The NDPS Act, 1985

What the NDPS Act is

The Narcotic Drugs and Psychotropic Substances Act, 1985 is Act 61 of 1985, in force since 14 November 1985. It regulates narcotic drugs — such as opium, cannabis, coca and their derivatives — and psychotropic substances listed in its Schedule, and punishes dealing in them outside the licences and permits the Act allows for medical and scientific use.

It was not replaced in the 2024 criminal law reforms. It is a special law, and in several places it expressly overrides the general procedure: its bail restriction, its special courts and its custody limits all begin "notwithstanding anything contained in the Code of Criminal Procedure". The Act still names the Code of Criminal Procedure; under section 8 of the General Clauses Act, 1897, references to a repealed and re-enacted provision are read as references to the provision that replaced it, unless a different intention appears.

It was significantly amended in 2014 (Act 16 of 2014, in force from 1 May 2014), and a number of the provisions below carry that amendment.

Small, intermediate and commercial quantity — why quantity decides the punishment

The Act defines two thresholds, both by reference to a notification. "Commercial quantity" is any quantity greater than the quantity the Central Government specifies (s. 2(viia)); "small quantity" is any quantity lesser than the quantity it specifies (s. 2(xxiiia)). Anything between the two is what is usually called intermediate quantity.

The punishment sections for particular substances — sections 17, 18 and 20 to 23 — are built on those three bands. Section 21, on manufactured drugs and preparations, is typical, and its punishments are shown below.

Because the thresholds sit in a notification and vary substance by substance, the question of which band a seizure falls in cannot be answered from the Act alone. The notification is published in the Official Gazette; read the entry for the specific substance, because a threshold for one drug says nothing about another.

Consumption, and treatment instead of prosecution

Using a drug is a separate and much lesser offence than dealing in it. Under section 27, consuming cocaine, morphine, diacetylmorphine or another notified drug carries rigorous imprisonment up to one year, or fine up to ₹20,000, or both; consuming any other narcotic drug or psychotropic substance carries up to six months, or fine up to ₹10,000, or both.

Section 64A gives a route out of prosecution, but a narrow and conditional one — not a general immunity for anyone who uses drugs. It applies to an "addict", as the Act defines that word, who is charged with consumption under section 27 or with an offence involving a small quantity; who voluntarily seeks medical treatment for de-addiction from a hospital or institution maintained or recognised by the Government or a local authority; and who undergoes that treatment. Such a person is not liable to prosecution for that offence.

The proviso makes the immunity depend on finishing: it "may be withdrawn if the addict does not undergo the complete treatment for de-addiction". It does not reach offences involving intermediate or commercial quantity.

Bail under section 37

Section 37(1)(a) makes every offence under the Act cognizable, whatever its punishment.

Section 37(1)(b) restricts bail for offences under sections 19, 24 and 27A and for offences involving commercial quantity. A person accused of one of those may not be released on bail or on their own bond unless the Public Prosecutor has had an opportunity to oppose, and — where the prosecutor does oppose — the court is satisfied that there are reasonable grounds for believing the person is not guilty of the offence and is not likely to commit any offence while on bail.

Section 37(2) makes these limitations additional to those in the general procedural law, not a replacement for them. For any other offence under the Act — one not under sections 19, 24 or 27A and not involving commercial quantity — section 37(1)(b)’s conditions are not engaged by its own terms, and bail is decided under the general law. Offences under sections 19, 24 and 27A attract the conditions whatever the quantity.

Searches, special courts, custody and sentencing

Section 50 applies when an authorised officer is about to search a person under section 41, 42 or 43. The person may require to be taken, without unnecessary delay, to the nearest Gazetted Officer of the departments named in section 42 or to the nearest Magistrate before the search, and may be detained until that is done. The Supreme Court has held that the officer must inform the person of this right, and the person then chooses whether to exercise it (State of Punjab v. Baldev Singh, 1999, Constitution Bench). Informing the person is mandatory and needs strict, not merely substantial, compliance (Vijaysinh Chandubha Jadeja v. State of Gujarat, 2010, Constitution Bench).

Section 50 is about a search of the person. It does not by its own terms apply to a search of a bag, vehicle or premises: a bag carried by someone is not the person (State of Himachal Pradesh v. Pawan Kumar, 2005; reaffirmed in Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023). Where a person and a bag are both searched, section 50 governs the personal search, and on the current line of Supreme Court authority non-compliance affects what was recovered from the person rather than what was found in the bag. Some earlier decisions took a wider view, which Chadha declined to follow. Under section 50(5) and (6), where taking the person to a Gazetted Officer or Magistrate risks the drugs being parted with, the officer may search under the general procedural law instead, recording reasons and sending them to a superior within seventy-two hours.

Offences punishable with more than three years are triable only by a Special Court for the area (s. 36A(1)). For offences under sections 19, 24 and 27A and those involving commercial quantity, the general ninety-day limit on detention during investigation is read as one hundred and eighty days (s. 36A(4)).

Two sentencing rules set the Act apart. Section 32A says no sentence awarded under the Act, other than for consumption under section 27, shall be suspended, remitted or commuted. The Supreme Court upheld that as a bar on the executive powers of suspension, remission and commutation, but held it unconstitutional so far as it took away an appellate court’s power to suspend a sentence pending appeal. An appellate court may suspend a sentence, strictly subject to the conditions in section 37 (Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437). And section 31A allows the death penalty, as an alternative to a punishment not less than that in section 31, for a person previously convicted of certain serious offences — including those involving commercial quantity — who is convicted again of dealing in specified drugs in amounts at or above the quantities set out in its own table.