Punjab and Haryana HC finds provisions of NDPS rules in direct conflict with Narcotics Act

The Punjab and Haryana HC has said that there was an urgent need to enact a comprehensive legislation to consolidate the existing law on Narcotic Drugs and Psychotropic Substances (NDPS), besides enhancing the punishment for trafficking.

What is the Issue ?

• The first provison of ‘Sub-rule 2 of Rule 66’ of NDPS rules is silent with regard to the fact, if such a person has to possess any medical prescription for carrying 100 doses of the scheduled psychotropic substances is in direct conflict with section 37 of  NDPS Act.
• The development took place during the hearing of a bail application by Sarbjit Singh for grant of regular bail in a case registered on January 13 last year under the NDPS Act possessing 100doses (50 grams) of buprenorphine which fell within the commercial quantity (20 grams) of the drugs under the Act.
• A number of accused in the past have been granted bail in view of the rule, which allows a person to possess 100 dosage units of a psychotropic substance for the purpose of personal medical use.

Statements and Arguments :

• Referring to the “first proviso of sub rule 2 of Rule 66”, the accused counsel contended that the petitioner was entitled to bail as he was not required to produce medical prescription issued by a registered medical practitioner. It was required to be presumed for his personal use. He added that the first provison authorised a person to possess up to 100 doses units at a time.
• The state counsel, on the other hand, submitted that allowing the petitioner to take 100 vials of buprenorphine, falling within commercial quantity, would completely violate the objects of the statute and also the provisions of Section 37 of the Act.
• HC said that Section 37 was applicable if the recovery of psychotropic substances fell within the ambit of commercial quantity. The section imposed blanket ban on possession of psychotropic substances but every individual would have the liberty to keep with him 100 ampoules of all 111 psychotropic substances shown in a schedule attached with the Act.

Analysis :

• The language of the first provison in Rule 66 of NDPS Rules is not only in conflict with the provisions of Section 37 of NDPS Act, but also the same is confusing. If allowed to exist it shall create injustice to the social fabric of Punjab and Haryana.”
• Declining the bail, HC Justice Attri observed that the drug menace especially in Punjab had attained dangerous proportions.The drug abuse has been destroying the vary fabric of society. The youths, who are backbone of the society, are falling victims to drug terrorism,” the judgement reads.

About NDPS Act 1985 :

• The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance.The NDPS Act has since been amended thrice - in 1988, 2001 and 2014. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.
• The Act is designed to fulfill India's treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
• Section 37 of the NDPS Act makes every offence under it a cognizable one. No person caught with a ‘commercial’ quantity of a drug is entitled to bail.The minimum punishment for the possession of a ‘commercial’ quantity is ten years of imprisonment, and the maximum may extend up to twenty years.

By: Harman Sandhu