The article is authored by Tanya Sara George, a 3rd year B.A LLB (Hons) student of MNLU, Mumbai
THE ‘ADDICT’ AND THE ‘TRAFFICKER’ MISMATCH: RE-EVALUATING THE EFFECTIVENESS OF NDPS ACT, 1985 IN PUNJAB
Introduction
Punjab is recorded to be amongst the top states in the country for drug abuse. Recent statistics show that almost one-half of the prisoners in Punjab jails are charged with an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985. Research indicates that the state’s drug problem has steadily increased in the past few years.
The NDPS Act was formulated with a two-fold objective: firstly, to prohibit the selling of drugs by assigning strict liability to drug traffickers, and secondly, to reform drug addicts by adopting the twin approaches of deterrence and rehabilitation. This classification distinguishes between drug consumers and drug traffickers, with higher punishments being meted out to the latter. While the punitive approach has been consistently followed in Punjab, the state has lacked in fostering a system of rehabilitation.
In this article, the author argues that the status quo in Punjab, comprising of overcriminalisation under the NDPS Act and the notion of punitive justice, results in adding new players to the drug-peddling arena rather than helping individuals get out of it. The article shows that there is a tilt towards the deterrent approach, overlooking the possibility of rehabilitation and, thereby, eroding the legislative intent of the NDPS Act. It is further argued that the present prison facilities in the state are not equipped to mitigate drug abuse and consequently become breeding grounds for drug trafficking in Punjab. Lastly, the author suggests alternative measures that may help tackle this menace.
Over-criminalisation Under the NDPS Act
‘Illegal Possession’ in law is traditionally vested with two components: the physical action and the mens rea behind it. However, Section 35 of the NDPS Act per se assumes that the accused has mens rea, thus, taking away from traditional legal principles. Further, when ‘possession’ is established, the reversal of burden put forth by Section 54 places the onus on the accused to refute the presupposition of culpability. These prosecution-inclined provisions inevitably result in higher convictions under the act.
While the NDPS Act envisions rehabilitation for ‘offenders’ and judicial deterrents for ‘traffickers’, data shows that addicts possessing small amounts of the substance are erroneously taken into the prison system. A report shows that almost 90% of the cases concern intermediate and smaller quantities of drugs making these individuals ‘consumers’ rather than ‘traffickers’. This drawback of the act not reducing the percentage of its intended audience but majorly affecting ‘consumers’, was pointed out in 1995 by an expert committee report[1], however, no action was taken. This can be attributed to the legislative ambiguities in the act regarding such quantities, as well as the general lack of sensitisation on this issue for individuals in the judicial system.
Further, although Section 39 and Section 64A provide avenues for courts to opt towards medical admission and rehabilitation rather than incarceration, these provisions are often overlooked when sentencing. Due to the lack of legal awareness amongst judicial officers and the public, first-time offenders and addicts consuming minuscle quantities are unaware that they can opt for rehab under Section 64A. Ultimately, while the intent behind subjecting addicts to incarceration may be to mitigate their addiction, placing them in an enclosure with increased availability of their poison fails to achieve any fruit.
Prisons Encouraging Drug Trade
A report by the State Legal Commission shows that almost half of the prison population, i.e., 45%, comprises of inmates arrested in relation to NDPS offences. The prison facilities do not distinguish between undertrials and convicts, and first-time offenders and addicts are often grouped with hardened criminals. Various cases in Punjab indicate the judicial trend of allowing a minimal undertrial period as time served. However, the main principle this trend seems to forgo is that grouping addicts into prisons where a majority is familiar with taking or commodifying drugs as a means of survival will not result in effective incarceration but rather incentivises them to revert to old offences.
The immediate tendency of the judiciary to revert to incarceration has thereby resulted in creating a surge of demand within the Punjab prison system, pulling in corrupt officials and becoming a multi-crore drug racket with an endless line of demand. This severe detriment has also been brought to light when the High Court noted the ever-flowing drug racket flowing from Punjab prisons and the complicity of various state officials in running these rackets.
In addition, these prisons do not possess adequate facilities for an imprisoned addict. The state prison manual mandates proper segregation of inmates who are addicts and necessitates their medical treatment, but these procedures are seldom seen through. Further, while the state strategy to employ body scanners and constitute de-addiction centres seems well thought-out of, it has not been implemented. It has been found that despite the increasing inflow of addicts into the Punjab prison systems, these de-addiction centres remain non-functional. The prisons also do not possess body scanners despite knowing that they could prevent the means of drug smuggling through body cavities. The gross lack of proper safeguards takes away any recourse for an addict to recover from the drug trade, even if he is willing to do so.
A Proposal For Reform
Ashworth’s effectiveness principle argues for the legitimisation of offences if decriminalisation fails to reduce it. The same has also been argued in the parliament on several occasions. While the complete decriminalisation of drugs is a far-fetched solution, criminalising ‘traffickers’ rather than ‘consumers’ may provide some relief. Applying this principle to the NDPS Act, first-time users consuming a minute quantity of drugs must not be classified as criminals under the NDPS Act but should rather be seen as individuals who require immediate and adequate sensitisation to the dangers of drug abuse. This would ensure that their erroneous deviation to the criminal justice system will not arise.
Additionally, the state must take measures to ensure that individuals, especially those belonging to the justice system, are in the know of essential provisions like Section 64A of the impugned act. This would result in drastically reducing the number of incarcerated consumers of drugs, and thereby reduce most of the demand for drugs in Punjab prisons.
In furtherance of the legislative intent of the NDPS Act, the government needs to formulate a set of guidelines which would help the judiciary distinguish between a ‘consumer’ and a ‘trafficker’ and thereby allow for proper sentencing mechanisms that effectively correlate to the gravity of the crime. The 1995 committee report had put forth a threshold based on factors such as the average dose and lethality, which could effectively categorise non-offensive behaviours from criminal tendencies.
Lastly, the inadequacies in the prison system must be resolved in favour of prisoner safety and welfare through adequate budgetary allocation. For this, an independent body must be responsible for ensuring that these funds are appropriated for essential purposes such as body scanners and urine testing kits. This would hold good for the twin fold aims of fostering a drug-free environment and minimising the rampant corruption in the state.
Conclusion
As shown by the article, Punjab’s stringent enforcement of the NDPS Act has inadvertently exacerbated its drug abuse problem due to its predominant focus on punitive measures over rehabilitation. The flawed overcriminalisation of ‘consumers’ by state agencies rather than ‘traffickers’ not only fails to address the root causes of addiction but also perpetuates the cycle of drug trafficking within prison systems. The insufficient focus on rehabilitation within state prisons and beyond has led to overcrowded jails , thriving drug trade and corruption ring within these facilities. To address these deficiencies, state agencies must begin to align the NDPS Act with its true intent by duly differentiating between ‘consumers’ and ‘traffickers’ and emphasise upon the rehabilitative approach the act seeks to yield.
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[1] Dr. JS Sapna, Dr. SK Gupta and Dr. S Saxena, Expert Committee on Small Quantities under the NDPS Act (Ministry of Health and Family Welfare, 24 March 1995)