JUDGMENT Mr. Paramjeet Singh, J.: - The instant petition is under Section 439 of the Code of Criminal Procedure for grant of concession of bail to the petitioner in FIR No. 61 dated 27.05.2012, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), registered at Police Station City Kotkapura, District Faridkot. 2. As per the FIR, recovery effected from the petitioner is 15 packets of tablets of microlit containing 100 tablets each. The said tablets contain diphenoxylate hydrochloride which finds mentioned at serial No.44 of the notification dated 27.09.2001, according to which tablets containing diphenoxylate more than 50 grams, fall in the commercial quantity. Recovery effected from the petitioner, prima facie appears to be commercial quantity. Learned counsel for the petitioner states that petitioner is a petty drug addict and not a drug peddler or smuggler. 3. At this stage, keeping in view the gravity of offence, this Court is not inclined to grant bail to the petitioner. Hence, declined. 4. However, keeping in view the statement of the learned counsel for the petitioner that petitioner is a petty addict and also that the quantity of tablets is not a large quantity, the petitioner appears to be a drug addict and is not a drug peddler or smuggler, this Court deems it fit that the petitioner and such persons need to be treated, rehabilitated and re-integrated into society. So, action is required to be taken under Sections 4, 7, 7A and 7B of the NDPS Act read with Article 47 of the Constitution of India. Relevant provisions are as under:- NDPS ACT “Chapter II Authorities and Officers 4. Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc. (1) Subject to the provisions of the Act, the Central Government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc. (1) Subject to the provisions of the Act, the Central Government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. (2) In particular and without prejudice to the generality of the provisions of sub-section (1), the measures which the Central Government may take under the sub-section include measures with respect to all or any of the following matters, namely:- (a) coordination of actions by various officers, State Governments and other authorities - (i) under this Act, or (ii) under any other law for the time being in force in connection with the enforcement of the provisions of this Act; (b) obligations under the International Conventions; (c) assistance to the concerned authorities in foreign countries and concerned international organizations with a view to facilitating coordination and universal action for prevention and suppression of illicit traffic in narcotic drugs and psychotropic substances; (d) identification, treatment, education, after care, rehabilitation and social re-integration of addicts; (e) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act and preventing and combating the abuse of narcotic drugs and psychotropic substances and illicit traffic therein. (3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or a hierarchy of authorities by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order, and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers and take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers and take such measures.” “7. Officers of State Government – (1) The State government may appoint such officers with such designations as it thinks fit for the purposes of this Act. (2) The officers appointed under sub-section (1) shall be subject to the general control and direction of the State Government, or, if so directed by that Government also of any other authority or officer. Chapter IIA National Fund for Control of Drug Abuse 7A. National fund for Control of Drug Abuse – (1) The Central Government may, by notification in the Official Gazette, constitute a Fund to be called the Nation Fund for Control of Drug Abuse (hereafter in this Chapter referred to as the Fund) and there shall be credited thereto- (a) an amount which the Central Government may, after due appropriation made by Parliament by law in this behalf, provide; (b) the sale proceeds of any property forfeited under Chapter VA; (c) any grants that may be made by any person or institution; (d) any income from investment of the amounts credited to the Fund under the aforesaid provisions. (2) The Fund shall be applied by the Central Government to meet the expenditure incurred in connection with the measures taken for- (a) combating illicit traffic in narcotic drugs, psychotropic substances or controlled substances; (b) controlling the abuse of narcotic drugs, psychotropic substances; (c) identifying, treating, rehabilitating addicts; (d) preventing drug abuse; (e) educating public against drug abuse; (f) supplying drugs to addicts where such supply is a medical necessity. (3) The Central Government may constitute a Governing Body as it thinks fit to advise that Government and to sanction money out of the said Fund subject to the limit notified by the Central Government in the official Gazette. (4) The Governing Body shall consist of a Chairman (not below the rank of an Additional Secretary to the Central Government) and such other members not exceeding six as the Central Government may appoint. (5) The Governing Body shall have the power to regulate its own procedure. 