INTRODUCTION:

Drug addiction or abuse has become a global phenomenon and matter of grave concern. There are number of implications of drug abuse including social, family, physical, national, financial and most importantly mental aspects that have caused a serious dilemma to eradicate this evil from the society.There are number of researches and studies conducted to highlight the relation between drug abuse and mental illness and how drug dependence or consequent withdrawal symptoms push the addict into unknown territory of criminal system from which a vicious circle is formed making it difficult for the addict to get out of these complex psycho-legal dimensions. The number of substance abuse related crimes have been on the rise since the last two or three decades. In order to eradicate this evil, the governments across the globe have formulated stringent laws which provide strict penalties, imprisonment and huge amount of fines and impose on those drug law violators. The resultant effect of these strict provisions are that due to non-availability of the addicted drugs, addicts due to compulsion, physical dependence and mental disorders usually go for illegal means to get hold of the drugs of their choice. Drug abusers are mentally ill patients that need care, medication, support, encouragement, love and social acceptance not imprisonment which does not provide any kind of relief or positive change in the addict who fell into the criminal system due to the physical/mental dependence of drug abuse not due to evil mind or wicked psychology.

Defence of Insanity and Drug addiction:

Mental illness has been a defence since ages in criminal jurisprudence. The rationale behind this defence is that in order to convict a person of any criminal charge the presence of ‘actusreas’ and ‘mensrea’ have to be proved beyond reasonable doubt. Absence of any one of these component dissolve the criminal charge and the accused is liable to be acquitted for lack of any one of them. ‘Mensrea’ which means the intent to commit the crime is a integral part of Criminal Justice System. Defence of insanity stipulates that when a crime has been committed by a person who does not have the intent to commit the crime at the time of the commitment of crime then that person cannot be held liable as he lack the requisite mensrea and crime committed was result of his/her, mental illness which prompted that person to carry out the action without thinking about the consequences of his/her actions.

The same is the case with drug abusers or addicts who have lost their power to think or act rationally and commit crime under the impulse or cravings for the required dose of drugs. American Government have realised that drug addiction is a mental illness that need medication not imprisonment therefore they have formulated number of statutes which provide alternative treatment to drug abusers instead of jail term. Whereas in India there are still no provision or stipulation in this regard considering the rising level of drug addiction and related criminal behaviour in India. In India, the defence of Insanity is found under Section 84 of the Indian Penal Code, 1860 which clearly stipulates that “a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself.¹”

In this sense the Drug abusers who have lost his mental capabilities and have committed a crime under the impulse of drug dependence but does not have an intention to commit that act which implies the absence of mensrea on part of the addict as he is not of criminal mind but acting out of mental disorder caused due to the drug addiction, should also be given the benefit under Sec. 84 of the I.P.C and should be provided appropriate care and medication as stipulated under section 330 and 335 of the Criminal Procedure Code of India, 1973.² In both cases the consequences are the same, that are physical dependence and non availability of drugs causes withdrawal symptoms that drive the addict into involuntary activities that he/she otherwise would not have entered. The major drawback is the lack of vision on part of Indian government to see the real crisis in this whole drug addiction-criminal axis and that is inability of an individual to get rid of this addiction on his own. Now let’s discuss the definition of mental illness and its relation with the drug addiction.

Mental Illness:

The term “mental illness” has been defined in India under the Mental health Act, 2017 u/sec 2(s) as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub normality of intelligence”

In 2013, the American Psychiatric Association (APA) redefined mental disorders in the DSM-5 as "a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behaviour that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning.”³

As per the above definition the person suffering from mental illness is incapable of working or thinking rationally and such people cannot be expected to work in consonance of societal or legal norms established by the state. Also since state is supposed to be acting as ‘Parens patriae’⁴ which means the power of the state to act as a parents or guardians for such people who are incapable of surviving on their own either physically or mentally. Under this doctrine the Indian Government has also formulated number of policies or legal provisions in order to take care of mentally ill people. There has been plethora of legislation in this regard in India but the latest are:

· Mental Health Act, 1987

· Mental Health Act, 2017

These Acts were basically formulated in order to stipulate guidelines for establishment of mental asylums and procedure to admit and provide medical care to mental patients. But these enactments were basically enacted to those mental patients who have lost their cognitive power due to birth defects or other incidents such as accidents or severe physical diseases. There was nothing in these enactments which provide relief to mental illness caused by drug addiction or substance abuse. In Mental Health Act, 1987 the term “Mental Illness” was defined as “a person who is in need of treatment by reason of any mental disorder other than mental retardation.” The definition lacked specification and details as to what type of mental illness can be accounted for claiming the rights attributed in the various mental health legislations stated above.

