Legal

________________________________________________________________________________

This Blog is written by Kumar Shubham from KIIT School of Law, Odisha. Edited by Srishti Tiwari.

________________________________________________________________________________

INTRODUCTION

The use of narcotics like drugs was very harmful and also increasing problems in global. In response to that, following the advice of a select committee, the government of every country has recently issued a number of laws implementing a strong harm-reductionistic orientation. The flagship of those laws is the decriminalization of the use and ownership for use of drugs. Use and ownership for use are now the administrative offenses, there will be no distinction will be made between different types of drugs (hard vs. soft drugs) or whether the consumption is in private or in public. Although most people favor decriminalization in principle, doubts have been expressed about the way the law will be carried out because the law only sets a framework for those communities that want to adopt such activities where it’s an enabling law. This has led to a considerable lack of clarity and increases the risk of dissimilarity of implementation in different parts of the country. The future will show the effects.

More than 1.5 million drug arrests are made every year within the U.S. only – the overwhelming majority for possession only.  More than 86% of these arrests are for possession only, and many more are for minor selling and distribution violations. Since the 1970s, the drug war has led to unheard of stages of incarceration and the marginalization of tens of millions of Americans –disproportionately the poor individuals and people of color – while at the same time as absolutely failing to reduce problematic drug use and drug-related harms. The severe outcome and consequences of a drug arrest are long-lasting now – sometimes life-long as well. Drug courts, moreover, have not improved matters.  One manner to lessen the number of people swept into the criminal justice system (or deported) for drug law violations is to decriminalize drug use and ownership. Decriminalization is the elimination of criminal penalties for drug law violations (usually possession for personal use).

Roughly a very few like only two dozen countries, and dozens of U.S. cities and states, have taken steps toward decriminalization. By decriminalizing possession and investing in treatment and damage reduction services, we may lessen the harms and damages of drug misuse while improving public safety and health.

BENEFITS OF DECRIMINALIZATION

Decriminalizing drug possession and investing in treatment and harm reduction services may provide major benefits for public safety and health, including:

• Reducing the number of people arrested

• Reducing the number of people incarcerated

• Increasing uptake into drug treatment

• Reducing criminal justice costs and redirecting resources from criminal justice to health systems

• Redirecting enforcement resources to stop serious and violent crime

• Diminishing unjust racial disparities in drug enforcement and sentencing, incarceration and related health characteristics and outcomes

• Minimizing the social exclusion of individuals who use drugs, and creating a climate during which they’re less afraid of seeking and accessing treatment, utilizing harm reduction services and receiving HIV/AIDS services

• Improving relations between enforcement and therefore the community and

• Protecting people from the wide-ranging and debilitating consequences of a criminal conviction

• Economize by reducing prison and particularly jail costs and population size [2]

• Unlock enforcement resources to be employed in more appropriate ways

• Prioritize health and safety over punishment for those that use drugs

• Reduce the stigma related to drug use in order that problematic drug users are encouraged to come back out of the shadows and seek treatment and other support

• Remove barriers to evidence-based harm reduction practices like drug checking, heroin-assisted treatment, and medical marijuana Defelonization are often a stepping-stone to decriminalization and provides a snapshot into the potential benefits of full decriminalization.

Defelonization implies that drug law violations are reduced from felonies to misdemeanors. The 2014 defelonization victory in CA substantially reduced the number of individuals in prison and particularly local jails. Those savings are now being reallocated to produce needed services. However, defelonization doesn’t go far enough. Misdemeanors still have criminalizing consequences, and full removal of criminal penalties – decriminalization – is required for people experiencing problematic drug use to hunt help with none fear of arrest.

