Publications/AnnualReports/Thematic_chapters/English/AR_2013_E_Chapter_I.
pdf> accessed 25 April 2017.
users may also begin to sell or distribute illicit substances at their workplace besides using their productive time to engage in the procurement of drugs.24
6. Trafficking of Drugs
Licit trade of opium has been in vogue between India and the United States of America for many years. In 1981 the 80/ 20 rule came wherein 80% of the licit opium for medicinal purposes was to come from India and Turkey and 20% from Australia, Hungary, Poland, France and the former Yugoslavia.25 It is from this Licit drugs that around 10% is diverted into illicit drug trafficking. Licit Opium poppy cultivation takes place in a total of 16 districts distributed in the states of Madhya Pradesh, Rajasthan and Uttar Pradesh. Licenses to grow opium are issued by the Central Bureau of Narcotics (CBN) to cultivators who meet the general conditions required by the Government (Narcotics Control Bureau, 2015). During 2015, illicit cultivation of opium poppy was found in the states of West Bengal, Jharkhand, Manipur, Arunachal Pradesh, Jammu & Kashmir, Bihar, Uttaranchal and Himachal Pradesh.26
24 See Winfrida Milly A. Agumba, 'The Effects of Alcohol and Drug Abuse on Work Performance of Employees in Selected Star Rated Hotels at the Kenyan Coast' (Master of Science Degree in Hospitality Management, School of Hospitality and Tourism of Kenyatta University 2011).
25Sourced from http://shodhganga.inflibnet.ac.in/bitstream/10603/18155/9/09_chapter3.pdf also see; National Narcotics Intelligence Consumers Committee Report (US Department of Justice, DEA, Intelligence Division, Washington DC) ;See also, US General Audit Office (1997) Drug Control: US Heroin Control Efforts in Southwest Asia and the Former Soviet Union. Briefing Report to the Chairman, Caucus on International Narcotics Control, U.S. Senate. GAO/NSIAD-97-148BR (US Government Printing Office: Washington, D.C) p.45.
26Narcotics Control Bureau, Ministry of Home Affairs, Government of India, Annual Report 2015, available at:
http://narcoticsindia.nic.in/upload/download/document_id43e4e6a6f341e00671e123714de019a8.pdf (last visited 21.04.2017).
When poppies are grown for legitimate trade under the Governments strict control, somewhere down the line growers are able to grow poppies in the side avoiding any governmental surveillance. Due to the abundance of chemical factories, which churn out precursor materials like acetic anhydride for lawful purposes. The required substance needed for processing of heroin, it results in illicit drugs flooding the country. Under the Narcotic Crop Assessment Project, the Government has the facility to take an aerial assessment of such illicit cultivation and destroy the same.
7. International Efforts in Codification of Drug Control System27
In the late 18th century China was totally under the scourge of opium menace with a huge populace under its effect. This led to total ban of opium in china resulting in opium wars. In 1909 for the first time Shanghai Opium Commission was convened to discuss the world’s narcotic problem and decisions were taken to ban Malaya, which was under the British, to stop growing opium. On the basis of this meeting the groundwork was laid for the treaty, The International Opium Convention of The Hague in 1912. Here it was decided between China and Britain that there be a ban on opium but this would be phased out within ten years. After this various countries acted upon drug policy on control and made their domestic legislation like the Harrison Act, 1913, in the United States of America (UNODC, 2008).
27United Nations Office on Drugs and Crime, A Century of International Drug Control, (2008) p-11, available at, https://www.unodc.org/documents/data-and-analysis/Studies/100_Years_of_Drug_Control.pdf (last visited 24.04.2017).
In 1920 the League of Nations is established and the League becomes the custodian of the opium convention. In 1925, an upgraded opium convention is passed which brings cannabis under its purview. The Convention for Limiting the Manufacture and Regulating the Distribution of Narcotics Drugs, 1931, aimed at restricting the supply of narcotic drugs for medicinal purposes. In 1936, Convention on Suppression on Illicit Traffic of Dangerous Drugs became the forerunner in making certain drug related offenses an international crime (UNODC, 2008).
In 1946, the United Nations took over the drug control from the League. The Commission on Narcotics Drugs is established by the Economic and Social Counsel, as a central body for any drug related policy. In 1948 Synthetic Narcotic Protocol comes into place. The 1953 Opium Protocol limits its use for scientific and medicinal use (UNODC, 2008).
The milestone of today’s Drug control began with the 1961 Single Convention on Narcotic Drugs, where in a list is made of all controlled substances and the International Narcotics Control Board is created. In 1971 the Convention on Psychotropic Substances is passed. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was passed to combat the security threat to countries due to illicit drug trafficking.
