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Friday, September 3, 2010

Criminology - White Collar Crimes in India: who will bell the Cat

The concept of white collar crime is usually associated with E.H. Sutherland whose penetrating work in this area focused the attention of criminologists on its demoralizing effect on the total crime picture. Sutherland pointed out that besides the traditional crimes such as assault, robbery, dacoity, murder, rape, kidnapping and other acts involving violence, there are certain anti social activities which the persons of upper strata carry on in course of their occupation or business. These activities for a long time were accepted as a part of usual business tactics necessary for a shrewd professional man for his success in profession or business. Thus any complaint against such tactics often went unheeded and unpunished.
It must, however, be stated that Sutherland was preceded by other writers who focused attention on the dangers to society from the upper socio economic group who exploited the accepted economic system to the detriment of common masses. Thus Albert Morris refers to a paper entitled 'Criminal Capitalists' which was read by Edwin C Hill before the International Congress on the Prevention And Repression Of Crime at London in 1872. In this paper the learned writer underlined the growing incidence of crime as an organised business and its evil effects on society. In 1934, Morris drew attention to the necessity of a change in emphasis regarding crime. He asserted that anti social activities of persons of high status committed in course of their profession must be brought within the category of crime and should be made punishable. Finally E.H. Sutherland through his pioneering work emphasised that these 'upper world' crimes which are committed by the persons of upper socio economic groups in course of their occupation violating the trust, should be termed "White Collar Crime" so as to be distinguished from traditional crime which he called, "Blue Collar Crime". Thus, he observed that if a broker shoots his wife's lover, that is not a white collar crime, but it' he violates the law and is convicted in connection with his business, he is a white collar criminal.
Sutherland further pointed out that white collar crimes differ from the crimes committed by criminal syndicates. This distinction could be based on the extent of presumed respectability. Thus, if a person who belongs to a respectable class of society and possesses some degree of good reputation, sells shoddy goods, he is committing a white collar crime. But if a group of persons unknown to their victims, sell the same type of shoddy goods that would not be a white collar crime.
Sutherland carefully examined the depredations of about seventy large corporations involved in white collar crimes and found that the charges against them included contracts, combinations or conspiracies in restraint of trade, misrepresentation in advertising, infringements against copyrights, financial frauds regulations and other miscellaneous offences. and violations of trust, b reach of war But people knew. very little about the trickery of these big business criminals and even if they knew, they were apathetic towards the problem because of the fact that "the legal battles involved therein are dragged out for years in the courts, with the result that the charges are forgotten long before they are settled."
Sutherland’s View
The concept of "white collar crime" found its place in criminology for the first time in 1941 when Sutherland published his research paper on white collar criminality in the American Sociological Review . He defined white collar crime as a "crime committed by persons of respectability and high social status in course of their occupation". A white collar criminal belongs to upper socio economic class who violates the criminal law while conducting his professional qualities. Thus misrepresentation through fraudulent advertisements, infringement of patents, copyrights and trade marks etc., are frequently resorted to by manufacturers, industrialists and other persons of repute in course of their occupation with a view to earning huge profits. Other illustrations of white collar criminality include publication of fabricated balance sheets and profit and loss account of business, passing of goods, concealment of defects in the commodity for sale etc.
Sutherland further pointed out that a white collar crime is more dangerous to society than ordinary crimes because the financial loss to society, from white collar crimes is far greater than the financial loss from burglaries, robberies larcenies etc. 'Me most dismal aspect of white collar crimes is that there is no effective programme for the enforcement of criminal law against them ' and the influential persons involved in these crimes are able to resist enforcement of law against themselves.
Sutherland, in coining the term "white-collar crime" earlier this century, defined the concept as "a crime committed by a person of respectability and high social status in the course of his occupation. " Sutherland sought not to provide a comprehensive definition, but to expand the realm of criminology by including a wide variety of civil and regulatory violations that were not at the time viewed as criminal acts. Later scholars have sculpted a further framework that today includes corporate and occupational crime ; elite deviance ; contrepreneurial crime ; political or government crime ; and technocrimes . Debate on the precise parameters of the field continues today . This search for an acceptable definition of white-collar crime led to an academic workshop co-sponsored by the National White-Collar Crime Center and West Virginia University. In attendance were noted white-collar criminologists who, by the end of the three-day proceedings, reached a general consensus on a definition: "Illegal or unethical acts that violate fiduciary responsibility or public trust, committed by an individual or organization, usually during the course of legitimate occupational activity, by persons of high or respectable social status for personal or organizational gain. " While this definition lays a framework for discussion, various elements in the definition are still in dispute. For example, there is no consensus on whether unethical or deviant acts should be included in the definition, or whether white-collar crime should be determined by the status of the individual committing the act or by the offense committed .
These white collar crimes by their very nature are such that the injury or damage caused as a result of them is so widely diffused in the large body of society that their gravity in regard to individual victim is almost negligible. It is probably for this reason that till late these crimes did not attract Much attention as they do not carry with them any loss of social status of the offender even it' he is caught or detected. There is yet, another reason for white collar criminals escaping prosecution. In cases of misrepresentation, concealment or fraud etc., the Courts usually place reliance on the principle of caveat emptor, which signifies that the purchaser must enter into a deal with open eyes and guard himself against ordinary dishonesty of the vendor. As a result of this attitude of the courts there was enormous increase in white collar crime during the period of depression in 1930's in United States. Perhaps it is for this reason that American President Roosevelt in 1933 insisted on withdrawal of the doctrine of caveat emptor from adjudication of cases involving white collar crime.
Sir Walter Reckless, an eminent American criminologist suggests that white collar crime represents the offences of businessmen who are in a position to, determine the policies and activities of business . Some authorities suggest that white collar crimes are committed by persons of status not for need but for greed .
Referring to this variety of the upper world of crime, Barne and Teaters quoted Lord Acton who said, "power tends to corrupt and absolute power tends to corrupt absolutely". Wherever citizens of a particular community become apathetic to the working of their Government, grafts, corruption' and alliance between, public servants and the criminal world are common phenomenon resulting into breach of trust, fraud and other malpractices.
During the Truman administration in U.S.A. the well known "Fine percenters” and "Friendship Racket" operated between the high ups close to President and contractors who procured war contracts. Bruce Catton's "The War Lords of Washington", best reveals the story of' the callousness of some businessmen during World War It. It indicates tile indifference, greed, inaptness and arrogance of' many of those responsible for conducting a war and how they shelved of' tile democratic ideals for their personal gain while performing their official duties. The reason for such deals remaining Undetected as pointed out by Sutherland was that "the fine
line between criminal activity and immorality either in business or in government is often difficult to discern".
It must be emphatically stated that white collar criminality thrives because of public apathy to it. 'Me reason for this public insensibility is that firstly such criminals operate within the strict letter of the law and exploit the credibility of' their victims ; and secondly, the legal battles involved are dragged out for year in the courts, with the result the gravity of the offence is completely lost in the oblivion. That apart, the impact of white collar crime is so much diffused in the community that the individual victims are only marginally affected by it, and. therefore, they conveniently forget all about it.
There is yet another important point in context of white collar crime. At times, the members of the community themselves contribute, to the commission of' various white collar crimes willingly or unwillingly. For instance, illegal gratification to public servants to get the work done quickly, black marketing in times of scarcity, evasive price violations, rent ceiling violations etc. are some of the common examples where 'victims' of the crime are themselves to be blamed for involvement in white collar criminality. In fact, such crime cannot be committed, unless there is a demand for illegal favour from consumers and they are actively involved in the deal.
Definitions of white-collar crime generally indicate that the harm inflicted may be financial, physical, or social. Although the term white-collar crime is most frequently associated with economic crimes such as embezzlement or securities fraud, the concept is by no means restricted to financial loss. Personal injuries, diseases, and death due to occupational workplace hazards, environmental pollution, and the marketing of dangerous products are among the physical costs resulting from white-collar crime. When the Exxon Valdez oil tanker, for example, spilled millions of gallons of oil in the sea off the coast of Alaska, it caused vast damage to wildlife and the pristine surroundings . Exxon pled guilty to criminal charges and was fined $100 million. Similarly, Ford was prosecuted under a reckless homicide statute after three teenagers burned to death in their Pinto . The owner of Imperial Foods Company in North Carolina also pled guilty to workplace hazards that resulted in the burn deaths of twenty-five employees at the chicken processing plant . He received a nineteen year prison sentence.
These few examples illustrate that white-collar crimes, particularly corporate crime, may have violent consequences. While the outcomes may be violent, the means used to accomplish the offense typically are nonviolent in the traditional sense of the term. White-collar offenders do not employ weapons or force in the commission of the offense, though they may do so in such acts as police or government abuse of power. Both financial and physical white- collar offenses customarily are committed through the breach of fiduciary duty, deception, omission, concealment, misappropriation, and abuse of public trust .
Criticism of Sutherland's views on White Collar Crime
Sutherland’s definition of white collar crime has evoked criticism from certain quarters. Some critics allege that such violations come within the purview of' tile Special Commissions, Tribunals and 'Boards instead of' normal criminal justice administrators. Therefore, strictly speaking, they cannot result into conviction of the
offender and hence he cannot be called 'criminal' in real sense of the term. Commenting on this aspect of the issue, Tappan observes that treating persons committing white collar crime as criminals would mean deviating from legal definition of crime inasmuch as personal value considerations of the administrator would gain primary in place of precision and clarity of legal provisions in deciding such cases . Sutherland however, justifies the special procedure of trial for white collar criminals by administrative agencies on the ground that it would protect the offender from the stigma of criminal prosecution.
