CHAPTER 10
Precursor laws
The legal basis for precursor control emanates from the three UN conventions:
1. Single convention on narcotic drugs 1961
2. Convention on psychotropic substances 1971
3. UN convention against illicit traffic in NDPS 1988.
The first two urged states to ‘use their best endeavors to apply measures of supervision as may be practicable’ to substances used in the illicit manufacture of NDPS drugs.
The third convention of 1988 dealt with precursor control extensively. It listed substances in tables I and II and laid down framework for such control. Article 3 requires states to criminalize certain acts such as manufacture, transport, distribution of substances listed in tables I and II while knowing that they are meant for production of illicit drugs. It requires states to declare it an offence to be in possession of these substances in the knowledge that they are meant for illicit manufacture of drugs an offence.
Article 12 requires states to:
1. Control manufacturers and distributors of precursors.
2. Require licenses for their operations
3. Introduce a system of permits
Prevent accumulation of precursors beyond actual need.
On international trade, this article recommends states to:
1. Monitor and identity suspicious transactions
2. Seize if there is evidence of diversion for illicit use
3. Notify the competent authorities of the parties concerned.
4. Ensure proper labelling
5. Ensure records are preserved for atleast two years.
This convention encourages states to use the technique of controlled delivery [ article 11] to apply to measures to FTZs and free ports measures as strict as other areas[ article 18] and to take stricter measures than those prescribed under the convention [ article 24].
India:
Precursor control laws in India were framed in considering both the needs of the society and the nation’s obligations under the international conventions. They are:
1. Customs act 1962
2. NDPS act 1985
3. Foreign trade [development and regulation] act 1992.
Section 11-1 of the customs act empowers state to specify goods which are restricted in areas prone to smuggling and the areas in which the goods are specified. Acetic anhydride has been brought under the control of this section in an area of 100 km along indo Myanmar border in 1988 and has been notified in an area of 50 km along indo pak border in 1991. i.e.
Anyone acquiring acetic anhydride whose value exceeds Rs.15000/= should beforehand intimate the jurisdictional customs officer about the proposed place of storage.
Transportation within the areas should be accompanied by transport voucher
anyone possessing acetic anhydride of value above Rs.15000/- should maintain accounts
Shortage of acetic anhydride presumption that the quantity found short was illegally exported.
Except in case of payment by cheque seller/ transferor to take the signature and full address of the buyer.
The seller has to satisfy himself regarding the identity of the buyer in case of fictitious buyer presumption that acetic anhydride has been illegally exported.
NDPS act 1985:
Precursors are called controlled substances. S/9A empowers the govt to issue an order prohibiting or regulating the production manufacture supply and distribution thereof and trade and commerce of any of the controlled substances. S/25A prescribes a punishment of upto 10 years and fine of Rs.100000/- for any violation of an order issued under s/9A.
Five precursors notified as controlled substances:
Acetic anhydride
N acetyl Anthranilic acid
Ephedrine
Pseudo ephedrine
Anthranilic acid
Only one order has been issued under s/9A. This order introduces a record based control over the precursors. i.e.
All the manufacturers [form 1] distributors’ sellers importers exporters or consignors [form 2] should maintain a daily record of activities. They should send quarterly returns to the jurisdictional zonal director of the NCB [form 4/5]
Loss of disappearance should be reported to the director general. NCB and a copy of the report should be sent to ZD, NCB.
Controlled substances can be transported only accompanied by a consignment note [ form 3] issued by the consignor or by a bill of entry if its is being transported from the port of import to the first destination
All tankers carrying controlled substances hold are sealed with tamper proof seals.
If transported from one zone to another, the consignor has to send a quarterly return [form 6] to the zonal director NCB in whose jurisdiction the consignee falls.
The seller of controlled substances cannot sell it unless the buyer established his identity though some documents.
All container carrying controlled substances should be truth fully labelled.
Schools colleges, universities, govt institutions, science societies and hospitals are exempt form maintaining records and sending reports.
All records should be maintained / preserved for two years.
Foreign trade development and regulation act 1992 and the EXIM policy:
The export import policy EXIM policy under the above act lays down restrictions on imports and exports of various commodities. Any changes in the policy are made by the govt through public notices. Import and export of precursor chemicals in India are also regulated through this mechanism.
Acetic anhydride, ephedrine and pseudo ephedrine. [PUBLIC NOTICE no 79 dated 2.1.1996] a NOC from the narcotics commissioner of India is an essential prerequisite for export of above three chemicals. This NOC is required individually for every export. On application of NOC the commissioner issues a PRE EXPORT NOTIFICATION [PEN] to his counter part in the importing country and waits for a reasonable time for confirmation of the genuineness of the export before issuing an NOC.
Potassium permanganate, 1 phenyl 2 propanone, 3,4, methylene dioxy phenyl 2 propanone and methyl ethyl ketone.
Under public notice no 35 dated 1.9.1998 the export of these four items requires a NOC from narcotics commissioner.
