NDPS Act: What is the anomaly that led to the amendment?

Lok Sabha on Monday passed a bill to rectify anomalies that had crept into the Narcotic Drugs and Psychotropic Substances (Amendment) Act amid Opposition criticism, as Finance Minister Nirmala Sitharaman said the provision made in the bill was not "substantiative" but clarificatory.

The NDPS (Amendment) Bill, 2021 was passed by a voice vote and some amendments moved by Opposition members were rejected by the House.

What were the anomaly and the amendment?

The anomaly of the NDPS Act crept in when it was amended in 2014 to allow better medical access to narcotic drugs, and removing state barriers in transporting and licensing of essential narcotic drugs.

Prior to the 2014 amendment, Clause (viiia) of Section 2 of the Act contained sub-clauses (i) to (v) that pertained to "illicit traffic," including its definition.

This clause was re-numbered as Clause (viiib) by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, as a new Clause (viiia) in Section 2 defined "essential narcotic drugs".

However, consequential change was not carried out in Section 27A of the NDPS Act, which prescribes the punishment for financing illicit traffic and harbouring offenders, making the section inoperable.

The amendment sought to rectify this anomaly by making changes to Section 27A of the said Act in order to carry out the legislative intent of the statute, which has always been to read clause (viiib) in Section 27A, and already stood therein.

When was the anomaly noticed?

According to RSP member NK Premachandran, the drafting error was highlighted when an accused moved to a special court in Tripura contending that he could not be charged for the offence as Section 27A referred to a blank list. The Tripura High Court subsequently asked the Centre to amend the law.

According to a report by The Indian Express, the government had argued that the drafting error can't be grounds to seek bail and must be overlooked, and though the HC had agreed with the government and read the provision the way it was intended and not the way it was drafted, it said the reading could not be applied retrospectively.

Does the amendment make the Act retrospective?

While Article 20(1) of the Constitution 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 the act charged as 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, the amendment brought in by the government makes the changes applicable since May 1, 2014.

Sitharaman said that according to the opinion of the Solicitor General, the amendment could be permitted as it was not substantive, but clarificatory in nature. "Amendments with retrospective effect to a substantive part of criminal law is not permitted, but a clarificatory amendment that seeks to remove an obvious mistake is permitted," the minister said.

What did the Opposition say?

DMK MP V Kalanidhi, while debating the bill, said that actions have not been taken against people who sell or peddle drugs, but is rather taken against those who are found to be possessing small quantities.

BSP MP Danish Ali said that the proposed bill has a provision of retrospective effect that will have a dangerous impact on the country. "We need to catch the root cause of the disease."

Referring to the recent seizure of drugs at Mundra port, he further said that in most of the cases, actions are taken against the persons found with the possession of the drugs, but not against the drug lords and peddlers.

SP Member HK Hassan said that liquor should also be brought under NDPS Act. He said that most of the time, the Act is found to be used to threaten ordinary citizens. There should be strong provisions under this Act so that strict action can be taken against drug lords and peddlers.

Congress MP Adhir Ranjan Chowdhury said there are various issues regarding the NDPS (Amendment) Bill and asked if the government is going to decriminalise consumption in the future.

"India has been constantly witnessing illegal drug trafficking of thousands of crores of rupees," he said, seeking to know how the problem would be resolved. He claimed there are wrongful cases filed in the name of drug trafficking and asked the government to clarify the difference between consumption and trafficking.

With agency inputs

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