Narcotic Drugs & Psychotropic Substances

Transcription

1 Narcotic Drugs & Psychotropic Substances Y.K.Sabharwal Chief Justice of India This National Seminar organised by Delhi High Court in collaboration with Government of Delhi is of utmost significance on account of gravity of the problem and issues that will be discussed in various sessions today and tomorrow. Drug abuse is a social evil. It destroys not only vitals of the society but also adversely affects the economic growth of the country because this is a trade which generates large un-accounted money which, in turn, leads to adoption of several means of money laundering. The money generated is used for various purposes including anti-national and terrorist activities and even clandestine trading in arms and ammunition. Drug trafficking activities have sharply increased over the years and unscrupulous persons dealing in drugs have flourished despite hard punishments provided under the law because they have been able to evade the process of law. Just as any virus, use of drugs and drug trafficking knows no bonds or limitations. It spreads all over a country; from nation to

2 nation; to the entire globe infecting every civilized society irrespective of caste, creed, culture and the geographical location. Looking back at time, many of you may recollect that the edict of the Chinese Government in 1800 AD prohibiting import of opium as it constituted a threat to the health of the Chinese people resulted in the infamous Opium War in the name of right of free trade. European powers organised massive smuggling of the substance into China which was resisted by the Chinese resulting in the Opium War. As early as in 1917, Mahatma Gandhi while addressing the All India Social Service Conference in Calcutta, had said : The cocaine habit was sapping the nation s manhood, and that like the drink habit, it was on the increase in its effect more deadly than drink. Unfortunately, the kingpins and the carriers of these drugs at the international and national level are concerned with only large undue financial gains and not with massive ill effects of use of drugs on society. In recent times, there has been significant development of the communication systems and means of transportation. This has also led to considerable increase in Narcotics drug trafficking. 2

3 The drug traffickers have been able to flourish despite stringent punishments provided under the Narcotic Drugs & Psychotropic Substances Act. They are able to evade the process of law and cause great harm to the social and economic growth of the country and particularly the young generation. This resulted in seriously hampering the socio-economic growth and multi-dimensional development of the country. The punishment for drug trafficking became more and more stringent by the passage of time, but it has not been able to provide real solution to the basic problem. Today, world opinion and effort is united in fighting illicit production, trade and trafficking in drugs as the view is unanimous, that its effects are disastrous. In recognition of the need to globally check the menace and for international cooperation for investigation, chasing the offenders, prevention and punishment, countries across the globe have joined hands and subscribed to conventions and conclaves convened under the aegis of the United Nations. India is also a party to the United Nations Single Convention on Narcotic Drugs, 1961 and the U.N. Protocol, 1972 amending the Single Convention and the U.N. Convention on Psychotropic Substances,

4 The United Nations Convention against illicit trafficking in Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first international effort to take action against the illegal proceeds of drug trafficking throughout the comity of nations and manifested the desirability of mutual legal assistance between Member States to deal with the menace so as to provide for confiscation of the moneys and for extradition of the offenders. The Government of India has ratified the Convention. India has long recognised the problems of drug trafficking and abuse. The Opium Act of 1857, and of 1878 and the Dangerous Drugs Act, 1930 manifest the same. As a result of experience gained on account of India s participation in various international conventions and realising gravity of the problem and the need to enact laws in tune with times, the Narcotic Drugs and Psychotropic Substances Act of 1985 was passed by Indian Parliament as a comprehensive legislation on narcotics, providing for stringent and long term prison sentences and heavy fines for offenders. Offender under this Act includes the cultivator, supplier, seller as well as the drug consumer. Bail provisions were made very stringent. The minimum sentence is ten years. The amended Drugs and 4

5 Cosmetics Act and Rules also provide for deterrent punishment and stringent control over manufacture, sale, distribution of psychotropic substances. Despite these measures, the crime is on rise. The criticism levelled against NDPS Act is that it treats the drug user and trafficker on par. The Government has fixed the quantity possessed for personal use as an offence and provided a punishment for possession of quantities beyond such limits. One of the criticism to this provision brought by way of amendment is that the quantity fixed is so small that it may not suffice for even a single use and that such provisions make it difficult for drug addicts to openly seek medical help and rehabilitation. It is also said that one of the cause of low conviction rate is the steep minimum sentence under the Act. How far these are relevant to ultimately check the problem of Drug Trafficking is for experts to examine. Stringent laws and severe punishments have been able to control the menace to some extent but still it is one of the most pertinent threats in the progress of any developing country. Do we need comprehensive legislative changes or is there need of implementation of existing laws with greater precision and concerted effort by all concerned to resolve this issue? Laxity or pathetic attitude from any quarter in dealing with this issue is bound to prove 5

