Criminal Misc. No. M-35827 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc.No. M-35827 of 2010 (O&M) Date of decision: 26th of May, 2011 Amarjit Singh alias Goldy ....Petitioner Vs. State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr.Mansur Ali, Advocate, for the petitioner. HEMANT GUPTA, J. The present is a petition for grant of bail under Section 439 Cr.P.C. in case arising out of FIR No. 229 dated 14.10.2010, for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). As per the allegations in the FIR, the petitioner is alleged to be in possession of 1 Kg. 250 grams of mandrax diphenoxylate. Such narcotic drug is mentioned at Sr. No.44 of the Table appended to the Act inserted as a consequence of Central Act No 9 of 2001. The commercial quantity is 50 grams or above whereas the small quantity is 2 gms. The petitioner seeks bail in view of the judgments of the Hon'ble Supreme Court in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161, Ouseph Vs. State of Kerala, (2004) 4 SCC 446 and Samiullaha Vs. 1 Criminal Misc. No. M-35827 of 2010 (O&M) Superintendent, Narcotic Central Bureau, 2008 (16) Supreme Court Cases 471. It is contend that as per the Chemical Examiner report, the percentage of diaphenoxylate was 1.493% in the said recovery and thus, the contraband recovered from the petitioner is non-commercial quantity. Therefore, the petitioner be admitted to bail. Such application for grant of bail was declined by the learned Special Judge, Patiala, vide order dated 23.11.2010. The petitioner amended the present petition after filing the same. In the present amended petition, the petitioner has challenged the notification dated 18.11.2009 issued by the Ministry of Finance (Department of Revenue), amending the notification dated 19.10.2001 inserting table specifying small and commercial quantity. The following note was inserted vide the notification under challenge, which reads as under:- “(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.” Learned counsel for the petitioner has vehemently argued that the said notification has the effect of nullifying the judgments of the Hon'ble Supreme Court rendered in E. Micheal Raj's case (supra) and other cases referred above. The amendment is carried out by way of a notification issued by the Central Government while exercising the powers of delegated legislation. It is contended that though the legislature has power to remove defects or to change the basis of the judgment while enacting Statute but to 2 Criminal Misc. No. M-35827 of 2010 (O&M) undo a judgment of the Hon’ble Supreme Court in exercise of delegated legislation is not tenable. The effect of the judgment of the Court can be negated only by amendment in the statute by the competent Legislature and not by way of notification published in exercise of delegated legislation. In support of the said argument, reliance is placed upon a judgment in case State of Maharashtra and others Vs. Kumari Tanuja, AIR 1999 Supreme Court 791. Having heard learned counsel for the petitioner, we do not find any merit in the argument raised by him. The power to declare a particular substance as narcotics or psychotropic, falling in the commercial or non- commercial quantity, has been conferred on the Central Government vide Central Act 9 of 2001 in terms of clause (vii-a) and (xxiii-a) of Section 2 of the Act. Such provision reads as under:- “Section 2 (viia)- 'Commercial quantity, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette; (xxiia)- 'Small quantity', in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.” Since the power to define the commercial and non-commercial quantity is vested with the Central Government in terms of the statute, therefore, it is the Central Government alone which is competent to amend, modify or rescind the notification issued while exercising the powers as part of delegated legislation. 3 Criminal Misc. No. M-35827 of 2010 (O&M) Notification issued in exercise of the powers conferred by legislation to the Central Government has force of law and for all purposes treated to be part of the Act. Somewhat similar question came up for consideration in State of Tamil Nadu Vs. M/s Hind Stone and others (1981) 2 SCC 205 in relation to Rule 8-C notified by the State Government in exercise of powers conferred to the State Government under the Mines and Minerals (Regulation and Development) Act, 1957. It was held to the following effect: “….. A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. “Rules made under the statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation” (State of U.P. v. Babu Ram Upadhya AIR 1961 SC 751; see also Maxwell: INTERPRETATION OF STATUTES, 11th Edn., pp. 49- 