Import of acetic anhydride, Ergometrine ergotamine and Piperanol:
Import of above requires a NOC as per public notice no 28 dated 18.8.1999. The narcotics commissioner verifies the genuineness of the import requirement before permitting it.
The GOI has so far notified acetic anhydride, n acetyl Anthranilic acid ephedrine pseudo ephedrine and Anthranilic acid as controlled substances. Anthranilic acid was brought in due to its use in manufacture of methaqualone.
Acetic anhydride: installed capacity is 70000 MT mostly in UP. It is used in pharma, dyestuff and textiles industries in Gujarat and Maharashtra. The transport corridor is north India to west India through states of UP, Delhi, Rajasthan, MP and Gujarat. Earlier the trafficking was across indo pak border which has given way to illicit methaqualone industry within India recently. Domestic illicit heroin industry accounted for significantly lower volumes. Low diversions from international trade have been reported.
Trends:
A majority of the seizures were related to diversions during domestic transportation
Most of these diversions were intended to supply the illicit methaqualone and mandrax industries
In order to cover the storage and transportation of diverted consignments these were described as ‘other chemicals’ such as ‘acetic acid’ which are not controlled under NDPS act
Fictitious and non existent company names and consignor / consignee addresses were used to cover the storage and transport of diverted consignments.
Although the major transport corridor for acetic anhydride passes through the opium growing areas of MP and Rajasthan and pilferages in transit were noticed seizures related to the illicit manufacture of heroin constituted a very small percentage of overall seizures.
There are not reports of or cases related to the physical smuggling of acetic anhydride across the land borders to either Pakistan or Myanmar.
While no case of sea bone smuggling was reported attempts were made to export acetic anhydride in misdeclared maritime cargo consignments. Dubai was used as a transit point in such operations.
The complicity of manufacturing or industrial consuming units in diverting acetic anhydride for the illicit manufacture of NDPS was not noticed.
EPHEDRINE:
India produced 500MT p.a. most of this is concentrated in south India in TN, AP, Karnataka. Major consumption of ephedrine is in pharma for nasal decongestants and bronchodilator drugs for asthma.
Ephedrine is intended exclusively for supply the illicit ATS industry in Myanmar. The consignments are diverted to staging points in north east and then smuggle across border to Myanmar. The route is from south India to kolkata and guwahati and then to border areas for eventual illegal export to Myanmar.
Major features and trends:
A popular modus is to book consignments of ephedrine by train using fictitious and non existent consignor / consignee names and addresses.
The principal transport route is south India to east and north east like kolkata and guwahati.
Circuitous routes from Chennai to Delhi and then to kolkata are used for road transportation of diverted consignments.
The land routes to Myanmar are the principal trafficking trails although there are unconfirmed reports of misdeclared exports by sea.
A network of Tamil expatriates in Myanmar people of Tamil origin living on the indo Myanmar border and Tamil returnees from Myanmar dominates the trafficking of ephedrine from India to Myanmar.
The addresses of defunct consuming units are used to procure ephedrine from the manufacturing units.
Client credentials have in some cases not been adequately verified by manufacturing units.
Fictitious addresses expired industrial registrations are used by traffickers to obtain ephedrine from manufacturers.
The controls mandated under NDPS act are essentially record based in character. They require maintenance of contemporary accounts, the submission of prescribed returns, transportation under stipulated documentation, the immediate reporting of losses and client identification, but do not envisage licensing registration or pretransaction permission.
The system allows a window of opportunity to the trafficker. The prevention of diversion of precursors will continue to depend on the thoroughness of record based and documentation audits and the cooperative partnerships police are able to build up with trade and industry. 99% of the trade in precursors in India is legal and should not be interfered with while less than 1% of the precursors are used in the manufacture of drugs.
Clarifications:
Possession per se of controlled substance is not an offence. The possessor can be asked as to why he bought it and why he is keeping it. Unexplained possession needs to be dealt with as per law. Rajasthan HC ruled that mere possession is not an offence.
Possession of small quantities of controlled substance need not be a matter of prosecution but of questioning for motives and need. If prosecuted it is for the defence to show there was no mens rea.
Increase in seizures in taken as indicator of increase in trafficking in drugs. A GOI estimate is 20% of total production is diverted for various purposes some not all of which may be illicit drug manufacture.
Inadequate training and updation of knowledge of drug law enforcement officers in legal procedural requirements is the foremost reason for inadequacies and procedural lapses during searches seizures and investigations leading to acquittals.
Instances of implication of innocent people in NDPS cases is also noticed in UP.
Several deficiencies were notices in investigations:
Investigations by unauthorized persons.
Seizing officer being senior to investigating officer leading to loss of impartiality by IO.
Search of vehicle stationed in premises without search authorisation.
Female officers not present in search of a house where there are females
IO not complying with the mandatory requirements of law
All the officers present at the spot not signing the recovery memo/ panchnama
Place of recovery is changed by the prosecution.
