Drug Possession

Production, possession or sale of drugs is punishable in India and many other countries. This article discusses the various punitive measures that India and various other countries have adopted to put an end to drug menace. The article aims to clarify the meaning of drug possession and trace the evolution of its interpretation in the current form. A significant part of the article is dedicated to discuss the provisions in India, its preconditions and its interpretation through case laws.

Introduction

Drug possession is the crime of having one or more illegal drugs in one’s possession, either for personal use, distribution, sale or otherwise. Illegal drugs fall into different categories and sentences vary depending on the amount, type of drug, circumstances, and jurisdiction. A person has possession of drugs if they have actual physical control of the drugs (they have the drugs in their hands) or if the drugs are on that person. A person also has possession of drugs if they have the power and intent to control their disposition and use.[1] In India, Narcotic Drugs and Psychotropic Substances Act, 1985 deals with possession of drugs and its punitive measures.

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). Domestic legislation to give effect to these treaties was introduced only in the 1980s when the ‘grace period’ for abolishing non-medical use of cannabis and opium under the 1961 Convention expired. Exercising its powers to make law for the country for implementing “any treaty, agreement or convention or decision made at international conference”, the Indian Parliament passed the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) hastily, without much debate. The NDPS Act came into force on 14 November 1985, replacing the Opium Acts and the Dangerous Drugs Act. The 1940 Drugs and Cosmetics Act, 1940, however, continues to apply.

Drug Possession in India

The punishment for possession of illegal drugs has been given under Chapter IV of the Act, but before examining the punishment, it is imperative to appreciate the meaning of ‘possession’ as laid down by the Apex Court. The Hon’ble court in the matter of Mohan Lal said:

8. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”. Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term “possession” is fundamentally dominated by Savigny-ian “corpus” and “animus” doctrine. Distinction has also been made in “possession in fact” and “possession in law” and sometimes between “corporeal possession” and “possession of right” which is called “incorporeal possession”. Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another.

9. The term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control….

Term “possess” Under narcotic drug laws, means actual control, care and management of the drug (Collini v. State). Defendant ‘possesses’ controlled substance when defendant knows of substance’s presence, substance is immediately accessible, and defendant exercises “dominion or control” over substance (State v. Hornaday).”

And again “Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual (U.S. v. Craig); as well as joint or exclusive (Garvey v. State). The defendants must have had dominion and control over the contraband with knowledge of its presence and character. (U.S, v. Morando- Alvarez).”[2]

‘The legislature while enacting the said law was absolutely aware of the said element and that the word “possession” refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows: –

“35. Presumption of culpable mental state. – (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation. – In this section “culpable mental state” includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.’[3]

Punishment

Section 15 of the Act deals with punishment with regards to possession and warehouse of poppy straw. It mandates a rigorous imprisonment of not less than 10 years which may extend to twenty years along with a fine of not less than one lakh but may extend up to two lakh rupees. The Court is empowered to increase the fine after examination of facts.

Similar punishments are served in cases of contravention in relation to coca plant and leaf, prepared opium, opium poppy and opium, cannabis, manufactured drugs and preparations and, psychotropic substances in Sections 16, 17, 18, 20, 21, 22 respectively.

If a person illegally possesses a small quantity of a narcotic drug or psychotropic substance for personal consumption, he can be punished under Sec. 27 of the Act which reads:

27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance.

Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable,-

(a) where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and

(b) where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months or with fine or with both.

Explanation. – (1) For the purposes of this section “small quantity” means such quantity as may be specified by the Central Government by notification in the Official Gazette.

(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person”.[4]

 The landmark judgment in the case of E. Micheal Raj, the Supreme Court held that “in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.”[5]

However, this judgment was revised and amended in the case of Hira Singh where the Apex Court remarked that “the decision of this Court in the case of E. Micheal Raj taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity”.[6] Hence, the actual quantity and not the specific amount of drug is taken into consideration while deciding the punishment.

Drug Possession around the globe

The most widely used drug globally continues to be cannabis, with an estimated 188 million people having used the drug in 2017. Also, an estimated 271 million people, or 5,5 per cent of the global population aged 15-64, had used drugs in the previous year.[7] 

There are severe laws for drug possession around the world.

  • ‘In Malaysia, a person possessing drugs can be jailed, fined and deported under the Dangerous Drugs Act, 1952.
  • In China, if a person is caught with drugs, he could be forced to attend drug rehab in a facility run by the government. Execution is the penalty for some drug crimes.
  •  Dubai and Saudi Arabia are known for their intolerance towards drugs. Many prescription drugs that are legal in other parts of the world can get you put in jail in Dubai. It is typical for drug offenders to be sentenced to four years in prison and then be deported. Failing a drug test can be grounds for incarceration Dubai, even if the person is not in possession of any drugs. Alcohol use is illegal in Saudi Arabia, and possession or use of alcohol or drugs can be punished by public flogging, fines, lengthy imprisonment, or death.
  • Further West, in Costa Rica and Columbia, drug possessors are imprisoned for a long period of time.’[8]

Conclusion

Drug possession is a constant problem throughout the world, but it has been going on for hundreds if not thousands of years. While it is illegal to have drugs that are considered unlawful, criminal charges may be pressed when someone is found possessing these illegal substances and materials, and this may cause the possessor to end up in prison.[9] The only solution to it can be to make the availability of drugs difficult but this seems to be a task impossible. Harsh rules and laws have, to some extent, induced fear in the young minds; educating young minds from the beginning about the ill-effects of drugs and stringent punishments that they would go through in case they are caught in possession of drugs, would prove to be crucial.