Another criticism quite often advanced against Sutherland's definition of white Collar crime is that it includes even those violations of law which are not committed in course of occupation or profession and these violations do not necessarily belong to upper strata of society or the so called prestigious groups. For example, tax evasion is not committed in course of occupation and it can be committed by persons belonging to upper, middle or even lower strata of society.
Yet another objection against the definition of white collar crime is that it does not necessarily require mens rea which is an essential ingredient of a crime. The doctrine of mens rea based on common law has no application to statutory offences in India and the requirement of guilty mind may be excluded either expressly or by implication in such cases.
Of all the factors, the economical industrial growth throughout the world has, perhaps been the most potential cause of increase in white collar crimes in recent years. The changing socio economic scenario of the society coupled with increase in wealth and prosperity has furnished, opportunities for such crimes. Commenting on the growing incidence of white collar crime in India, the Law Commission in its Twenty ninth Report observed, that modern scientific and technological developments and, monopolistic trends in business world have led to enormous increase in white collar crimes.
The post War Independence period in India ushered an era of welfare activities which necessitated regulatory measure on the part of government to control means of production and distribution so as to subserve the common good . The contravention of such regulatory measures generally give rise to white collar criminality.
Marshal B. Clinard asserted that the problem of white collar criminality has its root in, competitive business community which tries to oust their rival competitors in order to earn huge profits. Sometimes such Crimes may also be committed merely for the sake of retaining existence in the competitive business. To illustrate, though there is a prescribed code of ethics for the practising lawyers but since the very nature of their profession involves the spirit of combat and competition, they often resort unlawful tactics such as concealment or misrepresentation of facts, Which if detected, is punishable under the Law. To take another example, the private educational institutions in India which receive public aid or grants furnish false accounts simply for the sake of retaining their existence. Likewise, the members of industrial and business class who enjoy high status in the society have a tendency to suppress their real profits by furnishing false and fabricated accounts of their income and property in order to claim tax exemptions or avoid payment of heavy taxes.
One more reason for the multiplicity of white collar crime is relatively high socio economic status of white collar criminals. They belong to an influential group which is powerful enough to handle their occupation tactfully and persons affected thereby hardly know that they are being victimised. Moreover, the public in general is also somewhat apathetic to such crimes thug causing obstruction in prosecution and punishment of white collar criminals.
It is often alleged that criminal law administrators and Judges being members of upper strata of the society, are generally sympathetic towards white collar criminals while dealing with them. But there seems no justification in this assertion. If this allegation is based on the large number of acquittals of white collar criminals, it may be pointed out that it is not because of the sympathy of Judges for those criminals but because of the thin line of demarcation between criminality and immorality involved in white collar crimes.
The recent developments in information technology, particularly during the closing years of the twentieth century, have added new dimensions to while collar criminality. There has been unprecedented growth of a new variety of computer dominated white collar crimes which are commonly called as cyber crimes. These in crimes have become a matter of global concern and a challenge for the law enforcement agencies in the new millennium. Because of the specific nature of these crimes, they can be committed anonymously and far away from the victim without physical presence. Further, cyber criminals have a major advantage: they, can use computer technology to inflict damage without the risk of being apprehended or caught. It has been predicted that there would be simultaneous increase in cyber crimes with the increase in new internet web sites. The areas
affected by cyber crimes are banking and financial institutions, energy and telecommunication services, transportation, business, industries etc.
White collar criminality has become a global phenomenon with the advance of commerce and technology. Like any other country, India is equally in the grip of white collar criminality. The reason for enormous increase in white collar crime in recent decades is to be found in the fast developing economy and industrial growth of this developing country. The Santhanam Committee Report in its findings gave a vivid picture of white collar crimes committed by persons of respectability such as businessmen, industrialists, contractors and suppliers as also the corrupt public officials . The Report of the Vivin Bose Commission of Inquiry into the affairs of Dalmia Jain group of companies in 1963 highlights how these industrialists indulge in white collar crimes such as fraud , falsification of accounts, tampering with records for personal gains and tax evasion etc. Similar observations re made by Mr Justice M.C Chagla about the big business magnate Mundhra who wanted to "build up an industrial empire of dubious means." There were as many as 124 prosecutions against this business tycoon and companies owned or controlled by him between 1958 to 1960 and as many as 113 of them resulted into conviction .
Hoarding, Black Marketing and Adulteration
The white collar crimes which are common to Indian trade, and business world are hoarding, profiteering and black marketing. Violation of foreign exchange regulations and import and export laws are frequently resorted to for the sake of huge profits. That apart, adulteration of foodstuffs, edibles and drugs which causes irreparable danger to public health is yet another white collar crime common in India . The Law Commission of India has suggested drastic measures against such offenders. In the Commission's observation the tedious prosecution process involved in the trial of such cases frustrates the cause of justice and often results into unjustified acquittal due to defective report of the analyst or delay in examination of samples or lack of legal expertise etc .
Tax evasion
The complexity of tax laws in India has provided sufficient scope for the tax payers to evade taxes. The evasion is more common with influential categories of persons such as traders, businessmen,, lawyers, doctors, engineers, contractors etc. The main difficulty posed before the Income Tax Department is to know the real and exact income of these professionals. It is often alleged that the actual tax paid by these persons is only a fraction of their income and rest of the money goes into circulation as 'black money'. Despite frequent modifications in the thx laws of the country the menace of tax evasion continues unabated and it is causing considerable loss to government revenue.
The Supreme Court in its majority decision in R.K.Garg v. Union of India upholding the validity of the Special. Bearer Bonds (Immunities and Exemption): Act, 1981, observed that the Act was not intended to encourage, tax evasion in future and condone such evasion committed in past but the real object of the Act was to launch a nation wide search to unearth undisclosed wealth. by encouraging small, incentive to those who declare their undisclosed cash. The main intention was to unearth ‘black money’ so as to prevent further loss of government revenues.
It may be pointed out that the problem of generation of black money (unaccounted money) and its proliferation is, not new. The Government of India has formulated voluntary disclosure Schemes to unearth the black money specially to be used for certain social objectives. But the results of these schemes have not been very encouraging. The main reason 19r unsatisfactory response to these schemes seems to be that tax payers do not Want to be identified as having evaded the tax in the past and the, fear of re opening of their past assessments and facing roving enquiries also dissuade them from resorting to these schemes .
It is significant to note in this context that what constitutes crime is ‘tax evasion’ and not 'tax avoidance'. Though both these terms, appear to be synonymous, there is a fine distinction between the two. While the former implies non payment of tax due to be paid, the latter signifies arranging the spread over of one's, income in such a way that it does not incur tax liability legally and lawfully .
It may be stated that the Government has introduced various regulatory legislations such as the Essential Commodities Act 1955, the Industrial (Development and Regulation) Act, 1951.,The Import and Exports (Control) Act, 1947, the Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956 as amended from time to time, the breach of which results in white collar criminality. A large majority of white collar crime are, however, operating within the letter and spirit of the law and, therefore, do not call for legal action.
Some of the professions involving technical expertise and skill provide sufficient opportunities for the white collar criminality. They include medical profession, engineering, legal practice, private educational institutions etc.
Medical Profession
White collar crimes which are commonly committed by persons belonging to medical~ profession include issuance of false medical certificates helping illegal abortions, secret service to dac6its by giving expert opinion leading to their acquittal and selling sample drugs and medicines, to patients or chemists. Dialatory tactics adopted by the, members of this profession in treatment of their patients with a view to extracting huge; sums from them has become an accepted norm, particularly with those medical men who do not have a good practice or have only, a marginal earning.
The persons employed in essential services of the government or other undertakings are often confronted with the, problem of getting leave, due to shortage of staff. They, therefore, procure medical certificate regarding their false sickness and produce it to the department to justify their absence from duty. In return, they have to pay certain amount to the concerned medical staff. Thus, though collar crime, this tactic has proved a boon and a workable alternatives to employers who have difficulty in obtaining leave from the employers.
Fake and misleading advertising is yet another area in which the white collar criminals operate. They make illegal and misleading claims of medical cure, through advertisements in newspapers, magazines radio and television thus adding to the human misery. Many patent medicines are not only worthless but harmful. Similar advertisements for cosmetics and adulterated food are also widespread in practice which is injurious to public bealth. These persons may not break the letter of the law but by violating its spirit, they commit crimes which are not only anti-social but also injurious to public health.
In the engineering profession underhand dealings with contractors, and suppliers, passing of sub4tandard works and materials and maintenance of bogus records of work charged labour are some of the common examples of white collar crime. Scandals of this kind are reported in newspapers and magazines almost every day. Construction of buildings, roads, canals, dams and bridges with sub-standard material not only endangers public safety but also results into huge loss to public exchequer.
Legal Profession
In India the lawyer’s profession is not looked with much respect these days. There are two obvious reasons for this. The legal to education and unethical practices resorted to by the members of legal profession procure clientage are mainly responsible for the gradation of this profession which was once considered to be one of the noblest vocations. The instances of fabricating false evidence, engaging professional witnesses, violating ethical standards of legal profession and dialatory tactics in collusion with the ministerial stiff of the courts are some of the common practices which are, truly speaking, the white collar crimes quite often practiced by the legal practitioners.
