Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021

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    In News

    • The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021 was passed by Lok Sabha.

    About

    • It seeks to replace the Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021.

    Background

    • The error: was noticed by a district judge in West Agartala.
    • In 2016: an accused had sought bail before a special judge in West Tripura in Agartala, citing this omission in drafting.
    • Section 27A: Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harbouring offenders.
      • The accused’s plea was that since Section 27A penalised a blank list, he could not be charged under the offence. The district judge then referred the legal question to the High Court.
    • Drafting error: The government had argued that the drafting error cannot be grounds to seek bail and must be overlooked.
    • Retrospective application: Although the HC agreed with the government and read the provision the way it was intended and not the way it was drafted, it said the reading could not be applied retrospectively.

    Why can’t it be applied retrospectively?

    • Article 20(1) of the Constitution: Says that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
    • Non-Prosecution: This protection means that a person cannot be prosecuted for an offence that was not a “crime” under the law when it was committed.

    What is the amendment?

    • Drafting error
      • The Bill amends the Narcotic Drugs and Psychotropic Substances Act, 1985 to correct a drafting error.
      • In 2014, the Act was amended and the clause number of the definition for such illicit activities was changed. 
      • However, the section on penalty for financing these illicit activities was not amended and continued to refer to the earlier clause number.
      • The Act regulates certain operations (such as manufacture, transport, and consumption) related to narcotic drugs and psychotropic substances.
    • Punishment for financing illicit activities or harbouring persons engaged in them
      • Under the Act, financing certain illicit activities (such as cultivating cannabis or manufacturing narcotic drugs) or harbouring persons engaged in them is an offence. 
      • Persons found guilty of this offence will be punished with rigorous imprisonment of at least ten years (extendable up to 20 years) and a fine of at least one lakh rupees

    What is the 2014 amendment?

    • Medical access: In 2014, a substantial amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.
    • Defined essential drugs: The amendment defined “essential drugs”; under Section 9, it allowed the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.

    Argument

    • Clarificatory amendments: The Government said retrospective application is permitted in “clarificatory amendments.” “It is not substantive, that is why retrospective is allowed.
    • Opinion of Solicitor General: Government had sought the opinion of Solicitor General before introducing the amendment.

    Counter-argument

    • Substantive sentencing provision: The Bill does not address that the substantive sentencing provision in criminal law be given retrospective effect by a legislative declaration.
    • Challenged in court: Retrospective nature of the amendment will be challenged in court. The Constitution does not allow penal provisions to be passed retrospectively.

    Source: IE