Death Penalty to deter Drug Trafficking and Smuggling

Punjab government recently recommended to the Union government the death penalty for first time offenders convicted for drug trafficking and smuggling.Currently, the law on drugs is covered by the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Deterrence by harsh punishments has consistently failed, especially in the context of the NDPS Act.

About Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) :

1.The Act’s primary objective is to deter drug trafficking.
2.The law contains every trick in the book to meet the above objective – strict liability offences, mandatory minimum sentences, even the death penalty for certain repeat offences, to name a few.
3.The system has responded to the law by maintaining a high rate of conviction and imprisonment.
4.In 2015, 41.7% of all prisoners in Punjab were in jail for various offences related to this law. The conviction rate recorded for NDPS cases in Patiala for the same year was 90.7%. Punjab continues to be plagued by drug-related deaths, as recently as June when 23 persons died of drug-related causes.
5.The death penalty was introduced in the NDPS Act in 1989, to deter narco-terrorism.
6.The legislators even at that time believed that the only way to tackle the growing drug menace was to incorporate the harshest possible punishments in the law.

Flaws in the NDPS Act :

1.Offences involving commercial quantities of drugs.
2.The law provides a mandatory minimum sentence of 10 years for offences involving commercial quantities of drugs.
3.In other words, people found with commercial quantities of drugs were assumed as drug traffickers.
4.It created a situation where many offences involving commercial quantity were, in fact, not trafficking offences at all. As a result, sentencing in pharmaceutical drug cases changed drastically across Punjab. (Unauthorised possession of 20 bottles of cough syrup led to a 10-year prison sentence)
5.Given how the law interprets, it is hard to say whether the people imprisoned are traffickers, peddlers, mules or users.
6.Possession alone can lead to conviction
7.Under the law, proving possession alone is sufficient, the prosecution does not have to prove intent to lead to conviction.
8.Since intent is harder to prove than a criminal act alone, strict liability ensures higher convictions. There have been misuse by Punjab police as they rarely examine the intent of the criminal act.

Conclusion:

The way investigation is conducted right now, it is impossible to tell whether the person is a peddler or smuggler, or an addict feeding his habit.Therefore, Cabinet’s proposal or Punjab government’s recommendation to make the law even harsher is one more attempt to play to the gallery. It may alleviate people’s concerns for the time being, but it will not yield the results.To ensure that traffickers are caught instead of users, the law must make intent an ingredient of offences under the NDPS Act. The burden of proof should be on the prosecution to prove that the accused possessed the drug for a particular purpose. Possession alone should not be sufficient to constitute an offence under the Act.The Act is also blatantly unforgiving of anyone found in possession of any drug. Section 27 of the Act makes consuming any narcotic drug or psychotropic substance a criminal offence.The state should consider decriminalising addiction and developing an effective treatment strategy by consulting experts, partner agencies and users, and allocating adequate resources.

By: Harman Sandhu