Generally the professional crooks and criminal gangs h ave their own trusted lawyer who can be can be depended' upon to arrange things and keep himself ready with bail, bond or hebeas corpus writ to avoid arrest of the gangster. If the members of the gang are arrested, the lawyer has to find out way and means to arrange or ‘fix’ their release. There are criminal lawyers who arrange professional alibies, cooked witnesses in close liaison with the police for defending the gangsters.
Though there is a definite code of conduct for legal profession but it is 6nlyati ornamental document. However, this is not to say that all lawyers are corrupt and unethical. Quite a large number of them are most sincere and honest in their profession commanding great respect from all sections of society. Perhaps, it is because of the peculiar nature of their profession that the lawyers and advocates have to resort to these tactics in order: to survive in the profession which is becoming more, and more competitive with the passage of time.
Educational Institutions
Yet another field where white collar criminals operate with impunity are the privately run educational institutions in this' country. The governing bodies of these institutions manage to secure large sums by way of government grants or financial aid by submitting fictitious and fake details about their institutions. The teachers and other staff working in these institutions receive a meager salary far less than what they actually sign for, thus allowing a big margin for the management to grab huge amount in this illegal manner. The victimized teachers can hardly afford to complain about this exploitation to high ups because of the fear of being thrown out of job. They are, therefore, compelled ' to compromise with the situation. Although the Government has introduced the scheme of treasury payments for teachers of private institutions, but the problem still persists in one form or the other. That apart, Fake and bogus enrolments of students who are residing far away from the place of location of these institutions is yet another source of illegal earning for them. They charge huge amounts by way of donations or capitation fees from such needy students. Even rackets operate in these institutions for procuring students to appear in different examinations on the basis of manipulated eligibility certificates or domicile certificates in return for huge sums. These dishonest and unscrupulous practices have damaged the standard of education in India to such an extent that it is causing an irreparable loss to the younger generation .
More often than not, these privately managed educational institutions as also those imparting some professional education enjoy the patronage of some influential politicians and many of them are even owned by them. Many such institutions are virtually non existent and are functioning as commercial shops, enabling the students to get degrees on payment of huge sums in blatant violation of the government rules, regulations and norms. The magnitude of this white collar criminality has adversely affected the standard of education in most States and therefore, the problem needs to be tackled through stringent statutory measures.
White collar crimes are also rampant in business world. There have always been instances of violation of trust. Sutherland made a careful study of a number of large. corporations and business houses in United States and found that they were involved in illegal contracts, combinations or conspiracies in restraint of trade, misrepresentation in advertising, infringements against copyrights and trade marks, unfair labour practices, bribing public officials and so on. The public hardly knows the trickery of business criminals as they treat, it as not too important for their purpose.
Sutherland attributed the highest degree of criminality to business world which includes traders, businessmen and industrialists. It has been held that "business communities in India of large and small merchants are basically dishonest bunch of crooks nowhere in the world do businessmen get rich so qiuckly as they do in India"
The Report of the Monopolies Inquiry Commission expressed great concern about the chronic problem of hoarding, profiteering and black marketing of essential commodities by traders in India. In times of shortage and scarcity of consumer commodities, the traders withdraw the stock and subsequently dispose it of at exorbitant prices .
The Santhanam Committee Report on Prevention of Corruption, observed that Indian businessmen build up secret hoards of foreign exchange abroad through under invoicing of exports and over invoicing of imports violating the Imports & Exports Laws and Foreign Exchange Regulations .
Although bribery is an offence under the Prevention of Corruption Act, 1988 and both, bribe taker as well as the bribe giver are equally punishable, but commercial agents and public officials indulge in illegal gratification for their personal gain and the legal restraints provided for the purpose are hardly adequate to cure this menace. It may, however, be pointed out that all bribery cases are not necessarily white collar crimes because white collar criminality is confined to only those illegal activities which the persons of prestigious group high social states commit in course, of their legitimate business or occupation for financial gain.
Adulteration of edible foodstuffs is also frequently committed by businessmen which is injurious to public health. The sale and production of spurious drugs and sub standard medicines by manufacturers is yet another white collar crime which enables businessmen to earn huge illegal profits .
White collar crimes also operate in insurance business where both the insure d as well as insurer earn considerable profit by making false and fabricated claims. Instances are not wanting when intentional house burning, automobile destruction and even murders are planned by the persons of respectable community in order to make good fortunes from the manipulated insurance claims.
The latest developments in information technology and electronic media especially during 1990's have given rise to a new variety of computer related white collar crime which is commonly called cyber crimes. The widespread growth of these crimes has become a matter of global concern and a challenge for the law enforcement agencies in the new millennium. Because of the peculiar nature of these crimes, they can be committed anonymously and far away from the victim; without being physically present there. Further, cyber criminals have a major advantage; they can use computer technology to inflict damage without the risk of being caught. The cyber crimes cover a wide range of illegal computer related activities which include offences such as theft of communication services, industrial espionage , dissemination of pornographic and sexually offensive material in cyber space, electronic money laundering and tax evasion, electronic vandalism, terrorism and extortion, tele marketing frauds, illegal interception of telecommunication, etc .
In fact, there is a cyber crime wave in the 21st century. Presently, viruses are the most common problems which are causing serious damage to computer systems. Most viruses just replicate themselves, but many also cause damage. T here are now more 'than 5000 different strains of viruses,. across the globe. For instance, 'Love Bug' virus of May 2000 caused severe damage to working internet sites, So also the virus recently developed by Pakistan has defaced the Indian web site.
Besides virus, there are some common cyber offences which are directed, against computer systems, networks or data. Notable among them are:
(1) Pheakering;: It is a way to circumvent the billing mechanism of, telephones allowing anyone to call anywhere in the world literally without any cost.
(2) Internet frauds: Cyber space now provides a wide variety of investment opportunities opening new areas for deceit or, fraud. Electronic funds transfer systems have begun to proliferate, hence there is risk of transactions being intercepted or diverted. Now a days valid credit card numbers can be intercepted electronically as well as physically and the digital information stored on a card can be counterfeited.
(3) Hackers: Hacker is one, who enjoys ex programmable systems and knows, how to strelet their capacity, computer hackers may affect the commercial web sits. or e mail systems thus paralysing the entire business.
(4), Stalking: In stalking, persistent messages. are, sent, to unwilling recipients thus causing them annoyance, worry and mental torture.
(5) E mail security invasion It means to encrypt the E mail and, make it private and non viewable to others.
(6) Money Laundering: It is a kind of cyber crime in which money is illegally down loaded in transit.
(7) Data Diddling It mean's changing or erasing of data in subtle ways which makes it difficult to put the data back or be certain of its accuracy.
It may be stated that just as the legitimate organisations in the private or public .sector rely upon information systems for communication or record keeping so too the cyber criminal organisations carry on their illegal activities by enhanced cyber space technology. Commenting on this Eric Ellen, one of the officials of the International Chamber of Commerce (ICC) has predicted that information technology is not only reshaping the mode, of corporate functioning and emerging new business strategies but it is dramatically increasing the number of potential cyber criminals, According, to him, there is bound to be simultaneous increase in the incidence of cyber crimes with the new internet sites and users which currently totals around 2l5 million worldwide .
Since cyber criminals pose a major threat to computer networks all around. the world, efforts are being made to workout a Model Anti cyber Criminal Law to arrest cyber crimes at global level. A special expert Working Group meeting was convened in October, 1998 in Tokyo under the auspices of the United Nations to sort out legal problems involved in combating trans Border cyber criminality.
The European Committee of Experts on Crime in Cyber space has prepared two Draft Conventions on Cyber crimes in April 2001 to work, out strategies and fostering international co operation for tackling the problem of security against cyber crimes.
Experience has shown that the real problem for every organization that investigates cyber crime is the lack of Uniformity in laws against States and countries. There, is also general lack of protection in this area of crime. Most of the cases of illegal access or damages remain unreported due to victim's fear of exposure or loss Of public faith and confidence.
In view of the expanding dimensions of cyber crimes, there is urgent need for a model legislation to tackle the growing incidence of these crimes. It hardly needs to be stated that the criminal law must continue to evolve if it is to adequately address to new developments in technology.
It must be noted that white collar criminality has a close affinity to the attitudes and values of culture in a particular society. This is evident from the fact that white collar criminals are intelligent, stable, and successful and men of high social status as compared with the ordinary criminals. They are foresighted persons belonging to the prestigious group of society. White collar crimes which are committed in commercial world are indirect, anonymous, impersonal and difficult to detect. As against this, ordinary criminals commit crime which are direct and involve physical action, such as. Beating, removal of property or use of force, etc. which can be easily be identified and detected. It is often said that ordinary crimes which are otherwise called ‘blue collar crimes’ are more common with the under-privileged group while the white collar crime are committed by the privileged group who belong to the upper strata of society. Edwin Sutherland, however, suggests that status alone is not determinant of white collar or blue collar crime. This is evident from the fact that even the most privileged and prestige persons may commit heinous crime such as murder, rape or kidnapping for which they can be severely punished, while on the other hand, most under-privileged people may be involved in a white collar crime like tax evasion, corruption or misrepresentation which may not be looked as serious offence. This however, does not mean that white collar crimes are petty offences because they do not carry severe punishment. Undoubtly, the penologist hitherto confined their attention to prevention of ordinary crimes but the recent penal programmes sufficiently indicate emphasis has now shifted to suppression of white collar criminality with the equal vigor and strength. The amendment s introduced in the Indian Companies Act in 1988, Monopolies and Restrictive Trade Practices Act 1992, Insurance and banking Laws, the appointment of Lokpal, Lokayukta and tightening og governmental control over private business groups sufficiently reflect upon the government’s determination to suppress white collar criminality in India.
