Centre Promulgates Ordinance To Rectify Anomaly In Section 27A NDPS Act With Retrospective Effect

The Centre has promulgated Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021, amending section 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 to rectify an anomaly that had crept in.

Section 27A deals with the punishment for financing illicit traffic and harbouring offenders. It read as follows: Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

However, Sub-clause (viiia) of Section 2 of the NDPS Act was amended, re-lettered and relocated at the clause (viiib) of Section 2 of the NDPS Act by the NDPS (Amendment) Act, 2014 which came into effect from 01.03.2014. Also Section-2 (viiia) has been re-lettered as: "essential narcotic‟ drug means a narcotic drug notified by the Central Government for medical and scientific use.

In other words, the 2014 amendment relocated Sub-clause (viiia) to Sub-clause (viiib), but did not make corresponding changes in Section 27A 'due to oversight'. 

Now, through this ordinance,  "clause (viiia) of section 2", has been substituted by "clause (viiib) of section 2" . The ordinance provides that this change shall be deemed to have come into force on the 1st day of May, 2014.

"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) and the amendment seeks to rectify this anomaly by making changes in section 27 of the said Act in order to carry out the legislative intent of the statute, which has always been to read clause (viiib) in section 27, and already stood therein", the notification reads.

In a judgment delivered in June 2021, the Tripura High Court noticed this anomaly and  directed the Central Government to take appropriate steps for amending sec. 27A. ""We would hold that until the appropriate legislative change occurs by amending Section 27A of the NDPS Act appropriately, sub-clauses (i) to (v) of clause (viiia) of Section-2 of the NDPS Act shall suffer effect of deletion and bringing in sub-clauses i-v of the clause viii-b of Section-2 of the NDPS Act in that place. We are worried this effect might create an incongruity to the constitutional protection provided under Article-20.", the court had observed.

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