The United Nations International Drug Control programme is established in Vienna in 1991. A special session of United Nations General Assembly was called to reduce the demand and supply of drugs. In 2002 the United Nations Office on Drugs and Crime got it name. In 2003 United Nations Convention against Transnational Organised Crime came into force. Thus we can see almost a 100 years of efforts made by the International watchdogs to control the drug menace (UNODC, 2008).
8. Legal Framework
India is a party to the three United Nations drug conventions – the 1961 Single Convention on Narcotic Drugs (1961 Convention), the 1971 Convention on Psychotropic Substances (1971 Convention) and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Convention)(Tandon, 2015). India took upon itself to give effect of these International treaties in domestic legislation only in the 1980s.The Indian Parliament passed the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which came into force on 14 November 1985, replacing the Opium Acts, 1857 & 1878 and the Dangerous Drugs Act 1930. The Drugs and Cosmetics Act, 1940, however, continues to apply.28On 17th march 1986, the Narcotics Control Bureau was created as chief law enforcement agency under NDPS Act, 1985. The penalties under this Act are bordering on severe.29
28 Tandon, Tripti, Drug policy in India, International drug Policy Consortium, 2015, available at http://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf (last visited on 22.04.17).
29The quantum of punishment under the NDPS Act is based on the quantity of drugs found which may be classified into 3 categories: small, less than commercial and commercial. As a result, the punishment may be as low as rigorous imprisonment for one year if the drugs found are in small quantity and as high as 20 years imprisonment for a large quantity of drugs. The amount of small and commercial quantity is specified by the Central Government. The
quantity for some common drugs is as follows:
A. Amphetamine: small quantity – 2 grams, commercial quantity – 50 grams.
B. Cocaine: small quantity – 2 grams, commercial quantity – 100 grams.
C. Codeine: small quantity – 10 grams, commercial quantity – 1 kg.
D. Ganja: small quantity – 1 kg, commercial quantity – 20 kg.
E. Heroin: small quantity – 5 grams, commercial quantity – 250 grams.
F. Morphine: small quantity – 5 grams, commercial quantity – 250 grams.
G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg.
Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or cannabis plants as well as the production, manufacture, distribution including warehousing, transport, purchasing and selling of prohibited drugs and psychotropic substances. It also prohibits their financing as well as consumption and harboring offenders guilty under the Act. As per Sec. 19, any farmer who cultivates opium in accordance with a license but embezzles it shall be punished with rigorous imprisonment for a term ranging between 10 and 20 years and shall also be liable to pay a
The NDPS Act, 1985 was amended in 1989, 2001 and more recently in 2014. The NDPS Act prohibits (Tandon, 2015)cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law.30The Act covers three broad classes of substances:
1) Under the 1961 Convention the narcotic drugs;
2) The 1971 Convention and the psychotropic substances under it as well as such substance like ketamine which are not yet classified under international conventions; and
3) “Controlled substances”31 that acts as a base for manufacture of narcotic drugs or psychotropic substances, for example precursor chemicals such as acetic anhydride, ephedrine and pseudoephedrine.32
NDPS Act 1985 was criticized on the grounds that it was prepared in a hurry and various aspects have not been defined under the Act. There is no mention of what is to be done with naturally grown cannabis, in other words, hard and soft drugs have not been differentiated fine ranging between Rs. 1 and 2 lakh rupees. In cases involving commercial quantity, rigorous imprisonment between 10-20 years and fine ranging between Rs. 1 and 2 lakh rupees.
As per Sec. 23, any person who engages in illegal import/ export/ transshipment of narcotic drugs/psychotropic substances shall have to face punishment ranging between rigorous imprisonment for 1 to 20 years and fine ranging between Rs. 10,000 and Rs. 2 lakh based on the quantity of the prohibited substance. Sec. 24 clearly states that any person who engages in external dealings in contravention of the Act shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging between 1-2 lakh rupees. Any person who knowingly allows his premises to be used for the commission of any offence under the Act shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging between 1 and 2 lakh rupees. Any person financing illicit traffic or harboring an offender shall also face the same punishment. In case a person consumes a narcotic drug or psychotropic substance; the punishment would vary depending on the substance consumed. If the substance consumed is cocaine, morphine or diacetyl-morphine, then the punishment would be rigorous imprisonment up to 1 year with or without fine up to Rs. 20,000. If the accused consumes any other substance, he would have to face rigorous imprisonment up to six months with or without fine up to Rs. 10,000.
30See section 8 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act 1985).