6 disastrous for the society. All departments of the State are expected to work in unison and with utmost coordination to give an impressive display of the will to control, if not, completely eliminate this evil from the society. Before I make a brief mention of some data, let me broadly state the issue according to my perception. The persons involved in drug cases, primarily fall in four categories. First category of persons are those who produce these drugs; second are the kingpin who procure from the producers and deal in trade of drugs at a large scale; third are the carriers; and in the fourth would fall the consumers, namely drug addicts. Experts, I am confident, would consider whether all deserve to be similarly treated or differently. Take the example of carriers. For tackling the problem, should carriers deserve to be similarly treated as those falling in first and second category? Take also the example of drug addicts. Do they not need different treatment? Is it not a disease as far as they are concerned? Do they not deserve to be treated with love and compassion as a part of treatment of their ailment? These are some of the questions which I have posed on which the experts in this Seminar may focus their attention. Let us now see some facts and figures. 6

7 In a national survey conducted by the Ministry of Social Justice and Environment and the United Nations Office of Drugs and Crimes, it was stated that abuse of different drugs is prevalent in different states of India. Rajasthan, has the highest proportion of opium users (76.7%), followed by Haryana (58.0%). So far as heroin is concerned, 43.9% of its users are found in Uttar Pradesh while Orissa and Himachal Pradesh, at 43.9% and 37.3% respectively top in alcohol consumption. This indicates not only the dimension and diversity of the social problem that is facing our country, but also that the problem does not relate only to investigation and law in relation to drug abuse and drug-related crimes. The statistics released by the Narcotic Bureau also indicate the magnitude of the problem facing our nation. Let us see last ten years track record. From the year , amongst others kgs of Opium, kgs of Ganja, kgs of hashish and kgs of heroin have been seized by various enforcing agencies. In the cases arising from these seizures, a total of persons were involved including the foreigners. Out of these, persons stand convicted for offences while persons have 7

8 been acquitted. The rate of acquittal has, varied from 27.7% to 59.1% annually during this period. In its annual press conference, the Central Jail, Tihar, indicated that amongst the undertrials and convicts (both male and female) arrested under the NDPS Act, there are % male undertrials and 5.37% male convicts and 16.12% female undertrials and 13.28% female convicts. There are nearly 340 NGOs run or aided by the Ministry of Social Justice and Empowerment, Government of India, to take reformative and remedial steps. Increase in de-addiction centres is an encouraging step taken by the concerned authorities. The Narcotics Control Bureau was set up in May 1986 as a primary enforcement agency to deal exclusively with drugs. This high powered body which is controlled by a Director General has direct liaison with the United Nations Narcotics Control Bureau and other international agencies working against drug trafficking. A number of the other enforcement agencies have been provided effective support with the Narcotics Control Bureau acting as a nodel agency to enforce the law which includes the central excise, customs, border security force, CBI, Directorate of Revenue Intelligence and Food and Drug Control officers. 8

9 For the first time in the history of the country, all concerned that is the prosecuting agencies, the legislature, the judiciary, scientists, eminent persons from various walks of life as well as students from various schools have been brought together to participate in this national level Seminar-cum-Workshop. Their varied experiences and knowledge would form a special thought process for evolving a system to implement programmes which are in the interest of administration of criminal justice and would serve a public purpose of high order. When crime goes unpunished, the criminal is encouraged while the society suffers. The criminal justice delivery system is already under immense pressure and needs better support. The criminal and the victim both need succour, rehabilitation and support. The statistical data furnished by different authorities suggests that the various limbs of the State administration involved in this field, have to show much better coordination; the investigation has to be scientific and techniques need large scale improvements. Witnesses turn hostile during trial and lack of proper application of law by concerned authorities are amongst others the few causes for high rate of acquittals. The situation needs remedial measures at once so that rule of law and effectiveness of the criminal justice delivery system are not 9

10 only maintained but improved. The rate of acquittals is a matter of great concern as it elucidates the gap between the investigation and the law. As an illustration, take position in Delhi. There are six courts of Session Judges dealing with the cases under the NDPS Act. During the period August 2003 to 2005, in 1938 cases challans were filed, out of which 875 have been disposed of. Out of these, there were 479 convictions, while 391 cases ended in acquittal and in 12 cases the accused persons were discharged. This itself shows that we need to take multi-dimensional steps to improve the quality of investigation as well as increase effectiveness of criminal justice delivery system. It also underlines the fact that justice can be delivered only when there is total support by an effective and efficient investigation and administration. The topics for discussion, on this Workshop-cum-Training Programme provide provocative mental exercises to discernly find a solution to this cataclysm. Every limb of the State administration has to play a definite and pragmatic role to achieve the object underlying the provisions of the NDPS Act and the social cause behind it. Functional and administrative improvements are called for in every sphere and at every stage so as to avoid unnecessary harm to the society at large. Drug trafficking, trading and its use, affects the 10

