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Definition of Drug: In the Context of Narcotic Drugs and Psychotropic Substances Laws

In this paper the author has interpreted the various definitional aspects of word “DRUG”. Author have made an attempt to trace out the legal definition for the term “DRUG” through different statute, legislation, case laws but, author found that they are lacking this. In this paper, I will try to focus upon delivering the possible definition of drug, consequences of non defining of “Drug” and its possible solutions.

After going through my study materials I found out that existing laws are trying to define what is drug? But, they failed. They speaks about component, uses, different types of drug (cannabis, coca, controlled substances, manufactured drug, medicinal cannabis, narcotic drug, opium, opium derivates, opium poppy, poppy straw, psychotropic substance, cosmetic, adulterated drug, spurious drug, misbranded cosmetics, misbranded drug, dangerous drug, etc but they does not define specifically word ‘drug'.

Definition of Drug
Being a British Colony, Indian Laws are influenced with Common Law system and drug is not a new concept.[3]It has its origin from old French word ‘DROUGUE', possibly deriving later into "droge-vate" from Middle Dutch meaning "dry barrels", referring to medicinal plants preserved in that. Use of drug is also not a new concept; our ancestors used it through different way. With the development of society and use of drugs in society need of new laws to deal with this concept arose. Herbal cannabis, Opium, Ganja, Bhang are traditional drug which were used by Indian for decades. Religious sentimental are also attached with certain drugs.[4]

There are two main way to define word drug. First, a distinction may be drawn between medicines, which are medically sanctioned psychoactive substances used for clinical purpose, and drug, which are controlled substances whose use is not sanctioned either by law or by medical practitioner. Secondly, the classifications according to their pharmalogical make up and attributed psychoactive effect. However, the definition of drug and the distinction between drugs, substances and medicines are disputed.

Drugs were classified in four categories such as:
(i) Stimulated (drug which speed up the central nervous system);
(ii) Depressants (drugs which slow down the function of the central nervous system);
(iii) Hallucinogens (drug that distort the senses) and
(iv) Deliriums (as anaesthetics have effect upon both mind and body).

Other categories are such as Hard and Soft Drug, HARD drug means which are likely to result in addiction. SOFT drug are primarily relate to cannabis.

Indian Legislature
Statutory control over drug is exercised in India through a number of Central and State enactments. The Principal Central Act, namely, the Opium Act, 1857, the Opium Act 1878, Dangerous Drug Act, 1930, the Drug and Cosmetic Act 1940,[5]Article 47 of the Constitution of India 1950, the NDPS Act 1985, the PITNDPS Act, 1988, and two International Convention on Narcotic Drug and Psychotropic Substances 1961 and 1971 of which India is signatory.

This paper will discuss about definitional part of legislation. The Opium Act 1857 was consolidated and amended the law relating to cultivation of poppy and the manufacture of opium. This Act focused only upon opium rather than drug. So drug was not defined in this act. New legislation The Opium Act, 1878 in which section 3 deals with definition part. It defines ‘Opium', and this Act fails to define word ‘Drug'. India participated in the Second International Opium Conference, which was convoked in accordance with the resolution of the Assembly of the League of Nations, dated the 27th day of September, 1923, met at Geneva on the 17th day of November, 1924, and on the 19th day of February, 1925, adopted the Convention relating to Dangerous Drugs. India was a State signatory to the said Geneva Convention. India adopted the Dangerous Drug Act, 1930. This act defines two terms under section 2[6].It is first time the word ‘dangerous and manufactured'drug was defined. Initially the Drugs Act 1940 was passed by Indian parliament and an amendment in 1962 was done and word ‘cosmetic' was also added. And now it became The Drugs and Cosmetic Act, 1940. This Act was passed to regulate the impact, manufacture, distribution and sale of drugs and cosmetic. Section 3(aaa) of the Act 1940 defines word[7]“Cosmetic” and section 3(b) defines word[8]“Drug”. Though the words “Drug” got its definitional provision, it says what ‘includes'. So medicines, substances and devices are covered under drug. Now question is that whether this is complete definition? It does not give any element by which we can say that these elements will be called drug[9].