But as the effect of drug addiction started to draw attention of the legislators, the definition of mental illness also changed. In 2017, the Mental health Act was amended and u/s 2(s) it stipulated that mental disorder includes “the mental conditions associated with the abuse of alcohol and drugs.”

The inclusion of drug or alcohol induced mental disorder in the Latest Mental Health Act, point towards the paradigm shift in the perception of Indian government to consider the grave effects of drug addiction making it obligatory on the government agencies to provide the basic and required medical and institutional facilities to the drug addicts for their proper care and rehabilitation not imprisonment.

Other Provisions:

Under Article 21 of the Constitution of India, it is the fundamental right of every citizen of India to lead dignified life and drug addicts lead far from dignified life, rather very pitiable state of life. It is the duty of each state in India under Article 47 the Constitution to provide appropriate machinery for prohibition of drugs and improve public health as primary duty.

National legal services authority of India has issued guidelines in 2010 that “it shall be the prime concern of the legal services institutions to promote, protect and ensure the full and equal enjoyment of human rights and fundamental freedoms of the mentally ill persons⁵ and Right to treatment and to get proper health care, emanating from Article 21 of the Constitution of India is equally applicable to all mentally ill persons.”

India is signatory to major drug control conventions as well as the UN Convention on the Rights of Persons with Disabilities (CRPD) 2008 and since our country has ratified the Convention, it is obligatory for our legal system to ensure the human rights and fundamental freedoms of persons with disability (including mentally ill persons and persons with mental disabilities) are enjoyed on equal basis with others and to ensure that they get equal recognition before the law and equal protection of the law.

Mental Health Act of 2017 has clearly included the drug induced mental illness into the definition of the term ‘mental illness’. Now it is the duty of the Judiciary and the government to re-examine the scope and application of defence of insanity stipulated under Sec.84 of the Indian Penal Code, 1860, affording exemption to drug addicts suffering from mental illness and drug dependence especially considering the rising level of drug addicts in India and related offences.

Drug addiction and Mental illness:

We have already understood and defined the meaning of mental illness, now we are going to discuss about how mental illness and drug addiction are two faces of the same coin. Drug addiction has been defined as “physical dependence on psychotropic substances which means an altered physiological state brought about by repeated ingestion or administration of a drug in order to prevent the appearance of a characteristic illness called an abstinence syndrome which is the result of withdrawal of the drug, and are referred to as withdrawal illness or withdrawal symptoms.⁶"

The World Health Organization defines addiction as "loss of freedom to refrain from toxic⁷".

It is the withdrawal stage or physical dependence stage that "drives the user irresistibly to any lengths to obtain a supply and in desperation even suicide may be resorted to as a way out.⁸"

As per the reports published in 2017 by the United Nations Office on Drugs and Crime (UNODC) there are approximately 275 million people worldwide, which is roughly 5.6 per cent of the global population aged 15–64 years, used drugs at least once during 2016⁹.

The actual number of people who use drugs increased by 20 million people from 2015 to 2016¹⁰. Out of the above mentioned data almost 31 million people who use drugs have developed a drug use related physical and mental disorders, which means that they are in immediate need of medical treatment to get rid of this evil before it is too late. As per number of scientific researches, there are ample proof that prolonged usage of narcotics substances hamper with the way neurons transmit, collect, and process indicators via neurotransmitters. It has been analysed that some type of drugs especially heroin and marijuana has the capability to stimulate neurons for the reason that their chemical configuration imitate that of an ordinary neurotransmitter in the human body. This permits the narcotics to affix onto and set off the neurons. Even though these drugs impersonate the brain's personal chemical substances, they don't trigger neurons in the similar way as a innate neurotransmitter, and they show the way to anomalous messages being transmitted through the system¹¹. Since opiods are the most used drugs in the world, this drug also has some grave negative effects on the mental health of drug addicts. It affects the brain stem¹², which have power over crucial utility vital to existence, such as heart rate, respiration, and sleeping which explains the reason why overdoses can cause dejected breathing and demise^13,14.

It has been proved that “Drug addiction is a brain disease that can be treated.¹⁵”

Legal scenario relating drug abuse in India:

The National Crime Record Bureau (NCRB) statistics of 2014 show that over 50,000 cases are charge sheeted per year by the police and still have a pendency of 31.7 percent by the end of the year.¹⁶ There are approximately 4,19,623 number of prisoners in India against the capacity of 3,66,781 number of prisoner capacity in total 1401 number of jails in India with more than 118% occupancy which clearly shows overcrowding of jails. The prison statistics of 2015 shows 7227 convicted under NDPS cases all over India and 15959 under trials under NDPS cases in the prisons all over India.¹⁷ It has been alleged that harsh penalties and mandatory minimum penal provisions provided under the Drug laws of India are reasons behind such overcrowding.