IMPACT OF THESE ILLEGAL ACTIVITIES IN THE WHOLE WORLD

The various government of several other states and countries are considering various legislative options regarding marijuana laws. within the face of public pressure for change and seeable of the actual fact that criminal prohibition of marijuana has resulted in substantial enforcement and court costs, there has been a definite trend toward the “decriminalization” of possession of small amounts of marijuana for private use. In October 1973, Oregon reduced the offense of possession of but 1 oz of marijuana to a civil violation, with a maximum penalty of a $100 fine. Within 5 years, 11 other states had enacted similar legislation. the aim of this chapter is to look at the evidence regarding the results of marijuana decriminalization. Such an evaluation of legal restraints is necessarily a difficult and unsafe undertaking. within the first place, there’s no consensus on the definition of decriminalization. In an exceedingly strict sense, the term refers to true within which behavior isn’t criminally sanctionable under the law. However, with relevance marijuana, the term decriminalization has generally been wont to describe laws that reduce the legal sanctions for possession of small amounts for private use to penalties apart from imprisonment. it’s important connected in mind that even in those States which have thus decriminalized marijuana, the possession of this drug remains against the law and is subject to penalties, although the utmost penalty is simply fine. Thus, in evaluating the impact of legal changes within the decriminalization states, we are really considering the impact of reducing the penalties for marijuana possession to a fine instead of evaluating the consequences of removing criminal penalties altogether. A second difficulty in undertaking such an evaluation is that the recency of the changes; at the best, one can only determine their immediate impact. A corollary caveat concerns the shortage of systematic data on the results of changes within the law. this can be not solely thanks to the recency of change, however. In spite of the general public attention placed on the problem, only two of the decriminalization states, California and Maine, attempted a scientific study of the impact of the new laws by collecting data before and after the change. In a number of the decriminalization states, however, data were collected after the change in the law so as to assess its impact. seeable of the recency of the decriminalization measures and therefore the paucity of empirical data concerning their impact, only limited conclusions are possible. Nonetheless, there’s sufficient evidence to warrant a tentative assessment. A final hazard in arriving at an evaluation of the topic is personal bias. In arriving at conclusions regarding the results of decriminalization particularly when weighing a good style of factors, a number of which are intangible, it’s impossible to take care of complete objectivity. I can only reiterate the words of Griffith Edwards (1974) when faced with the identical problem.

STATUTORY PROVISIONS

These were some of the Acts in India against these illegal activities like Narcotic Drugs and Psychotropic Substances Act, 1985, and the mainly NDPS Acts.

India is a party to the three United Nations drug conventions – the 1961 Single Convention on Narcotic Drugs (1961 Convention), the 1971 Convention on Psychotropic Substances (1971 Convention), and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The official record states that the NDPS Act was enacted in order to provide adequate penalties for drug trafficking, strengthen enforcement powers, implement international conventions to which India was a party, and enforce controls over psychotropic substances. The Act was amended in 1989, 2001, and more recently in 2014. The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law. Preparation to commit certain offenses is punishable as is an attempt. Accessory crimes of aiding and abetting and criminal conspiracy attract the same punishment as the principal offense.

So after all the amendments of the Acts like NDPS Amendments, 1989, NDPS Amendments, 2001, NDPS Amendments, 2014 so we came into the final result that there were three kinds of punishment- 1) for a small number of drugs like Heroin(5g), opium(25g), morphine(5g), cannabis(1000g), cannabis resin(100g), coca leaf(100g), cocaine(2g), etc drugs they will get punishment of a maximum of 1-year rigorous imprisonment or a fine up to Rs 10,000 or both. 2) if the quantity of the same drugs increases to 250g, 2.5kg, 250g, 20kg, 1kg, 2kg, 100gms respectively then the punishment will be of rigorous imprisonment from 10 years(min) to 20 years(max) and a fine from Rs 1 lakh to 2 lakh. And the last one 3) if the quantity greater than small but lesser than commercial( intermediate) then the punishment will be rigorous imprisonment that may extend to 10 years and fine that may extend to Rs 1 lakh.

