Let- Narco Analysis Efficacy And Legal Validity In India.docx.doc

INTRODUCTION The term Narco-Analysis is derived from the Greek word narkç (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie. In such sleep-like state efforts are made to obtain "probative truth" about the crime. Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. Part III, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states the following, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free

consent

to

medical

or

scientific

experimentation”.

The use of the truth serum test in considered as a torture in the international regime. The UN definition of torture clearly implies that the tests performed for obtaining information from suspects, amounts to severe mental suffering or coercion, hence, leading to torture. It has been evidently stated by the UN Committee against Torture that an authorized mode of application of ‘moderate physical pressure’ breaches the convention against torture. Amnesty International declares the administration of Sodium Pentathol or any other truth serum for procuring information as amounting to torture on the grounds that it is cruel, inhuman and a degraded treatment. Hence, this process should be prohibited. Such a process also outlaws the international standards of interrogation.

THE OVERVIEW OF DRUG LAWS IN INDIA The genesis of drug control laws in India can be traced back to the Opium Act of 1857. This was followed by the Opium Act of 1878 and the Dangerous Drugs Act of 1930. These laws were designed to regulate and monitor the use of some specific drugs in limited contexts; they were not based on any well-defined principles and did not contain any overarching provisions to grapple with the problem of drug abuse in a holistic manner. Moreover, they provided for meagre punishments for their contravention which were to the tune of three years imprisonment for the first-time offenders and 4 years imprisonment for repeat offenders. In the post-World War 2 period, countries began working collectively on enacting human rights instruments that were designed to allow individuals to live with dignity and respect. The clearest manifestation of this general principle in the context of health can be found in Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights which seek to promote the highest attainable standards of physical and mental health. Against this backdrop, several international instruments such as the Single Convention on Narcotic Drugs, 1961 and, more importantly, the Convention on Psychotropic Substances, 1971 unequivocally recognized the need to put in place regulatory regimes and systems to grapple with the problem of drug abuse. In order to bring India’s narcotics control law at par with international standards and to effectuate the goals of these treaties, THE NATIONAL DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 was enacted by the Government of India. The Act is widely regarded as a prohibitionist law which seeks to grapple with 2 kinds of offences: (i)

trafficking of prohibited substances i.e. cultivation, manufacture, distribution and sale, and

(ii)

their consumption.

OBJECTIVES OF NDPS ACT, 1985 The Act of 1985 was enacted with the following objectives:   

To consolidate and amend the existing law relating to Narcotic Drug. To make stringent provision for control and regulation of operations relating to Narcotic Drugs and psychotropic substances. To considerably enhance penalties particularly for trafficking offences.



To make provisions for implementations of International Convention relating to Narcotic Drugs and Psychotropic substances to which India is party.

THE OVERVIEW OF NARCOTICS AND PSYCHOTROPHIC SUBSTANCES ACT, 1985

The NDPS Act contains 5 Chapters, with each chapter dealing with a certain subject with respect to the statute. The first chapter serves as a Preliminary chapter, introducing and defining the various narcotic drugs and psychotropic substances, and finally highlighting that the Central government has the power to omit or add other substances to the list under the NDPS Act. The second chapter highlights the relevant Authorities and Officers that have been created under the NDPS Act. It also sets the guidelines for the Central government to appoint a Narcotics Commissioner, to set up a Narcotic Drugs and Psychotropic Substances Consultative Committee and to fund a National Fund for Control of Drug Abuse. The third chapter lays out the Prohibition, Control and Regulation of the previously mentioned substances. It prevents the cultivation or production of the coca plant, opium poppy or any cannabis plant by anybody, while reserving these rights with both the Central and State governments if they wish to do so, by creating rules later. Furthermore, all Inter-State and International smuggling of such substances have been prohibited. Finally, this chapter looks at the regulation on other controlled substance that can be used to create narcotic drugs and also has clauses which illustrate cases under which opium poppy, coca plant, and cannabis plant can be legally cultivated. Chapter four deals with the Offences and Penalties under the NDPS Act. It describes with punishment duration the various possible crimes that can be tried under this Act, such as possession of such substances, for commercial or recreational use, cultivation or preparation of such substances and smuggling of such substances. The fifth chapter looks at the Procedure of how the cases are to be dealt with, and also set the guidelines for the officers empowered under this Act. There are three classes of substances covered under the NDPS Act. These include:-

1. Narcotic drugs covered under the 1961 Convention. 2. Psychotropic substances, and those substances which are covered under the 1971 Convention. 3. Controlled substances that are used to manufacture drugs or psychotropic substances. Narcotic drugs include-



Coca Plant- Leaf or other derivatives including cocaine. It also includes any preparation which contains 0.1% cocaine.



