CRIME RELATING TO NARCOTIC DRUGS AND INTOXICATING

SUBSTANCE: A CRTICAL STUDY

Mohammad Danish

Uttaranchal University

ABSTRACT

Recent research conducted by independent investigators concerning the relationship between

crime and narcotic (primarily heroin) addiction has revealed a remarkable degree of consistency

of findings across studies. The major conclusion supported by the majority of these studies is that

narcotic addicts commit a vast amount of crime and that much of this is directly related to the

need to purchase drugs. A large proportion of the crimes committed does not consist merely of

drug sales or possession, but involves other criminal behaviors including serious crimes. The

strongest evidence of a causal relationship between narcotic drug use and crime is derived from

longitudinal studies in which the amount of crime committed during periods of active addiction

far exceeds that committed during periods of nonaddiction. Much of this crime goes unreported,

although addicts, under conditions of strict confidentiality, have provided information that

permits realistic estimates of criminal activity. Use of this methodology has permitted the

identification of different types of addicts, especially with respect to the amounts and types of

crimes in which they are engaged. The implication of these findings is that although addicts as a

group commit a great amount of crime, they cannot be regarded as a homogeneous class.

INTRODUCTION

India’s response to drugs flows along an extraordinary spectrum – of tradition and modernity; of

widespread availability and stringent enforcement; of tolerance and prohibition; of production for

medical use to lack of medical access to opiates. India’s long history of cannabis and opium use

is referenced extensively in policy analysis.1 Being a country with significant volumes of licit

and illicit drug cultivation, a transit route as well as a consumer market, India’s drug policy

dilemmas span ‘demand’ and ‘supply’ control. Its large chemical and pharmaceutical industry

draws the country into deliberations on the illicit manufacture of drugs and precursor control as

well as the non- medical use of prescription drugs. Some parts of the country report alarmingly

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high rates of drug dependence, HIV and viral hepatitis amongst people who inject drugs, making

health and harm reduction important policy considerations. While India’s harsh drug control laws

(in particular the criminalization of drug use and the imposition of the death penalty for certain

drug offences) conform strictly with prohibition, its regulated opium cultivation industry

provides insights for countries that are experimenting with alternatives to prohibition.

State responses to drug-related criminality

1. As the Board has reiterated on several occasions, the fundamental principles underpinning the

three international drug control treaties, as well as the Political Declaration adopted by the

General Assembly at its twentieth special session, devoted to countering the world drug problem

together, and the Political Declaration and Plan of Action on International Cooperation towards

an Integrated and Balanced Strategy to Counter the World Drug Problem, are the principle of a

balanced approach, the principle of proportionality and respect for human rights.

2. In many States, policies to address drug-related criminality, including personal use, have

continued to be rooted primarily in punitive criminal justice responses, which include

prosecution and incarceration and as part of which alternative measures such as treatment,

rehabilitation and social integration remain underutilized.

3. Drug trafficking and the diversion of drugs into illicit channels require the use of interdiction

efforts, criminal prosecution and the imposition of criminal sanctions. At the same time, State

approaches to dealing with criminal behaviour committed by persons affected by drug use and

addiction has become more differentiated in recent years. This is a result of an evolution

occurring in many States that have come to recognize drug use and dependency as a public

health concern requiring responses that are health-centred and less reliant on punitive sanctions.

4. The Board welcomes that development as entirely consistent with what is foreseen in the

international drug control framework. Prevention of drug abuse, especially among young people,

must be the primary objective of drug control policy, and a comprehensive drug demand

reduction strategy that includes the reduction of the adverse health and social consequences

associated with drug abuse is of paramount importance.

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CRITICAL ANALYSIS OF NARCO ANALYSIS

Narco analysis has been criticized on number of grounds. They are following :

1. This test is not 100% accurate. Sriram Lakshman1 quoted that Dr. B.M. Mohan,

Director of FSL, Bangalore claims that he has data to prove his contention that Narco

analysis has 96 to 97 percent total screens rate. Sriram Lakshman is of view that

Narco analysis should be discredited.

2. Dr. P. Chandra Sekharan, the highly regarded former director of the Forensic Sciences

Department of Tamil Nadu, has characterized the practice as an unscientific, third

degree method of investigation.