There is much resemblance between white collar crime and blue collar crime, both owe their origin to common Law and are adaptations of principles of theft, fraud etc. to modern socio-economic institutions and in fact there is no basic difference between the two. The only peculiarity of white collar crime is that it is committed by the persons of relatively high status of society. The criminal content in both the types is more or less common. It must, however, be noted that mens rea or guilty mind is an essential ingredient of every blue collar crime but many statutes dealing with white collar crime do not require mens rea in strict sense of the term. The doctrine of constructive mens rea.applies in such cases.
It must be stated that besides being a social problem, white collar crime is also a legal problem. As E H. Sutherland rightly puts it, no distinction in terms of social status, occupational activity, attitude or gravity of consequences can separate white collar crime from those of traditional crime . The only distinguishing feature of this type of crime is the temptation for considerable material gain with little or no loss of status. This again, gives a misleading impression that the executive and judicial authorities who are concerned with the prevention of crime react favourably to the upper and middle class society and dispose of white collar criminals with mere censure or admonition while other criminals are subjected td severe penal sanctions under the law without being given any pre warning. But that the reason for this soft attitude of law makers and prosecutors towards white collar criminals is perhaps the latter's closer contacts with agencies of social control on account of their social status and privileged position. More often than not, these criminals are friendly with the top ranking public officials. That apart, the impact of white collar crime is so widely diffused in a large number of people that it does not aggravate the feelings of one single individual . Therefore, the public cry against white collar criminality is far less than for the predatory crimes.
Commenting on the preponderance of white collar crime in the modern time Edwin Sutherland rightly comments that, "social disorganization on account of individualistic policies and competitive economy are the root causes for this type of criminality". It is rather a reflection on society's attitude towards different types of crimes and the accepted values of its culture.
The financial cost of white collar crime is probably several times greater than that of all the, crimes taken together. In a recent study it has been concluded the financial loss to society from white collar crime is far greater than the financial loss from the predatory crimes committed by persons of lower socio economic status. It has been further concluded that the average loss per burglary is less than ten thousand rupees and a burglary which yields as much as one lakh of rupees is exceedingly rare. On the other hand, there may be several crores rupees embezzlements reported in one year. Notably, these embezzlements are nothing as compared with the large scale crimes committed by corporations, investment trusts and public utility concerns. It can, therefore, be inferred that white collar criminals violate trust and create distrust which lowers social morale and results into social disorganization to a large extent while other crimes produce, relatively little effect on social institutions.
By way of generalization it may be stated that like other criminal behavior, white collar criminality can best be explained through the process of differential association. It is a generic explanation for both white collar as also the blue collar criminality. Those who become white collar criminals generally start their career in good neighborhoods and good homes, well educated with some idealism and get into peculiar business situations in which criminality is practically a routine way of life. Another explanation for white collar criminality is to be found in the process of social disorganization in the community .
White-collar crime is a very much part of our social scene today and the issue before is how can we tackle this? The first point to recognise is that while the blue-collar crime is gruesome, well known and has an immediate impact, it is the white-collar crime which has greater anti-social impact . In the wake of growing "white collar" crime globally, the CBI has formed an "Economic Intelligence Wing" to tackle it even as list of run away economic offenders was being readied for extradition. wing had been formed to tackle the growing menace of economic crime as it had developed a dangerous trend of financing terrorist crimes with September 11 attacks in US as a pointer. CBI has recruited a senior official of Reserve Bank of India as a technical officer to the wing along with some Deputy Inspectors General of the agency who have been specialising in probing economic offences, the sources said. The first and foremost task of the wing is to track down economic offenders who have fled the country after committing a crime and duping banks and other financial institutions of crores of rupees. The wing has been tasked to gather intelligence and also share and act on information being provided by organisations like Stock Exchange Board of India and Intelligence Bureau .
Further the government is also enacting some fresh legislation in order to nap the ‘white collar’ criminals. Recently Finance Minister, Mr Jaswant Singh, today said that the Government would soon introduce a legislation on Serious Frauds Office (SFO) to track white-collar crimes, even as Parliament today approved the legislation to give more teeth to the market regulator SEBI including search and seizure powers .
In a country like India where large scale starvation, mass illiteracy and ignorance affect the life of the people, white collar crimes are bound to multiply in large proportion. Control of these crimes is a crucial problem for the criminal justice administration in this country. However, some of the remedial measures for combating white collar criminality may be stated as follows
1 . Creating public awareness against these crimes through the media of press, platform and other audio visual aids. An intensive legal literacy programmes may perhaps help in reducing the incidence of white collar criminality to a considerable extent.
2. Special tribunals should be constituted with power to award sentence of imprisonment upto ten years for white collar criminals.
3. Stringent regulatory laws and drastic punishment for white collar criminals may help in reducing these crimes. Even legislations with retrospective operation may be justified for this purpose,
4. A separate chapter on white collar crimes should be incorporated in the Indian Penal Code by amending the Code so that white collar criminals who are convicted by the court do not escape punishment because of' their high social status.
5. White collar offenders should be dealt with sternly by prescribing stiffer punishments keeping in view the gravity of injury caused to society because of these crimes. The Supreme Court, in M. H. Haskot v. State of Maharashtra in this context observed, "soft sentencing justice is gross injustice where many innocents are the potential victims".
6. There is an urgent need for a National Crime Commission which may squarely tackle the problem of crime and criminality in all its facets.
7. Above all, public vigilance seems to be the cornerstone of anti white collar crime strategy. Unless white collar crimes become abhorrent to public mind, it will not be possible to contain this growing menace. In order to attain this objective, there is need for strengthening of morals particularly, in the higher strata and among the public services. It is further necessary to evolve sound group norms and service ethics based on the twin concepts of absolute honesty and integrity for the' sake of national welfare. This is possible through character building At grass root level and inculcating a sense of real concern for the nation among youngsters so that they are prepared and trained for an upright living when they enter the public life.
Finally, it must be stated that a developing country like India where population is fast escalating, economic offences are increasing by leaps and bound besides the traditional crimes. These are mostly associated with middle and upper class of society and have added new chapter to criminal jurisprudence. To a great extent they are an outcome of industrial and commercial development and progress of science and new technology. With the growing materialism all around the world acquisition of more and more wealth has become the final end of human , activity, Consequently, moral values have either changed or thrown, to winds and fraud, adulteration, misappropriation, misrepresentation, corruption, evasion of tax etc. have become the techniques of trade, commerce and profession. It is for the criminal law administrators to contain the tendency by stringent legislative measures. It is rather disappointing to note that though white collar crimes such as black market activities, evasive price violations, rent-ceiling violations, rationing-law violations, illegal financial manoeuvres etc. by the businessmen are widespread in society, no effective program for repressing them so far been launched by the law enforcement agencies. Perhaps the reason for white collar crimes being carried on unabated is that these crimes are committed generally by influential persons who are shrewd enough to resist the efforts of law, enforcement against them.

Criminology - Substance Abuse Disorder

Substance abuse may be conceptualized has crime without victim, i.e., addict himself is the victim who becomes a prey of its misuse. This devastating melody is eroding the roots of social, economic and cultural fiber of Indian society. It gives rise to criminality and criminal behavior which eventually leads to social disorganization.
Alcoholism and drug habitation has been prevalent in most societies over the ages because of their allegedly pleasurable and relaxing effects or as a means of relieving physical tensions, fatigue and as stimulant to withstand adversities. However, with the unprecedented expansion of pharmaceutical industry, the use. Abuse and misuse of alcohol and drugs has increased leaps and bounds covering almost all sections of society.
Substance abuse are indicative of the irresponsibility and weakness of the character of the persons using these intoxicants. The relation between alcoholism and various aggressive and criminal acts is often confirmed by police records and prison statistics which indicate that in the present day there is a considerable increase in such alcoholic-criminal episodes. Experience has shown that various preventive and punitive measures such as fine, imprisonment or detention for drunkenness and other disorderly behaviors have failed in eliminating this menace.
It has been generally agreed that criminality in human beings is to be attributed to their mental depravity, Persons with balanced emotional and physical health normally do not indulge in criminality or aggressive conduct : nor do they take to alcoholism beyond control. Investigations made by sociologist and criminologists on alcohol-crime relationship reveal thai there is a close resemblance between the structure of alcoholics and criminals. This proposition brings us to the following conclusions regarding the impact of alcoholism and drug-addicts on criminality1 :
(1) Crimes arc often planned in liquor shops and bars where alcohol is sold.
(2) Offenders generally consume liquor and alcohol or drugs to overcome
their inhibitions and emotional strains.
(3) The booty and gains of crime are often distributed and shared in liquor
or wine-shops.
(4) Alcohol and narcotic drugs help lo remove the element of self-criticism
from the criminal in relation to himself and his acts.
(5) Juvenile delinquency and drinking are intimately connected.
(6) The illegality of purchase and possession of alcohol and narcotic drugs
make alcoholics or drug addicts delinquent ipso facto.
(7) Alcoholism and drug addiction being forbidden by law, their
procurement gives rise to a number of related crimes such as illicit
spirit-distilling, smuggling of wine or intoxicating drugs, racketeering,
drug trafficking underhand deals in transmission of alcohol and
narcotics from one place to another and bribing the officials to escape
arrest and punishment.