ANALYSIS

We all know that this type of activity was it’s totally a criminal activity. The narcotics were very harmful to health, it’ll also be considered effective for the longer term generations coming still. Narcotic drugs include Cannabis: plant, resin or charts, and its concentrated variant called hashish, dried flowering or fruiting tops of the plant, that is, ganja and any mixture of charas or ganja. Importantly, bhang or the cannabis leaf is excluded (in accordance with the 1961 Convention) and controlled through state excise laws, Coca: plant: leaf derivatives include cocaine and any preparation containing 0.1% of cocaine, Opium: poppy plant, poppy straw, concentrated poppy straw, juice of Papaver somniferum, a mixture of Papaver somniferum juice, preparations with 0.2% morphine, derivatives include heroin, morphine, codeine, thebaine, etc. Narcotic drugs also constitute the overlapping category of “manufactured drugs”. Psychotropic drugs aren’t defined but include all drugs notified by the govt in and of itself. Amphetamines, methamphetamines, LSD, MDMA, and buprenorphine amongst others are on this list, which the govt. may expand or constrict on the idea of evidence of actual or potential ‘abuse’ or changes in scheduling under international conventions. So having or possessing these sorts of drugs are very harmful and nowadays punishable also. There many laws and Acts which are taking care of this. Consumption of medicine is prohibited and leads to a jail term of up to 6 months or one year and/or a fine, counting on the substance consumed. The consumption of heroin and cocaine will cause a lengthier sentence of imprisonment while cannabis will cause a less severe sentence. The category of “possession of small quantity intended for private consumption” was done away within 2001 and presently, possession of small amounts attracts uniform punishment, no matter intent. Drug decriminalization could be a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration. Decades of evidence has clearly demonstrated that decriminalization could be a sensible path forward that will reap vast human and financial benefits while protecting families and communities. That’s why they got treatment facilities also by Government hospitals, Private ‘de-addiction’ centers, Private ‘de-addiction’ centers, NGOs, and other countries – World Health Organization, American Public Health Association, Organization of yank States, Human Rights Watch, NAACP, National Latino Congreso, International Federation of nongovernmental organization and Red Crescent Societies, Global Commission on Drug Policy.

CASE LAW

Indian Harm Reduction Network v Union of India [1]

In this case, we hold that Section 31-A of the NDPS Act is violative of Article 21 of the Constitution of India, as it provides for the mandatory death penalty. We, however, reject the challenge to the said provision on the stated grounds, being violative of Article 14 of the Constitution of India. Further, instead of declaring Section 31-A as unconstitutional, and void ab initio, we accede to the alternative argument of the respondents that the said provision be construed as a directory by reading down the expression “shall be punishable with death” as “maybe punishable with death” in relation to the offenses covered under Section 31-A of the Act. Thus, the Court will have the discretion to impose punishment specified in Section 31 of the Act for offenses covered by Section 31-A of the Act. But, in appropriate cases, the Court can award 87 178410 death penalty for the offenses covered by Section 31-A, upon recording 1reasons therefor.

CONCLUSION

These are a number of the most countries like Argentina, Australia, Brazil, Canada, Costa Rica, the Czech Republic, Germany, Ireland, Israel, Mexico, Netherlands, New Zealand, Norway, Portugal[3], an African nation, and Uruguay who doing work with relation to legalization, decriminalization, or other styles of regulation of narcotics and other psychoactive substances. Individual country surveys included during this study demonstrate varied approaches to the matter of prosecuting drug use, possession, manufacturing, purchase, and sale. The country surveys demonstrate some diversity and customary threads among these jurisdictions on defining narcotics, distinguishing between “hard” and “soft” drugs, establishing special regulations concerning cannabis, refusing to prosecute personal use and/or possession of small quantities of medicine for private use, giving enforcement authorities the discretion to not prosecute minors and first-time offenders, applying alternative varieties of punishment, and providing treatment opportunities.
The subsequent approaches toward decriminalization of narcotics were identified:

• Production, marketing, and consumption of marijuana is legalized and controlled(Uruguay); • Drugs are prohibited but the sale and use of soppydrugs is tolerated and controlled (Netherlands);

• The non-publicpossession and use of small amounts of medication isn’t penalized while other drug-related activities are prohibited (Costa Rica, European nation, Mexico, Portugal); and

• Treatment and alternative punishments for minor drug offenses are allowed (Argentina, Australia, Brazil, Germany, Israel, New Zealand, Norway). While most of the countries reviewed don’tprosecute individual drug users or have an option for avoiding their action at law, in general, possessing, manufacturing and trading in drugs is prohibited.