The definition of drug in section 3 of the Drugs Act, 1940, is comprehensive enough to take in not only medicines but also substances intended to be used for in the treatment of diseases of human being or animals. This artificial definition introduces a distinction between medicine and substances which are not medicine strictly so called. The expression substances therefore, must be something other than medicine which is used for treatment. However, the appropriate meaning of the expression substances in the section is a thing. Hence absorbent cotton wool, roller bandages and gauze are substances falls within the meaning of the said expression. These things are for or in treatment. The legislature has designed in such way to extend the definition of “drug” to include substances.[10]In this a reported case the Bombay High Court discussed the, question arose whether ‘Boroline' is a Drug or not? And, it was held that Boroline is a Drug. It appears that the Act wants to classify these articles in two parts, i.e. Drug and Cosmetics. Since the Boroline cannot be used for cleansing any part of the human body, nor it is used for beautifying or promoting attractiveness, it is very difficult to classify the Boroline as a cosmetic. It is true that prevention of an infection is certainly a prevention of disease in another form, simply because disease is followed by infection. Boroline, no doubt, is used for preventing of infection in case of minor cuts and minor skin injuries. From the formula, as mentioned on the carton, it prime facie appears that Boroline contains certain medicinal quantities. In Further Act 1940, defines[11]‘Misbranded Drug',[12]‘Adulterer Drug', and[13]‘Spurious Drug'. If we go through these definitions, we will find out that this Act and other coming Act defines characteristic of the drug and what makes drug but they failed to define the word drug. The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was passed to control the advertisement of drugs in certain cases. Section 2(B) defines drug. It is same as of Act of 1940[14]. The Narcotic Drug and Psychotropic Substances Act 1985 defines cannabis, cannabis plant, coca derivative, coca leaf, coca plant, controlled substance, manufactured drug, medicinal cannabis, opium, narcotic drug, opium derivative, opium poppy, poppy straw, poppy straw concentrate, psychotropic substance. It has not defined drug in the Act.[15]Heroin being an opium is manufactured drug; in the cases it was held that whether a particular substance is drug or not, but it does not solved the question of definition of drug. Prevention of Illicit Traffic in Narcotic Drug and Psychotropic Substances Act 1988 was consolidated to deal with illicit traffic in NDPS since this is a serious threat to the health and welfare of the people and the activities of persons engaged in such illicit traffic. This Act talks about authority, procedure, duty of government, etc.[16]This Act gives Schedule A, B, C. Which deals about “Controlled Substances whose manufacture, distribution, sale, purchase, possession, storage, and consumption”, ‘Schedule B' talks about “Controlled Substances whose expert from India”, ‘Schedule C' talks about “Controlled Substances whose import into India is subject to control”.

International Aspect
Three Conventions were adopted by the United Nations Organisations (herein after referred to as the ‘UNO'), Convention of 1961, 1971 and 1988. The Economic and Social Council of the United Nation had passed resolutions to adopt Conventions on NDPS. India was represented in these conferences. 1961 Single Convention on Narcotic Drugs, Article 1(j) defines ‘Drug' as any of the substances in Schedule I and II, whether natural or synthetic. Schedule I contains Drug like Acetorphine, Alfentanil, Benzethidine, Coca leaf, cocaine, Heroin, MPPP, Morphine, etc. Schedule II contain drug like Acetyldihydrocodine, Codeine, Dextropropoxyphene, dihydrocodeine, ethylmorphine, nicocodine, nicodicodine, narcodeine, pholcodine, propiram. 1971 Single Convention on Psychotropic Substances deal with Psychotropic Substances, Article 1(e) of the Convention defines it as any substances, natural or synthetic, or any natural material in Schedule I, II, III or IV. Schedule I contains LSD, DOET, DOB, MDMA, PHP etc. Schedule II contains PCP, ZIPEPROL, etc. Schedule III contains CATHINE, PENTOBARBITAL etc. Schedule IV contains SPA, ALLOBARBITAL, CLOBAZAM, DIAZEPAM etc. Convention 1988, deal with the Illicit Trafficking in NDPS. SAARC Convention on NDPS for regional co operation between the South ASIAN Association for NDPS was passed.

Debate between DRUG and MEDICINE: The term Drug is both socially contested and culturally context-specific. Some countries (for ex. UK) distinguish between substances that are medically and legally sanctioned known as ‘Medicine', and substances that are disapproved of in some way and known as ‘Drug'. By contrast countries such as USA term all psychoactive substances regardless legal status or medical sanction as DRUGS, as epitomised in the term ‘Drug Store' rather than Pharmacy. Other countries do not have a word Drug and do not make a distinction between socially sanctioned medicines and socially disapproved or illicit drug[17]. As Mary Douglas (1978) expressed it, ‘a drug is a chemical which is in the wrong place at the wrong time'. Derrida (1993, in Fraser and Moore, 2011; 10) there are no drugs in “nature”.... the concept of drugs is not a scientific concept, but is rather instituted on the basis of moral or political evaluations'.

