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Drug Addiction vis-a-vis Defense of Insanity in India:A Comparative Study


Affiliations
1 University Institute of Laws, Panjab University Regional Centre, Civil Lines, Ludhiana-141001 (Pb), India
2 Panjab University Regional Centre, Civil Lines, Ludhiana-141001 (Pb), India
     

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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
  • (b) order such person to be delivered to any relative or friend of such person.
  • 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.
  • 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
  • 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.
  • 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.
  • 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.
  • LNmEsmTHI, OPIATE ADDIcTIoN 55 (1947).
  • World Drug Report 2018 (United Nations publication, Sales No. E.18.XI.9).
  • Ibid.
  • Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health.Modified with permission from Volkow et al. 1993.
  • 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.
  • 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).
  • 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.
  • Nora D. Volkow, M.D. Director. National Institute on Drug Abuse
  • Table 4.3, page no 124, Crime in India, NCRB, 2014
  • Prison statics in India, 2015 (http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.pdf) Retrieved on 5 Dec, 2018.
  • 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.
  • Section 80, NDPS Act
  • 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.
  • Section 71(1), NDPS Act
  • 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.
  • 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.
  • Section 31A, NDPS Act
  • 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
  • Indian Harm Reduction Network v Union of India 2012 Bom CR(Cri)121
  • 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.
  • 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
  • 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.
  • 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.
  • 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)
  • 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
  • United Nations, Convention on Psychotropic Substances, 21 February 1971, entered into force 16 August 1976
  • United Nations, Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, entered into force 11 November 1990
  • 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
  • Single Convention, Article 38; Convention on Psychotropic Substances, Article 22; Convention against Illicit Traffick in Narcotic Drugs, Article 14.
  • 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.
  • United Nations Office on Drugs and Crime, World Drug Report (2010), p. 4.
  • 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”.]
  • African Charter on Human and People’s Rights, Organization of African Unity, 27 June 1981, entry into force 21 October 1986, Article 16(1).
  • 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.
  • United Nations, Commentary on the UN Convention Against Illicit Trafficking of Narcotic Drugs and Psychotropic Substances (1988),1998, para. 3.3.
  • 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
  • Ristroph A, “Proportionality as a principle of limited government”, Duke Law Journal, 200555(2):263–332, at p. 293.
  • Robinson v. California, 370 U.S. 660 (United States Supreme Court, 1962).
  • 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).
  • 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
  • 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.
  • 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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  • Drug Addiction vis-a-vis Defense of Insanity in India:A Comparative Study

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Authors

Shiv Kumar Dogra
University Institute of Laws, Panjab University Regional Centre, Civil Lines, Ludhiana-141001 (Pb), India
Rajni Bagga
Panjab University Regional Centre, Civil Lines, Ludhiana-141001 (Pb), India

Abstract


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.

References