The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was implemented in 1988 to provide preventive detention of suspected persons or the accused involved in drug trafficking. The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, use and consumption of narcotic drugs and psychotropic substances apart from medicinal and scientific purposes under license.

The Act covers three types of substances such as Narcotic Drugs, Psychotropic Substances & Controlled Substances, which are used to manufacture narcotic drugs or psychotropic substances, for example precursor chemical like ephedrine and pseudoephedrine, acetic anhydride, etc. The act describes the procedure for search, seizure and arrest of persons in public and private places.

Which agencies are responsible for the effective administration of the law?

The Department of Social Welfare has been given the major responsibility to monitor the initiatives undertaken by various organizations whether public or private for spreading the awareness about the horrible effects of drug abuse. Also Narcotics Control Bureau is assign with the responsibility of overseeing the activities undertaken by various law enforcement agencies and to ensure constant compliance with various international laws.

The Ministry of Welfare is also given the responsibility to take appropriate actions to prevent this menace from spreading among the youth. It is responsible for undertaking drives of awareness at all the level such as local, state and national level. It is also responsible for providing medical assistance to drug addicts and to identify drug users at an early stage in order to take appropriate measure.

The Ministry of Finance checks into the cases of money laundering, drug trafficking and other offences which are closely linked with drug abuse.

Establishment of Special Courts –

Section 36 of the NDPS Act provides that the Government may establish as many special courts as may be necessary for the purpose of providing speedy trial of the offences under this Act. The Special Court must be preceded by a single Judge appointed by the Government with the concurrence of the Chief Justice of the High Court.

What are the major offences under the NDPS Act?

  1. Section 21 of the NDPS Act provides for rigorous imprisonment if any person contravene any provision of the Act or condition of license granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-state or uses any manufactured drug or any preparation of it. Then he/she will be liable to be punished-
  • Where the contravention involves small quantity then the punishment may extend to one year or with fine which may extend to ten thousand rupees or with both or
  • Where the contravention involves quantity lesser than commercial quantity but greater than small quantity then the punishment may extend to ten years and with fine which may extend to one lakh rupees, or
  • Where the contravention involves commercial quantity then the punishment may extend to twenty years and also be liable to fine which may not be less than one lakh rupees but which may extend to two lakh rupees.
  1. Section 22 of the NDPS Act provides that if any person contravenes any provision of this Act regarding psychotropic substances than the punishment will be same as given under section 21 of the Act.
  2. Section 23 of the NDPS Act provides if any person contravene any provision under this Act or condition of license or permit granted or certificate or authorization issued thereunder, imports into India or exports from India or transships any narcotic drug or psychotropic substance then he/she will be punished with the rigorous imprisonment as given under section 21 of the Act.
  3. Section 25 of the NDPS Act provides if any person who is an owner or occupier or having the control of the house, room, enclosure, space, place, animal or conveyance, knowingly permits the use of the respective place then he/she will be liable to be punished for that offence.
  4. Section 27 of the NDPS Act provides if any person consumes any narcotic drug or psychotropic substances such as morphine, heroin, and cocaine or any other then the punishment may extend up to 1 year of rigorous imprisonment, with fine up to Rupees 20,000 or with both.
  5. Section 28 of the NDPS Act provides that if any person attempts to commit any offence which are given in this Act or to cause such offence to be committed and does any act for the commission of offence then he/she will be punishable with the punishment provided for the offence.

What are the procedural safeguards available under the law?

The law provides for safeguards to prevent innocent civilians from being unnecessarily harassed under the NDPS Act-