7B. Annual report of activities financed under the fund. (4) The Governing Body shall consist of a Chairman (not below the rank of an Additional Secretary to the Central Government) and such other members not exceeding six as the Central Government may appoint. (5) The Governing Body shall have the power to regulate its own procedure. 7B. Annual report of activities financed under the fund. - The Central Government shall, as soon as may be, after the end of each financial year, cause to be published in the Official Gazette, a report giving an account of the activities financed under section 7A during the financial year, together with a statement of accounts.” Constitution of India - Article 47 of the Constitution reads as under:- “47. 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 medical purposes of intoxicating drinks and of drugs which are injurious to health.” 5. Article 47 of the Constitution mandates prohibition of the consumption of intoxicating drinks and drugs which are injurious to health, except for medical purpose. This also can be considered as a fundamental right under Article 21 of the Constitution, the debate on this can be endless but I will not get into this here. 6. Section 7A of the NDPS Act mandates establishment of the National Fund for control of drug abuse and the said fund under Section 7A(2) is required to be applied by the Central Government to meet the expenditure incurred in connection with the measures taken for identifying, treating, rehabilitating addicts, preventing drug abuse, educating public against drug abuse and supplying drugs to addicts where such supply is a medical necessity. 7. The instant case relates to the State of Punjab. It is said, in the State of Punjab two things open early – Liquor Vends and Chemist shops. A small village in Punjab may not be having a school but has a chemist shop. The surveys conducted by the various agencies mention that after Nagaland, Punjab ranks second in the country for drug abuse. It is said, in the State of Punjab two things open early – Liquor Vends and Chemist shops. A small village in Punjab may not be having a school but has a chemist shop. The surveys conducted by the various agencies mention that after Nagaland, Punjab ranks second in the country for drug abuse. 70 per cent of boys and girls in Punjab in the age group of 19-24 years are exposed to abuse of drugs. A staggering 75% of Punjab’s youth is hooked to drug abuse. This figure was submitted by the State Government itself to this Court in the year 2009. One out of every three college students in the State is on drugs. Every kind of prescription drugs is available through chemist shops. Every day large number of cases involving people possessing drugs are listed before this Court from whom over-thecounter drugs like Buprenorphine, Parvon, Petmol spas, Spasmo Proxyvon, Netmid, Lomotil, Momotil, Diazepam, Nitrazepam, Codex and Rexcof syrup and superious coaxil and phenarimine injections have been recovered. 8. I am of the view that Courts administering criminal justice cannot turn blind eye to the ground realities, if, Criminal Court is to be an effective instrument in dispensing justice then Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in trial. 9. As per statement of the DGP (Prisons) of the State of Punjab appeared in the newspaper, 30 per cent of all jail inmates have been arrested under the NDPS Act and there is a continuous flow of drugs in the jail. It is impossible for him to control the flow of drugs into his prisons. If it is true then it is very serious matter. 10. With the drug addiction, everyone is affected. It has neither spared the rich nor the under-privileged. It affects the entire society at large. It has medical as well as non-medical effects. Drug abuse changes the chemistry of brain, resultant behavioral changes and health problem, overdose results into death, cardio vascular diseases, HIV/AIDS, strokes and other related problems affecting health. 11. The non-medical effects include family, economy and societal effects, from tearing apart families, to destroying marriages, to disrupting finances, to leaving people socially inept and jobless, resultant increase of corruption in Indian culture due to illicit drugs. 12. 11. The non-medical effects include family, economy and societal effects, from tearing apart families, to destroying marriages, to disrupting finances, to leaving people socially inept and jobless, resultant increase of corruption in Indian culture due to illicit drugs. 