In India, the NDPS Act, 1985 continues to criminalize the drug abuser making a victimless crime an offence towards oneself. The NDPS Act, 1985 was formulated with a view to curb the illicit production, manufacturing, storage, supply and consumption of substances that are banned under the law. All types of narcotic drugs and psychotropic substances which are used other than for medical purposes are prohibited under this law (NDPS, 1985)¹⁸

Right now there are three major enactments that deal with substance abuse and its consequences.

· The Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985¹⁹.

· The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

· Juvenile Justice (Care and Protection of Children) Act, 2000.

Offences and Penalties under the NDPS Act, 1985:

Following is the list of offences and penalties awarded to violators under the Act. The punishments were made more stringent after the successive amendments done in the year 1989, 2001 and 2014.²⁰

· Section: 17, 18, 20, 21 for Manufacture, production, sale, possession, transport, purchase, import/export inter- state, or use of psychotropic substances and narcotic drugs Min 10 yrs & Rs 1 lakh fine, may extend to 20 yrs & Rs 2 lakh fine

· Repeat offence: Min 15 yrs & Rs 1.5 lakh fine, may extend to 30 yrs & Rs 3 lakh fine Cannabis cultivation & ganja: max 5 yrs & Rs 50,000 fine

· Repeat offence of cannabis cultivation & ganja: max 10yrs & Rs 1 lakh fine

· Section 30: Preparation to commit an offence. Punishment is half term of sentencing for the offence.

· Section 31A: Death penalty for repeat offence in some cases

· Section 27:For ‘addicts’, consumption OR possession of small quantity [notified by Central govt] for personal consumption: – cocaine, morphine, heroin: max of 1 yr or fine or both – other drugs: max 6 months but only if accused could prove drug was for his own use Also, court could divert from prison to treatment.

Assessment of the Act:

The ‘tough on drugs’ rhetoric led to the introduction of very harsh provisions such as mandatory minimum sentences of 10 years’ imprisonment, Under section 37 restrictions were introduced to make bail harder for drug related crimes. Section 32A was introduced which barred the Executive power to suspend, remit, commute u/s 432 & 433 Cr PC barred to suspend, commute or remission of sentences, trial by special courts and mandatory death sentence for certain repeat offenders u/s 31A.The judiciary is also bound to award mandatory minimum sentence as the discretion is not allowed under the Act. Although pardon under Article 72 possible but never granted. The amendments were criticized due to exceptionally harsher punishment especially death penalty u/s 31A which prompted the government to introduce more humane treatment towards drug abusers so in early 2014, the NDPS Act was amended for the third time and the new provisions came into force on 1 May 2014.Some of these provisions are : Including the terms “management” of drug dependence and “recognition and approval “of treatment enters, thus allowing for the establishment of legally binding treatment standards and evidence-based medical interventions²¹ and Making the death penalty discretionary for a subsequent offence involving a certain quantity of drugs under section 31A. The court will have the alternative to impose imprisonment for 30 years under section 31A. But the above mentioned amendment also introduced Enhanced punishment for small quantity offences from a maximum of six months to one year imprisonment.

Drug addicts are mentally ill patients who require treatment but under the NDPS Act, consumption of drugs is made illegal and results in a jail term of up to six months or one year and/or a fine, depending on the substance consumed²². Under the criminal justice system the ‘Actusreas’ and ‘mensrea’ are vital component for convicting punishing the accused but presently, possession of small amounts attracts uniform punishment, irrespective of intent.

The Courts in India have demonstrated a lenient attitude stating that a person arrested under the Act for minor offences like consumption and those involving small quantity of narcotic drugs and psychotropic substances is entitled to bail²³.

The harshness of the NDPS Act is demonstrated by the inclusion of the death penalty for certain repeat crimes (production, manufacture, possession, transportation, import and export) involving a large quantity of drugs²⁴. Introduced as a mandatory punishment in 1989, the range of offences punishable with death was narrowed in 2001.^25,26,27 International Narcotics Control Board (INCB) issued a statement of March 2014 in which it encourages states to consider abolishing the death penalty for drug-related offences.²⁸

International Scenario:

There is no dearth of data that display that a large number of prisoners in the world either use drugs or have a history of drug use.²⁹ In practically all developing or developed countries, there are more individuals who inject drugs during incarceration, pre-trial confinement facilities, police station detention rooms than in health and drug de-addiction centres.³⁰ The undesirable cost of far-reaching penal drug policies that end up in the incarceration of individuals who use drugs — including the impact of imprisonment on the spreading of blood-borne diseases, such as HIV, Hepatitis are well renowned.³¹ The combined impact is that people who use drugs are highly stigmatised and marginalised in most societies.

There are right now three International drug controls Conventions that are considered authority in regulating drug related regulations throughout the Globe.

