The Telegraph
Since 1st March, 1999
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High court picks holes in drug law
- Judges call amendments to act against narcotics offences unconstitutional

Calcutta, Jan. 14: Calcutta High Court today said amendments made to the Narcotic Drug and Psychotropic Substances Act, 1995, by the Centre and the state in 2001 were unconstitutional because they had introduced loopholes in the law which is considered the mainstay in the fight against drug offences.

While making the observation, a division bench of Justice N.A. Chowdhury and Justice G.C. Gupta sent a clutch of cases pending before it under the law to Chief Justice A.K. Mathur, saying they should be disposed of by a larger bench.

“The matter should be heard by a larger bench for a decision on the constitutionality of the act,” the judges said.

But they held that a final opinion on the act could not be formed without hearing out the Union government. “Notices should be issued to the Union government as well as the advocate-general of the state to know their views in this regard,” the judges said.

The division bench held that there is a substantial question of law regarding the constitutionality of the act as a large number of offenders are taking advantage of the loopholes in the amended law to obtain bail from subordinate courts.

The judges backed their observation by pointing at Section 21 of the Narcotic Drug and Psychotropic Substances Act, which deals with the quantity of the seized illegal substance. An amendment to the section introduced quantitative distinctions like small quantity, lesser commercial quantity and commercial quantity.

“For example, if a person is caught with heroin weighing up to 5 grams or ganja up to 1 kg, he will get the benefit of possessing a small quantity of drugs. This person will easily obtain bail as the case is under a bailable section according to the new law,” explained additional public prosecutor A. Goswami.

But persons caught with 250 gm or more of drugs or 20 kg of ganja or more would be prosecuted under the non-bailable sections. “Earlier, there was no quantitative distinction in the law,” he said.

This distinction has opened an escape hatch for several offenders caught with large quantities of narcotics. Offenders caught with more than 250 gm of heroin argue that they should be prosecuted under the lesser quantity section and granted bail as the actual illegal substance in the drug haul after analysis is often shown to be as little as 5 gm.

The chemical analysis of the drug haul is carried out by forensic laboratories on the direction of the court.

Police sources admitted that they are facing acute difficulties in nailing down offenders under the amended act. Whenever a peddler is arrested with a huge quantity of narcotics, he moves court and pleads that the actual illegal substance is less than 250 gm and thus he is entitled to bail.

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