12. In the light of these facts, I am of the considered opinion that efforts should be made to rehabilitate the addicts at least as is mandated by Article 47 of the Constitution of India and the provisions of Section 7A(2)(c)(d)(e)(f) of the NDPS Act. 13. A drugged youth means drugged nation, resultant sickness. A sick nation has no future. Indian youth are contributing tremendously to the booming economy, drug addiction can hamper the pace. So, this Court deems it fit that for preventing youths from slipping into deep chasm of drugs and rejuvenate their lives through proper counselling, medication and above all, accepting addict youth in mainstream social life is necessary. The rehabilitation system is required to be made effective and the strict vigilance is required to make the prisons safe from drug junkies. 14. In the year 2001, drug abuse survey was carried out by the Government of India. Thereafter, no National survey has been conducted. So is the state of affairs in the State of Punjab. A pilot survey is also required to be conducted in the State of Punjab, so that number of people using the pharmaceuticals / prescription drugs could be known. 15. Basically drug addiction is a psycho-socio-medical problem. It can be best handled by a family, community-based approach with the active involvement of NGOs/Community Based Organizations. Drug addicts need prolonged treatment, patience and humanitarian approach. It is essential for the State Government, specifically, the State of Punjab to realize that the Rehabilitation Centres should actually do some service to the addicts and resultantly to the society. The Rehabilitation Centres are actually needed to prevent the addicts from falling back into the trap of Drug Addiction, after being treated once. 16. No work of any merit is possible without contribution from several ends. The efforts of the Judges, Prosecutors, defence counsel, substance-abuse treatment specialists, probation officers, law enforcement agencies and correctional personnel, educational and vocational experts, community leaders and other individuals can be of a great help. 17. 16. No work of any merit is possible without contribution from several ends. The efforts of the Judges, Prosecutors, defence counsel, substance-abuse treatment specialists, probation officers, law enforcement agencies and correctional personnel, educational and vocational experts, community leaders and other individuals can be of a great help. 17. Keeping in view the present scenario in the State of Punjab, I deem it fit that the petitioner should be sent to Rehabilitation Centre set up by the State Government for treatment on experimental basis. This Court also directs the State of Punjab to identify the addicts involved under the NDPS cases and make arrangements for their treatment and consequential rehabilitation. 18. In United States, Drug Courts was a new way to deal with the legal and social problems presented by repeat drug offenders. In his book, REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT by James L. Nolan, Jr. (Princeton and Oxford: Princeton University Press) has written about the establishment of Drug Courts. The book has been reviewed by Ruth Ann Strickland, Department of Political Science and Criminal Justice, Appalachian State University and its extracts are as under:- “Drug courts emerged because of increasingly overcrowded criminal court dockets. James Nolan provides an overview of the drug court movement, its history, its effects on the courtroom workgroup and the administration of justice and criminal adjudication. The book focuses on understanding the drug court movement and the consequences of it for conceptions of justice. The book reviews the legal efforts to control drug use such as the Harrison Act and the precursor to drug courts known as Treatment Alternatives to Street Crime (TASC). xxx xxx xxx xxx The first drug court in the United States was established in Dade County, Florida in 1989. Spearheaded by Janet Reno, then Florida’s State Attorney, it allowed drug offenders to choose courtmonitored treatment as an alternative to the typical criminal adjudication process. In drug treatment courts, offender treatment is centered on the court rather than a treatment facility. Defendants, then, engage in courtmonitored activities such as participation in groups counseling sessions, Alcoholics Anonymous and Narcotics Anonymous. They are subject to urinalysis testing and regularly report to a judge who monitors their treatment and progress. Programs last at least one year but may last longer. Successful completion of the program may result in dismissal of criminal charges or the expungement of the arrest from the defendant’s record. They are subject to urinalysis testing and regularly report to a judge who monitors their treatment and progress. Programs last at least one year but may last longer. Successful completion of the program may result in dismissal of criminal charges or the expungement of the arrest from the defendant’s record. In drug courts, attorneys play a less prominent role while the judge becomes more active by asking clients personal questions and giving encouragement during the treatment process. Although based on the Dade County