Drug Trafficking and Counterfeiting

• Constitutional and treaty background: Article 47 (Directive Principle to prohibit intoxicating drinks and drugs injurious to health); India is a party to the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. The Act replaced the Opium Act 1857, Opium Act 1878 and Dangerous Drugs Act 1930.

• Definitions (s.2): narcotic drug (coca leaf, cannabis (hemp), opium, poppy straw and all manufactured drugs); psychotropic substance (substances in the Schedule); cannabis (charas, ganja (flowering or fruiting tops, excluding seeds and leaves when not accompanied by the tops) and any mixture); bhang (leaves and seeds) is excluded from the definition of cannabis in the Act and is regulated by State laws. Small quantity, commercial quantity and the in-between intermediate quantity are fixed by Central Government notification (2001 rationalisation).

• Key sections:

  • s.8: prohibition of cultivation, production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, inter-State import or export, import into or export from India of narcotic drugs and psychotropic substances except for medical or scientific purposes and in accordance with the Act (licence or permit).

  • ss.15-23: specific offences (poppy straw s.15; coca s.16; prepared opium s.17; opium poppy and opium s.18; cannabis s.20; manufactured drugs and preparations s.21; psychotropic substances s.22; illegal import, export and transhipment s.23).

  • s.24: external dealings; s.25: allowing premises to be used; s.27: consumption; s.27A: financing illicit traffic and harbouring offenders (ten to twenty years, fine ₹1 lakh to ₹2 lakh); s.29: abetment and criminal conspiracy; s.30: preparation; s.31: enhanced punishment for subsequent offences; s.31A: death penalty for certain repeat offences; s.32A: no suspension, remission or commutation of sentence.

  • s.35: presumption of culpable mental state; s.54: presumption from possession of illicit articles; s.37: offences are cognizable and non-bailable, with twin conditions for bail in cases involving commercial quantity; s.64A: immunity for addicts who volunteer for treatment.

  • ss.41-43: powers of search, seizure and arrest; s.42: entry, search, seizure and arrest without warrant (with recording of grounds and reporting to the superior within 72 hours); s.50: conditions for personal search (the person must be told of the right to be searched before a Gazetted Officer or Magistrate); s.52A: disposal of seized drugs (inventory, sampling, magistrate certification); s.67: power to call for information and examine persons; s.50A: controlled delivery.

• Authorities: Narcotics Control Bureau (NCB), Central Bureau of Narcotics, State Police, Customs, Revenue Intelligence (DRI). Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS) provides preventive detention of traffickers.

(Old quantity limits were revised in 2001; the Act treats small and commercial quantities separately for each drug.)

Illustrative quantities (from the 2001 notification; confirm in the schedule): heroin small 5 g / commercial 250 g; charas 100 g / 1 kg; ganja 1 kg / 20 kg; cocaine 2 g / 100 g; opium 25 g / 2.5 kg; morphine 5 g / 250 g; MDMA 0.5 g / 10 g; LSD 0.002 g / 0.1 g.

• Twin conditions for bail (s.37): for offences involving commercial quantity (and ss.19, 24, 27A), the accused shall not be released on bail unless (i) the Public Prosecutor has had an opportunity to oppose; and (ii) the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail. These conditions override the ordinary bail provisions.

• Presumption of culpable mental state (s.35): the court presumes knowledge and intention and the accused must prove absence of such mental state beyond reasonable doubt (a reverse onus provision). s.54: presumption from possession of illicit articles; Noor Aga v. State of Punjab (2008) upheld the validity of ss.35 and 54 but held that the prosecution must first establish the foundational facts beyond reasonable doubt before the presumption applies.

• Search and seizure compliance:

  • State of Punjab v. Balbir Singh (1994): compliance with ss.42 and 50 is mandatory; non-compliance can vitiate the conviction.

  • State of Punjab v. Baldev Singh (1999) (Constitution Bench): s.50 is mandatory; the accused must be informed of his right to be searched before a Gazetted Officer or Magistrate.

  • Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) (Constitution Bench): the informing of the right under s.50 is mandatory and should be substantial (proper compliance), with an oral explanation being enough.

  • Union of India v. Mohanlal (2016) and Mohanlal v. State of Punjab (2018): importance of s.52A; sampling must be done before a Magistrate; non-compliance and delay can undermine the prosecution.

• Admissibility of statements: Tofan Singh v. State of Tamil Nadu (2020/2021): officers vested with powers of investigation under the NDPS Act (such as NCB officers) are police officers within s.25 of the Evidence Act, so a confessional statement recorded under s.67 is inadmissible as evidence of guilt. (The same principle now falls under the BSA corresponding provisions.)

• Other constitutional rulings: Dadu @ Tulsidas v. State of Maharashtra (2000) struck down the bar on suspension of sentence in s.32A as unconstitutional; Mithu v. State of Punjab (1983) invalidated mandatory death under IPC s.303 and is cited for the policy against mandatory death sentences; the Supreme Court has repeatedly stressed proportionality in bail for small-quantity or addict cases.

• Treatment and rehabilitation: s.64A and the National Policy on Narcotic Drugs and Psychotropic Substances; de-addiction under the Mental Healthcare Act, 2017 approach; the Narcotics policy balances harm reduction and deterrence.

• Interface with the BNS: organised crime (s.111) expressly includes trafficking in drugs, weapons or illicit goods by a syndicate, so a trafficking ring can be proceeded against under both the NDPS Act and BNS s.111.

The offences sit in BNS Chapter X (ss.178-188), replacing IPC ss.230-263A (coin and stamps) and IPC ss.489A-489E (currency notes and bank notes).

• Key ingredients: the offender must know or have reason to believe that the note is counterfeit (for possession); the counterfeit must be capable of being passed as genuine (resemblance), but perfect imitation is not required. Case: Umashankar v. State of Chhattisgarh (2001): mere possession of forged notes without knowledge or reason to believe that they are counterfeit is not an offence under s.489C; mens rea must be established. Remember the mens rea rule.

• Terrorism link: the UAPA (s.15(1)(a)(iiia)) and BNS s.113 treat production, smuggling or circulation of high-quality counterfeit Indian currency that damages the monetary stability of India as a terrorist act. NIA investigates FICN (fake Indian currency notes) as a scheduled offence.

• Related laws: Reserve Bank of India Act, 1934, s.31 (only the RBI may issue bank notes and currency notes); Coinage Act, 2011; Prevention of Money Laundering Act, 2002 (proceeds of NDPS and counterfeiting offences are scheduled offences); Indian Stamp Act, 1899.

• Trade Marks Act, 1999: falsifying and falsely applying trade marks (s.103: imprisonment of six months to three years and fine of ₹50,000 to ₹2 lakh), selling goods bearing a false trade mark (s.104), enhanced penalty for repeat offences (s.105); Copyright Act, 1957: infringement as an offence (s.63: six months to three years and fine ₹50,000 to ₹2 lakh), possession of infringing copies (s.63B); Designs Act, 2000; Geographical Indications of Goods Act, 1999.

• Drugs and Cosmetics Act, 1940: spurious and adulterated drugs (s.17B, s.13; punishment from three years to life); Food Safety and Standards Act, 2006: unsafe food.

• BNS cheating by personation, forgery and making false trademarks and property marks (BNS ss.345-350; IPC 478-489) also address counterfeit goods.