3. In Narco analysis by false tricks certain subjects made totally false statements. If the

subject has been a drug addict or alcoholic his or her tolerance level will be high and

he or she may false state of semi-consciousness and can tell lies.

4. It is very difficult to suggest a exact dosage of drug for a particularindividual as it will

vary from person to person depending upon the mental attitude and physical structure

of the subject. It is said that if a wrong dose is administered to the subject, it may cost

his life.

SUBSTANCE ABUSE LEADS TO CRIME

• The psychopharmacological model proposes that the effects of intoxication cause criminal

(especially violent) behaviour.

• The economic motivation model assumes that drug users need to generate illicit income to

support their drug habit. Thus, they engage in crimes such as robbery, burglary, and prostitution

to get drugs or the money to buy them.

• The systemic model, argues that the system of drug distribution and use is inherently

connected with violent crime. Systemic types of crimes surrounding drug distribution include

fights over organisational and territorial issues, enforcement of rules, and transaction-related

crimes. Further, drug markets can create community disorganisation, which, in turn, affects the

1 Sriram Lakshman, “We need to talk about narco analysis”, the Hindu op-Ed May, 02 2007.

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norms and behaviours of individuals who live in the community. Such community

disorganisation may be associated with increases in crime that are not directly related to drug

selling

Narcotic drugs include:

• Cannabis: plant; resin or charas and its concentrated variant called hashish; dried flowering or

fruiting tops of the plant, that is, ganja and any mixture of charas or ganja. Importantly, bhang

or the cannabis leaf is excluded (in accordance with the 1961 Convention) and regulated

through state excise laws

• Coca: plant: leaf; derivatives include cocaine and any preparation containing 0.1% of cocaine

• Opium: poppy plant; poppy straw; concentrated poppy straw; juice of opium poppy; mixture

of opium poppy juice; preparations with 0.2% morphine; derivatives include heroin, morphine,

codeine, thebaine, etc.

Context

Cannabis has been consumed for spiritual, medicinal and recreational purposes in India since the

classical era, with earliest documented references to cannabis use dating back to 2000 B.C. Post-

colonization, the British attempted to regulate it through excise laws that licensed cultivation

and imposed taxes on the sale of hemp.2 The cultivation and use of opium is believed to date as

far back as the 10th century. During the colonial period, the British organized opium into a large-

scale commercial enterprise, consolidating and bringing cultivation of poppy and manufacture of

opium (but not consumption) under greater control through the Opium Acts of 1857 and 1878.3

By the 1920s, the growing nationalist movement became critical of the colonial government’s

commercially driven drug policy. Indian leaders distanced themselves from traditional use and

the eradication of drugs became an avowed policy goal. Many provincial governments passed

2 Mehanathan, M.C. (2007), Law of Control on Narcotic Drugs and Psychotropic Substances in India (Delhi:

Capital Law House, 2nd ed)

3 The Opium Act 1857 and Opium Act 1878 regulated the cultivation, manufacture and trade in opium through

licensing

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laws to restrict the consumption of opium. Cannabis was classified as an intoxicating drug and

continued to be regulated through provincial excise Acts.4

In 1930, the Dangerous Drugs Act was enacted and sought to extend and strengthen control over

drugs derived from coca, hemp (cannabis) and poppy plants by regulating the cultivation,

possession, manufacture, sale, domestic trade and external transactions through licenses and

penalizing unlicensed activities.5 There were no offences attached to cannabis or to drug

consumption. The framework of the Dangerous Drugs Act continues to prevail in the current

CURRENT LEGAL FRAMEWORK

Narcotic Drugs and Psychotropic Substances Act, 1985

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.6

U.N CONVENTION ON NARCOTIC DRUGS

India and the United States occurred under the auspices of a 1931 treaty signed by the United

States and the United Kingdom, which was made applicable to India in 1942. However, a new

extradition treaty between India and the United States entered into force in July 1999. A Mutual

4 : Bengal Excise Act 1909; Punjab Excise Act 1914; Madhya Pradesh Excise Act, 1915

