NDPS ACT Vs ABKARI ACT : A QUESTION OF PROPORTIONALITY IN PUNISHMENTS

 NDPS Act vs Abkari Act: A Question of Proportionality in Punishments

Introduction

The Indian legal system has developed multiple statutes to regulate intoxicating substances. The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a central enactment that criminalises narcotic and psychotropic substances such as ganja, heroin, cocaine, LSD, etc., all of which are completely prohibited for recreational use in India. On the other hand, the Kerala Abkari Act, 1 of 1077 is a state legislation regulating liquor, intoxicating drugs, and excise duties. The Abkari Act deals with Indian Made Foreign Liquor (IMFL), spirit, toddy, and arrack—all of which are not prohibited per se in India but are regulated through licensing and taxation.

Curiously, punishments under the Abkari Act for certain offences appear to be far more stringent than those under the NDPS Act, despite the latter dealing with substances that are absolutely forbidden in India. This article examines this anomaly, citing relevant provisions and judicial precedents.

Punishments under the NDPS Act

The NDPS Act classifies punishments based on the quantity of the contraband substance:

Small Quantity (e.g., ganja up to 1 kg): Rigorous imprisonment up to 6 months, or fine up to ₹10,000, or both (Sec. 20(b)(ii)(A)). Bailable.

Intermediate Quantity: Rigorous imprisonment up to 10 years + fine up to ₹1,00,000.

Commercial Quantity (e.g., ganja ≥ 20 kg): Rigorous imprisonment not less than 10 years and up to 20 years, and fine not less than ₹1,00,000 and up to ₹2,00,000 (Secs. 20(b)(ii)(C), 21, 22).

Consumption (Sec. 27) also carries relatively minor punishments: up to 1 year imprisonment or ₹20,000 fine for hard drugs; 6 months for others.

Thus, a person possessing less than 1 kg of ganja can plead guilty, pay a small fine, and walk free.

Punishments under the Abkari Act

The Abkari Act prescribes far harsher punishments, particularly under Section 55:

Section 55(a): Transport, possession, or sale of liquor/spirit without licence → Punishable with imprisonment up to 10 years and with fine not less than ₹1,00,000. This is a non-bailable and cognizable offence, regardless of whether the quantity is a single quarter bottle of IMFL or an entire lorry of spirit.

Other provisions (Secs. 55(i), 56A, 57, 58) also prescribe high fines and long terms of imprisonment for unlawful manufacture, sale, or possession.

Judicial Precedents

Asokan v. State of Kerala (Ker HC) – Confirmed that under Sec. 55(a), punishment extends to 10 years and a minimum fine of ₹1,00,000.

Arimbra Muraleedharan v. Excise Inspector (Ker HC, 2023) – Conviction altered from Sec. 55(a) to Sec. 8, reducing punishment to 3 months + fine, showing judicial balancing.

Kerala High Court, 2023 (Sec. 55(i) case) – Held that “sale in praesenti” is necessary to attract Sec. 55(i); mere possession within permissible limits does not establish intent to sell.

Comparison

Aspect                       NDPS Act (e.g., ganja possession)                Abkari Act (e.g., IMFL transport)

Substance legality             Prohibited per se                                          Legal under licence

Bailability       Small quantity offences are bailable Most                 Sec. 55 offences are non-bailable

Punishment (small case)    6 months RI / ₹10,000 fine         Up to 10 years RI + minimum ₹1,00,000 fine

Principle            Graduated punishment based on quantity       Uniformly harsh punishment, little                                                                                                                                                     gradation

Analysis: A Legislative Anomaly?

The NDPS Act, dealing with substances that are completely prohibited, provides for a calibrated, quantity-based punishment structure, even allowing bailability for small amounts. The Abkari Act, however, dealing with liquor (a non-prohibited substance in India except in dry states like Gujarat), imposes disproportionately severe punishments, even for petty transport or possession offences.

This disparity raises issues of proportionality under Article 14 of the Constitution. While the state may justify harshness in order to protect excise revenue and public health, equating a person transporting a single bottle of liquor with one smuggling a lorry of spirit appears unjust.

Conclusion

The contrast between NDPS and Abkari punishments highlights a policy imbalance. While NDPS offences involving dangerous contrabands receive relatively lenient treatment in small-quantity cases, liquor offences under the Abkari Act invite draconian punishments even when the underlying wrong is only a tax evasion.

It may be time for legislative reform to recalibrate the Abkari Act, ensuring punishments are proportionate to the gravity of the offence, while still safeguarding the state’s legitimate revenue and public health concerns.