Corruption, lack of comprehensive anti-narcotics law, multiplicity of agencies poses challenges in narcotics control in India – US panel

@prashanthamine

Mumbai: “Official corruption has undermined the effectiveness of government control regimes for illicit drugs…bribes paid to rural police stations and local officials to ignore illicit poppy and cannabis fields…corrupt border officials have enabled the movement of heroin, pharmaceutical drugs, and precursor materials across the border”, opines US Bureau of International Narcotics and Law Enforcement Affairs (BINLEA) in its latest March 2021 country specific report.

The BINLEA that comes under the United States Department of State in its International Narcotics Control Strategy Report (INCSR) on Drugs and Chemical Control, March 2021 has made some candid observations in its country reports.

“India’s geographic location, industrial capacity, and transportation infrastructure make it a source and transit point for illicit narcotics and precursor chemicals bound for Europe, Africa, Southeast Asia and North America. The commercial capacity, combined with technical expertise and chemical source supplies in India, is exploited by drug traffickers to source dangerous synthetic drugs and precursor chemicals destined for markets in the United States and elsewhere” states BINLEA’s INCSR report.

The INCSR notes that “Through online pharmacies, non-indexed (“dark web”) websites, or call centres, US based customers illegally obtain from India pharmaceutical drugs for which they do not have prescriptions. A lack of information technology, including integrated networks and case management software, presents additional challenges for Indian government agencies in the enforcement of their drug laws.

However, inadequate training, insufficient equipment, staffing gaps, and interagency coordination challenges constrain efforts to collect and analyse data and conduct complex investigations of criminal drug manufacturing and trafficking. Many pharmaceutical and chemical products, licitly produced in India where there are few to no controls, find their way into the illicit market in countries where those substances are regulated. Indian produced Tramadol is a major source of the Tramadol that is trafficked throughout the African continent.

Also Read: Corruption, porous borders, misplaced priorities stymied India’s fight against illicit narcotic drugs

The INCSR 2021 report further adds, “India’s multiplicity of national and state-level law enforcement agencies presents coordination challenges. Poor intelligence exploitation during drug seizures sometimes constrains the ability to generate investigative leads to identify higher-level targets. Lengthy delays between drug seizures and prosecutions in India’s overburdened court system also complicate effective prosecutions”.

There is significant pharmaceutical drug abuse in the country (India), compounded by the availability of over-the-counter medications. Commonly abused drugs in India include heroin, opium, cocaine, ephedrine, cannabis, and MDMA (ecstasy), notes BINLEA’s INCSR 2021 report.

The INCSR 2021 report highlights “corruption” as the biggest issue. “Nevertheless, some national and local government officials have been implicated in drug-related corruption. Official corruption has undermined the effectiveness of government control regimes for illicit drugs, and Indian media reports allege widespread official corruption, with bribes paid to rural police stations and local officials to ignore illicit poppy and cannabis fields under their jurisdiction. Media reports also claim that corrupt border officials have enabled the movement of heroin, pharmaceutical drugs, and precursor materials across the border”.

Investigations have shown that Indian organisations have transferred proceeds from narcotics trafficking on behalf of other international drug trafficking organisations.

“Global demand for illicit pharmaceutical drugs, fentanyl, methamphetamine, heroin, and other dangerous drugs has given rise to chemical entrepreneurs in India who are retooling commercial chemical factories to produce large volumes of ephedrine, methamphetamine, and other drugs illicitly. As global demand for synthetic drugs continues to grow, illicit manufacturing and trafficking networks in India will also increase”, adds INCSR 2021 report.

There is a 12-year gap between the United State Drug Enforcement Agency (US-DEA) which was set up in 1973 as against the Narcotics Control Bureau (NCB) and Central Bureau of Narcotics (CBN) which were set up in 1985.

Today the US-DEA has 23 domestic field divisions, 46 district offices, 112 resident offices and 51 posts of duty. The DEA also operates 90 foreign offices in 69 countries. In 2020 the DEA had a total of 7,125 positions (employees) out of which 7,035 were direct positions. There are 4,924 Special Agents and 800 Intelligence Analysts.

As compared to the US-DEA, according to unconfirmed reports the NCB has a staff strength of about 1,200 posts. That explains why the NCB relies so heavily on state law enforcement agencies for anti-narcotics operations.

The statistics from NCBs 2019 report speaks for itself, Agency-wise seizures done in 2019 is as follows – NCB 96, Directorate of Revenue Intelligence (DRI) 6, Customs and Central Excise 1, Central Bureau of Narcotics (CBN) 4, State Police 2,424 and Excise 119.

Strategy wise, the US-DEA prioritises its resources in disrupting and dismantling the ‘most wanted’ drug trafficking and money laundering organisations believed to be primarily responsible for the nation’s (US) illicit drug supply.

The US-DEA targets Consolidated Priority Organisation Targets (CPOTs) identified by it. The DEA enforcement strategy targets the most significant drug trafficking organisations operating in the United States, which today are Mexican Transnational Criminal Organisations (TCOs). The DEA also places high priority on its efforts to prevent drug proceeds from ending up in the hands of terrorist organisation.

The Special Operations Division (SOD) is the backbone of DEA’s investigative coordination efforts through its support of multi-jurisdiction, multi-nation and multi-agency wire intercept investigations.

Also Read: Illicit drug trafficking between Golden Crescent and Golden Triangle a challenge to India’s national security

Like the US-DEA, the Narcotics Control Bureau (NCB) is the apex coordinating agency which also functions as the enforcement agency through its zones and sub-zones. The NCB 13 regional zones are located at Ahmedabad, Bengaluru, Chandigarh, Chennai, New Delhi, Guwahati, Indore, Jammu, Jodhpur, Kolkata, Lucknow, Mumbai and Patna. The NCBs 13 sub-zones are located at Ajmer, Amritsar, Bhubaneshwar, Dehradun, Goa, Hyderabad, Imphal, Mandsaur, Madurai, Mandi, Raipur, Ranchi and Kochi.