Opium- This category includes poppy straw, poppy plant, opium poppy juice, and any preparation having 0.2% morphine. Derivatives of opium include morphine, heroin, thebaine, etc.



Cannabis- Resin (Charas and Hashish), plant, fruit tops and flowering of the plant (Ganja), or any mixture of Ganja, Charas and Hashish are all included in this category. It is important to note that cannabis leaves i.e. bhang is excluded from this category and is regulated by the state laws.

ESTABLISHMENT OF SPECIALISED COURTS UNDER THE ACT When the NDPS Act was in its infancy, cases pertaining to the offences delineated in the Act were dealt with by conventional Sessions Courts. However, this further led to the problem of judicial overburden which has plagued Indian courts for decades. In order to remedy this problem, the Government of India vide an amendment to the NDPS Act in 1989 paved the way for the establishment of specialized courts to deal with offences set out in the Act. Section 36 of the Act empowers the government to set up as many Special Courts as it deems fit for the expeditious resolution of disputes. The Special Court consists of a single judge who is appointed with the concurrence of the Chief Justice of the concerned High Court and who must be a sitting Sessions Judge or Additional Sessions Judge at the time of his appointment. A Special Court has the same powers as the Magistrate when cases are forwarded to it. The Special Court is empowered to take cognizance of any offence under the Act on the basis of a report submitted to it by the relevant police authority or any complaint made by officers in the central or state government who are authorized to make such complaints. Even though Special Courts have played a pivotal role in the effective implementation of the NDPS Act, they have not been able to develop efficacious strategies for grappling with the systemic challenges that are faced by courts across the country. THE KEY OFFENCES AND THEIR PINISHMENT UNDER THE ACT The quantum of punishment under the NDPS Act is based on the quantity of drugs found which may be classified into 3 categories: small, less than commercial and commercial. As a result, the punishment may be as low as rigorous imprisonment for one year if the drugs found are in small quantity and as high as 20 years imprisonment for a large quantity of drugs. The amount of small and commercial quantity is specified by the Central Government. The quantity for some common

drugs

is

A. Amphetamine: small B.

Cocaine:

C.

Codeine:

D.

Ganja:

E.

Heroin:

F.

Morphine:

small small small

quantity –

quantity

small

–

2

grams,

commercial

–

10

grams,

quantity

–

1

kg,

–

quantity

5 –

follows: quantity – 50 grams.

2 grams, commercial

quantity quantity

small

as

grams, 5

grams,

–

quantity

commercial

commercial

–

quantity –

quantity

commercial

100

grams. 1

kg.

20

kg.

quantity

–

250

grams.

quantity

–

250

grams.

commercial

G. Poppy straw: small quantity – 1 kg, commercial quantity – 50 kg. Sec. 8 of the Act explicitly prohibits the cultivation of opium, poppy, coca or cannabis plants as well as the production, manufacture, distribution including warehousing, transport, purchasing and selling of prohibited drugs and psychotropic substances. It also prohibits their financing as well as consumption and harboring offenders guilty under the Act. As per Sec. 19, any farmer who cultivates opium in accordance with a license but embezzles it shall be punished with rigorous imprisonment for a term ranging between 10 and 20 years and shall also be liable to pay a fine ranging between Rs. 1 and 2 lakh rupees. The production, manufacture, possession, sale, purchase, transport, import and export among states or use of narcotic drugs and psychotropic substances such as poppy straw, prepared opium, opium poppy, cannabis,

etc

shall

result

in:

a. In case of small quantity, rigorous imprisonment up to one year with/ without fine up to Rs. 10,000; b. In case the quantity is between small and commercial, rigorous imprisonment up to 10 years and

fine

up

to

Rs.

1

lakh;

and

c. In cases involving commercial quantity, rigorous imprisonment between 10-20 years and fine ranging

between

Rs.

1

and

2

lakh

rupees.

However, if the contravention pertains to ganja, the punishment would be significantly less i.e. rigorous imprisonment for a term which may extend up to 5 years and fine up to Rs. 50,000. In all the aforementioned cases, the court can increase the fine by recording the reasons for the same in the judgment. As per Sec. 23, any person who engages in illegal import/ export/ trans-shipment of narcotic drugs/psychotropic substances shall have to face punishment ranging between rigorous imprisonment for 1 to 20 years and fine ranging between Rs. 10,000 and Rs. 2 lakhs based on the quantity of the prohibited substance. Sec. 24 clearly states that any person who engages in external dealings in contravention of the Act shall be punished with rigorous imprisonment

ranging between 10-20 years and fine ranging between 1-2 lakh rupees. Any person who knowingly allows his premises to be used for the commission of any offence under the Act shall be punished with rigorous imprisonment ranging between 10-20 years and fine ranging between 1 and 2 lakh rupees. Any person financing illicit traffic or harbouring an offender shall also face the same punishment. In case a person consumes a narcotic drug or psychotropic substance; the punishment would vary depending on the substance consumed. If the substance consumed is cocaine, morphine or diacetyl-morphine, then the punishment would be rigorous imprisonment up to 1 year with or without fine up to Rs. 20,000. If the accused consumes any other substance, he would have to face rigorous imprisonment up to six months with or without fine up to Rs. 10,000. The court is empowered to send any person who is imprisoned for consumption of drugs to an appropriate medical centre for seeking necessary treatment. Agencies seizing the drugs are required to destroy them suitably in the prescribed manner. In addition, if the accused is found to have any illegal property, it shall be forfeited to the central government. The proceeds from the sale of such illegally acquired properties shall be pooled into the National Fund for Control of Drug Abuse in order to facilitate the treatment of drug addicts and to promote initiatives for drug control. PUNISHMENT FOR REPEATED OFFENCES The Act imposes a far stricter punishment on repeat offenders. Broadly speaking, the punishment for repeat offences can be up to one and half times the quantum of punishment for the first offence. As a result, the punishment would vary from 1.5 years of rigorous imprisonment to 30 years of rigorous imprisonment depending on the gravity of the offence. Similarly, the quantum of fine for a subsequent conviction would also be up to one and half times the fine for the first offence. One provision pertaining to punishments for second convictions which has been debated pertained to the death penalty embodied in Sec. 31A of the Act. The 2014 amendment made it abundantly clear that the death penalty can be imposed as a substitute for the other punishments that have been set out in the Act for a repeat offender; its application isn’t mandatory. PROCEDURAL SAFEGUARDS UNDER THE ACT Since the NDPS Act gives extensive powers to law enforcement agencies to clamp down on malpractices connected with drug abuse, it also seeks to put in place adequate safeguards to prevent innocent civilians from being unnecessarily harassed. Any person making an arrest or

seizure under the Act is, therefore, required to make an extensive report containing all relevant details which must be sent to his immediate superior. Similarly, Sec. 100 of the CRPC states that any police officer who wishes to search any person who is believed to be concealing something suspicious must do so only in the presence of at least 2 respectable inhabitants of that locality known as panchas. Thereafter, a statement containing the details of the search and seizure, with the signature of the panchas, must be given to the accused of his perusal. Sec. 55 of the NDPS Act imposes an obligation on the police officer seizing the prohibited substances to keep them in safe custody. They must contain the seal of the officer seizing them as well as the officer-incharge of the police station. Sec. 50 of the Act gives the accused the right to be searched in the presence of the magistrate or a gazetted officer. This right has been upheld by the Supreme Court in the case of State of Punjab V. Balbir Singh 1994 AIR 1872 where it was held that the police officer must, of necessity, inform the accused about this right. Finally, Sec. 58 imposes strict punishments on people making vexatious or frivolous complaints.

VALIDITY The law on the status of scientific tests for evidentiary purposes still is not absolutely clear. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in

Bangalore.

In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.1 Fortunately, it was expressly treated as evidence only with respect to the bail application to indicate something of the nature of a prima facie case, and not for proving the statements of the accused against him to convict him. In a 2006 judgment Dinesh Dalmia v State, the Madras High2 Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." There are two fallacies in this reasoning.

1

U.P. Court Admits Narco Report As Evidence, 5-10-2008 http://www.nerve.in/news:253500170205.

2

Dinesh Dalmia v. State, Crl. R. C. No. 259 of 2006 and Crl. M. P. Nos. 1518 and 1519 of 2006

First, if narco analysis is all that it is made out to be by the Bangalore FSL, the accused will involuntarily answer questions posed to him during the interview. The second fallacy is that it is incorrect to say that the accused is merely taken to the lab against his will. He is then injected with substances. The breaking of one's silence, at the time it is broken, is always technically `voluntary.' Similarly, it can be argued that after being subject to electric shocks, a subject `quite voluntarily' divulges information. But the act or threat of violence is where the element of coercion is housed. In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra3, upheld the legality of the use of P300 or Brain fingerprinting, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between “statement” (made before a police officer) and “testimony” (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these

tests

involve

“minimal

bodily

harm”.

The Supreme Court has ruled that the confession has to be voluntary; a confession made under a threat, inducement or compulsion is inadmissible. Article 20(3) would not apply if confession is made otherwise than under threat, promise or inducement. A retracted confession has little probative value but is not inadmissible under article 20(3).4 In India Article 20(3) and Section 161(2) of the Code of Criminal Procedure protect the accused from self-incrimination. Article 20(3) and Section 161(2) of the Code of Criminal Procedure states, No person accused of any offence shall be compelled to be a witness against himself and such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to 3

Ramchandra Ram Reddy v. State of Maharashtra, Crl. WP No. 1924 of 2003)

4

Kalawati v. State Of Himachal Pradesh ,AIR 1953 SC 131:1953 SCR 564.

expose him to a criminal charge or to a penalty or forfeiture respectively. In Nandini Sathpathy v. P.L. Dani5, it was held that no one could forcibly extract statements from the accused that have the right to keep silent during the course of interrogation or investigation. However Article 20(3) can be waived of by a person himself. 6 Section 45 of the Evidence Act, 1872 does allow experts opinions in certain cases. However, this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings. Section 161(2) of the Criminal Procedure Code also provides that every person is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture. Hence, Article 20(3) of the Constitution and also Section 161(2) of the Code of Criminal Procedure enshrine the right to silence.7 In State of Punjab v. Mahinder Singh Chawla the Apex Court has held that the right to life includes right to health. Subjecting a person to an unsafe scientific test as part of investigation will

amount

to

denial

of

right

to

health

8

Narco analysis is not a safe method of interrogation since the use of such drugs could lead the subject

to

various

health

Bhagwati, J., has observed that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself etc....”9 Arguments for giving evidentiary value to narco-analysis In United States v. Solomon10 there was a detailed discussion on the topic of narco-analysis. In this case the expert opinion given to the Court established that truth serum is generally accepted as an investigative technique. It need not be said that prevention of crime and punishment for the crime are the duties of the State. Fetters on these duties can be put only in extreme cases where the protection of

5

(1978) 2 SCC 424 : 1978 SCC (Cri) 236.

6

Polavarapu Satyanarayana v. Polavarapu Soundaryavalli, (1987) 1 Andh LT 762

7

Ankita Patnaik, Article 20(3) of the Constitution of India and Narco-analysis ”Blending the Much Awaited,

The Hindu, Online Edition of India’s National Newspaper, 2-5-2007. 8

State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225.

9

Francis Coralie v Delhi AIR 1981 SC 746

10

753 F 2d 1522 (9th Cir 1985).

fundamental rights weigh more than the fundamental duty cast on the State moreover every person is required to furnish information regarding offences.11 NDPS Amendments 1. 1989 The NDPS Act went through its first change in the year 1989. Very harsh punishments were introduced, like the mandatory minimum imprisonment of 10 years, a bar on suspension, restriction on bail, trial by special court, forfeiture of property, and mandatory death penalty in some cases of repeated offense. After these amendments, people caught even with small amount of drugs had to go through long imprisonments and very hefty fines, until and unless the person could prove that it was for his own personal use.

2. 2001 Due to the criticism faced by the 1989 amendment because of its irregular sentencing policies, the 2001 amendment was passed. According to the 2001 amendment, the penal provisions were upgraded, and penalties were imposed based on the quantity of the drugs. Three categories regarding the quantity were made- small,[12] commercial,[13] and intermediate. The threshold was provided through a Central Government notification in October 2001.[14]

3. 2014 The NDPS Act was again amended in the year 2014, and from May 2014, the amendments came into force. The main features of the latest amendments are

A new category of essential narcotic drugs[15] was created which the Central Government can regulate uniformly throughout the nation.



The objective of the law was widened with the promotion of narcotic drugs and psychotropic substance for scientific and medical use but also prohibiting illicit use.



Including the terms “management” of drug dependence and “recognition and approval” of treatment centers, thus allowing for the establishment of legally binding treatment standards and evidence-based medical interventions.

11

Section 39 of the Code of Criminal Procedure, Selvi; Sharda v. Dharmpal, (2003) 4 SCC 493; State of Gujarat

v. Anirudhsing, (1997) 6 SCC 514 : 1997 SCC (Cri) 946.



The death penalty was made discretionary for repeated offense.

Significant Aspects of the NDPS Act and the Efficacy of NDPS Act in India 1. Quantity Based Sentencing- under the NDPS Act, sentencing of punishment is based on the substance and its quantity found. The government has also cleared the fact that when the quantity of the seized product is to be calculated, the weight of the product will be given prime consideration instead of the pure drug content of the product.[16] 2. Death Penalty- the harshness of the NDPS Act is very evident from the fact that death penalty has also been included as a form of punishment under the Act. Courts can award death sentence in the case of certain repeated offense (such as manufacture, production, import, export, possession, and transportation) involving large quantities of drugs.[17] The death penalty was made mandatory through the 1989 amendment, but the rage of offenses in which death penalty could be awarded was narrowed down in 2001. Through the 2014 amendment, the death penalty was made discretionary and an alternative punishment of 30 years of imprisonment was introduced. 3. Treatment for Drug Dependence- the NDPS Act supports treatment for people who use drugs both as an ‘alternative’ to, and independent of criminal measures. Several provisions stipulated under the Act depenalise consumption and offenses involving small quantities of drugs and encourage treatment seeking. The treatment aspects under the NDPS Act has come distinct features

Sec 4(2) (d) and 7A states that treatment of drug addict is one of the measures for which the Central Government should create funds.



Sec 64A states that drug dependent people who are charged with an offense involving small quantities of drugs or consumption can go for treatment and will be exempted from prosecution.



Sec 39 says that instead of awarding sentences, the courts can divert drug dependent people convicted for consumption or an offense involving a small quantity of drugs, to a recognized medical facility for detoxification.



Sec 71, 76 (2) (f), and 78 (2) (b) contains provisions that the Central or the State government can set up and regulate centres for identification, care, and treatment of drug dependent people.

Major

shortcomings

of

the

law

The Act, vide Sec. 35, presupposes the guilt of the accused and puts the onus on the accused to

prove that he/she is innocent. It further states that, unless the contrary is proved, it will be believed that the accused intentionally held the illicit drugs that were found in his possession. This is in sharp contrast with the notion that an accused is innocent until proven guilty which is the pillar upon which the edifice of most statutes in India rests. It is widely believed that the Act does not make adequate distinctions between a casual drug user, a hard addict, a petty peddler and a seasoned drug trafficker. Furthermore, it also does not make any meaningful distinctions between hard and soft drugs which is the reason why many drug users resort to hard drugs because, in most cases, the punishment that their use encompasses does not significantly differ from the punishment that is handed down to those who use soft drugs. Reports indicate that many criminal gangs have exploited these shortcomings in the law to the fullest extent possible and have formed a close nexus with law enforcement agencies. It would, therefore, not be incorrect to say that the law has created more problems than it has solved.

SUGGESTIONS (1) Despite wide ranging changes made twice in NDPS Act, it is still vague and deficient in certain aspects. These defects in law have been compounded with each amendment. Emphasize should also be given to draft the law in easy language not only to make it popular among the masses but also with a view to eliminate the scope of different interpretations of law by the public, investigating agencies and judiciary. Under Section 36 A (1) (b), the Judicial Magistrates have been empowered to detain and remand an arrestee to custody for a period not exceeding fifteen days in total. Unlike, Section 167 (2) of Cr.P.C., the NDPS Act has not specified the outer period of detention except for selected offences of commercial quantity. There is virtually horizontal split in the higher judiciary in this regard. Many High Courts have held that a Magistrate becomes functus officio after 15 days and for further remands, the accused persons are to be produced before Special Judge. However, the Punjab & Haryana High Court in case of Janta Singh versus State of Punjab has held that till Special Courts are constituted, the Judicial Magistrates can remand the accused persons beyond the period of 15 days. Therefore, specific and clear amendment or modification in Section 36 A is required.

(2) The NDPS Act is conspicuously silent regarding extension of the benefit of anticipatory bail to the accused persons. The Special Courts can invoke Section 36-C of the NDPS Act wherein such Courts have been permitted to work under the umbrella of Cr.P.C. In the absence of any specific embargo in the Act, like certain restrictions and pre-conditions imposed under Section 37 for granting regular bail, it

can only be inferred that the Special Courts, which are deemed to be Court of Sessions, can entertain applications for pre-arrest bail and dispose of the same under Section 438 Cr.P.C. To wipe out this anomaly, the Courts have taken two decades when Hon’ble Gauhati High Court in Baljeet Singh versus State of Assam held that it would be wholly incompatible with the idea that it has been denuded of its powers under section 438 Cr.P.C. Their Lordships further held that in conformity with the Legislative intent expressed in Section 36B (Power relating to appeals and revisions) to construe that in scheme of the Act as envisaged under Chapter IV thereof, the power of High Court to grant pre-arrest bail under Section 438 Cr.P.C. was preserved. It is high time that this deficiency in the law should be cured legislatively for effective implementation of the provisions of Drug Laws in India.

(3) The involvement of professional groups like psychologist, councilors, educators etc. must be increased who are directly or indirectly concerned with alcoholism and drug abuse. Drug medicating and meditative camps provide a pragmatic, costs effective and innovative strategy for the treatment of drug addicts.

(4) A general awareness programme is to be launched to educate the people about the provisions of law and adverse effects of the drugs.

(5) The employment opportunities to the youth should be created so that they could get themselves involved, channelized their energy in proper directions. There is need to establish anti-drug police force in each and every state on Chinese model to enhance effective implementation of drug laws in India.

(6) ) It has been observed that only poor people who are using the drug for personal consumption or poor persons engaged as carriers by the Mafia of drug are being prosecuted by the law enforcing agencies. Efforts must be made by the state as well as Central Law enforcing agencies to trace out the origin of the source and real beneficiary of drug abuse money and to prosecute the real offenders of the crime in the effective manner.

(7) There is urgent need to prevent and control the supply of drugs to affluent nations as the bulk of demand for drugs comes from these nations. The efforts should be made on globalized pattern involving the developed nations as the drug peddling is based on consumer-demand-supply theme. If there will be no demand, the drug supply will not be lucrative business and ultimately, the drug addiction problem can be coped up with effectively.

(8) A comprehensive training programme is also required for public prosecutors, investigators and the Judges of the Special Courts in respect of various guidelines

issued by the Hon‟ble Supreme Court and various High Courts in order to enhance their skill capabilities and this programme should be conducted at regular intervals.

(9) Besides above, special courts have been set up for speedy trial of offences under NPDS Act in view of Section-36A of the Act. Still there is delay in disposal of these cases and hence, slow motion Criminal trial should be expedited. The Government should made 21 effective steps for establishment of more special courts under the Act and to appoint the judges for these courts as required for early disposal of cases under NDPS Act. In addition to special courts, there is need to have a drug counseling and rehabilitation centre at district level for rehabilitating drug addicts and running the awareness programmes. If these suggestions are implemented, then we can expect that the menace of drug abuse can be controlled to a great extent.

ConclusionLaw is a living process, which changes according to the changes in society, science, ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable & doubtful” science, we have to seriously rethink about its legal and constitutional validity from human rights perspective.