31See: Section 2 (viid), NDPS Act, 1985.
32Tandon, Tripti, Drug policy in India, International drug Policy Consortium, 2015, available at http://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf (last visited on 22.04.17).
making it easy for the people to legally consume bhang. Medical usage of these substances has been limited. Section 35 of the NDPS Act 1985, presupposes the guilt of the accused and the onus to prove the guilt or innocence is on the accused.
The Prevention of Illicit Narcotic Drugs and Psychotropic Substances Act, 1988 saw to it that there was full implementation of the NDPS Act. The Amendment to the NDPS Act 1985, in 1989 was mainly the result of the 1988 Convention on Narcotics drugs and Psychotropic Substances; deliberations at the South Asian Association for Regional Cooperation (SAARC) on the growing menace of drug trafficking among other things. Under this Amendment there was mandatory minimum sentences of 10 years’ imprisonment, restrictions on bail, bar on suspension and commutation of sentences, forfeiture of property, trial by special courts and mandatory death sentence for certain repeat offenders. The punishments were viewed as harsh and by 2001 Amendment, punishment was according to quantity of drug found, whether it was small, commercial or intermediate. The limits were specified by a notification by the Government dated 19th October 2001.33The latest amendment in 2014 has created an essential narcotics list ensuring availability of essential opium medicines for medical need of patients.34
33Id at 4.
34The salient features of the amendment are:
‘Central Govt Factories’ has been defined (Section 2 (iva))- factories owned by the Central Govt or having at least 51% of the paid up capital
‘essential narcotic drug’ – Section 2 (viiia) – the one notified by the Central Government for medical and scientific use
Section 4 (1) & 4(2) – in addition to take the measures for preventing and combating abuse of and illicit traffic in narcotic drugs, Central Govt shall take measures for ensuring their medical and scientific use and availability of NDPS for it
Now Central Govt may permit, control and regulate all aspects of poppy straw produced from plant which have not been lanced (Section 9 (1) (iiia)) and of essential drugs (Section 9 (1) (va), 9 (2)(ha))
State Govt can’t permit, control and regulate the intra and interstate affairs of poppy straw derived from non- lanced plants(Section 10 (i)) and essential narcotics drugs (Section 10 (v))
imprisonment for contravention in relation to following drugs and substances increased from 06 months to 01 year: Poppy straw (section 15), prepared Opium (Section 17), opium poppy and opium (Section 18), cannabis plant and cannabis (Section 20), psychotropic substances (Section 22), import/export of small quantity of NDPS (Section 23),
On 22nd January 2013 India and Sri Lanka signed an agreement on combating International terrorism and Illicit Drug trafficking.35Another step taken by the Indian cabinet was the signing of the Bay of Bengal Initiative on Multi Sectoral Technical and Economic Cooperation (BIMSTEC) Convention on Mutual Legal Assistance in Criminal Matters on 10th March 2016 to combat International Terrorism, Transnational Organised Crime and Illicit Drug Trafficking.36 The BIMSTEC comprises of seven countries viz., Bangladesh, Bhutan, India, Myanmar, Nepal, Sri Lanka and Thailand. 37 Apart from Nepal and Bhutan all the member countries have ratified this convention.
The United Nations General Assembly Special Session (UNGASS) in 2016 in their document labelled “Our joint commitment to effectively addressing and countering the world drug problem,” which was adopted on April 19, 2016, included positive language about programs and approaches related to decriminalization and harm reduction. It also acknowledged the potential for the medical use of controlled substances, discussed reducing the stigma and discrimination faced by drug users, and called for increased access to life-saving health and legal services.38
dealing in property derived from the offenses committed under this Act may get imprisonment between 03 to 10 years along with fine
Punishment for repeated offenses to be one and half time of the maximum punishment prescribed (Section 31)
Power of entry, search, seizure and arrest without warrant or authorization (on reasonable belief) can be exercised by officers of rank sub-inspector and above (Section 42)
35 Sourced from,http://www.jagranjosh.com/current-affairs/india-and-sri-lanka-signed-two-agreements-on-terrorism- and-drug-trafficking-1358925980-1(last visited 22.04.2017).
36Sourced
from,http://www.mea.gov.in/loksabha.htm?dtl/27628/QUESTION+NO109+BIMSTEC+CONVENTION(last visited 22.04.2017).
37Sourced from,http://pib.nic.in/newsite/PrintRelease.aspx?relid=137620 (last visited 22.04.2017).
38Sourced from https://www.opensocietyfoundations.org/explainers/what-ungass-2016(last visited 25.04. 2017).