Frequently Asked Questions

  1. What are the steps taken by Central Government to curb drug menace?

‘The Government has taken several policy and other initiatives to deal with drug trafficking problem.

  1. It constituted Narco-Coordination Centre (NCORD) in November, 2016 and revived the scheme of “Financial Assistance to States for Narcotics Control”.
  2. In 2017, the government approved new Reward Guidelines with increased quantum of reward for interdiction or seizure of different illicit drugs.
  3. For effective coordination with foreign countries, India has signed 37 Bilateral Agreements/Memoranda of Understanding.
  4. Narcotics Control Bureau has been provided funds for developing a new software i.e. Seizure Information Management System (SIMS) which will create a complete online database of drug offences and offenders.
  5. The government has constituted a fund called “National Fund for Control of Drug Abuse” to meet the expenditure incurred in connection with combating illicit traffic in Narcotic Drugs; rehabilitating addicts, and educating public against drug abuse, etc.
  6. The government is also conducting National Drug Abuse Survey to measure trends of drug abuse in India through Ministry of Social Justice & Empowerment with the help of National Drug Dependence Treatment Centre of AIIMS.
  7. The Ministry of Social Justice and Empowerment has drafted National Action Plan for Drug Demand Reduction (2018-2023) for addressing the problem of drug and substance abuse in the country, dumping a long-pending draft policy on the matter.’[10]
  • Which are the Drug Law enforcement agencies in India?
  • ‘Narcotics Control Division
  • Central Bureau of Narcotics (CBN)
  • The Narcotic Control Bureau (NCB)
  • Other Agencies- Directorate of Revenue Intelligence, Central Bureau of Investigation, Customs Commission, Border Security Force.’[11]
  • Are there any immunities for drug possession?
  • ‘Officers acting in the discharge of their duties in good faith under the Act are exempted from legal proceedings, suits and other prosecution (Section 69).
  • Addicts accused with consumption of drugs under section 27 or with offenses including little quantities will be exempted or protected from any prosecution if they volunteer for dead-diction. This exception might be withdrawn if the addict does not undertake complete treatment (Section 64 A). It is important to note that it is not obligatory that the drug, if any, found with the addict in little quantity, require not be for personal use.
  • Offenders State or Central governments can delicate immunity to a wrongdoer in order to get his evidence in the case. This immunity is allowed by the government and not by the court (Section 64).
  • Minors, offenses committed under any law by individual less than 18 years old will be secured by the Juvenile Persons (Care and Protection) Act. This Act seeks to ameliorate such juveniles instead of punishing them under the respective Acts. It prevails over any other Act in regard to people underneath the age of 18. Subsequently, such persons cannot be prosecuted under the NDPS Act too.’[12]

Assessment Questions

  1. What are the three conventions to which India is a signatory?
  2. In which case provisions regarding possession of drugs were made more stringent?
  3. What is the punishment for drug possession in the Gulf countries?
  4. Which section of the NDPS Act deals with possession of poppy straw?
  5. Which is the most used drug in the world?

[1] Wikipedia, Drug possession, Wikipedia (July 14, 2020, 01:57 PM), https://en.wikipedia.org/wiki/Drug_possession.

[2] Mohan Lal v. State of Rajasthan (1983) 2 Crimes 616.

[3] Ibid

[4] Narcotic Drugs and Psychotropic Substances Act 1985, § 27.

[5] E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161

[6] Hira Singh & Anr. v. Union of India & Anr. 2020 SCC OnLine SC 382

[7] World Drug Report 2019: 35 million people worldwide suffer from drug use disorders while only 1 in 7 people receive treatment, United Nations Office on Drug and Crime ( July 19, 2020, 11:44 AM), https://www.unodc.org/unodc/en/frontpage/2019/June/world-drug-report-2019_-35-million-people-worldwide-suffer-from-drug-use-disorders-while-only-1-in-7-people-receive-treatment.html.

[8] American Addiction Centers Editorial Staff, The 20 Countries with the Harshest Drug Laws in the World, Drugabuse.com ( July 19, 2020, 04:22 PM), https://drugabuse.com/the-20-countries-with-the-harshest-drug-laws-in-the-world/.

[9] What Is Drug Possession and Why Is It Criminal ?, HG.org ( July 20, 2020, 08:20 AM), https://www.hg.org/legal-articles/what-is-drug-possession-and-why-is-it-criminal-45476.

[10] ‘Prevalence and Extent of Substance Use in India’- survey, Insightsias (July 15, 2020, 06:17 PM), https://www.insightsonindia.com/2019/02/19/prevalence-and-extent-of-substance-use-in-india-survey/.

[11] Ashwini Gehlot, What is the punishment for possession of illegal Drugs And Narcotic Substances ?, iPleaders (July 19, 2020, 05:21 PM), https://blog.ipleaders.in/illegal-drugs-narcotic-substances/.

[12] Ibid.

 

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