First is The Single Convention on Narcotic Drugs of 1961 which stipulated that narcotic drugs (e.g. opium, coca, marijuana and their derivatives) only be produced, distributed, possessed and used for medical and scientific purposes.³²

Second is The 1971 Convention on Psychotropic Substances which provided parallel limitations for principally synthetic psychotropic substances (e.g. amphetamines, barbiturates, benzodiazepines and psychedelics) and their pioneer chemicals.³³

Finally, the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances promotes co-operation between states to address the international dimension of trafficking, establishing measures against drug trafficking (including criminalisation at the domestic level), provisions against money laundering, the diversion of chemical precursors, mutual legal assistance and extradition.³⁴

The combine effect of these conventions is to provide directives with an aim to control illicit drugs by reducing their supply, in particular through criminal sanctions. The important aspect of these directives is that these conventions do not necessitate criminalisation of drug use per se³⁵, and they allow for treatment, after-care, rehabilitation and social reintegration, as opposed to penal punishment, for persons with drug dependence who commit drug trafficking-related offences³⁶. Besides the above stated Conventions there are number of other international and regional human rights treaties which are important source of the employment of proportionate penal provisions for the control of illicit drugs³⁷. Especially the right to health is unswerving significant because “health is at the nucleus of drug policy”³⁸. The International Covenant on Economic, Social and Cultural Rights embraces “the right of all and sundry to the enjoyment of the utmost achievable benchmark of physical and mental wellbeing”.³⁹ In the same way the African Charter on Human and Peoples’ Rights clearly stipulates that it is the right of every human being to “take pleasure in the finest attainable state of physical and mental health”.⁴⁰ Interconnected with the right to wellbeing are the rights to life, liberty and personal security, to be liberated from ill behaviour and prejudice, and to take pleasure in other human rights as personified in treaties such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Again a as per a Special Rapporteur prepared by the UN has displayed that the right to health reign over in cases of divergence between the objective and approach of the international drug control regime and the international human rights system.⁴¹ Furthermore, the UN comments to the Convention against Illicit Trafficking articulate that member states shall follow the standard of public international law, in particular norms defending human rights, when taking up stricter methods than those authorised by the conventions.⁴² In several resolutions passed under the above conventions, it has been affirmed by the UN General Assembly that the drug problem must be addressed with full respect for all human rights and fundamental freedoms.⁴³

Article 3(2)) of The Convention against Illicit Traffic, stipulates that There is no requirement to criminalise personal consumption nor to make offences related to personal consumption punishable with incarceration. Criminalisation of possession for personal consumption is subject to “constitutional principles and the basic concepts of legal system.”⁴⁴

Article 3(4)(b),(c) & (d)) of the Convention against Illicit Traffic, provides that Drug treatment, education, aftercare, rehabilitation or social reintegration of the offender are legitimate alternatives to conviction or punishment, in “appropriate cases of a minor nature” and for offences related to personal consumption, or as additional measures to conviction or punishment for other drug related offences.

International Case laws:

The drug epidemics around the globe had provoked many countries to formulate stringent laws regarding drug use and possession and due to this attitude many courts in the world, spends a significant amount of time in order to sentence people who use drugs or have been found guilty on possession charges, as well as those convicted in relation to drug production or trafficking. Some countries including India dictate mandatory minimum sentences for drug offences, whereas some states have allowed a little bit of discretion to the judges while awarding sentence to such people.⁴⁵

Following is the list of cases which prescribes the treatment approach is better that punishment approach to the drug addicts.

The provisions of mandatory minimum imprisonment were challenged before the Supreme Court of Canada in the case of R. v. Smith.⁴⁶ The Court held that the mandatory minimum sentence was “grossly disproportionate” because the stipulation covered a wide range of conditions without distinguishing according to the category of substance traded in, the amount, the intention (e.g. for personal consumption or for trafficking) and whether the indict has had preceding convictions.⁴⁷ Above stated judgement is very positive as it clearly demonstrates that Application of the principle of proportionality while awarding a sentence make sure not only that the sentence equivalents the seriousness of the crime, but it also make certain that the state’s breach on essential constitutional rights shall be “scarcely customized” to give out a “forceful state interest”.⁴⁸

In America, the U.S Supreme Court held in the case of Robinson v. California⁴⁹ that “drug dependence is a disease and punishing someone for being ill constituted cruel and unusual punishment.” While delivering the majority judgement Justice Stewart said “narcotic addiction is an illness. … To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.⁵⁰

The decision is remarkable for its acknowledgment that drug reliance is a disease/infirmity and that punishment for ill health is a human rights infringement and relapsing into drug use is an component of the infirmity, by the logic of this decision, the suitable reaction is treatment, not punishment.

