Insights Daily Current Events, January 20, 2014

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January 20, 2014

NATIONAL & SOCIAL ISSUES

Basic Features of the Narcotic Drugs and Psychotropic Substances Act, 1985

The Act is designed to fulfill India’s treaty obligations under the Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The NDPS Act 1985 sets out the statutory framework for drug law enforcement in India.The main elements of the control regime mandated by the Act are as follows:

a)    The cultivation, production, manufacture, possession, sale, purchase, transportation, warehousing, consumption, inter-State movement, transshipment and import and export of narcotic drugs and psychotropic substances is prohibited, except for medical or scientific purposes and in accordance with the terms and conditions of any license, permit or authorization given by the Government.

b)    The Central Government is empowered to regulate the cultivation, production, manufacture, import, export, sale, consumption, use etc of narcotic drugs and psychotropic substances.

c)    State Governments are empowered to permit and regulate possession and inter-State movement of opium, poppy straw, the manufacture of medicinal opium and the cultivation of cannabis excluding hashish. (Section 10).

d)    All persons in India are prohibited from engaging in or controlling any trade whereby narcotic drugs or psychotropic substances are obtained outside India and supplied to any person outside India except with the previous authorisation of the Central Government and subject to such conditions as may be imposed by the Central Government.

e)    The Central Government is empowered to declare any substance, based on an assessment of its likely use in the manufacture of narcotics drugs and psychotropic substances as a controlled substance.

f)     Assets derived from drugs trafficking are liable to forfeiture

g)    Both the Central Government and State Governments are empowered to appoint officers for the purposes of the Act. Narcotics Control Bureau was set up by the Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally.

h)    The NDPS Act is in effect a comprehensive code not only for the control and regulation of Narcotics Drugs and Psychotropic Substances; but also for the control of selected chemicals – commonly known as precursors – which can be used in the illicit manufacture of narcotic drugs and psychotropic substances, as well as for the investigation and forfeiture of drug related assets.

ENFORCEMENT

  • Given India’s size and the federal nature of our polity, a number of agencies both at the Centre and in the States have been empowered to enforce the provisions of the Act.

These agencies include the

a)            Department of Customs and Central Excise,

b)            the Directorate of Revenue Intelligence,

c)            the Central Bureau of Narcotics and

d)            the Central Bureau of Investigation at the Central level and

e)            State Police and Excise Departments at the State level.

  • The Union Ministries of Social Justice and Empowerment and Health are responsible for the demand reduction aspects of drug law enforcement which broadly covers health-care and the deaddiction, rehabilitation and social reintegration of addicts.
  • Section 4(3) of the Act envisages the creation of a Central Authority to coordinate the activities of the various Central and State agencies involved in drug law enforcement, to implement India’s obligations under various international conventions, and to coordinate with international organizations and authorities in foreign countries in the prevention and suppression of the illicit traffic in narcotic drugs and psychotropic substances.
  • In terms of this provision, the Narcotics Control Bureau was set up by the Central Government in 1986 with the broad remit to coordinate drug law enforcement nationally.
  • The empowerment of a large number of agencies under the NDPS Act ensures that India’s drug laws are enforced effectively on the ground. The NCB basically functions as the national coordinator international liaison and as the nodal point for the collection and for dissemination of intelligence. This system assures coordinated implementation within the parameters of a broad national strategy.

INVESTIGATIVE PROCEDURES

The act empowers officers duly authorized by the Central Government or a State Government to issue warrants, to enter and search premises, to stop and search conveyances, to seize narcotic drugs and psychotropic substances, to take statements and to arrest persons suspected of having committed an offence, punishable under the Act.

LICIT OPIUM CULTIVATION

India is the largest licit producer of opium in the world, which is both exported as well as used by the domestic pharmaceutical industry. The licit cultivation of opium in India is regulated and controlled by the Narcotics Commissioner of India in terms of the provisions of Sections 8, 9 and 5 of the NDPS Act. The Central Government announces an opium policy each year which sets out the terms and conditions subject to which licenses for the cultivation of opium shall be given, the areas where cultivation shall be allowed, the prices at which the opium crop shall be purchased by the Government and the minimum qualifying yield for a license in the ensuing crop year. The crop cycle runs from October to May. Based on this policy, the Narcotics Commissioner of India issues licenses to individual cultivators for specified tracts of land. The key elements of the licit opium control regime in India are as follows:

i)          Opium can be cultivated only on fields specifically licensed for the purpose.

ii)         The entire crop must be tendered to the Central Government at prices fixed by the Government.

iii)         Failure to tender the minimum qualifying yield can disentitle the cultivator to a license in the following crop season.