model, each drug court has unique adaptations such as standards used to determine eligibility for potential participants, guidelines used to determine when clients first gain access to a treatment program and the types of agencies involved in the treatment of drug court clients. Drug courts emerged in response to a variety of cultural and structural developments. Structural causes of the increased reliance on drug courts include overcrowded jails and prisons, high recidivism rates among drug offenders, backlogged criminal court dockets and weighing the costs of incarceration against the cheaper alternative of court-monitored treatment. Culturally, the rise of a therapeutic culture, with a focus on self-understanding and the language of victimhood, provided the underpinnings of the drug court movement. Therapeutic justice, along with therapeutic judges, treats drug offenders as victims of a biopsychosocial diseasedrug abuse. Nolan pointedly negates the idea that being therapeutic is synonymous with being soft on crime. He argues that punishment and treatment are not necessarily contradictory and can even be complementary.” 19. In the Book under various chapters, Nolan discussed the effect of drug treatment courts on the courtroom workgroup comparing drug courts to a therapeutic theater. In the last two chapters, Nolan explores the meaning of justice. He describes the retributivist and utilitarian perspectives and contrasts these approaches with the rehabilitative and therapeutic ideals. Paradoxically, as the rehabilitative ideal has been discredited, a therapeutic culture has emerged. Some refer to this as the “new psychologism”-a movement toward seeking self-realization and stressing personal satisfaction over individual interests or social goals. Drug court treatment fits well with the new psychologism where emphasis is placed on “feelings” and getting in touch with oneself. Nolan concludes that once justice is characterized as “just treatment,” criticisms based on just desert become meaningless. In this context, justice is reinvented and therapeutic justice becomes the dominant paradigm. 20. Drug court treatment fits well with the new psychologism where emphasis is placed on “feelings” and getting in touch with oneself. Nolan concludes that once justice is characterized as “just treatment,” criticisms based on just desert become meaningless. In this context, justice is reinvented and therapeutic justice becomes the dominant paradigm. 20. I am of the opinion, in NDPS cases of drug addicts, which are affected by the Narcotic Drugs and Psychotropic Substances, criminal justice system should work in tandem with the treatment system. The Special Courts with jurisdiction over the NDPS cases should try to identify addicts and drug-using offenders, other than the smugglers and drug peddlers. In cases of drug addicts State should be directed to provide treatment as alternative to prisons, separate youth-detention facilities in jails and probation homes. The Courts can make extensive use of comprehensive supervision, drug testing, treatment services and may seek reports about the reformation of addicts and take up cases for immediate sanctions against the persistent defaulters and incentives to the ones who are on the path of reforms. 21. Hopefully there will be some light at the end of the tunnel. This Court believes that the addicts and the beginners to the drug addiction at least can come back on track of normal life. The Government of India and the States should make efforts for bringing in mass movement to “Say No to Drug Addictions”. 22. The State of Punjab is directed to file an affidavit how many Drug De-addiction Centres are effectively working, what are the facilities available in those Drug De-addiction Centres and will also file an affidavit to the effect that whether rules have been framed for establishment of de-addiction Centres and treatment of drug addicts. 23. The State shall also appraise this Court whether rules to permit, control and regulate the possession of Narcotic Drugs and Psychotropic Substances (synthetic / natural) under the NDPS Act as are required to be framed under Section 10 of the NDPS Act, have been framed or not which may apply to chemists, wholesalers and manufacturers. The learned counsel for the State has failed to inform this Court regarding existence of such rules. 24. State of Punjab is directed to file an affidavit in this regard within two months from the receipt of certified copy of this order. 25. The learned counsel for the State has failed to inform this Court regarding existence of such rules. 24. State of Punjab is directed to file an affidavit in this regard within two months from the receipt of certified copy of this order. 25. The State shall also take necessary measures for treatment of and its effect on the petitioner and file a report in this regard on or before 08.10.2012. 26. Copy of the order be sent to the Chief Secretary, Punjab for compliance. List again on 08.10.2012 ---------0.B.S.0------------