In Brian Gall v. United States of America,⁵¹ the US Supreme Court held that the judge should pay attention to all the factors to be considered in imposing the sentence on drug addicts as opposed to blindly follow the legal provisions of Mandatory minimum sentences.⁵²

Supreme Court of Argentine in Arriola, Sebastian and Others,⁵³ has held that Argentina’s criminal prohibition on drug possession for personal consumption (Article 14, second paragraph, of Law 23,737) was unconstitutional. Supreme Court further held that “prosecuting users becomes an obstacle for the recovery of those few who are dependent, since it only stigmatises them and reinforces their identification as drug users, blocking the possibility of any detoxification therapy and behavioural change that, in fact, has the opposite objective because it seeks to remove that identification in order to promote their self-esteem based on other values.”

Recommendations and Conclusion:

As discussed earlier excessive drug addiction leads to mental disorders that deprive the addict to think rationally and thus cannot be treated like ordinary criminals. The drug and crime nexus is a complex issue and there are multiple studies that suggest that incarceration is not the viable solution to this issue,⁵⁴ as Incarceration does not address many of the underlying factors which lead to drug use and to possible drug-related criminal behaviour. Available studies suggest that incarceration has very limited deterrent effects on people who use drugs.⁵⁵ Because drugs are widely available within prisons and people continue to use drugs while incarcerated, incapacitation and rehabilitation are often not achieved.⁵⁶ Therefore the government should formulate relevant policies as well as amend the present Penal provisions under the Indian Penal Code,1860 and the Narcotics Narcotic Drugs and Psychotropic Substances Act, 1985 to stipulate more humane provisions to the Mentally ill drug offenders to tackle the rising drug abuse conflict in India. Drug addict who suffer from mental illness must be dealt as a mental Patients and given the benefit of defence of Insanity. The aim of penal provisions are to reform the offender and provide relief to the victims. As discussed above drug offenders are themselves victim of drug abuse and their own life is at risk which makes it obligatory for the Government to provide relevant remedy to their unique problem. Conviction of drug offenders suffering from mental disorder is utter violation of basic human rights and the fundamental rights of health provided under Article 21 of our Constitution. Conviction of drug offenders means sending these mentally ill patients into more high-risk environment more prone towards transmission of HIV and hepatitis because of the high prevalence of Hepatitis, HIV, and drug dependence among prisoners, and the use of non-sterile drug use equipment.^{57, 58} TB infection, HIV can constitute a “death sentence” for those already in poor physical and mental health.⁵⁹ Various studies have shown that Drug treatment in the community and diversion programmes or harm reduction methods are generally more effective than imprisonment thus the Indian government should establish alternative methods or diversion programmes while dealing with such convicts.⁶⁰ Such people should be sent to treatment centres and provide required medical care to help them regulate their drug addiction and eventually lead drug free life. By helping the drug addicts to get rid of drug abuse will ultimately achieve the goal of Criminal Justice system in tackling and reducing Crime. Diversion programmes for people who use drugs which refer drug users to medical services as an alternative to prosecution, sentencing or custodial sanctions may satisfy both the requirements of the criminal justice system and public health objectives.⁶¹

Section 84 of The Indian Penal Code should be interpreted in a more comprehensive manner to include the defense of drug dependence/drug induced mental disorder which possess the capability to limit the cognitive behaviour of the abuser in such a way that he is bereaved of his moral and rational thinking and unknowingly or reluctantly put his feet towards the world of Crime. So it is recommended that there is dire need to reconceptualise the Idea of stringent penal provisions awarded to drug addicts because these provisions are not doing any good to the peculiar cases of drug addicts who have lost power even to think about their own well being let alone the well being of others. India being a signatory to the UN Convention on the Rights of Persons with Disabilities (CRPD) 2008, The Single Convention on Narcotic Drugs of 1961 ,The 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances is obligated to ensure the human rights and fundamental freedoms of persons with disability, mentally ill persons and persons with mental disabilities should enjoy the legal rights on equal basis with others and to ensure that they get equal recognition before the law and equal protection of the law.

REFERENCES:

1. Siddhapal Kamala YadavVs. State of Maharashtra [2008] INSC 1718, S.L.P. (Crl.) No.509 of 2008, Para 8.

2. Section 330 in The Code Of Criminal Procedure, 1973 330. Release of lunatic pending investingaion or trial.

(1) Whenever a person is found, under section 328 or section 329, to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf.

(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government: Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912 ). Section 335 in The Code Of Criminal Procedure, 1973 335. Person acquitted on such ground to be detained in safe custody.

(1) Whenever the finding states that the accused person com- mitted the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,

(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or

(b) order such person to be delivered to any relative or friend of such person.

3. American Psychiatric Association."Use of the Manual". Diagnostic and Statistical Manual of Mental Disorders (5th ed.). American Psychiatric Publishing. doi:10.1176/appi.books.9780890425596.UseofDSM5. ISBN 978-0-89042-559-6Retrieved on3 Dec. 2018.

4. Parenspatriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention. https://en.wikipedia.org/wiki/Parens_patriae

5. National Legal Services Authority National Legal Services Authority (Legal Services To The Mentally Ill Persons and Persons with Mental Disabilties) Scheme, 2010 [Adopted in the Meeting of the Central Authority of NALSA held on 8.12.2010 at Supreme Court of India] P; 2,3 http://chdslsa.gov.in/right_menu/schemes/pdffiles/mentally_ill.pdf) Retrieved on 4 Dec, 2018.

6. Sec. 2(g), Dangerous Drugs Act, Campos, Maria Clara L. "Drug Abuse and the Law," Philippine Law Journal vol. 50, no. 5 (December 1975): p. 553-576. HeinOnline, http://heinonline.org/HOL/P?h=hein.journals/philplj50 &i=565.Retrieved on 4 Dec, 2018.

7. Dragan, J., Almost everything about drugs, Military Publishing House 1994, pg. 161; Chicos, Oana. "Considerations on Addiction in Illicit Drug Trafficking and Consumption," Journal of Law and Administrative Sciences (2015): p. 11-16. HeinOnline, http://heinonline.org/HOL/P?h=hein.journals/jladsc2015&i=13. Retrieved on 4 Dec, 2018.

8. LNmEsmTHI, OPIATE ADDIcTIoN 55 (1947).

9. World Drug Report 2018 (United Nations publication, Sales No. E.18.XI.9).

10. Ibid.

11. Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health.Modified with permission from Volkow et al. 1993.

12. The brainstem also plays an important role in the regulation of cardiac and respiratory function. It also regulates the central nervous system, and is pivotal in maintaining consciousness and regulating the sleep cycle. The brainstem has many basic functions including heart rate, breathing, sleeping, and eating. Alberts, Daniel (2012). Dorland's illustrated medical dictionary (32nd ed.). Philadelphia, PA: Saunders/Elsevier. p. 248.ISBN 978-1-4160-6257-8. https://en.wikipedia.org/wiki/Brainstem#cite_note-1(Retrieved on 4 Dec, 2018.

13. The term addiction as used in this booklet is equivalent to a severe substance use disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5, 2013).

14. Goldstein RZ, Volkow ND. Dysfunction of the prefrontal cortex in addiction: neuroimaging findings and clinical implications. Nat Rev Neurosci. 2011;12(11):652-669. doi:10.1038/nrn3119 Retrieved on 4 Dec, 2018.

15. Nora D. Volkow, M.D. Director. National Institute on Drug Abuse

16. Table 4.3, page no 124, Crime in India, NCRB, 2014

17. Prison statics in India, 2015 (http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.pdf) Retrieved on 5 Dec, 2018.

18. Ms. Donita Quadros Mr. Rajiv Yadav Program Officer “Victims of Drug Abuse and the Law Enforcement: A field Intervention A paper submitted for “National Seminar on Victims and the Criminal Justice System” Held on 4th February 2017 Organized by Institute of Correctional Administration, Chandigarh & Haryana Police Department, Panchkula.

19. Section 80, NDPS Act

20. Anubhav Pandey “What is the punishment for possession of illegal Drugs And Narcotic Substances?” July 19, 2017 https://blog.ipleaders.in/illegal-drugs-narcotic-substances/ Retrieved on 5 Dec, 2018.

21. Section 71(1), NDPS Act

22. Section 27, NDPS ActThe consumption of heroin and cocaine will lead to a lengthier sentence of imprisonment while cannabis will lead to a less severe sentence.

23. Abdul Aziz v. State of U.P. 2002 CriLJ 2913; Shaji v. State of Kerala 2004 (3) KLT 270; StefanMueller v. State of Maharashtra 2010 Vol. 112(7)] Bom.L.R.] 2990(Retrieved on 6 Dec, 2018.

24. Section 31A, NDPS Act

25. In February 2008, two drug offenders were sentenced to death by NDPS special courts in Mumbai and Ahmedabad respectively. Ironically, both sentences were for cannabis (charas). A constitutional challenge followed, which led the Bombay High Court to declare the mandatory provision unconstitutional and read the same as discretionary, that is, in a manner where the sentencing court will hear the offender on punishment and have the power to impose a prison sentence instead of death. Subsequently, by separate judgments, both convicts were sentenced to 30 years of imprisonment

26. Indian Harm Reduction Network v Union of India 2012 Bom CR(Cri)121

27. Times of India, Ahmedabad (20 March 2012), ‘High court shows mercy to 73-year-old drug peddler’ http://timesofindia.indiatimes.com/city/ahmedabad/Highcourt- shows-mercy-to-73-year-old-drug-peddler/ articleshow/12335735.cms. Deccan Herald, Mumbai (8 May 2012), ‘HC commutes death sentence of drug peddler to 30-year RI’, http://www.deccanherald.com/pages.php?id=247951(Retrieved on 7 Dec, 2018.