The European country made the possession of medication legal after the collapse of the Communist regime but reinstated the penalties for possession in “larger than small” amounts shortly thereafter. Most of the countries differentiate between soft and hard drugs, listing cannabis as a soft narcotic, and two countries, European country, and Uruguay provide for special cannabis-related rules [4]. While within the Netherlands marijuana continues to be classified as a bootleg substance, these two countries tolerate and regulate the utilization of cannabis. Other jurisdictions provide for fewer strict or suspended punishment or substitute traditional punishment with voluntary addiction treatment, community work, or other sorts of alternative punishment if someone is caught using or dealing soft drugs. Additionally, New Zealand regulates the assembly and sale of so-called “new psychoactive substances,” like party pills and artificial cannabis. Previously unregulated and sold without restrictions, these drugs recently became subject to government control, including the Decriminalization of Narcotics: Comparative Summary the regulation of their sale. In Germany, although drugs are divided into different schedules, for enforcement purposes all narcotics are treated equally, and therefore the distinction between soft and hard drugs can only be considered at sentencing, taking under consideration associated risks and damages. altogether of the countries reviewed such drug-related offenses as distributing drugs, possessing them in large amounts, cultivating plants containing a narcotic substance, producing drugs and possessing items for his or her production, etc., are recognized as crimes. Meanwhile, the possession of medication for private use in small amounts is not any longer a criminal offense in some jurisdictions, but rather a misdemeanor subject to a monetary fine or other nonpecuniary punishment. These jurisdictions include Brazil, the European nation, Norway, Portugal, and therefore the Australian capital Territory. In Argentina, the possession of narcotics remains illegal but the Supreme Court has ruled that “private actions of people are exempt from the authority of judges as long as they are doing not offend or injure others,” declaring penalties against an adult who consumed marijuana unconstitutional. Costa Rica, Germany, Israel, New Zealand, and also the province of recent South Wales are among those jurisdictions where the police, prosecutors, or courts have the discretion to drop charges if a minor offense involving prohibited drugs has been committed for the primary time and also the accused person is willing to undergo addiction treatment. The possession and use of narcotics could be a crime under the laws of most of the countries included during this report. However, in some countries medical treatment is prescribed for those found in violation of drug laws or may be chosen by the accused person as another to traditional punishment. Mexican law requires that individuals found in possession of limited quantities of narcotics be said addiction treatment programs. In Norway, a minor drug offender can value more highly to enroll in an exceeding drug treatment program rather than visiting the prison, but a violation of the treatment program conditions will place the offender in jail. In Argentina, a judge may replace imprisonment by detoxification and rehabilitation treatment. Special treatment for youngsters is prescribed by the laws of the latest Zealand. It appears that where decriminalization of drug-related activities has occurred, it absolutely was finished with the aim of securing the health and safety of the individual and also the public. Even in those countries where the employment of some drugs is allowed (Uruguay), advertising or promoting drugs, or consuming them in a very public place, is prohibited. Dutch legislation emphasizes that coffee shops are prohibited from advertising drugs and causing a nuisance. The reduction of harm from drug use is that the declared purpose for the creation of various medical and work facilities (e.g., needle exchanges, drug consumption rooms). However, even the authorization of such services by law (Germany, Netherlands, Portugal) has not resulted in the legalization of narcotics. Information on pending proposals for the legalization of cannabis in Canada and South Africa, and decriminalization of the possession of small amounts of heroin, cocaine, and cannabis for private use in Ireland.

REFERENCES

[1] 2012BomCR (Cri) 121

[2] Eric L. Sevigny, Harold A. Pollack, and Peter Reuter, “Can Drug Courts Help to Reduce Prison and Jail Populations?” The Annals of the American Academy of Political and Social Science 647, no. 1 (2013); Drug Policy Alliance, Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use (Drug Policy Alliance, 2011).

[3] See Caitlin Elizabeth Hughes and Alex Stevens, “What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?” British Journal of Criminology 50, no. 6 (2010): 999.

[4] See Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?;

[5] Robert J. MacCoun and Peter Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places (Cambridge University Press, 2001);

[6] Robin Room et al., Cannabis Policy: Moving Beyond Stalemate (Oxford University Press, USA, 2010);

[7] Eric W Single, “The Impact of Marijuana Decriminalization: An Update,” Journal of public health policy (1989);

[8] Mike Vuolo, “National-Level Drug Policy and Young People’s Illicit Drug Use: A Multilevel Analysis of the European Union,” Drug and Alcohol Dependence 131, no. 1-2 (2013);

[9] Organization of American States, “The Drug Problem in the Americas: Analytical Report,” (2013).