Seal on the seized consignment is tampered with
Seal is not handed over to the public witness
The samples drawn are not the representative samples of the entire quantity
Delay in sending representative samples to the lab
Test memos are not being sent in a sealed cover
Test memos are not drawn at the spot
The case property is not kept in sage custody till its production in the court
Test report is not filed along with challans and the authorities are not applying for pretrial disposal of the case properties
Registers of malkhanas are not being produced in the court
Inadequate evidence to ling to consignment to the suspect.
On the issue of whether charges should be framed based on the total quantity of drugs seized or the actual amount of drug contained considering the purity there is a debate.
Enforcement officers are not applying for pre-trial disposal which is essential to prevent diversion and solve storage problems.
On the issue of accountability for failure in prosecution, the investigating officer should be accountable if the court acquits a person because he is falsely implicated. Bonafide legal procedural technical lapses should not form the basis for action against the officers.
Enforcement agencies face many difficulties in the implementation of the NDPS act which can be classified into [i] legal [ii] field work related.
LEGAL DIFFICULTIES:
· difficulties in finding independent witnesses during search and seizures due to
o threat from the accused
o long periods of time taken in attending courts
o Lack of concern for the drug problem.
o Bribed by accused to turn hostile in court.
o Since nakas are many it is difficult to associate an independent witness at every naka.
o The law requires an independent witness even to search a vehicle or a person during a naka check.
· Unauthorized Possession of precursor chemical is not an offence: as per section 9A, 25a and 54 of NDPS act.
· The law only requires manufacturers, importers, exporters, consumers and dealers to maintain records and file reports to zonal director of NCB.. The seller only is responsible to ensure the identity and purpose of the buyer. He is under no obligation to intimate the purpose of the buyer to the zonal director of NCB.
· If there is shortage of the precursor chemical, there is no adverse presumption against the person regarding it has been diverted for illicit use. Neither the person found with excess stocks nor one found with deficient stocks can be prosecuted under the law.
· Bail: courts cannot grant bail to accused under s/19.24, 27A and for offences involving commercial quantities. The ‘commercial quantity’ applies only to drugs and not to precursor chemicals.
· Pre trial disposal: section 52A provides for pretrial disposal of the NDPS but not of controlled substances. Precursor chemicals re useful to the society and their early disposal avoids deterioration minimize wastage and contributes to the exchequer.
· Disposal of vehicle: vehicles are also seized along with the material. Section 52a of pretrial disposal does not apply to vehicles and vehicles keep lying in the agency for years till case if disposed off.
Field work related difficulties:
· Drug detection kits: cost Rs3200 to 3500 each and have a shelf life of 6 months. Police do not have funds for kits and when supplied they expire within 3-4 months. Field officers are not trained in using these kits. Adequate supply of kits quick disbursal and training are essential for effective use of kits. Funding needs to be taken care of.
· Lack of training in identification of precursors: most police officers are not aware about precursors. Fewer have seen them. Even if they find a precursor is diverted or transported they may not even realize the significance of it. They need practical training in ID and significance of diversion.
· Report of doctor u/s 27 NDPS act: consumption of NDPS is a crime but no IO knows how to prove it. Doctors in govt hospitals are not trained in identifying whether the suspect consumed drugs. By the time doctor gets time to test the suspect it is too late to get an accurate report. Doctors give opinion on the general medical condition of the accused which does not help in prosecuting the case in courts.
· Malkhana: NCB issued instructions on storage and disposal of seize drugs. These instructions require such drugs are stored in a proper malkhana under the supervision of a Gazetted officer. Police do not follow these instructions and store them in the malkhanas at the police stations which have inadequate storage facilities with little security.
· Secret service funds: funds for intelligence gathering are grossly inadequate as compared to the need to bust a syndicate.
· Rewards are a major incentive both to the informers and officers. But no reward is given for seizure of precursor chemicals.
· Long time in completion of trials: special courts of NDPS case exist. They are also burdened with other cases in some states. This causes delay in NDPS cases.
Supreme Court decisions:
Conspiracy can rarely be shown by direct proof. It must be inferred form circumstantial evidence of cooperation between the accused. Prosecution must show that the agreed with others that they would together accomplish the unlawful object of the conspiracy. It is the intention to promote a crime that lands conspiracy its criminal cast. One who enters a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crime or aided in their commission. What is important is that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts. In conspiracy prosecution hearsay evidence rules are loosened. Any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co conspirator. [State Of Maharashtra Vs Somnath Thapa 1996] prosecution should establish the chain of acts by each of the accused in achieving its ultimate objective of procuring controlled substance and aiding and abetting the export of the same illegally by performing their respective parts in the chain. Confession full of facts and minute details would show that it was not a result of torture or compulsion. [Henry West Mullar Vs State of Assam 1985]. Confession before a customs officer is not the same as before a police officer and hence admissible in evidence [Naresh Sukhwani Vs Union of India 1996]. Retraction of confession was inadmissible and would still bind the accused [Surjeet Singh Vs Union of India 1997].
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