28. International Narcotics Control Board (5 March 2014), INCB encourages States to consider the abolition of thedeath penalty for drug-related offences, Press release, http://www.incb.org/documents/Publications/PressRelease/PR2014/press_release_050314.pdf(Retrieved on 5 Dec, 2018

29. Bewley-Taylor D, Hallam C and Allen R, The Incarceration of Drug Offenders: An Overview (The Beckley Foundation, March 2009), pp. 5–9. The International Narcotics Control Board observed that for drug crimes, imprisonment often is used not as a last resort, but as a first one. Prisons can become markets for illicit drugs and consequently increase the scale and severity of drug abuse in a population, as well as the incidence of HIV and other diseases. Report of the International Narcotics Control Board for 2007, E/INCB/2007/1.

30. Wolfe D and Saucier R, “In rehabilitation’s name? Ending institutionalized cruelty and degrading treatment of people who use drugs”, International Journal of Drug Policy, 2010, 21(3):145–148.

31. Wolfe D and Malinowska-Sempruch K, Illicit Drug Policies and the Global HIV Epidemic: Effects of UN and National Government Approaches (Open Society Institute, 2004); Barrett D et al., Recalibrating the Regime: The Need for a Human Rights-Based Approach to International Drug Policy (The Beckley Foundation, 2008); Wolfe D and Saucier R (eds.), At What Cost?: HIV and Human Rights Consequences of the Global “War on Drugs” (Open Society Institute, 2009); Global Commission on Drug Policy, War on Drugs: Report of the Global Commission on Drug Policy (2011) (available online at www.globalcommissionondrugs.org, (Retrieved on 7 Dec, 2018)

32. United Nations, Single Convention on Narcotic Drugs, 30 March 1961, entered into force 13 December 1964, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, entered into force 8 August 1975

33. United Nations, Convention on Psychotropic Substances, 21 February 1971, entered into force 16 August 1976

34. United Nations, Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, entered into force 11 November 1990

35. Possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption shall be treated as a criminal offence only if such acts run contrary to the provisions of the Single Convention or the Convention on Psychotropic Substances. According to the UN Commentary on the Single Convention, Article 4(c) and Article 36(1) only require penalization of possession, purchase and cultivation when it is part of illicit drug trafficking, not for personal consumption. Commentary to the Single Convention on Narcotic Drugs, 1961, Prepared by the UN Secretary-General in accordance with paragraph 1 of the Economic and Social Council Resolution 914 D (XXXIV), 3 August 1962

36. Single Convention, Article 38; Convention on Psychotropic Substances, Article 22; Convention against Illicit Traffick in Narcotic Drugs, Article 14.

37. United Nations Office on Drugs and Crime, Drug Control, Crime Prevention and Criminal Justice: A Human Rights Perspective, March 2010, E/CN.7/2010/CRP.6–E/CN.15/2010/CRP.1; Barrett D and Nowak M, “The United Nations and drug policy: Towards a human rights-based approach”, in Constantinides A and Zaikos N (eds.), The Diversity of International Law: Essays in Honour of Professor KalliopiI K. Koufa (Brill/Martinus Nijhoff, 2009), pp. 449–477.

38. United Nations Office on Drugs and Crime, World Drug Report (2010), p. 4.

39. International Covenant on Economic, Social and Cultural Rights, United Nations General Assembly, Resolution 2200 (XXI), 16 December 1966, entry into force 3 January 1976, Article 12(1). [For further information on the right to health, see Chapter 9, “HIV treatment and health care”.]

40. African Charter on Human and People’s Rights, Organization of African Unity, 27 June 1981, entry into force 21 October 1986, Article 16(1).

41. The UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report to the UN General Assembly, 65th Session, 6 August 2010, A/65/255, para. 10, 17.

42. United Nations, Commentary on the UN Convention Against Illicit Trafficking of Narcotic Drugs and Psychotropic Substances (1988),1998, para. 3.3.