OFFENCES AND PENALTIES

Offences are triable by Special Courts and the punishments prescribed range from imprisonment from 10 to 20 years for first offences to 15 to 30 years for any subsequent offences together with monetory fines. The Act was amended in May 1989 to mandate the death penalty for second offences relating to contraventions involving more than certain quantities of specified narcotic drugs and psychotropic substances.

The Act, however, makes a distinction between possession for personal consumption and trafficking, the punishment for the former being limited to between six months and one year only.

Criticism

The NDPS Act has been criticized for clubbing marijuana, hashish and bhang with hard drugs like heroin, cocaine and crack.

Source: http://narcoticsindia.nic.in/NDPSACT.htm

INTERNATIONAL

INDIA- JAPAN SCIENCE AND TECHNOLOGY COOPERATION

Until recently, mutual interests between India and Japan were primarily limited to economic matters like development assistance and trade, but today they are more diversified and cover a wide range of subjects, the salient ones being nuclear disarmament, maritime security, energy cooperation, climate change, counter terrorism, UN reforms and regional community building.

Moreover Science Technology is also one of the fields where the two countries showed active interest in building a new relation. Realizing this potential, the two leaders launched a joint committee on Science and Technology Cooperation in 2000. They stressed on areas such as modern biology, biotechnology, health care, agriculture, hydrocarbon fuels, environment, information and communication technology, robotics, alternative sources of energy, etc

Since then India and Japan have cooperated in various fields and have taken initiative in rare earth production, Technology transfer in various fields’ especially non renewable energy, Nuclear energy, information and communication technology, interaction at various ministries level on science and technology upgradation etc.

In the following areas two countries have been cooperating:

1)     Development of  rare earth industry in India

India and Japan have signed the memorandum of understanding in November, 2012 to develop rare earth industry in India. The MOU also enables Japan to import rare minerals from India. They would also work to develop a joint venture in other countries.

Japan is the world’s largest importer of REE, mainly because of its major industrial base in electronics and the consequent demand for a significant amount of REE. REEs are required for computers, laptops and televisions. They also have significant usage in mobile telephony and Magnetic Resonance Imaging (MRI) equipment.

Given that the majority production of rare earth materials (over 97 percent of the world’s REE market) is controlled by China it is imperative for Japan to diversify sources for REE import (a potential safeguard against a possible embargo by China amid the Japan-China territorial dispute over the Senkaku Islands).

India is known to be the second largest producer of REEs. According to one estimate made in 2010, China produced 1.3 lakh tonnes of REEs while India’s output was 2,700 tonnes. India could supply around 4,100 tons a year, equivalent to roughly 10 percent of Japan’s peak annual demand

Indian Rare Earth Limited, a company affiliated with India’s Department of Atomic Energy (DAE), and Toyotsu Rare Earths India Pvt. Ltd have already made some progress in the production of rare earth material.

2) DMIC project and Smart Community Projects

  • Delhi-Mumbai industrial corridor

India’s ambitious $90-billion DMIC project is aimed at creating mega industrial infrastructure along the Delhi-Mumbai Rail Freight Corridor, which is under implementation. Japan is giving financial and technical aid for the project.

The project aims to develop an environmentally sustainable, long lasting and technological advanced infrastructure utilizing cutting age Japanese technologies and to create world class manufacturing and investment destinations in this region.

The two countries are also working on upcoming Chennai-Bengaluru industrial corridor project.

  • Smart Community projects:

India and Japan has also agreed to promote a Smart Community initiative under Delhi-Mumbai Industrial corridor project that aims to create an eco-friendly society with focus on renewable energy, recycling and efficient power management system. (Smart communities – cities, towns, neighborhoods and villages that reduce their energy demand and generate their own power from renewable sources)

3) Energy cooperation:

Since 2006, The Energy and Resource Institute (TERI) in association with NEDO (New Energy and Technology Development Organization has been co-hosting the India-Japan Energy Forum which provides an opportunity to the Indian and Japanese stakeholders to discuss various technological and policy related issues in the field of energy efficiency and renewable energy.

