RS passes Narcotic Drugs Amendment Bill

The Rajya Sabha was on Monday passed the ‘Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021’ with voice vote to rectify a drafting “anomaly” created by a 2014 amendment to the parent legislation.

However, the Opposition parties did not take part in the debate and raised the issue to revoke the suspension of 12 MPs and demanded sacking of Minister of State for Home Ajay Mishra Teni over his jailed son Ashish Mishra’s involvement in Uttar Pradesh’s Lakhimpur Kheri incident that claimed lives of eight people as a vehicle allegedly belonging to him mowed them on October 3. Speaking on the Bill, Finance Minister Nirmala Sitharaman said the NDPS (Amendment) Bill, 2021 seeks amendment to the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Bill rectifies a drafting “anomaly” created by a 2014 amendment to the parent legislation. The anomaly crept in when the Narcotic Drugs and Psychotropic Substances (NDPS) Act was amended in 2014 to allow better medical access to narcotic drugs and removing state barriers in transporting and licensing of essential narcotic drugs. The 2021 amendment contains a legislative declaration about what one section refers to. It says Section 2 clause (viiia) corresponds to clause (viiib) in Section 27, since 2014, when the provision was first brought in.

Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harbouring offenders. In 2014, a substantial amendment was made to the NDPS Act to allow for better medical access to narcotic drugs. In Section 2(viii)a, 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.

But before the 2014 amendment, Section 2(viii) already existed and contained a catalogue of offences for which the punishment is prescribed in Section 27A. Section 27A reads: “Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

“Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” While defining “essential drugs” in 2014, the legislation re-numbered Section 2. The catalogue of offences, originally listed under Section 2(viii)a, was now under Section 2(viii)b. In the amendment, Section 2(viii)a defined essential narcotic drugs. However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b.

Section 27A punished offences mentioned under Section 2(viiia) sub-clauses i-v. However, Section 2 (viiia) sub-clauses i-v, which were supposed to be the catalogue of offences, does not exist after the 2014 amendment. It is now Section 2(viiib).

This error in the text meant since 2014, Section 27A was inoperable.

The error was noticed by a district judge in West Agartala. In June this year, the Tripura High Court, while hearing a reference made by the district court, flagged the drafting error, urging the Centre to bring in an amendment and rectify it. In 2016, an accused had sought bail before a special judge in West Tripura in Agartala, citing this omission in drafting. The accused’s plea was that since Section 27A penalized a blank list, he could not be charged under the offence.