11 economic policies of the State, corrupts the systems and destroys the future of the country. More clearly, defining the powers, role and the response required by and from a particular agency of the State would be another aspect to be considered by the investigation and scientific, experts and legal luminaries attending this programme. They should define with greater clarity the drug related legislative framework within which police or other agencies should optimally operate and define the levels of discretion, they ought to exercise within that framework. No single agency should be held responsible for unenforceable legislation or not exercising discretion within the prescribed framework, where it is not clearly indicated. To emphasize the need for providing a panacea to this problem while preventing retrogression of socio-economic values all over the world, I would refer to the observations of the Supreme Court of Canada in the case of United States of America versus Cotroni :- The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within 11

12 national boundaries. That has long been the case, but it is increasingly evident today. (1989) 48 C.C.C. (3 rd ). 193 at 215). Whatever be the origin or source of drug abuse, this deadly practice gravely affects the most productive and dynamic section of our society, that is the age group between There is, thus, inestimable loss to the social, economic and cultural life of the people and to wealth of the nation. Drug abuse has been identified as playing a significant part in the spread of diseases like AIDS. Drug problems are part of the larger problems of disease, poverty, unemployment, violence, economic disparity and styles of living. The consequential creation of a growing population of victims of drug abuse and addiction who have to be not only help wean off this habit but also brought back into mainstream living. It is heartening to note that various wings of the State administration from all over the country are participating in this seminar not to find fault with the others but to participate in this Seminar-cum-Workshop programme as a joint venture to outline corrective measures, perfect investigative mechanisms and aim towards expeditious and effective judicial pronouncements to ensure punishment to the guilty and prevention and control of drug 12

13 trafficking. This would certainly help in achieving the object of the common goal of such national importance and public welfare. A note of caution, that while guilty has to be punished and stringent punishment inflicted but at the same time it is equally necessary to ensure that innocent are not involved by taking undue advantage of stringent provisions of the Act. Healthy discussion, brain storming and sharing of ideas brings out clearly errors and weaknesses which hitherto may be hidden and obscure to the light of reason and render them clearer for ameliorating or improving or substituting any existing system. Inconvenient points of view receive appreciation in their correct perspective, lead to a path of solution, which normally may sound impossible to achieve. One of the cardinal principles of any civilized jurisprudence is to remove the cause of litigation and eliminate heinous crimes from society. To find the cause of a cause which causes the things caused is the responsibility of all concerned without exception. A variety of reasons could be stated for the repeated errors at different levels, but to really get to the root of the defects in the system and society should be the basic aim of this programme so as to control the production, supply, trafficking and consumption of this noxious substance. Towards achievement of 13

14 such end, we may listen to critics because often they are good source of information for what you have to do differently. Democracy essentially includes social democracy which means a way of life with monumental liberty, equality and fraternity as the principles of life. Such liberty cannot be divorced from economic democracy. The widespread evil of drug trafficking not only creates shackles on these principles but leads to a complete impediment in the progress of the country in various fields. The expression reason to believe in the context of a provision of NDPS Act has been a matter of great legal controversy. It does not mean a purely subjective satisfaction on the part of the concerned officer while he has to search a suspect carrying drugs, it has to be a belief in good faith and not on a mere pretence. The provisions of Sections 42 and 50 have been subjected to the principle of statutory interpretation by various decisions of the Supreme Court including that of a Constitution Bench in the case of State of Punjab v. Baldev Singh [(1999) 6 SCC 172]. Some of the difficulties in investigation and prosecution of such offences and conflicts in judicial pronouncements were taken note of by the then Chief Justice of India while resolving issues and speaking for the Constitution Bench of the Supreme Court. 14

15 Before parting, I may say that benefits of such seminar even find manifestation in the figures which were received from the State of Haryana where the conviction rate accelerated from 14% in the year 1999 to 59% in the year 2005 after implementation of some of the suggestions made and some legislative amendments. This is a live example as to what can be achieved merely by more efficient implementation of the existing laws and streamlining the investigative procedures, and the usefulness of suggestions which emerge from collective wisdom of such gathering. As a Head of the Indian Judiciary, I assure this August gathering of full cooperation from the judicial system of the country in tackling this problem. I have no doubt that your deliberations shall be of salutary significance and of utmost utility to the cause of control and prevention, punishment and rehabilitation in relation to the offences under this Act and for achieving the social goal of drugabuse free society. I wish you all the best in your endeavour. ******** 15