The Law in India Needs to Distinguish Between Painkillers and Narcotics

When it comes to medicinal drugs, the NDPS Act reeks of thoughtlessness and its stringent provisions treat everyone selling a chronic painkiller as a drug lord.

If you have ever suffered from moderate back pain, muscle pain, dental pain, or god forbid, cancer or heart disease, it is very likely that you consumed Tramadol. Sold commonly under the brand of ‘Ultracet’ and ‘Spasmo-proxyvon’, Tramadol painkillers are widely prescribed by dentists, orthopedicians and oncologists across the world. The drug is a part of the National List of Essential Medicines of India 2011.

In 2018, the government of India brought Tramadol under the draconian Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. It is listed as item 110 Y in the Schedule to the Act. Following this change, hundreds of individuals have been jailed for possessing, storing or selling Tramadol tablets if they fail to follow the due process. The NDPS Act is one of the strictest laws in the country. In fact, until 2014, if someone was found guilty twice of dealing narcotic drugs in large quantities, then the court was obligated to impose the death penalty on such an offender. Today, the death penalty in such cases is optional.

Caught in the numbers game

The fate of those charged under the NDPS Act is generally decided by the quantity of contents involved. For every drug, the Act defines a ‘small’, ‘intermediate’ and ‘commercial quantity’. Offences involving commercial quantities are non-bailable and attract a minimum imprisonment of 10 years, extendable up to 20 years. The commercial quantity of Tramadol is 250g. Bail under the NDPS Act is subject to stringent restrictions on the court’s discretion to release an undertrial. So, if a medical store owner stocks 600 tablets of Tramadol-Paracetamol tablets that they cannot produce bills for, they should be prepared to spend 10-20 years behind bars besides finding it near impossible to be released on bail.

To give some context, for chronic back pain, up to 10 of these tablets per day for 4 weeks can be prescribed. 600 tablets can thus be safely consumed by just two patients with chronic back pain in a month.

The NDPS Act with respect to medicinal drugs reeks of thoughtlessness. The Act does not specify whether it is the weight of the controlled salt or of the whole tablet that should be considered when determining commercial quantity. The total weight of 600 Tramadol-Paracetamol tablets is approximately 250g, of which over 200g is Paracetamol while just 22.5g constitutes Tramadol. In the Hirasingh vs State judgement in April 2020, the Supreme Court ruled that the weight of the whole drug should be used to decide if the stock falls under commercial quantity or not. Paracetamol tablets (commonly sold as Crocin etc.) can be easily found in neighbourhood shops and can be legally purchased without a doctor’s prescription. Then, why should its quantity be included when calculating the weight of the ‘narcotic drug?’

A single bench of the Delhi High Court recently raised a poser on a possibly unwitting fallout of the Hirasingh vs State judgment:

“Hypothetically, a family where there are a number of people having chronic cough problem procures 10 bottles of Codeine cough syrup before embarking on a trip to ensure adequate supply of the cough syrup, would be deemed to be in possession of a commercial quantity of Codeine, and would face a minimum of 10 years imprisonment.”

Codeine is another medicinal compound covered under the NDPS act, and its commercial quantity is defined at 1 kg. The commercial quantity of ganja is 20 kg. Thus, anyone found in possession of 19 kgs of ganja would face a lesser punishment compared to someone with 10 bottles of Codeine cough syrup or 600 Tramadol-Paracetamol tablets.

It is unjust to assume that a person dealing in medicinal drugs such as Tramadol and Codeine intends to use them for illicit purposes. The principle of ‘innocent until proven guilty’ does not apply to the NDPS Act, as mere possession in violation of any order or notification under the Act is an offence, a clear resonance with the Unlawful Activities Prevention Act (UAPA). If you do not have a bill and/or a doctor’s prescription for the medicine covered under the NDPS Act, then in the eyes of the law, you have been involved in illicit possession/trafficking of drugs. Not everyone selling a chronic painkiller is a drug lord, just like not everyone criticising the government is a terrorist.

A Libyan police officer views a haul of prescription drug Tramadol seized from a shipping container in Tripoli March 3, 2011. Caption and credit: brqnetwork/Flickr, CC BY 2.0

A Libyan police officer views a haul of prescription drug Tramadol seized from a shipping container in Tripoli March 3, 2011. Caption and credit: brqnetwork/Flickr, CC BY 2.0

Why was Tramadol brought under the narcotics Act?

Tramadol is a centrally acting analgesic. Like any painkiller, extended use of Tramadol tablets can lead to dependence and have opioid-like effects. However, according to the World Health Organisation, Tramadol is generally considered as a drug with low potential for dependence. There is little evidence of intoxication from Tramadol alone. Cases of extreme intoxication due to Tramadol are almost always found in opium and alcohol addicts. On its own, Tramadol is found to be almost 10 times safer and less potent than an analgesic like Morphine. And yet, the commercial quantity for both Morphine and Tramadol is defined at 250 g.

One of the most widely cited reasons for bringing Tramadol under the NDPS Act in 2018 was its suspected abuse by terrorist groups such as ISIS and Boko Haram to alleviate pain. Huge consignments of Tramadol tablets have been held in parts of West Africa, which are claimed to have originated from India and China.

While this is certainly worrying, conviction in current Tramadol related cases doesn’t depend on whether someone actually, and knowingly contributed to illicit trade with terrorist groups. Laws such as UAPA and NDPS are stringent because it is assumed that offenders under these acts are a threat to society at large. A family carrying bottles of Codeine cough syrup or a pharmacist selling Tramadol without checking for medical prescriptions may be wrongdoings. But they cannot be classified as ‘threats’ to society, especially considering the medicinal value of these drugs.

Imprisonment takes away crucial years, not just from an individual but from an entire family. Thus, it should be used judiciously, given only in cases where at least an intent to harm is established. Even if Tramadol cannot be removed from the NDPS Act immediately, courts should be proactive in protecting the innocent or those committing minor offences. Possessing or selling medicines listed under the Act, whose use is largely bona fide, without the required paperwork should not automatically amount to rigorous imprisonment. Else, many small and medium scale pharmacists will continue to be incarcerated for years and patients in genuine need of Tramadol may find it increasingly difficult to procure the medicine.

Akshat Sogani and Sanat Sogani are brothers whose father, an authorised pharmaceutical wholesaler, has been charged with Section 29 of the NDPS Act for allegedly selling Paracetamol-Tramadol tablets to a Community Health Worker. He has spent over five months in judicial custody.