Amendment to the NDPS Act

From UPSC perspective, the following things are important :

Prelims level: NDPS Act

Mains level: Narcotics crime in India

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

The Narcotic Drugs and Psychotropic Substances Act, commonly referred to as the NDPS Act was promulgated in 1985.
It prohibits a person from the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance

The 2021 Bill amends the Narcotic Drugs and Psychotropic Substances Act, 1985 and seeks to rectify a drafting “anomaly” created by a 2014 amendment to the parent legislation.
It 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.
It defined “essential drugs”; under Section 9 and 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, a 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 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment.
The term shall not be less than ten years and may extend to twenty years.
The accused shall also be liable to fine which shall not be less than one lakh rupees but which may extend to 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.

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.

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.
The person shall not 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. “It shall be deemed to have come into force on the 1st day of May 2014,” the Bill reads.
Retrospective application is permitted in clarificatory amendments.
This 2021 amendment is not a substantive one, that is why the retrospective is allowed.