Of late, drug abuse seems lo have become a fashion for fun to relieve boredom, to get rid of tensions at home and in society, to feel good and high, to revolt against establishment, to heighten sexual experience, improve studying and so on.

Main Causes of Substance Abuse
Alcoholics and drug addicts take to drinking or use of drugs for a variety of reasons.
The factors mainly responsible for the spread of this evil are :—
1. Rapid industrialisation and urbanisation have ushered a new way of
life with new values like permissiveness. As a result, the age-old
inhibitions, toboos and traditional social control mechanisms have
ceased to have force. Many cases of drug or alcohol addicts arise after
apparent failure in business or professional life. Unemployment is also
an important factor contributing to drug and alcohol addiction
especially among youths.
2. The lack of parental care and control partly due to working situation
of both spouses and disintegration of joint family system are also
contributory factors to encourage this vice. The manace of drug abuse
is more common among the middle, upper-middle, and high economic
class families. Urban areas seem to be more effected by this vice .
3. The recent developments in pharmarceutical and medical sciences have
provided scope for production of a variety of toxic synthetic
substances. This has contributed substantially to drug-abuse and
4. People often take drugs for relief from painful illness and ultimately
get addicted to it. Besides, there are some addicts whose neurological
heritage is such that they find it difficult to survive without the use of
alcohol or narcotic drugs and this ultimately makes them habitual
alcoholics or drug addicts.
5. Frustration and emotional stress due to failures, sorrows or miseries of
life, diverts people to join the company of addicts. For them drugs or
alcohol is a medicine—a blessing in disguise. In course of time they
become addicted to this vice.
6. Hippie-culture also detracts youngsters to drug addiction and they start it as a 'fun' or enjoyment. They start consuming drugs or alcohol on an experimental basis out of fun and enjoyment. The frequency of consumption gradually increases due to its narotic effect and finally a good majority of them turn out to be drug addicts and habituals.
7. The lack of knowledge of child psychology and communication-gap
between parents and young addicts are also contributory factors for
drug-abuse and alcoholism. People who do manual work often believe
that use of drugs such as alcohol, opium, ganja etc. provides them
added strength and vigour to withstand hard labour. This delusion of
physical vitality by use of alcohol or narotic drugs ultimately makes
them confirmed addicts.
8. Social disorganisation is also a contributing factor for the menace of
drug abuse or misuse. Frequent family strifes and breakdowns due to
poverty, temperamental differences, neighbourhood influences etc. may
divert a person to alcohol or drug consumption to overcome his
domestic and family problems. This may itself be a cause of tension
and quarrel in the family. Such persons ultimately fall a prey to drug
Thus the process of alcoholism and drug-addiction sets in when a person knowingly or unknowingly begins to consume alcohol or narcotic-drug as a medicine for a sound sleep at night or to get stimulation for work or to get relief from domestic problems or to repress depression, resentment, or to get rid of disturbing mental restlessness and so on.1 He prefers to remain in the world of imagination rather than facing realities of life. Gradually, he becomes addicted to alcohol or drug consumption and his dependence on these intoxicants increases at a relatively faster rate. Finally, he reaches a stage when he cannot live without wine or drug since it becomes his life-habit.
It must be stated that the use of opium and cannabis in the form of ganja and bhang was tolerated in India and had a religious sanction but addiction to them was confined to aged persons only. In modern times addiction has affected the Indian society to such an extent that even journalists, politicians, educationists etc. have started talking about this problem, particularly in college campuses. The spectrum of drugs abuse today is very wide covering the drugs of plant origin and a number of synthetic drugs of varying potency.
The National Committee on Drug Addiction was set up by the Government of India in 1976 to enquire into—
(i) the extent of addiction to drugs in the country ;
(ii) to determine motivation for drug addiction ;
(iii) to identify types of drugs that are misused and suggest steps to prevent misuse ;
(iv) to recommend suitable de-addiction and rehabilitation programmes.
The Committee in its Report suggested establishment of a National Advisory Board on Drug Control. It outlined the need for cooperation of Police, Excise and Drug Control Departments to curb this menace and necessity for creating awareness against drug addiction in the public. A Narcotics Central Board was established in 1985 under the Act.
International Perspective of the Problem
With the rapid expansion of trade and commerce beyond national boundaries, the problem of drug addiction and trafficking has become a global phenomenon. Therefore, as a measure of drug control, a thirteen-nation international conference on narcotic drug was held in China in 1909. Thereafter, the International Opinium Convention called the Hague Convention on Narcotics was held on 1912 which was the first drug traffic control treaty at the international level. This was followed by a series of conventions and declarations which were made to combat illegal drug trafficking which eventually led to the establishment of an International Narcotics Control Board (INCB) in 1961. It has been assigned the responsibility of ensuring the balance between supply and demand for narcotics purposes and make all out efforts to prevent illicit drug cultivation, manufacture, traffic and misuse.
Another International Convention on prevention, abuse and illegal trafficking in narcotics called the Convention on Psychotrophic Substances was signed in 1971 which came into force on 16 August. 1976. The convention has stressed the need for prevention of abuse of psychotrophic substances and early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved. This was followed by setting up a five-years action programme by the General Assembly of the United Nations in 1981 under the International Drug Abuse Control Strategy. It provides for a number of measures dealing with drug control, drug trafficking and treatment and rehabilitation strategy for addicts. It also seeks to intensify efforts to dismantle illegal drug-trafficking gangs and organisations.
An International Conference on Drug Control was held in Vienna from 17 to 26 June. 1987 under the auspices of United Nations. It focused attention on drug control policies and strategies which could be enforced at the national, regional and international level to prevent drug abuse and illegal trafficking of narcotic substances.
It must be stated that drug abuse is not only a national problem but it has transgressed the national boundaries and has become an international problem. It has, therefore, been realised in recent years that no country can deal with this problem of abuse of drugs without international co-operation and action. The Commission on Narcotics Drugs in close colloboration with the World Health Organisation adopted a convention on psychotropic substances and India has enacted the Narcotic Drugs & Psychotropic Substances Act. 1985 to prevent drug-addiction. This Act was amended in 1988 and called the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. It provides for death penalty on conviction for a second drug trafficking offence.
An International Conference on Global Drugs Law was organised by the Indian Law Institute, Delhi, in co-sponsorship with the UNDCP and the International Law Association (India Regional Branch) from February 28 to March 3 in 1997. The conference reiterated its faith in human dignity and the legitimate aspiration of humankind for a decent life. It emphasised the need for generating universal consciousness of, and determination to battle, the drug problem in all its pervasive forms at the national, regional and international level. The conference, inter alia resolved :—
1. to accelerate the struggle against the scourge of drugs and to adopt measures to strengthen international co-operation and multi-disciplinary approach to tackle the problem.
2. to formulate effective strategy against drug-abuse, illicit production and
trafficking within the framework of guidelines in major international
3. to prevent and control the supply of drugs to affluent nations as the
bulk of demand for drugs comes from these nations:
4. to formulate a comprehensive system for the collection, evaluation and
dissemination of relevant data relating to drugs:
5. to workout an effective education programme for counteracting drug
abuse worldwide and preparing training and educational material for
the young people to assist them in developing vocational and
self-employment opportunities;
6. to ensure proper enforcement of a system of the international control
of narcotic drugs which includes control of cultivation, production,
manufacture, use, demand and supply of drugs for illicit use:
7. to ensure absolute curtailment of the enormous funds generated from
the drug trade by means of money laundering:
8. to create a special task-force of committed honest personnel having the
sanction of relevant government agency to mlillrate the network of
drug trade operators and bring them to justice.
The participants of the conference recognised the fact thai fight against drug-related crime is undermined by corruption, therefore, the Stale must review the effectiveness of their national laws and strategies against corruption.
On-Line Drug Trafficking—A Menace
More recently, the International Narcotics Control Board (INCB) in its annual report released on 20th February 2001 has observed that internet is fast becoming a growing source of on-line trafficking since it provides an easy access to controlled substances including narcotic drugs and psychotropic substances like benzodia/.epines, barbiturates and various amphetamine-type stimulants. While expressing concern over on-line shopping the report said that widespread overuse of controlled drugs to treat psychological problems caused by social pressures needs to be restricted by legal measures. With the expansion of internet shopping in recent years not only the internet sales have expanded but some companies are openly advertising on Internet that they provide controlled drugs without prescription. The remedy suggested by INCB is that countries should introduce legislative changes to allow prosecution of illicit internet drugstores. Shri C. Chakraborty. member of INCB has suggested thai the government should take preventive measures to restrict the "excessive availability" of controlled drugs on-line shopping as over-medication leads to untold physical and mental suffering.
Classification of Drugs Abuse
The International Convention on Drugs to which India is a signatory has classified drugs under two categories :—(a) Narcotic Drugs; and (b) Psychotropic Substances.
Narcotic Drugs.—The main drugs covered under this head are the following :—
(i) Opium and its derivatives like brown sugar, heroin and codeine,
(ii) Cocoleaf. cocaine :
(iii) Cannabis, cannabis resin, extracts and tinctures ;
(v) Methadene, pethedine, hebaine.
Psychotrophic Substances include valium, daizepam. tidijesic. morphine etc.