5 The Dangerous Drugs Act, 1930 (Act 2 of 1930). See sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14

6 Section 80, NDPS Act

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Legal Assistance Treaty was signed by India and the United States in October 2001. India also is

signatory to the following treaties and conventions:

1961 U.N. Convention on Narcotic Drugs

1971 U.N. Convention on Psychotropic Substances

1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

2000 Transnational Crime Convention

PROHIBITION AND THE TWENTY-FIRST AMENDMENT, which overturned

Prohibition, a major step for the rehabilitation movement came in 1935, when Dr. Bob Smith and

Bill Wilson – commonly known as Dr. Bob and Bill W. – founded Alcoholics Anonymous

(AA). Using a spiritually based approach to rehabilitation, AA presented a welcoming

environment where recovering alcoholics could find solace and support. From the AA format,

various other branches formed, such as:

Narcotics Anonymous (NA).

Cocaine Anonymous (CA).

Marijuana Anonymous (MA).

Today, thousands of drug abuse rehabilitation programs offer addicts a variety of treatment

approaches, ranging from traditional, evidenced-based care to more experimental or holistic

services. Since care should be customized according to the individual patient, oftentimes one’s

treatment regime will consist of a range of therapies that have been chosen specifically for the

individual.

LEGISLATIVE APPROACH

THE NARCOTIC CONTROL BUREAU (NCB )

The NCB which is responsible for anti-narcotic operations all over the country, checks the

spread of the contraband as well as the cultivation of drugs15. The administration of the NDPS

Act, 1985, as was with the predecessor Acts viz, the Opium Act, 1878 and the Dangerous Drugs

Act, 1930 falls within the domain of the Department of Revenue, in the Ministry of Finance16 .

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The broad legislative policy in the matter is contained in the three Central Acts, viz. Drugs and

Cosmetics Act, 1940. The Narcotic Drugs and Psychotropic Substances Act, 1985, and the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The Narcotic Drugs and Psychotropic Substances Act, 1985 empowers the Central

Government to constitute a Central Authority for the purpose of exercising the powers and

functions under the Act20. In exercise of such power the Narcotics Control Bureau was

constituted with headquarters at Delhi. The Bureau, subject to the supervision and control of the

Central Government, is to exercise the powers and functions of the Central Government for

taking measures with respect to:7

a) Co-ordination of actions by various offices, State Governments and other authorities under the

N.D.P.S Act, 1985.

b) Implementation of the obligation in respect of counter measures against illicit traffic under

the various international.

c) Assistance to concerned authorities in foreign countries and concerned international

organizations to facilitate coordination and universal action for prevention and suppression of

illicit traffic in narcotic drugs and psychotropic substances.

d) Co-ordination of actions taken by the other concerned Ministries, Departments and

Organisations in respect of matters relating to drug abuse.

e) Identification, treatment, education, aftercare, rehabilitation and social re-integration of

addicts

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

The statutory control over narcotic drugs was being exercised under The Opium Act, 1852, The

Opium Act, 1878 and The Dangerous Drugs Act, 1930. The provisions of these enactments were

found to be inadequate because of the passage of time and developments in the field of illicit

drug traffic and drug abuse at national and intemational level. To consolidate and to amend the

7 Sections 2(xxiii) and 3, NDPS Act as well as the Schedule to the NDPS Act

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existing laws relating to narcotic drugs a comprehensive legislation was considered to be

necessary. Accordingly the Narcotic Drugs and Psychotropic Substances Bill was introduced in

the Parliament.

STATEMENT OF OBIECTS AND REASONS

The statutory control over narcotic drugs is exercised in India through a number of Central and

State enactments. The principal Central Acts, namely the Opium Act, 1857, the Opium Act, 1878

and the Dangerous Drugs Act, 1930 were enacted a..long time ago. With the passage of time and

the developments in the field of illicit drug and drug abuse at national and international level,

many deficiencies in the existing laws have come to notice, some of which are indicated below:

(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the

challenge of well organized gangs of smugglers. The Dangerous Drugs Act, 1930

provides for a maximum term of imprisonment of 3 years with or without fine and 4

years imprisonment with or without fine for repeat offences. Further, no minimum

punishment is prescribed in the present laws, as a result of which drug traffickers have

been some times let off by the courts with nominal punishment. The country has for the

last few years been increasingly facing the problem of transit traffic of drugs coming

mainly from some of our neighboring countries and destined mainly to Western

countries.