There is also a debate between the terms ‘Drug' and ‘Substance'[18]. The 1992 World Health Organisation expert committee included both legal and illegal psychoactive substances within its definition of the drug.

After going through National and International Statutes upon NDPS and Case laws, it is concluded that there is no specific and clear definition for the word DRUG anywhere. Since without knowing essential elements of a particular term we can't make it fall within the law or legal action. Due to lack of specific definition in every case come before court, first the courts have to decide, whether substances in question of law are they drug or not? Once it is decided that, they are drugs only then case will be decided by the competent court or competent authority. Word Drug have very wide scope, it not only includes medicine but also includes substances, machine, etc. Lack of Legal definition for the term leads to vacuum in the law. Since my topic is in context to narcotic it is very necessary to define word drug to make a case admissible before court for concluding that whether a substance is a drug or not.

[1]1stYear LL.M., Dept of Criminal Law and Criminal Justice Administration, The Tamil Nadu Dr.Ambedkar Law University, Chennai.
[2]1stYear LL.M., Dept of Criminal Law and Criminal Justice Administration, The Tamil Nadu Dr.Ambedkar Law University, Chennai.
[3] Accessed on 18thApril 2018
[4]Ross Coomber, 2013, “Key Concept in Drug and Society”, SAGE Publications.
[5]Article 47 of the Indian Constitution says that “ duty of the state to raise the level of nutrition and the standard of living and to improve public health- the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”
[6](g) "manufactured drug" includes—
(i) all coca derivatives, medicinal hemp and opium derivatives; and
(ii) any other narcotic substance which the President of the Union may, by notification in the Gazette made in pursuance of a recommendation under Article 10 of the Geneva Convention or in pursuance of any international convention supplementing the Geneva Convention, declare to be a manufactured drug ;
but does not include any preparation which the President of the Union may. by notification in the Gazette made in pursuance of a finding under Article 8 of the Geneva Convention, declare not to be a manufactured drug ;
(h) "dangerous drug" includes coca leaf, hemp and opium, and all manufactured drugs;
[7]Section 3(aaa) cosmetic “ means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic;
[8]Section 3(b) drug “includes—
[(i)all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]
(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of [vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;] [(iii)all substances intended for use as components of a drug including empty gelatine capsules; and
(iv)such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]
[9]Chaman Lal Jagjivan Das Seth v. State of Maharashtra1963 Mah LJ 276, AIR 1963 SC 665
[10]Abdul Mohid v. State of U.P. 1977 Cr.LJ 1325(Alld. HC)
[11]Section 9 says that any Drug which is coloured, coated, powered or polished or it appear of better therapeutic value, or not labelled in prescribed manner, any statement or design makes false claims for the drug or false leading of any particular.
[12]Section 9(A) says that drug which consists whole or any part filthy, putrid or decomposed substance or, prepared, packed, or stored under insanitary condition, containment of drug with unhealthy conditions, or if container is composed of any poisonous or deleterious substance which may render the contents injurious to health, used unprescribed colour, contain any harmful or toxic substances which may injurious to health, mixing of any substances to reduce its quality or strength,
[13]Section 9(B) says that drug which imported under a name which is belong to another drug, if it imitates or substitute another drug in a manner likely to deceive, and conspicuously marked so as to reveal its true character and its lack of identity with such deceived drug, company is factious or does not exist of which label drug is having, substituted with another drug, purported to be the product of a manufacturer of whom it is not truly a product )
[14]The Narcotic Drugs And Psychotropic Substances Act, 1985
[15]T. Paul Kuki v. State of West Bengal(1993) 3 Crimes 660 (Cal) (DB)
[16]The Narcotic Drug and Psychotropic Substances( Regulation of Controlled Substances) Order, 2013
[17]Douglas, M. (1978) “Purity and Danger: An Analysis of Concept of Pollution and Taboo”. Youth and Drug Policy, Maidenhead: Open University Press.
[18]United Nations Office on Drugs and Crime (1997) “World Drug Report”. Vienna: UNODC.

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