Alcoholism, Drug-Addicts and Crime
Like drug-addiction, alcoholism also causes disillusionment, unhappincss and troubles in family life. An alcoholic finds it difficult to adjust with other people and so are the others uncomfortable with him due to his drinking-habit. The mental faculty of an alcoholic does not function in a normal way with the result he loses self-control and often behaves improperly at times picking up quarrels, accusing, abusing or insulting others or committing acts of aggression and violence. Thus an alcoholic, while he is drunk is an irresponsible person faultering and pampering in many ways and prone to criminality at any moment. The acts of indecency or assault are usually committed by the persons who are under the influence of liquor or narcotic drugs.
The abuse of drugs2 and alcoholism spells disaster not only for the addict but also to his family and the society as a whole. It affects the individual's health and upsets his family life. That apart, these evils give rise to law and order problems, reduction in economic production and retards human welfare. Some of these drugs alter the senses while others cause depression. They are mostly derived from herbs and plants.
Drug-Addicts and Crime
Besides alcoholism, drug-addiction is also closely interconnected with crime. Compulsion for narcotic makes every drug-addict a law-violator and criminal. Mere possession of narcotic is also an offence punishable under the law and therefore drug-addiction by itself adds to the crime-statistics.
American researches on relationship between drug-addiction and crime have shown that narcotic addicts often commit predatory crimes such as larceny, shop-lifting, stealing, burglary, robbery etc. The drug-addicts generally lead a criminal life. It is often noticed that addicts of narcotic drugs mostly resort to theft to obtain money for procuring drugs.3 Most persons become delinquent after they have started use of narcotic drugs. Many violent offenders take narcotic drugs to get stimulation and courage and commit violent acts such as murder, burglary, extortion, rape etc. which they might not otherwise commit when not drugged." Dr. Kolb, however, disagreed with this view and suggested that crimes committed by opiate addicts are generally of a parasitic, predatory and non-violent type. If drug addicts commit violent crimes it is not because they are addicts, but because so many of them are psychopaths. Dr. Kolb further observed that narcotics like opium, heroin, morphine and cocaine change the violent fighting psychopaths into dull, cowardly non-aggressive idlers. In his view, drug addiction eliminates or at least reduces sex-desire of the addict.
Another question which is too often raised in context of criminal traits of drug addicts is whether criminality in them precedes or follows addiction. That is to say. whether the addicts are already delinquents before they take to addiction or they become so subsequently. Conflicting views have been expressed on this point by Prof. Percor and Dr. Kolb. Prof. Percor made an intensive study of 1,036 addicts in Lexington and reached a conclusion that seventy-five per cent of them had no history of delinquency prior to addiction. Anslinger, however, has expressed a contrary view and suggested that drug-addicts are already criminals before they take to addiction.2 Dr. Kolb also studied a group of 119 persons who became drug-addicts as a result of medical prescription of narcotics for ailments and found that ninety of them were without any prior career of delinquency5 and crime. The studies conducted by the researchers of New York and Chicago Universities, however, suggest that delinquency precedes as well as follows addiction. Be that as it may, it is now generally agreed that after addiction, the criminal hardly sheds off his habit of delinquency as he adopts it as a way of life with his advancing age. Thus, most addicts who are adolescent offenders turn into habitual and professional criminals when they grow older in life.
A British study reveals that the problem of criminality has been further aggravated by drug addiction. The British Health Education Council has estimated that consumption of alcohol in Britain increased by 37 per cent and the number of alcoholics has increased by 47 per cent.
The U.N. Report on abuse of drugs has concluded that the relationship between drugs and misery and crime compelled the governments to interfere in their use and sale.
Global statistics indicate that various parts of the world are drastically affected by drug hazard and the problem has reached alarming dimensions particularly in Middle East, South-East Asia, Eastern Europe, Canada, Mexico, U.S.A.. Central America and Africa. Heroin which was practically unknown in Africa, is now extensively being used (abused) in Mauritius and Nigeria. Ghana has also become a centre of drug abuse in recent years.
Since Bolivia, Peru and Columbia commonly known as "Cocaine triad" are largest cocaine producers in the world, they are obviously the largest supplier of this narcotic to other parts of the world. In Brazil also, illicit drug trafficking has lately increased due to its extensive borders with Columbia, Peru and Bolivia. It has now become the largest manufacturer of acetone and ethylether.
An Analysis of Indian Law
In view of the alarming increase in drug menace in India, the Parliament enacted the Narcotics Drugs & Psychotrophic Substances Act, 1985 which was later amended and called the Prevention of Illicit Traffic in Narcotic Drugs & Psychotrophic Substances (Amendment) Act, 1988 and came into force on July 4,1988.
The Act emphasises on the preventive aspect of drug evil and covers a wide list of substances that are recognised as narcotic drugs. It seeks to prevent people from the dangers of drug-abuse. It was for the first time in India, that legislation recognised a wide list of substances that were categorised as dangerous drugs.
The main policy underlying the Act is to prohibit supply and distribution (trafficking) of prohibited drugs, for which minimum sentence of ten years, which may extend to 20 years, with a minimum fine of rupees one lakh, and a maximum upto two lakhs has been prescribed. The Act makes no distinction between a drug addict and a drug-trafficker in respect of punishment except under Sections 27 and 64-A of the Act.
Section 27 of the Act provides that if a drug addict proves that he possessed drug of less than 'small quantity' as notified by the Central Government and that it was for his own personal consumption and not for sale, he or she shall be liable to punishment which may extend to maximum one year.
Section 64-A provides immunity to a drug addict from criminal liability provided he proves that the offence is committed for the first time and he or she voluntarily agrees to be treated for de-addiction in a recognised institution.
Section 71 of the Act provides for rehabilitative and reformative measures for an addict whether he is an offender or not. The provision of this section seems to have been based on the principle that the purpose of reformative penology is to "destroy criminality in a human being without destroying humanity in a criminal". This is undoubtedly, more in tune with the Supreme Court's view that "right to life includes right to live with dignity" as envisaged by Article 21 of the Constitution. Thus the Act combines within it deterrance and reformative techniques of punishment to tackle the problem of drug addiction and trafficking effectively.
It is significant to note that heroin addiction in India was virtually non-existent before 1980 as per the enforcement agencies report. In 1989 there were an estimated 800.000 heroin addicts in India and their number has increased almost ten times in 1994.
In India also drug addiction is spreading like wild fire as could be seen from the fact that heroin was being recently smuggled even in dead bodies. Two Nigerian nationals were sentenced to 12 years rigorous imprisonment and a fine of Rs. 2 lakh by Greater Bombay Principal Judge Mr. S.A. Kirtikar on 25th Dec, 1987 under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPSA) for smuggling huge quantity of heroin in dead bodies.
The Supreme Court of India, in Dawood Lama's case confirmed the conviction of the accused, a foreign national under the Narcotic Drugs & Psychotropic Substances Act, 1985, and sentenced him to 10 years rigorous imprisonment and to pay a fine of Rs. 100,000/- and in default further undergo rigorous imprisonment for two years. In this case brown sugar was seized from the accused which is a narcotic drug and not a psychotropic substance. The Court further ruled that under NDPS Act the police officer taking search is duty bound to inform the person arrested that if he so desired he shall be searched in the presence of a Gazetted Officer or a Magistrate.
In Bircndra Kumar Rai v. Union of India. the Supreme Court further held that in a case falling under the Prevention of Illegal Traffic in Narcotic Drugs & Psychotrophic Substances Act, 1988, the accused should be sternly dealt with under Section 3 of the Act and provisions of Article 22(5) of the Constitution of India are not attracted in such cases. Therefore, the detention of the accused under the Act shall not be held arbitrary.

Measures to Control Alcoholism & Drug Addiction
Efforts to control alcoholism and drug addiction have been made by introducing stringent legislative measures to regulate the manufacture, transportation and sale of these products and ban on their possession or use for other than medical and scientific purposes. The use of alcohol and narcotic drugs for cure or treatment purposes has, however, been permitted to cater to the legitimate needs through a proper licensing system and regulatory measures. International control of narcotic-drugs is attained through International agreements and conventions reached between nations under the United Nations Commission on Narcotic Drugs to which India is a signatory.
Apart from regulatory measures to control alcoholism and drug addiction, the system of licensing physicians to give drugs to addicts at a reasonable rate also helps in preventing their exploitation from the underworld peddlers and thus mitigating this crime.
In India, various legislative measures have been introduced to control alcoholism and sale of alcoholic beverages. Several States introduced prohibition laws during the preceding decades. The Prohibition Enquiry Committee appointed by the Planning Commission in its report of June, 1955, recommended that the scheme of prohibition and anti-drug should be integrated with the country's development plans with a view to control alcoholism and improve the standard of living of the people. The Committee also suggested that a Central Prohibition Committee be established to review the progress of prohibition and co-ordinate the related activities in different States. Accepting the recommendations of the Committee the Lok Sabha by a resolution passed on March 19, 1956 made prohibition an integral part of the Second Five-Year Plan. In result, several States introduced regulatory measures to curb the tendency of alcoholism. Some Slates resorted to complete prohibition while others preferred to follow a phased programme.
Despite these prohibitory measures to control alcoholism, the consumption of liquor and other intoxicating drugs has hardly been reduced. The theory of creating scarcity of liquor by prohibitory laws with a view to discouraging 'drinking' habit has not yielded desired results. On the contrary, demand for liquor has all the more increased and opened new vistas for blackmailing, smuggling and illicit distilling.
