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Drug Addiction vis-a-vis Defense of Insanity in India:A Comparative Study
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Drug addiction and its relation with mental illness and criminal behaviour has become a universal truth. The countries, who are facing this controversy at a grand level have already taken multiple steps to ensure that this controversy does not spread otherwise it will become uncontrollable issue for both the Government and society at large. Defence of insanity is an immunity given to the criminal who had acted out of mental disorder and had not otherwise committed the offence he has charged with. Similarly the prolonged drug abuse has the same effect on the mental wellbeing of the addict that he become deprived of mental and physical control or assessment of his/ her actions. Since drug addiction has become a deep wound in the heart of India and daily there is news of drug overdose deaths and criminal behaviour due to drug dependence, it has become important to completely shift the approach of the government and judiciary while prosecuting/ convicting such offenders as they are not in their right mind or body to differentiate between right and wrong. This research paper explore the relation between drug addiction and mental illness in terms of allowing the defence of insanity to drug related offenders. This research paper will also throw light upon the present anti-drug legislation in India and the approach of International fraternities to tackle the menace of drug abuse in an effective manner.
Keywords
Drug Addiction, Defence of Insanity, Indian Penal Code, United Nations, Mental Health and Rights.
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- Siddhapal Kamala YadavVs. State of Maharashtra [2008] INSC 1718, S.L.P. (Crl.) No.509 of 2008, Para 8.
- 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
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- 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
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- 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).
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- Section 80, NDPS Act
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- Section 71(1), NDPS Act
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- 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
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- 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
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- 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
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- 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
- 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:
- 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)
- R. v. Smith, [1987] 1 S.C.R. 1045 (Supreme Court of Canada)
- Ibid
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- Ibid, pp. 667–668.
- S. Ct. No 06–7949 (2007), Supreme Court of the United States, 2007
- 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.
- 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).
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- 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).
- 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.
- Ibid, p. 10. 208 Judging the epidemic
- 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.
- United Nations Office on Drugs and Crime, Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment (2007), p. 63.
- 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]).
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