9. Judicial Pronouncement on Illicit Drug Trafficking and Its Socio-Economic Effect The effect
The effect of drugs is it hard as in psychotropic or soft as in hashish, is devastating. It eats away the social fabric and restricts the socioeconomic growth of a country. Under the Directive Principles, Article 47 of our Indian Constitution states, "The State shall regard the raising of the 1eve1 of nutrition and the standard of living of its peop1e and the improvement of public hea1th as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption, except for health." The Hon’ble Supreme Court expressed its anguish in the case of Durand Didier vs Chief Secretary, Union Territory 39,
“With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro- portions in the recent years.” (Durand Diddier v. Chief Secretary, Union of territory, Goa, 1989).
Referring to the Constitutional mandate in Article 47, Hon’ble Mr. Justice Pramjeet Singh in Vinod Humar vs State of Punjab40, opined;
“The drug addiction has become the worst illness of our society these days and it has been spreading its tentacles not only throughout the nation but the whole world. There is evidence that it can damage the brain and the mind and is prone to increase the risk
39Durand Didier vs Chief Secretary, Union Territory ,A.I.R 1989, S.C 1966, available athttps://indiankanoon.org/doc/1054146/ (last Visited 23.04.2017).
40Vinod Kumar Versus State of Punjab, CRM M-9327 of 2012 & 20 connected cases, available at, https://indiankanoon.org/doc/101702262/ (last Visited 23.04.2017).
of stroke, seizure, dementia, liver disease, cancer and hypertension and cause foetal damage.”41
Hon'ble Mr. Justice Mehinder Singh Sullar in the case of Rajwinder Singh vs State of Punjab42, while dealing with section 22 of the NDPS Act , 1985, in its opening statement, stated
“Not only that, no one can lose sight of the fact that the NDPS Act was legislated to amend the existing laws relating to Narcotic Drugs & Psychotropic Substances and to control the menace of drug abuse, which is adversely affecting the social fabric of the society, containing specific provisions and special procedure.”
Justice M B Shah and KT Thomas of the Supreme Court of India, in Union of India vs Ram Samujh 43 held that even though the sections of NDPS Act are mainly non- bailable, most of the accused were getting bail. And thus there is an urgent need to amend the law accordingly. They opined:
“It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.
41 Ibid.
42 Rajwinder Singh vs State of Punjab, CRM No- M-18444 of 2014, available at , https://indiankanoon.org/doc/198298659/(last Visited 23.04.2017).
43 Union of India versus Ram Samujh and Another, Crl.A. No. 866 of 1999, available at, https://www.legalcrystal.com/case/660691/union-india-vs-ram-samujh (last visited 24.04.2017).
Highlighting, the adverse effects of trafficking and abuse of narcotics, the Supreme Court in State of Punjab vs Baldev Singh,44 has observed:
“Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of the country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomenon and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this Convention.”(State of Punjab versus Baldev Singh, 1999)
Despite stringent punishment trafficking in drugs has increased many folds and the NDPS Act, required further amendments to combat this evil.
10. Drug Trafficking as Socio Economic Perspective
In a National Seminar organised by Delhi High Court in collaboration with Government of Delhion Narcotic Drugs & Psychotropic Substances the then Chief Justice of India , Y.K.Sabharwal stated,
“Drug abuse is a social evil. It destroys not only vitals of the society but also adversely affects the economic growth of the country because this is a trade which generates large un-accounted money which, in turn, leads to adoption of several means of money laundering. The money generated is used for various purposes
44State of Punjab versus Baldev Singh ,AIR 1999,Supreme Court 2378.
including anti-national and terrorist activities and even clandestine trading in arms and ammunition.”45
Over the years illicit drug trafficking has become the bane of any society. Economically its cultivation may look to be very lucrative but in its right essence, too much of fast money breeds corruption. It is responsible for Narco-terrorism that is rampant in today’s scenario along with clandestine arms dealing. Places like Pakistan, Afghanistan, where terrorist find a safe haven also have proliferation of illicit drug trafficking which fuels all the terrorist activities. Indian workforce especially from 15 years to 30 years, in the haze of addiction is unable to work thus leading to downgrading of quality of productivity. This forms a vicious cycle with them getting unemployed and then resorting to drug abuse due to low morale. Along with this violence related to drugs abuse as well as with the organized gangs or drug lords is also a feature of social degradation of a society.