The Government have realised that strict laws prohibiting sale and consumption of alcohol have not delivered the goods and the policy needs to be reviewed once again. In fact, the consumption of wine and liquor has taken the shape of a fashion in today's ultra modern societies. Therefore, it cannot be curbed by prohibitory laws unless people who habitually drink volunatrily give it up. It is for this reason that many States have withdrawn their prohibition-laws and are content with a balanced regulatory policy under which liquor is available for sale only in licensed shops at a fair price. The heavy loss of revenue due to "dry-laws" is perhaps the real cause which has prompted the States to withdraw 'prohibition'. Presumably, the Stale Governments prefer to risk the dangers of alcoholism rather than losing crorcs of rupees by way of revenue. In result, the liquor industry has thrived in huge proportions and has gained importance among the public in spite of continued opposition.1
As stated earlier, Article 47 of the Constitution of India contains a mandate relating to policy of prohibition. It casts a duty on the Union and the States to initiate adequate measures to implement this directive principle for improvement of public health. This subject is at present in the State List. But in view of the laxity on the part of State Governments to implement the policy of prohibition on liquor, it is desirable that a national policy on the subject be framed. This would obviously require the transference of this subject from State List to the Union List as a Central subject. The consumption of liquor at public places, functions, farewells and receptions etc. must be totally banned and violation of liquor laws should be severely dealt with.
Enforcement Agencies
The entire gamut of legislation in India is directed against illicit trafficking in drug and alcoholic substances. The machinery utilised for the purpose at Central level includes the Department of Customs, Central Excise Narcotics Commissioner, Central Bureau of Investigation, Central Economic Intelligence Bureau, Directorate of Revenue Intelligence, Border Security Force and the Drugs Controller. At State level the State Excise, Police and Drug Control authorities control the menace of drug addiction and alcoholism.
In order to co-ordinate the activities of the various enforcement agencies involved in the anti-drug trafficking, a Central authority called the Narcotic Control Bureau with a wide range of functions has been set up. The main functions of the Bureau are—
(1) Co-ordination of all enforcement actions by various Central and State
(2) Implementation of counter measures against illicit drug trafficking under
international protocols, conventions and treaties.
(3) Assistance to the concerned authorities in foreign countries.
The NDPS Act has provided for the establishment of special courts for expeditious trial of drug addicts and traffickers.
Particularly, the problem of use and abuse of drugs and trafficking in drugs has wide ramifications. The organised criminal-gangs in smuggling of drugs operate-across national frontiers. The United Nations Commission on Narcotic.
Drugs and the International Narcotic Control Board are the international organisations which are seized with the problem of eradication of drug addiction. The main function of the international bodies is to provide machinery for giving full effect to the international conventions relating to narcotic drugs and to provide for continuous review and progress in the international control of these drugs.
An unprecedented convention against drug trafficking was adopted by consensus in Vienna on December 19, 1988 by 108 countries seeking better international co-operation in bringing drug-traffickers to justice. It was a major step towards solving the 'global crisis' of today's drug problems. It was characterised as a "major achievement" in international co-operation. The convention, however, regretted that signatories could not agree on the mandatory extradition of drug trafficking nationals to third countries wanting to prosecute them.
The Narcotics Control Board (NCB) in India has suggested that person convicted of drug crimes should automatically forfeit any property he or she acquires with illegal drug money.
It would not be out of place to mention here that corruption which is rampant among the enforcement agencies because of the temptation of economic advantage is also one of the contributory factors for inadequate enforcement of the NDPS Act. Drug traffickers generally operate and carry on their nefarious activities in close liaison with the concerned officials or the enforcement agencies paying them handsomely for the illegal favour shown to them. The so called 'deal' being quite attractive, the officials get lured by the temptation.
The lack of adequate training to the concerned officials in skilful investigation of drug-trafficking cases often leads to lacunae and loopholes in the procedure of investigation which enables drug peddlers and addicts to escape prosecution. That apart, lack of motivation on the part of enforcement agencies is also one of the causes for the inefficient implementation of the NDPS Act.
Thus, it would be seen that despite these efforts, the sale and purchase of narcotic drugs as also the alcohol is a major crime-problem which purturbs the law enforcement officials who are concerned with prevention of crime. Systematic rackets operate throughout the country to supply liquor and other narcotic drugs to alcoholics and addicts. Those involved in these illegal activities earn huge profits. Even international gangs dealing with this contraband traffic are known to be operative throughout the world.1 News regarding raid cases in which narcotics worth lakhs of rupees is seized by the Excise or the Customs Department are often seen in papers and magazines. Commenting on this aspect of the problems, Donald Taft observed that many crime-problems in relation to alcoholism and drug addiction are not so much drug created problems as law created crime problems.2 After all, the harm caused to addicts and their families on account of these ill-habits is far greater than the injury resulting therefrom to the society. Perhaps, some sort of moral education and constructive use of regulatory licensing may help in curbing the problem of alcoholism and drug-addiction to a considerable extent. In fact, there is need to re-define the twin problems of alcoholism and drug-addiction in a socio-medical perspective rather than considering it as a mere law enforcement problem.3
Remedial Measures :
Like any other socio-lcgal problem, the problem of drug addiction and abuse is a complex problem. Besides the legislative measures for combating this menace, some other remedial measures may, to a large extent, help in preventing this evil are as follows :
1. There is dire need to evolve an effective control mechanism to check
unrestricted production of drugs and their sale in open markets. The
present licensing system has proved inadequate in exercising proper
control on the producers of drugs especially cannabis and alcohol.
2. As staled earlier, lack of proper enforcement and implementation of
related legislation on drugs has resulted into steady increase in drug
and alcohol menace. For this purpose, there is greater need to muster
public support and co-operation through active publicity programmes.
3. Perhaps the best remedy to contain this evil is to educate people about
the harmful effects of drug addiction and consumption of liquor. This
kind of education would be most beneficial for the adolescents and
school or college going students. The voluntary social organisations and
mass-media can also usefully impart this education. Scientifically
correct knowledge and education about evil effects of intoxication and
drug-addiction should, in fact, form a part of regular curriculum at the
school level.'
4. Early detection of drug addicts and their prompt treatment and
resocialisation may help to prevent drug addiction to a large extent.
The role of social organisations in rehabilitating the drug addicts need
hardly be emphasised. The Government of India is providing liberal
grants to the State Governments to start drug de-addiction centres. As
the problem of drug abuse is very acute especially in North-Eastern
Region, the Government has decided to give 100 per cent assistance to
these States.
At present 84 Drug-De-addiction Centres are being run in 18 States and in Delhi by non-government organisations. The Ministry of Welfare provides grants to voluntary organisations for this purpose. These Centres are actively involved in the task of treatment and rehabilitation of drug addicts.
Drunkenness and Criminal Responsibility
Consumption of alcohol and intoxicating beverages results into drunkenness.
Therefore, a word must be said about 'drunkenness' as a defence for criminal
responsibility. Section 85 of the Indian Penal Code provides :
"Nothing is an offence which is done by a person who at the time of doing it, by reason of intoxication, was incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
Thus, the provision makes it clear that voluntary drunkenness is no excuse for the commission of a crime. Nevertheless, drunkenness, does not, in the eye of the law, make an offence more heinous. But if a man is made to drink through stratagem or the fraud of others or through ignorance or any other means causing intoxication without the man's knowledge or against his will, he is excused. If a person, by the unskilfulness of his physician or the connivance of his enemies eais or drinks such a thing as causes frenzy, this puts him in the same condition with any other frenzy and equally excuses him.
Section 84 of the Indian Penal Code provides immunity from criminal responsibility on the ground of unsoundness of mind. Unsoundness of mind can be caused due to madness, sickness, lunacy or intoxication. Thus insanity brought on by drunkenness is a good defense provided it is caused involuntarily.
A person is said to be insane when he does not, and cannot understand the nature and quality of his act, or is incapable of knowing that he is doing what is wrong or contrary to law. Intention or guilty knowledge being an essential element of the crime, the fact that the accused was intoxicated at the time he committed the act may be taken into consideration in deciding whether he formed the intention necessary to constitute the crime.
In order to make the point clear, it would be prudent to refer to the observations made by the Court of Appeal in the famous case of Director of Public Prosecutions v. Majewski. The facts of the case in brief were :
In this case M, a drug addict, took about 20 tablets of deszedrinc and the next evening he took about eight tablets of barbiturate, he then went into a public house to take a drink. There was a disturbance and the landlord began to escort M's friend to the door. The friend cried, "he's pulling me out." M got up, abused the landlord, butted him in the face and punched a customer. The landlord and the customers ejected the pair from the bar. but they re-entered by forcing the other door, and breaking a glass panel. M then punched the landlord and started swinging a piece of broken glass and injuring him. When the police arrived, a fierce struggle took place to get him out. He shouted at the police, "You pigs, I will kill you all", and kicked two of the officers. M said he could remember nothing of this incident. The Court found on facts that M was able to respond to a request for assistance by his companion ; he was able to direct his violence, and he was able to utter abuses and issue threats before he attacked. Therefore, on these facts his plea of intoxication was rejected.
The Indian case of Manindra Lai Das v. Emperor is yet another illustration of Court's attitude towards the defence of intoxication. In this case the accused, a police officer, shot a prostitute with whom he was friendly and wounded her. He was charged with the offence of attempt to commit murder under Section 307, I.P.C. and voluntarily causing grievous hurt under Section 326. He set up the defence of intoxication. The trial judge in his direction observed :
"If an act is done in a state of intoxication and that intoxication is voluntarily incurred he is equally liable before the law as if he had done that act in a state of soberiety."