(ii) The existing_ Central laws do not provide for investing the officers of a number of

important Central enforcement agencies like Narcotics, Customs, Central Excise, etc.,

with the power of investisation of offences under the said laws.

(iii) Since the enactment of the aforesaid three Central Acts a vast bodv of intermational law

in the field of narcotics control has evolved through various international treaties and

protocols. The Govemment of lndia has been a party to treaties and conventions which

entail several obligations which are not covered or are only partly covered by the pretent

Acts.

(iv) During recent years new drugs of addiction which have come to be knowrr as

psychotropic substances have appeared on the scene and posed serious problems to

national governments. There is no comprehensive law lo enable exercise of control over

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psychotropic substances in India in the manner as envisaged in the Convention on

Psychotropic Substances, 1971 to which India has also acceded'

In view of what has been stated above, there is an urgent need for the enactment of a

comprehensive legislation on narcotic drugs and psychotropic substances which, should

consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing

controls over abuse, considerably enhance the penalties particularly for trafficking offences,

make provisions exercising effective control over psychotropic substances and 'make provisions

for the implementation of international conventions relating to narcotic drugs and psychotropic

substances to which India has become a party'

JUDICIAL TREND

CASES

Some Notable Events & Cases of Narco Analysis in India-

I. In a 2006 judgment (Dinesh Dalmia v State) 8, the Madras High Court held that subjecting

an accused to narco analysis is not tantamount to testimony by compulsion. The court said about

the accused: “he may be taken to the laboratory for such tests against his will, but the revelation

during such tests is quite voluntary.”

II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that

subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right

against self-incrimination. Article 20(3) of the Constitution guarantees this: “No person accused

of any offence shall be compelled to be a witness against himself.” Statements made under narco

analysis are not admissible in evidence.9

III. In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan10 reserved its ruling

after hearing arguments for three days from various parties, including Solicitor General Goolam

E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to

8 https://www.lawteacher.net/free-law-essays/human-rights/narco-analysis-test-with-emphasis-on-constitution-law-

essays.php?vref=1 9 iosrjournals.org/iosr-jhss/papers/.../H0191015257.pd

10 Justice K. G. Balakrishnan: Rising From Down Under". Ambedkar.org. Retrieved 19 April 2015.

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assist the court in the case. Telgi and his accomplices are facing probe by various states’ police

and other investigative agencies for their alleged criminal acts. These accused people have

challenged the legality of the use polygraph, brain mapping and narco-analysis by the

investigative agencies to probe the crime.

IV. The Bombay High Court recently in a significant verdict in the case of, Ramchandra

Reddy and Ors. v.State of Maharashtra 11 , upheld the legality of the use of P300 or Brain

finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a

special court order given by the special court in Pune as mentioned above, allowing the SIT to

conduct scientific tests on the accused in the fake stamp paper scam including the main accused,

Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth

serum is also admissible. In the course of the judgment, a distinction was drawn between

“statement” (made before a police officer) and “testimony” (made under oath in court). The

Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping

tests did not involve any “statement” being made and the statement made under narco analysis

was not admissible in evidence during trial. The judgment also held that these tests involve

“minimal bodily harm”.

In State of Bombay v. Kathi Kalu Oghad 12 a Bench of the Supreme Court consisting of eleven

judges held that: “It is well established that clause (3) of Article 20 is directed against self-

incrimination by the accused person. Self-incrimination must mean conveying information based

upon personal knowledge of the person giving the information and cannot include merely the

mechanical process of producing documents in court which may throw a light on any of the

points in the controversy, but which do not contain any statement of the accused based on his

personal knowledge.” The third component of Article 20 (3) is that it is a prohibition only

against the compulsion of the accused to give evidence against himself. In Kalawati v H.P. State

, the Supreme Court held that Article 20 (3) does not apply at all to a case where the confession

is made by an accused without any inducement, threat or promise.