Through its zones and sub-zone’s, the NCB collects and analyses data related to seizures of narcotic drugs and psychotropic substances, studies trends, modus operandi, collects and disseminates intelligence and works in close cooperation with the Customs, State Police and other law enforcement agencies.

What the INCSR 2021 report says about India’s multiplicity of national and state-level law enforcement agencies presenting coordination challenges is quite true. As per the National Policy on Narcotic Drugs and Psychotropic Substances (NDPS), the NDPS Act divides the powers and responsibility of regulation of licit activities. Section 9 and Section 10 divides those powers between the Centre and the States which by law can frame rules and regulate them.

That is why you have the Nationalist Congress Party (NCP) questioning the Centre and the NCB over its recent circular seeking information about top cases that have national and international ramifications.

Besides the State Police and State Excise, the Centre has seven different law enforcement agencies – the NCB, Central Bureau of Narcotics (CBN), Directorate General of Revenue Intelligence (DRI), Customs, Central Excise and Coast Guard to deal with illicit drug trafficking.

The NDPS national policy does admit that there are issues on which there has been no uniform policy. The NCB believes in Abstinence as the only approach to prevent drug driven Human Immunodeficiency Virus (HIV) which tends to lead to Acquired Immune Deficiency Syndrome (AIDS). Abstinence means to completely stay away from drugs.

On the other hand, the Ministry of Social Justice & Empowerment favours Abstinence only policy, while the Ministry of Health and Family Welfare and National AIDS Control Organisation (NACO) promote ‘harm reduction’. The harm reduction approach seeks to persuade addicts to abuse drugs safely by providing them with clean needles and syringes, so that they do not share or use infected needles.

Another potential loophole in the NDPS Act is Section 10 that empowers state governments to permit and regulate, transport, sale, use, etc of Poppy Straw. The husk of the Poppy Pods is called Poppy Straw and is intoxicating. The Poppy Straw also contains Morphine which acts like a pain-killer. However, Section 8 of NDPS Act restricts use of Poppy Straw only for medical or scientific purposes.

As per the national policy document, the overall responsibility of tackling illicit cultivation of Poppy, Marijuana or Cannabis lies with the Central Government. Some countries of the Golden Triangle like Laos and Thailand have alternative development programmes for farmers which help them develop alternate means of livelihood.

The national policy does admit that given India’s location between two of the world’s largest illicit drug producing regions, India has been a transit country for long. Smuggling of drugs into and out of the country. Study and Research into illicit narcotics drugs is another area which the national policy document does admit that it has not received due attention in India so far. The policy argues that Research is a very important component of drug control.

Like the BINLEA’s INCSR 2021 report that points to the overburdened judicial system and slow pace of cases being decided, Alok Kumar Jena, Police Inspector from Bhubaneswar, Odisha argues that even though the NDPS Act is very stringent, the Courts have tried to reduce the stringency by applying principles of fairness and equity giving them (drug addicts) a chance to reform.

The Bombay High Court in its June 16, 2011 judgement in the Indian Harm Reduction Network – versus – Zonal Director case held Section 31-A of the NDPS Act as violative of Article 21 of the Constitution of India, as it provides for mandatory death penalty. The High Court agreed to the respondent’s argument that the said provision be construed as “directory” by reading down the expression “shall be punishable with death” as “may be punishable with death”. The court can award death penalty for the offences covered by Section 31-A, upon recording the reasons therefore”.

When it comes to drug trafficking and punishment worldwide, 24 countries have death penalty for drug trafficking.

The countries are: USA, China, Indonesia, Malaysia, Saudi Arabia, Democratic Republic of Congo, Bahrain, Singapore, Vietnam, Qatar, India, Sri Lanka, Iran, Libya, North Korea, South Korea, Taiwan, The Philippines, Bangladesh, Myanmar, Brunei, Cuba, Egypt and Jordan. 

The Supreme Court of India in its E Michael Raj – versus – Intelligence Officer, Narcotics Control Bureau of March 11, 2008 had ruled that the punishment would vary depending upon the quantity of the offending material. However, the SC in its Hari Singh – versus – Union of India judgment of April 22, 2020 modified its earlier 2008 judgment to lay emphasis on the “content of the narcotic substance” rather than the quantity.

As the INCSR 2021 report points out India does need a complete relook at its fight against illicit narcotics. India does need a comprehensive NDPS law, dedicated premier law enforcement agency like the US-DEA and modern technology both in terms of investigation and enforcement.

Our response to the need for a comprehensive anti-narcotics law has been one of a piece-meal approach. The Lok Sabha passed the Narcotic Drugs and Psychotropic Substances (Amendment) bill, 2021 on December 13. The NDPS Act, 1985 has already been amended in 1989, 2001 and 2014.

The latest amendment was necessitated because of the recent judgment of the Tripura High Court that sought to renumber sub-clauses in section 27A of the NDPS Act.

The rearranged section 27A deals with punishing “whoever indulges in financing, directly or indirectly, any, of the activities specified in the sub-clauses of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh Rupees but which may extend to two lakh Rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh Rupees.”

Experts do lament that the government is not that serious about illicit narcotic drug trafficking. All this, despite the fact that India sits right in the middle of the transit routes of illicit drugs between the Golden Crescent and the Golden Triangle and is also the world’s largest producer of licit pharmaceuticals.