By Madhavi Pathak
In 2018, two Indian nationals and a Mexican collaborator linked to the Sinaloa cartel were arrested in Indore with 10 kg of illicitly manufactured fentanyl (IMF). The fentanyl was produced using precursors NPP and ANPP in a factory that also manufactured legal substances, highlighting challenges in regulating dual-purpose operations. The group planned to transport the IMF to Mexico, where it would be distributed by transnational criminal organizations (TCOs).
Another 2018 arrest in Mumbai uncovered 100 kg of NPP, mislabeled as licit chemicals, which was intended for fentanyl production and smuggling to the USA. This marked the third DEA-documented instance in 2018 of India’s link to IMF and fentanyl-related substances (FRS) trafficking. India’s growing role in IMF production results from stricter regulations in China, which previously dominated the market. Chinese manufacturers and TCOs relocated operations to India due to its weaker fentanyl regulations, skilled chemists, extensive pharmaceutical infrastructure, and challenges in monitoring its large population. Socioeconomic factors such as poverty, corruption, and limited education further exacerbate the problem.
India has also been a key producer of tramadol, a synthetic opioid. Prior to its 2018 classification under the NDPS Act, large quantities were diverted for illicit global trade, including significant seizures in West Africa. Indian manufacturers still supply illicit tramadol despite the tightened regulations. The US Department of State reports that Indian precursors are shipped globally, including to Africa and Mexico. The rise of IMF production in India highlights gaps in legislation, enforcement, and monitoring of precursors and dual-use facilities. The DEA’s 2020 report underscores India’s vulnerability to exploitation by TCOs. Stronger regulations, international cooperation, and targeted socioeconomic interventions are essential to curb India’s role in global IMF and FRS production.
This study analyzes how improved Chinese regulation of the IMF and FRS is shifting production from China to India, and how this relocation has ramifications for the law, chemical and pharmaceutical regulation, narcotics enforcement, and public health in India. Further, how India meets this challenge through legislative channels is detailed, specifically the necessity for class-wide legislative control over fentanyl and its precursors. Proposals for refining existing laws and regulations, along with the means to reduce negative public health outcomes, are extended.
Case Study’s Legal Perspective: Role of relevant laws taken by the officials
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985: Governing fentanyl production, precursors, and trafficking.
Section 8: Prohibits the production, manufacture, possession, sale, purchase, transport, and import/export of narcotic drugs and psychotropic substances, except as permitted by the Act. Section 9: Empowers the government to regulate, control, and monitor the use of narcotic drugs and precursor chemicals. Section 25: Penalizes the use of premises for the commission of offenses related to narcotic drugs. Section 27A: Penalizes financing illicit trafficking and harboring offenders. Section 36A: Allows for the fast-tracking of offenses under the Act which was enforced to run the case. The illicit production of fentanyl and its precursors (NPP and ANPP), their possession, and transportation fall under the NDPS Act. Additionally, mislabeled chemicals for international transport violate the provisions related to the regulation of precursors.
Precursor Chemical Regulations (Under NDPS Act) Rule 67 (NDPS Rules, 1985): Controls precursor chemicals listed under the NDPS Act. Controlled Precursors includes NPP and ANPP, which are immediate precursors for fentanyl synthesis.
Customs Act, 1962: Addressing misdeclared precursor exports the sections applicable are Section 111: Covers goods improperly imported or declared, including narcotics and precursors. Section 135: Penalizes false declarations and smuggling activities. Mislabeled and misdeclared precursor chemicals exported from India for illegal use violate this Act.
Drugs and Cosmetics Act, 1940: Governing misuse of pharmaceutical manufacturing. Section 18: Prohibits the manufacture and distribution of drugs not conforming to prescribed standards or legal permissions. The involvement of dual-use factories producing both legal scientific products and illicit substances violates this Act.
Indian Penal Code (IPC), 1860: Criminally Penalizing conspiracy, forgery, and cheating in the illegal trade. Section 120B: Punishes criminal conspiracy. Section 420: Penalizes cheating and dishonestly inducing delivery of property, applicable in the misdeclaration of precursor chemicals. Section 467: Penalizes forgery of documents, which can apply to fabricated import/export documents.
Legal actions & solutions navigated by Indian Government
Amendment of the NDPS Act (2018): Tramadol was classified as a psychotropic substance under the NDPS Act, bringing it under stricter regulation. This amendment aimed to curb its illicit production and global diversion. The 2018 amendment to the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 is known as the Narcotic Drugs and Psychotropic Substances (Amendment) Rules, 2018. It specifically included tramadol under the list of psychotropic substances regulated under the Act. However, this was not an amendment to the Act itself, but rather to the NDPS Rules framed under the Act.
Precursor Control Strengthening: The NDPS Rules expanded the control of precursor chemicals like NPP and ANPP, which are key to fentanyl production. Licensing, monitoring, and tracking mechanisms were tightened. Increased Penalties: Punishments for illegal production, transportation, and distribution of narcotics, psychotropic substances, and precursors were enhanced to deter offenders.
Regulation of Dual-Use Factories: Factories producing both legal and illegal substances, as highlighted in the Indore case, are subject to stricter inspections and oversight under the NDPS Act.
Collaboration with international agencies: India cooperates with the UNODC, DEA, and Interpol for intelligence sharing and combating transnational trafficking networks.
E-Commerce Regulation: Steps were taken to monitor online sales and distribution of synthetic drugs through Indian-based B2B and commercial platforms.
The relocation of illicit fentanyl production from China to India presents complex challenges that intersect law enforcement, public health, and international relations. Existing drug laws may not comprehensively cover all fentanyl analogs and precursors, allowing illicit manufacturers to exploit these loopholes. Limited resources and training for law enforcement agencies hinder effective monitoring and interdiction of illicit fentanyl operations. By enacting robust legislative measures, investing in harm reduction programs, and fostering international cooperation, India can address the burgeoning threat of illicit fentanyl and safeguard public health.
– Madhavi Pathak is a second-year BA LLB student at BDBA Law College, Mumbai University