Lok Sabha Passes NDPS(Amendment) Bill 2021 To Correct A Drafting Error

The Lok Sabha on Monday passed the NDPS (Amendment) Bill, 2021 seeks to amend the Narcotic Drugs and Psychotropic Substances Act to correct a drafting error. 

In 2014, the Act was amended and the clause number of the definition for such illicit activities was changed. However, the section on penalty for financing these illicit activities was not amended and continued to refer to the earlier clause number of the definition. The Bill amends the section on penalty to change the reference to the new clause number. This amendment will be deemed to have been in effect from May 1, 2014 (i.e., when the 2014 amendments came into effect).

The drafting error was highlighted when an accused moved a special court in Tripura contending that he could not be charged for the offence as Section 27 A is referred to a blank list. The Tripura High Court subsequently asked the Centre to amend the law. 

The Bill provides that:

"WHEREAS the Narcotic Drugs and Psychotropic Substances Act, 1985 was amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 which, inter alia, introduced a new clause (viiia) in section 2 and renumbered existing clause (viiia) relating to definition of "illicit traffic" as clause (viiib) thereof, but due to oversight the reference of the said clause could not be corrected in section 27A of the said Act, which provides for punishment for financing "illicit traffic" and harbouring offenders." 

Finance Minister Nirmala Sitaram had clarified that the amendment does not create any new offence, but contains a legislative declaration that reference of clause (viiia) always meant the corresponding renumbered provision in clause (viiib). During its introduction and debate in the House today, members of Parliament had raised concerns about the retrospective application of criminal laws. MP Manish Tewari from INC raised the question whether a substantive sentencing provision in criminal law can be given retrospective effect by a legislative declaration. 

Referring to Article 20(1) of the Constitution he said that no person can be punished except in accordance with a sentencing provision which is in force when the offence is committed.

"If this bill is accepted in the form in which it has been proposed by the government, it will be against Article 20. This will open floodgates of misuse. It will set a dangerous precedent and take away a basic principle of Criminal Law. If in future any law can be brought and given retrospective applicability, then no person in the country can be safe," he added. Going on, he said: 

"Even though the legislative intent was very clear, the bill brought now cannot validate a wrong committed in 2014. Between 2014 and 2021, if someone has to be sentenced in accordance with Section 27A, he must not be sentenced. This is the consistent principle upheld by courts."

In response, Finance Minister Nirmala Sitaraman said that the amendment does not diminish the letter and content of Art.20 of the Constitution. She further read out from Tripura High Court's judgement directing the amendments to be made. The judgement provided that: 

"Both the Central government and state government shall publish a notification bringing about the content of this order sought for public notice so that requirement of Art.20 of Constitution of India is not diminished." 

Further reading out from Solicitor General of India's legal opinion, she said while substantive part of criminal law cannot be retrospectively applicable, clarificatory amendments can be applied retrospectively. Since the Bill does not seek to create any new offence, it does not fall foul of any Constitutional provisions, she said. 

Though the Bill only seeks to correct a drafting error, members took the opportunity to raise concerns over larger issues of the manner in which NDPS Act is implemented and misused and the alarming rise in drugs usage in the country.