In an appeal before the High Court the direction was held to be wrong on the ground that "knowledge" is not synonymous with intention.
Thus, it may be concluded that though voluntary drunkenness cannot be an excuse for the commission of an offence yet where the question is whether the act was premeditated or done due to sudden heat and impulse, the fact of the party being intoxicated, is held to be a circumstance proper to be taken into consideration in mitigation of sentence justifying leniency.
The main problem in cases where intoxication is pleaded in defence is whether the offender was really intoxicated at the time of the commission of the offence. Medical evidence quite often helps to reach a correct conclusion in this regard. That apart, a more recent device to determine the alcoholic condition of a person is through the use of an instrument called "drunkomeler". This apparatus delects the presence of alcoholic percentage in the blood stream of a person and thus helps lo find out whether the person was under the influence of liquor or not at a given time. It also helps in determining the extent of alcoholic condition of the drunken person and its effect on his mental faculty.

Studies on drug addiction, however, reveal that the problem of drug abuse and alcoholism is not confined to cities alone but it equally persists in rural areas as well. It equally affects the economically depressed classes, middle classes, upper classes and ultra-modern social groups. However, in cities mostly youth and students are affected whereas in rural areas the agriculturists and labour classes arc generally addicted to drugs.
More recently, special treatment centres have been set up by social welfare agencies to deal with alcoholics and drug addicts. In Bombay. The Samaritans a social welfare agency is doing commendable work in the area of rehabilitation of drug addicts. It is high time that Government should also consider setting up special treatment centres for the rehabilitation of drug-addicts and alcoholics.
The modern processes of development have opened the floodgates of offences and drug-offences are no exception to this global phenomenon. It hardly needs to be stressed that alcoholism and drug-addiction are the off-shoots of modem fast changing social patterns, hence these twin problems should be tackled in their socio-legal perspective. Then only concrete results may be possible.
Undoubtedly intensive surveillance on the border check-posts and awareness among the public about the evil effects of drug and alcohol addiction have brought about a decline in drug trafficking in recent years but much more still remains to be done in order to eradicate this menace which is damaging the moral fabric of Indian society and culture.

Criminology - The Nature of Organized Crime and its Market


The term organized crime conjures up images of strong men in dark suits, machine gun-toting bodyguards, rituals of allegiance to secret organizations, professional killings, and meeting of family leaders who chart the course of crime much as the board members at the general motors decide on the country’s transportation needs. These images have become part of what the criminologists called Alien Conspiracy Theory concept of organized crime. Many also thinks that organized crime is a direct offshoot of a criminal society – Mafia – that first originated in Italy and Sicily and now controls racketeering in major US cities. A major premise of this theory is that the Mafia centrally coordinated by a national committee that settles disputes, dictates policy and assign territory. But now in the contemporary US, despite their growing involvement in securities fraud, there is hardly an Italian name in the FBI ‘most wanted’ list of targets.
Organized Crimes can be defined as the product of self perpetuating criminal conspiracy involving the ruthless exploitation of social, political and economic institutions of the society. The ingredient of this is basically violence, corruption, continuity and variety.
Organized criminals operated fairly locally, yet the activity to which they are a part can be global. Other countries serve as a channel as a source/transit routes for illegal and legal products to sell; as places to sell and use stolen goods and as places to hide or launder proceeds of crime. Thus, for market offences, there is a need to comprehend crime within a wider cross-national context of crime opportunities.
How the market originated? The first organized criminal gang comprised irish immigrants who made their home in the slum districts of New York city. The forty thieves, considered the New York gang with a definite, acknowledged leadership, were muggers, thieves and pickpockets on the lower east side of Manhattan from 1820s to just before the civil war. Around 1890, Italian immigrants began forming gangs modeled after the Sicilian crime organization known as Mafia; these gangs were called the Black Hand. After this, the different organizations started working professionally under the name Mafia. In December 1925, gang leaders from across the national met in Cleveland to discuss strategies for mediating their differences nonviolently and for maximizing profit. Then, in 1934, another meeting in New York led to the formation of a national crime commission and acknowledged the territorial claims of 24 crime families around the country. Under the leadership of national crime commission, organized crime began to expand in a more orderly fashion.
The tradition source of income of organized crime groups is derived from providing illicit, materials and using force to enter into and maximize profits in legitimate businesses. Annual gross income from criminal activity is at least $50 billion, more than 1% of the gross national product; some estimates put gross earning as high as $90 billion, outranking most major industries in the United States. Among advanced Industrial nations, the closest similarities to the ‘political coalition’ organizational model occur in Australia, where extensive narcotics, cargo theft and labor racketeering rings with ties to state level political and police were discovered during 1970s and 1980s; and in japan, where Yakuza and other racketeers specialize in vice and extortion, including Sokaiya – extortion by fear of embarrassment on the part of large corporations at their annual general meetings. Except for narcotics importers and wholesalers, cargo thieves who work at airports, and local vice, protection, and pornography syndicates, the historic events suggest that British and German ‘organized criminals’ tend to be relatively short – term groups drawn together for specific projects, such as fraud and armed robbery, from a pool of long – term professional criminals on a within – force or regional basis.
Basically, the organization of crimes results from the interaction of crime opportunities, offender and prospective offender skills and networks, and formal control efforts. It is thus a dynamic process that evolves as offender adapt to their changing environment, including facilities offered by the legal commercial environment, such as container lorries and ships, can repair firms, payment card issuers etc. There are many cases where crime networks adapt to police preventive tactics even in the course of one series of frauds; and the losses of drugs or excise-evaded shipments constitute mainly opportunity costs from which higher members of crime groups develop counter-intelligence strategies or just accept risks and losses of often females. In order to make profits, those who offer illegal goods and services must advertise, if only to selected ‘affinity groups’ derived from other sources and activities. This generally means that in the long run, the police will come to know about the criminality too. To ensure freedom from the law, unless they can rely on police tolerance without a financial motivation, the criminals must therefore subvert the police and/or the courts, and this is a major reason for concern about the impact of organized crime.
In predatory acts such as robbery, violence or its threat is a key element, and professional robbers – whether of commercial premises or of persons in the street – become highly skilled in dramaturgy. In market offences, violence occurs mostly in disputes over territory, or over proceeds of crime stored inb cash. In most Western societies, such violence is an artifact of the criminalization of popular goods and services; though elsewhere, extortion or ‘protection’ can take place where there is a weak state incapable of protecting its entire people from such threats and where criminals have the motivation and aptitude to make convincing threats. In all cases, violence is instrumental, but it can also be expressive of a need/wish to be shown ‘respect’.
Until the collapse of the USSR, and the subsequent cataclysmic effects, organized crime was essentially a domestic affair, even though transnational patterns were evident. Some states chose to see the phenomenon holistically, while others preferred to view each underlying offence in isolation from the organized nature of the group. Similarly, quest for international co-operation such as extradition and mutual legal assistance were made on the basis of underlying offence. The post-1990 era, with the advent of globalised trade and physical movement of persons, witnessed an increase in organize crime, originating especially from the former Eastern bloc, necessitating a different approach to the problem. Two factors have generally contributed to the eruption of organized crime at the dawn of the 21st Century:
1. the emergence of ‘weak’ states and
2. Corruption.
The former refers to the institutional capacity of States of govern legitimately, effectively administer justice and demand obeisance from the entire population. To the effect that the vast majority of South American States and Russia have been unsuccessful in achieving these ends, they are seen as ‘weak’. Corruption further exacerbates the situation; as does the ability of such groups to launder their criminal proceed in tax havens where banking regulations were relaxed. Since the early 1990s the UN General Assembly had detected the increase and expansion of organized criminal activity worldwide and made reference to the emergent links between organized crime and terrorism. At that point of time the most important problem for the police agencies was to stop the money laundering. Laundering is the cleansing of funds so that they can be used in a way indistinguishable from legitimate money. What most people appear to mean by money-laundering is the hiding of funds in accounts somewhere outside of the current surveillance capabilities of the enforcement agencies and/or professional intermediaries such a accountants, bankers and lawyers who may have a legal duty to sensitize themselves to laundering typologies and to report suspicion or ‘unusual’ transaction to the authorities. The organized criminals – ‘the great majority’, it appears- who make themselves popular with local car dealers, restaurateurs/publicans, and lovers by spending their money as they go along have no such problem.
UN prepared United Nations Conventions Against Transnational Organized Crime (CATOC) after a series of eleven sessions between 1999 and 2000. CATOC establishes four distinct offences under its conventions: -
1. participation in organized criminal groups;
2. money laundering;
3. corruption; and
4. Obstruction of justice.
The main purpose behind CATOC was the enhancement of co-operation between states, and the calls for assistance and co-operation were echoed by most developing countries, since organized crime was seen by many as a serious destabilizing threat. Co-operation has a twofold dimension in Conventions. First, law enforcement agencies are required to assist one another in general and specific terms, while the usual forms of co-operation are also provided, such as extradition and general and specific terms, while the usual forms of co-operation are also provided, such as extradition and mutual legal assistance, as well as more specialized measures, such as collection and exchange of information. Secondly, since the States are required to maintain adequate expertise in dealing with expertise in dealing with transnational organized crime, it is only developed countries that can afford to efficiently comply.


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