SCIENCE & TECHNOLOGY

COPYRIGHT

It is a right available for creating an original

  • Literary and dramatic work.
  • Musical or artistic work.
  • Cinematographic films (Soundtracks, Video films, Disc/Tape/Roll recordings.
  • Computer software/ Programs (within definition of literary work.)

 v    Berne Convention

India is a member of Berne convention. Under this international treaty, registration of copyright is not an essential requirement for protection of right. Thus, a copyright or a work created in India would be automatically and simultaneously protected in all the member countries.

 v    Transfer of Copyright

The owner of a copyright may assign to any person, the copyright either wholly or partially

  •  For the entire world or for a specific nation/territory.
  •  For the full term of copyright or a part thereof.
  • Relating to all the rights or only a part of such right.

INDUSTRIAL DESIGN

v      The external design, colour scheme or ornamentation of a product plays a key role in the market acceptability of the product.

v      These rights intend to protect the external design of a product from imitation.

v     Definition of Design—The Two dimensional or Three dimensional features of

  • Shape
  • Configuration
  • Pattern
  • Ornamentation
  •  Pattern of lines or colors

v     Requirements of Design

  •  New or original
  •  Should relate to features of shape/configuration/pattern/ornamentation
  •  Should be applicable to a production by mechanical process
  •  Should appeal to and judged by eye only
  •  Should not include any trademark/ property mark/artistic work
  • Should not contain obscene or scandalous matter

 Note: It does not include any mode or principle of construction or anything which is in substance, a mere mechanical device.

 TRADEMARK

v      A distinctive sign, which identifies certain goods or services as provided/produced by specific person/enterprise

v     May consist of drawings, symbols, 3-d signs, shape colors used as distinctive features

v     Certificate Trademarks indicates that the goods are of

  • Certain quality or
  • Manufactured in a particular way or
  • Come from a specific region or
  • Use some specific material
  • Maintain a certain level of accuracy

GEOGRAPHICAL INDICATIONS

v     Applicable to agricultural, natural or manufactured goods

v     Goods originating or manufactured (Production/Processing/Preparation) in the particular territory of a country or region or locality in that territory

v     The given quality, reputation and other characteristics of goods is essentially attributable to its Geographical origin.

v     This concept is new in India and came in limelight after India signed Trade Related Aspects of Intellectual Property Rights (TRIPS). According to TRIPS

  • A GI is applicable and protected in all the member countries
  • A GI not protected in the country of origin will not be protected anywhere else.
  • Conditions for Homonymous GI (Ex: Wines) will be determined by the state
  • Provision for principals of national treatment and fair competition
  • Provision for seizure of goods indicating false GI

PROTECTION OF INTEGRATED CIRCUIT LAYOUT DESIGN

v      It provides protection for semiconductor IC layout design including a transistor layout and other circuitry elements like lead wire designs.

v      An IC layout design can’t be registered if it is

  • Not original
  • Commercially exploited anywhere in India or World
  •  Inherently not distinctive

Terms of various IPRs

v     Patent—20 years (From the date of filing application)

v     Copyright:

  • Literary/Dramatic/Artistic/Musical work—Lifetime of the author +70 years from the year of death of the author
  • All others—50 years from the date/year of application

v     Industrial design— 10 years (Can be extended up to 5 years)

v     Trademark—–10 years (Can be extended by 5 years)

v     Geographical Indications— 10 years (Can be extended by 5 years)

Legislations Covering IPRs

v     Patents

  • The Patent Act (1970)

v     Copyright

  • The Copyright Act (1957)(Amended ’83, ’84, ’93, ’94 ‘99)
  • The Copyright Rules (1958)

v      Trademark

  •  The Trade and Merchandise Marks Act (1958)
  •  The Trademark Act (1999) (Supersedes the former, waiting enactment)

v      Industrial Deign

  •  The Designs Act (1911)
  • The Designs Act (2000) (New, supersedes the former)

v      IC layout design

  • The Semiconductor Integrated Circuit Layout Design Act (2000) (Waiting enactment)

v     Geographical Indications

  •  The Geographical Indications of Goods (Registration and Protection) Act 1999 (waiting enactment)