  • Section 41 of the NDPS Act provides that the searches may authorize by the Gazetted Officers of the empowered departments. However, such authorization must be written down in writing.
  • Section 42 of the NDPS Act provides that searches can be without warrant under certain circumstances. After such search has been made the officer has to send a copy of the information taken in writing or the ground of his belief to his immediate superior within 72 hours.
  • Section 50 of the NDPS Act provides for the right of the accused to be searched in the presence of the magistrate or a gazetted officer.
  • Section 52 of the NDPS Act provides that a person should be informed the ground of his arrest as soon of his arrest.
  • Section 55 of the NDPS Act imposes an obligation on the police officer who is seizing the prohibited substances to keep them in safe custody after applying his seal as well as of the officer in charge of the police station.
  • Section 57 of the NDPS Act provides any person making an arrest or seizure is required to make an extensive report containing all relevant details which must be sent to his immediate superior within 48 hours.
  • Section 58 of the NDPS Act provides for the strict punishment if any person willfully and maliciously give false information and so causing vexatious entry, search, seizure or arrest of the other person.
  • Code of Criminal Procedure provides Section 100 of the provides that any police officer who wants to search any person who is believed to be concealing something suspicious and it is not possible for the officer to take him to a Gazetted Officer or a Magistrate he Can search the person in the presence of at least 2 respectable inhabitants of that locality.

What is Presumption of Culpable Mental State?

Section 35 of the NDPS Act provides for the culpable mental state which means intention, motive, knowledge of a fact and belief in or reason to believe. There is a general principle of law which states that an act is not punishable unless it is done with a malafide intention. The provision provides that if there is any prosecution for an offence, which requires a culpable mental state of the accused, the court shall presume that the act had been done with guilty intention. Thus the Burden of Proof lies with the accused to prove that he had not done the act with any guilty intention.

What are the major shortcomings of the Act?

The NDPS Act contradicts the general principle of law which says an accused is innocent until proven guilty. As section 35 of NDPS Act presumes the guilt of the accused and puts the onus on the accused to prove that he/she is innocent. It further presumes that the illicit drugs found in the possession of the accused unless the contrary is proved, it will be assumed that the accused intentionally held the illicit drugs.

What are the remedies available for the drug addicts?

Section 64(a) of the NDPS Act provides for the medical treatment for de-addiction from hospital or any institution if a person or an addict involving small quantity of narcotic drug and psychotropic substance wants to undergo such medical treatment then he shall not be liable to prosecution for offences under the act. For implementation of the above rule the act provides under section 71 for the establishment of the centers which are fit for the purposes of education, rehabilitation, social re-integration of addicts and for supply to the addicted persons who are registered with the Government and to others wherever such supply is medicinal requirement.

Latest judgments of the Hon’ble Supreme Court of India

  1. Tofan Singh v/s State of Tamil Nadu Criminal Appeal No. 152/ 2013 Judgment dated 29th October, 2020) The Court held that statement recorded under Section 67 of NDPS Act cannot be used as confessional statements in the trial. Confessions made by accused persons to officials invested with powers of an “officer-in-charge of a police station” under NDPS Act are not admissible as evidence during court trial.
  2. Jeet Ram v. The Narcotics Control Bureau, Chandigarh (Criminal Appeal No. 688 of 2013) judgment Dt. 15th Sep, 2020: The court reiterates that Section 50 of the NDPS Act is applicable only in the case of personal search.
  3. Sheru v. Narcotics Control Bureau (Criminal Appeal Nos. 585-586 of 2020) judgement Dt. 11th Sep, 2020: The Court held mere passage of time during pendency of appeal cannot be a ground to suspend sentence and grant bail in NDPS cases.
  4. Mukesh Singh v. State (Narcotic Branch of Delhi) {SLP (crl nos. 5648, 5894, 8499 of 2019} judgement Dt. 31st Aug, 2020: Constitution bench of the Hon’ble Supreme Court while overruling Mohan Lal v. State of Punjab (2018) held that merely because the investigation officer and complainant are the same the trial in NDPS cases will not be vitiated and accused cannot be acquitted on that ground.
  5. Gangadhar @ Gangaram v. State of Madhya Pradesh (Criminal Appeal no. 504 of 2020) judgement Dt. 5th Aug, 2020: The Court held that the presumptions against the accused of culpability under Section 35, and under Section 54 of the NDPS Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt.
  6. Hira Singh &Anr. v. UOI & Anr. (Criminal Appeal no. 722 of 2017) judgement Dt. 22nd April, 2020: The Court held that in case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the quantity of neutral substances is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the small or commercial quantity of the narcotics drugs or psychotropic substances.


Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali