The argument for and against the partial legalisation of narcotics

While most states are reluctant to take illicit drug trade head on, some like Sikkim are flirting with partial legitimacy, others like Punjab are coming down hard

A massive haul of drugs from a government official’s family in Lucknow considerably surprised the Narcotics Control Bureau officials last week. The consignments had been coming from overseas, not through the drug peddlers jumping hoops over airport security, but as regular packages ordered through courier services by someone without any previous criminal records. The payment method was even more surprising--bitcoins. 

“The entire method is so simple yet elaborate, it touched none of our checkpoints,” said a serving police officer who deals with narcotics-related cases. 

The level of risk is rising in India’s non-border states. The United States Treasury run Financial Crimes Enforcement Network (FinCEN), much in the news now, has recently begun to crack down on Chinese opioids being smuggled into the US. Some of those lines are also understood to be seeping into India. 

It is this level of sophistication that should worry the Central or state government agencies. There are several of those, all short of cash. Leading them is the Narcotics Control Bureau (NCB), under the Ministry of Home Affairs. It is engaged in chasing the trade and production of illicit cannabis and poppy and any other types of drugs--a job that should be ideally be handled by local police. There is also the Central Bureau of Narcotics to monitor licit production of poppy and of precursor chemicals used to process them. There is the Department of Revenue Intelligence (DRI) which monitors the trade across borders. And finally there is the state police, which does 85 per cent of the seizures but, as each state government acknowledges, could be far more. It is not that the states are starved of their own funds, but narcotics seizure is low priority. Since most Central agencies also do a similar job but with much fewer staff and much smaller purses, NCB or DRI have little energy to study, like FinCEN, the new emerging channels of narcotics trade within and outside the country, and how they intersect with money laundering.

For instance, while the Uttar Pradesh police budget for FY21 is Rs 27,287 crore there is almost no allocation for tracking narcotics. The Centre’s scheme to finance narcotics control among all states for three years is all of Rs 21 crore. In the budget estimate for FY21, the sum allocated is a “princely” Rs five crore to be spent among the 36 states and union territories of India. 

Each state is supposed to set up an Anti-Narcotics Task Force to be headed by an Inspector General (joint secretary) level officer, and which shall have a five-year plan to combat narcotics issues. Most states are nowhere near setting these up. It is only domains like Punjab, one of the most-affected states that has set up as Task Force.  Maharashtra too has an anti-narcotics force, set up in 2005. Between then and 2016, however, the force met only twice. It has possibly got a bit more active since. The Centre first came up with the plan for such state level forces in 2004. The NCB status report on the measures notes the Task Forces are still being set up.

The reasons states are anaemic about their involvement is, therefore, the puny size of the central corpus and the difficult requirements to get the money. The rules say the states have to prove they lack the infrastructure to catch the criminals. They must also furnish a three-year action plan that provides the template for an assessment of the gravity of the problem by a central government committee--too much work for a problem that does seem quite low down in order of importance. Yet, the data from the social justice ministry shows the risks are not that low. 

There are implications. In states like Madhya Pradesh and Uttar Pradesh, where the state governments runs two drug processing factories at Neemuch and Ghazipur, respectively, the extent of licit production has come down. Rashmi Verma, former IAS officer, who had a long stint as additional secretary in the department of revenue in the finance ministry (the finance ministry runs the scheme for the licit cultivation of poppy) says, “There is always the risk of understating of production by the farmers who hold the patta for cultivation.”

The government insists that a threshold level of production or Minimum Qualifying Yield should be produced by the cultivators to get the patta next year. But as the price difference between the receipts from the legal sale and those from the illegal sale was always high, the farmers would try to duck, she said. Despite the shortfall, they would lobby hard the next year to get the contract again. In 2020 the farmers have claimed since there have been disruptions due to Covid-19, the standards should be dropped. The local police are rarely keen to discipline the farmers. In any case, from 2015-16 the finance ministry has not reissued this requirement, so the rules for Minimum Qualifying Yield have practically lapsed. 

One of the alternatives some states have considered is legalising some of the drug usage. As a report by Neha Singhal and Naved Ahmed for Vidhi Centre for Legal Policy points out, Sikkim with one of the highest incidence of drug abuse has flirted with legalising prescription drug abuse. It enacted the Sikkim Anti-Drugs Act, 2006 (SADA) that did not jail offenders but imposed a fine of Rs 10,000. “However, in 2011 SADA was amended to provide for stricter punishments and the fine for illicit drug use was increased from Rs 10,000 to Rs 50,000”. In response to objections by civil society, the state has again softened SADA to differentiate between drug paddlers and users, and emphasised rehabilitation. Singhal and Ahmed conclude that the softer approach has paid off with a sharp drop in the number of undertrials for such drug offences after the 2018 amendment. It makes sense too. “Narcotics seizures are not top priority unless those are accompanied by other crimes”, notes Verma. So the states are usually reluctant to spare police forces to patrol such hauls.  

Yet the Sikkim example is unlikely to become the norm soon. States like Punjab and now even the Supreme Court have moved to the other extreme. The Court has held that mere evidence of possession of drugs shall invite punishment under the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985 irrespective of the quantity. Such strictness could be counterproductive as new area come under the spell of these crops. In the Western Ghats districts of Karnataka, farmers have begun diversifying big time to plant cannabis. A media report describes it as a “win-win” deal. The farmers cover their losses while the expanding market for the drugs encourages new crime syndicates to offer protection to them.

The NCB acknowledges the impact of this light policing. “According to the latest assessments, there are approximately 4 million drug addicts in India. The actual figure may be still higher.” It is quite possible. The ministry of social justice and empowerment puts the number of drug addicts (problem users) at more than thrice the number at 15 million. The NCB data is from FY18, the social justice ministry data from FY19, so they are quite comparable. 

Between the Centre and the states the efforts therefore has been lackadaisical. For instance the report by the social justice ministry comes fifteen years after the last report to track drug usage in India. That report in 2004 inexplicably didn’t cover the female population of India and so its numbers are not comparable with the latest one.
 

The risks of light policing are, however, severe. In August this year, FinCEN announced coordinated actions to bring additional financial pressure upon those who manufacture, sell, or distribute synthetic opioids or their precursor chemicals. The US Attorney’s office has tracked conspiracies to manufacture and ship drugs like “fentanyl analogues, cathinones, and cannabinoids to at least 37 US states and 25 countries”. In the court proceedings the Attorney’ office has argued about the presence of supply chain companies through which fentanyl products enter the United States and move domestically to their end users. The most common distribution medium is via the US Postal Service. 

The drug imports to the recent Lucknow seizures could be mimicking such routes but there is no evidence of such sophistication. The NCB has not issued even its departmental quarterly newsletter for the past two years. The other police departments are yet to catch up. Drugs seized by them pile up for years. A government release said in January this year the customs department “carried out an all India destruction of huge quantity of seized/confiscated narcotics and psychotropic drugs and substances…This is the first time ever that narcotics & psychotropic drugs and substances have been simultaneously destroyed in an all India operation”. Yet as the latest annual report of the ministry of home affairs show, the big do for NCB is to buy land and set up offices across the country as of now. It shows in drug chases. For all sorts of narcotics crime, the conviction rate is just 12 per cent in the year 2016 as per home ministry data.

There are some clear choices coming up for the government agencies to reckon with on which drugs to retain as narcotics and mainstream the rest. The sporadic seizures like the one in September of 2,800 kg of cannabis in Uttar Pradesh and Bihar do not deter the trade, while the sophistication showed by the son of the government official shows there is a need to deploy equally sophisticated technology to track those. It essentially means the central government agencies, and the state police need to show they have got their act together. 

The narcotics scene in India 

• About 2.8% of Indians aged 10-75 years (31 million individuals) are current users of any cannabis product.
• States with higher-than-national prevalence of cannabis use are Uttar Pradesh, Punjab, Sikkim, Chhattisgarh and Delhi.
• About 2.1% of Indians aged 10-75 years (2.26 crore individuals) are current users of any opoid product.
• States with higher than national prevalence of opoid use are Uttar Pradesh, Punjab, Haryana, Delhi, Maharashtra, Rajasthan, Andhra Pradesh and Gujarat.
• Approximately 1.26 million individuals) report using hallucinogens of which about 340,000 need help.

Opoid: (1) Opium (including doda/phukki/poppy husk); (2) Heroin (including brown sugar/smack) and (3) Pharmaceutical opioids

Cannabis: (1) Bhang (2) Ganja and Charas

Top-5 states where people need help for cannabis use
1.	Uttar Pradesh	2.8 million
2.	Punjab	570,000
3.	Odisha	490,000
4.	Maharashtra	460,000
5.	Chhattisgarh	380.000

Top-5 states where people need help for opoid use
1.	Uttar Pradesh	1.07 million
2.	Punjab	720,000
3.	Haryana	590,000
4.	Maharashtra	520,000
5.	Madhya Pradesh	390,000
NCB data of 2018: Some 49,450 cases were registered for drug seizure in which 60,156 persons (including foreigners) were arrested.