Oppn Members Flag Retrospective Provision in Bill to Correct Flaw in NDPS Act

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New Delhi, Dec 13 (PTI): Various Opposition members in Lok Sabha on Monday questioned the retrospective penal provision in a bill which seeks to rectify an anomaly, saying the amendments will not hold good in courts.

Finance minister Nirmala Sitharaman moved for consideration and passage the Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021, saying the amendments proposed only seek to correct certain “clerical error”.

She said the bill, has a very limited purpose and seeks to achieve “nothing more”.

The anomaly crept in when the Narcotic Drugs and Psychotropic Substances (NDPS) Act was amended in 2014 to allow better medical access to narcotic drugs, and removing state barriers in transporting and licensing of essential narcotic drugs.

Prior to the 2014 amendment, clause (viiia) of Section 2 of the Act, contained sub-clauses (i) to (v), wherein the term ‘illicit traffic’ had been defined.

This clause was re-lettered as clause (viiib) by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, as a new clause (viiia) in section 2 defining ‘essential narcotic drugs’.

However, inadvertently, consequential change was not carried out in section 27A of the NDPS Act, Finance minister Sitharaman was quoted as saying in the Statement of Objects and Reasons of the bill.

BJD’s Bhartruhari  Mahtab, Manish Tewari (Congress), Arvind Sawant (Shiv Sena) and Supriya Sule (NCP) were among those who opposed the retrospective effect the government seeks to give to the provision, saying according to law, criminal provisions cannot be brought into force on a retrospective basis.

Mahtab opposed the bill calling it “illegal” and said it suffers from “incongruity” and contended that the law cannot be amended to include provisions with their “retrospective effect” in criminal cases.

“You are making another mistake to correct a mistake committed in the past. It will be challenged in the court of law,” the BJD member said, stressing that amending the provisions of the NDPS Act with their retrospective effect would lead to “double jeopardy”.

Earlier, moving the bill for its consideration and passage in the House,  Sitharaman urged members to support the proposed amendments, saying it has been brought only to correct certain “clerical error” in the law and “nothing more” than that.

She also defended the ordinance, which the amendment bill seeks to replace,  saying the order of a court necessitated changes in the law through an ordinance.

The bill was earlier introduced in the Lower House of Parliament on December 6.

Supporting the bill, Subhash Bhamre (BJP) said the ordinance was necessary to rectify the flaw as Parliament was not in session.

He said drug menace today is deep-rooted in society and referred to the limelight the Narcotics Control Bureau (NCB) had hogged following the death of a Bollywood actor.

The Chair asked him to refrain from commenting on the recent cruise drug haul case as the matter was sub-judice.

Participating in the debate Tewari wondered whether a substantive provision can be given retrospective effect and be made part of the law. Citing various judgments, he said such a provision will not be tenable in the coming days.

How will courts allow the law to have retrospective effect, he questioned the government.

Tewari claimed that the proposed amendment will set a dangerous precedent and said it will shake people’s confidence in the supreme legislative institution.

He said something lawful today could be described as unlawful if laws are amended like this, especially those having substantive provisions.

Shiv Sena MP Sawant too described the retrospective provision as illegal, while Sule opposed it, saying she was not sure whether it was the solution.

V Kalanidhi (DMK) claimed that many people were talking of celebrities involved in drug use and not on the large quantity of narcotics haul at the Mundra port.

He pressed for rehabilitation of users and described it as the way forward.

Kalyan Banerjee (TMC) pointed out that courts have often stated that bail is rule, jail is exception.

He also said that while he has nothing against the law, the point remains that the Act should not be misused by officials.

The TMC MP also called for bigger control over officials so that the law is not misused.




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