11 Symbiosis Law School, Pune On February 3, 2015 By amoolya 12 AIR 1961 Cri LJ , Vol 2, 2007

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In the case of Rojo George v. Deputy Superentendent of Police13, the Court while allowing a

Narco Analysis test observed that in present days the techniques used by the criminals for

commission of crime are very sophisticated and modern. The conventional method of

questioning may not yield any result at all. That is why the scientific tests like polygraph, brain

mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are

conducted under strict supervision of the expert, it cannot be said that there is any violation of

the fundamental rights guaranteed to a citizen of India.

In M.P.Sharma v. Satish Chandra 14, the Apex Court observed that since the words used in

Article 20(3) were “to be a witness” and not “to appear as a witness” the protection is extended

to compelled evidence obtained outside the Courtroom. In Indian constitution protection of life,

liberty and freedom has throughout interpreted and article 14, 19, 21 are best example for any

constitution against right to privacy. In the Code Criminal Procedure “injury” is defined in

Sections 44, 323,324,328 and the punishment for which may extend to 10 years, imprisonment.

CONCLUSION

The investigating agencies have carried out these tests in a number of high profile cases.

Rapidly and swiftly these scientific tools of investigation can become an alternate of third-

degree physical torture in police custody. As was rightly held by the Supreme Court in D. K.

Basu v. State of West Bengal, that there is a need for developing scientific methods of

investigation and interrogation of accused as custodial deaths and torture is nothing but a blow

at rule of law. Given the complexity of cases that have come into light in recent times these test

can be used as a tool to effectively serve the justice. However these tests should be used with

caution. They should be used only in the rarest of rare cases. Since they are such sensitive

medical procedures, they could be misused or manhandled easily too. The permission of the

court and consent of the parties, specially the person who has to undergo such tests is of utmost

importance and should be given priority.

13 2005 Cri Lj 150, Journal section 14 AIR 1954 SC 300

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SUGGESTIONS

Unless viable measures are taken quickly, the reformative aim of the legislation will go futile. In

spite of the fact that illuminating presences and society’s representatives can be brought in to

recommend and evaluate changes in the drug policy, these measures have not yet been put into

utilization. Inspecting the cruel provisions and respecting the privileges of each one of those

people who rely upon drugs is an unquestionable requirement. Reinforcing the connection

between Government divisions and reaching common society representation, for example,

medical experts and patient groups can uphold viable plan of drug policies. Conducting research

and accumulating information on drug dependence, substance use and the repercussion on the

health of the individuals who infuse/inject drugs can help to stand for the war against drug abuse.

The transformation of the NDPS Act itself is the principal walk to be taken if the Government

genuinely tries to reaffirm its dedication towards wiping out India’s drug crisis.

REFERENCES

Sriram Lakshman, “We need to talk about narco analysis”, the Hindu op-Ed May, 02 2007.

Sriram Lakshman, “We need to talk about narco analysis”, the Hindu op-Ed May, 02 2007.

Mehanathan, M.C. (2007), Law of Control on Narcotic Drugs and Psychotropic

Substances in India (Delhi: Capital Law House, 2nd ed)

The Opium Act 1857 and Opium Act 1878 regulated the cultivation, manufacture and

trade in opium through licensing

Bengal Excise Act 1909; Punjab Excise Act 1914; Madhya Pradesh Excise Act, 1915

The Dangerous Drugs Act, 1930 (Act 2 of 1930). See sections 2, 4, 5, 6, 7, 8, 9, 10, 11,

12, 13 and 14

Section 80, NDPS Act

Sections 2(xxiii) and 3, NDPS Act as well as the Schedule to the NDPS Act

https://www.lawteacher.net/free-law-essays/human-rights/narco-analysis-test-with-

emphasis-on-constitution-law-essays.php?vref=1

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iosrjournals.org/iosr-jhss/papers/.../H0191015257.pd

Justice K. G. Balakrishnan: Rising From Down Under". Ambedkar.org. Retrieved 19

April 2015.

Symbiosis Law School, Pune On February 3, 2015 By amoolya

AIR 1961 Cri LJ , Vol 2, 2007

2005 Cri Lj 150, Journal section

AIR 1954 SC 300

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