43. UN General Assembly Resolutions A/RES/65/233; A/RES/64/182; A/RES/63/197; A/RES/62/176; A/RES/61/183; A/RES/60/178; A/RES/60/178; A/RES/59/163; A/RES/58/141; and similar resolutions for earlier years

44. The international drug control bodies have asserted on numerous occasions that complete alternatives to conviction and punishment can be applied for offences involving the possession, purchase or cultivation of illicit drugs for the offender’s personal use. See United Nations, Report of the International Narcotics Control Board for 2007, E/INCB/2007/1, para. 18 and United Nations Office on Drugs and Crime, Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem, March 2009, section 6, para. 16(a), p. 23 (adopted by the High Level Segment of the Commission on Narcotic Drugs, and later adopted by the UN General Assembly’s Resolution 64/182 of 18 December 2009). See also United Nations Office on Drugs and Crime, From Coercion to Cohesion: Treating Drug Dependence through Health Care, not Punishment (2010), p. 1:

45. Note that mandatory minimum sentences for drug offences have been shown to be ineffective at reducing drug use and the problems associated with drug use. See Canadian HIV/AIDS Legal Network, Mandatory Minimum Sentences for Drug Offences: Why Everyone Loses (Toronto, Ontario: Canadian HIV/AIDS Legal Network, 2006) (available from www.aidslaw.ca/drugpolicy)

46. R. v. Smith, [1987] 1 S.C.R. 1045 (Supreme Court of Canada)

47. Ibid

48. Ristroph A, “Proportionality as a principle of limited government”, Duke Law Journal, 200555(2):263–332, at p. 293.

49. Robinson v. California, 370 U.S. 660 (United States Supreme Court, 1962).

50. Ibid, pp. 667–668.

51. S. Ct. No 06–7949 (2007), Supreme Court of the United States, 2007

52. United States Code, Title 18 USC section 3553 (a) Factors To Be Considered in Imposing a Sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

53. Arriola, Sebastian and Others, Case No. 9080, Supreme Court of Argentina, 2009. Note that this summary is based on a translation from the original Spanish by Arturo Marcano (MIA Translations) and David Cozac (Canadian HIV/AIDS Legal Network).

54. White H and Gorman D, “Dynamics of the drug–crime relationship”, Criminal Justice Volume 1: The Nature of Crime: Continuity and Change (Washington, D.C.: U.S.A. Department of Justice, 2000), pp. 151–218

55. Bewley-Taylor D, Hallam C and Allen R, The Incarceration of Drug Offenders: An Overview (The Beckley Foundation, March 2009), p. 15; Mackenzie D, Sentencing and Corrections in the 21st Century: Setting the Stage for the Future (2001), at pp. 21–22; Friedman S et al., “Relationships of deterrence and law enforcement to drug-related harms among drug injectors in U.S. metropolitan areas”, AIDS, 2006, 20(1):93–99; Friedman S et al., “Drug arrests and injecting drug deterrence”, American Journal of Public Health, 2011, 101(2):344–349; Degenhardt L et al., “Toward a global view of alcohol, tobacco, cannabis, and cocaine use: Findings from the WHO World Mental Health Surveys”, PLOS Medicine, 2008, 5(7):1053–1067; U.K. Drug Policy Commission, Consultation Paper on Sentencing for Drug Offences (July 2009); and Reuter P, “Ten years after the United Nations General Assembly Special Session (UNGASS): Assessing drug problems, policies and reform proposals”, Addiction, 2009, 104(4):510–517.

56. European Monitoring Centre for Drugs and Drug Addiction, Prevalence of Drug Use within Prison among Prisoners, 2000–09 (Table DUP-3), Statistical bulletin (2011) and World Health Organization, United Nations Office on Drugs and Crime and UNAIDS, Effectiveness of Interventions to Address HIV in Prisons (Geneva: WHO, 2007).

57. United Nations Office on Drugs and Crime, World Health Organization and UNAIDS, HIV and AIDS in Places of Detention: A Toolkit for Policymakers, Programme Managers, Prison Officers and Health Care Providers in Prison Settings (New York: UN, 2008), p. 7.

58. Ibid, p. 10. 208 Judging the epidemic

59. United Nations Office on Drugs and Crime and World Health Organization, Principles of Drug Dependence Treatment (2008), p. 14; Costa AM, Preface to the UNODC World Drug Report (2009), p. 2; and The National Treatment Agency for Substance Misuse (England), Breaking the Link: The Role of Drug Treatment in Tackling Crime (2009), p. 4.

60. United Nations Office on Drugs and Crime, Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment (2007), p. 63.

61. Diversion programmes exist in different formats, such as arrest referral schemes (Russia and Scotland), drug intervention programmes (England and Wales), and drug treatment courts (U.S.A., Canada and Australia). A central component of diversion programmes is collaboration between the criminal justice system and medical services. Portugal provides a notable example, in that pre-trial diversion is promoted by a national policy and has had significant benefits in terms of public health and human rights with no escalation in crime. (European Monitoring Centre for Drugs and Drug Addiction, Drug Policy Profiles: Portugal [2011]).

Received on 13.02.2019 Modified on 16.03.2019

Res. J. Humanities and Social Sciences. 2019; 10(2):559-567.

DOI: 10.5958/2321-5828.2019.00092.5