The NDPS (Amendment) Bill, 2021 seeks amendment to the Narcotic Drugs and Psychotropic Substances Act, 1985, and seeks to rectify a drafting "anomaly" created by a 2014 amendment to the parent legislation
Parliament House. File pic
The Centre will be moving the Narcotics Drugs and Psychotropic Substances (Amendment) Bill, 2021 in Rajya Sabha on Wednesday for consideration and passage. Finance Minister Nirmala Sitharaman will move the Bill in the second half of the Upper House proceedings.
The NDPS (Amendment) Bill, 2021 seeks amendment to the Narcotic Drugs and Psychotropic Substances Act, 1985, and seeks to rectify 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 (viii)a corresponds to clause (viii)b 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)a 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 (viii)a 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 ten years but which may extend to twenty 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.
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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(viii)a sub-clauses i-v. However, Section 2 (viii)a 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(viii)b. 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 penalised a blank list, he could not be charged under the offence. The district judge then referred the legal question to the High Court.
The government had argued that the drafting error cannot be grounds to seek bail and must be overlooked. 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. 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. This protection means that a person cannot be prosecuted for an offence that was not a "crime" under the law when it was committed.
In September, the government brought in an ordinance to rectify the drafting error, which Lok Sabha passed on Monday by a voice vote that corrects a drafting error in the Narcotic Drugs and Psychotropic Substances (Amendment) Act. "It shall be deemed to have come into force on the 1st day of May, 2014," the Bill reads. During the discussion in Lok Sabha, Finance Minister had said retrospective application is permitted in "clarificatory amendments." "It is not substantive, that is why, retrospective is allowed," she said. She also mentioned that the government had sought the opinion of Solicitor General Tushar Mehta's opinion before introducing the amendment.
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