Socio economic factors such as poverty, hunger, economic inequality, social outcast, impoverishment, nomadic life with displacement, limited access to education, unemployment and exposure to violence and abuse are major causes which effect the supply and demand sides of the drug.46(United Nations International Narcotics Control Board, 2015)
Even though there are huge scale ill effects of drug trafficking and abuse, the people who trade in them are not bothered with the harm to the society as a whole as their capricious motivation gets the better of them. As early as in 1917, Mahatma Gandhi while addressing the
45Sourced from, http://www.supremecourtofindia.nic.in/speeches/speeches_2006/ndps.pdf (last visited 24.04.2017).
46United Nations, Report of the International Narcotics Board for 2015, available at,
https://www.incb.org/documents/Publications/AnnualReports/AR2015/English/AR_2015_E.pdf (last visited 24.01.2017).
All India Social Service Conference in Calcutta had said(Gandhi, 1976): “The cocaine habit was sapping the nation’s manhood, and that like the drink habit, it was on the increase in its effect more deadly than drink.”47
11. The Impact of Illicit Trade
The turnover from illicit drugs may seem to be a great addition to the Country’s gross domestic product bit it brings in its wake serious economic and social consequences. The people who use narcotics weigh down the society as their productivity is reduced; their health care cost increases and some users also bend towards criminal activity to fend for their addiction or may even die in such pursuits thus becoming a threat to the society as a whole. The environment is also affected as the farmers who indulge in this illegitimate production of such crops, try to maximise their profits and push the limit of the soil eventually harming it.
Corruption undermines governance, democracy and the rule of law. As illicit trade generates significant profits for the parties involved, yet exposes them to risk, efforts to buy
"insurance" or "protection" from government officials, law enforcement and politicians will occur, perverting governance and democracy in the process.48The money, which is thus
47Gandhi, MK, Social Service Work and Reform Vol. 1, E, 1976, Navajivan Publishing House, available at http://www.mkgandhi.org/ebks/social-service-work-reform-vol-I.pdf (last visited 24.04.2017).
48Karl Lallerstedt, Illicit trade: Undermining Development,The Global Initiative against Transnational Organised Crime and Black Market Watch Commissioned by The Swedish Ministry for Foreign Affairs, 2015, available at, http://globalinitiative.net/wp-content/uploads/2016/08/IllicitTradeUnderminingDevelopment-1.pdf (last visited 24.04.2017).
generated, is pumped into various criminal activities, which pose serious threat to our nation.
Criminal gangs thrive on this money, this funds terrorist, and the entire countries law enforcement agencies gets bogged down with such miscreants.
When legitimate business is on the decline, the tax from them is also lost. This is particularly apparent in the case of excise goods, but applies counterfeits and natural resources too.(The Global Initiative Against Transnational Organised Crime and Black market watch, 2015). When there are illicit drugs in the market it is sure to endanger public health. Ever fair trade gets a hit as such illicit drugs in order to be sold fast without being found out, will sell at a lesser cost effecting investment in the economy. According to Karl Lallerstedt49
“Human rights are undermined in a multitude of ways by organised crime activity. From the most extreme direct costs of murder and forced human exploitation, to the indirect costs of depriving millions of people of their freedoms and full potential. The aforementioned factors contribute to fostering an environment of reduced government functionality and rule of law, reduced revenues, and increased costs. At the same time the economic environment becomes less conducive to economic growth and investments, undermining broader development.”
12. Summary
India is a developing country and after the 1991 liberalized investment and trade regime, the trafficking in illicit drugs found a thriving market. The proliferation in this illicit trade has
49Id at 12.
put our socio-economic scenario and the security of our Country in danger. Millions of people who have become drug users have a failing health condition. States like Punjab and Rajasthan, known for their brave youths, have been reduced to a state of intoxicated stupor. The productivity of the nation is getting hampered as the workforces from the age of 15 years to 40 years are unable to add to the country’s GDP. The victims of this crime are seldom an individual but a group of consumers and the State as a whole. The society as a whole is targeted and victimised. Conversely cultivation of crops used to produce soft drugs is responsible for harming environment as due to its huge market value farmers try to cut more trees to prepare land for cultivation. They use water resources and due to over utilization of land the environment loses its biodiversity.
The way the drugs were trafficked earlier and the states that indulged have changed in the essence that it has become transnational. The coming of Internet and the sale of drugs trough this modem has also changed the classic route of Drug trafficking. Countries like South America especially Argentina, and Brazil, which were earlier areas wherein there was transshipment have themselves become manufactures of psychotropic drugs.
All of the above imply that illicit drug trafficking cannot be only seen as a criminal activity but has to be seen in the perspective of human and social dimensions, which brings about long-term losses to the ecology and the humanity. Therefore, there has to be a joint effort from all countries to save humanity from the clutches and ill effects of drug trafficking and take a holistic approach in dealing with this problem.