50). So, statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution. To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative function by laying down broad guide-lines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules and to amend the rules from time to time to meet unforeseen and unpredictable situations, all within the framework of the power entrusted to it by the plenary legislating body.” Later in another judgment reported as Video Electronics (P) Ltd. and another VS. State of Punjab and another (1990) 3 SCC 87, considering the aforesaid judgment, the Hon’ble Supreme Court held to the following effect: 4 Criminal Misc. No. M-35827 of 2010 (O&M) “31. ….This Court in Kailash Nath v. State of U.P. AIR 1957 SC 790 has held that the notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, exemption is as if contained in the Act itself. The U.P. Sales Tax Act by Section 24(4) confers rule making powers on the State Government. Section 25 confers powers on the State Government to issue notifications with retrospective effect. Hence, it cannot be disputed that the exemption notification is the exercise of the legislative power. This Court in State of U.P. v. Renusagar Power Co. (1988) 4 SCC 59 has held that the power to grant exemption is quasi-legislative. In Narinder Chand Hem Raj v. Lt. Governor, Administrator, U.T., Himachal Pradesh (1971) 2 SCC 747 it was held that the exercise of the power is legislative whether it is by the legislature or by the delegate.” In view of the aforesaid judgments, the power exercised by the Central Government in terms of authority conferred on it by Central Act No.9 of 2001 for all practical purposes is part of the Statute. Therefore, the insertion of note is in exercise of statutory powers and is deemed to be part of the Statute i.e. Narcotic Drugs and Psychotropic Substances Act, 1985. Such note has been inserted to clarify the commercial quantity, so as to make it clear that the entire mixture or any solution or any one or more narcotic drugs and psychotropic substances has to be taken into consideration and not just its pure content. By virtue of said clarification, the judgments rendered by the Court are not ignored, but the defect which came to the notice of the Central Government, has been sought to be clarified. Since the power on the Central Government has been conferred by a Statute, therefore, the clarification issued is legislative in exercise of the well accepted concept that such legislative device which removes the vice in previous legislation is not considered an encroachment on judicial 5 Criminal Misc. No. M-35827 of 2010 (O&M) power. The Constitutional Bench in Shri Prithvi Cotton Mills Ltd. Vs. Broach Borough Municipality (1969) 2 SCC 283 has held to the following effect: “4. ….Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all o them and while it does so it may neutralize the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions.” (emphasis supplied) In Indian Aluminium Co. Vs. State of Kerala (1996) 7 SCC 637, the Court has held that a legislature cannot directly overrule a judicial decision, but it has the power to make the decision ineffective by removing 6 Criminal Misc. No. M-35827 of 2010 (O&M) the basis on which the decision is rendered, while at the same time adhering to the constitutional imperatives. It was held to the following effect: “56. From a resume of the above decisions the following principles would emerge : xxx xxx xxx (8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. …… (9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same.” Considering the aforesaid judgments, the Hon’ble Supreme Court in State of Himachal Pradesh Vs. Narain Singh (2009) 13 SCC 165 held to the following effect: “26. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act. xxxxx xxxx xxxxx 32. Recently in State of Bihar v. Bihar Pensioners Samaj (2006) 5 SCC 65, this Court reiterated the same position in para 16 at SCC p. 71, which is reproduced below: 7 Criminal Misc. No. M-35827 of 2010 (O&M) “16. … It is always open to the legislature to alter the law retrospectively as long as the very premise on which the earlier judgment declared a certain action as invalid is removed. The situation would be one of a fundamental change in the circumstances and such a validating Act was not open to challenge on the ground that it amounted to usurpation of judicial powers.” The notification dated 18.11.2009 is not retrospective as observed by the Hon’ble Supreme Court in Harjit Singh Vs. State of Punjab (2011) 4 SCC 441, when it said: “However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing the sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. Thus, its application would be violative of restrictions imposed by Article 20 of the Constitution of India. We are of the view that the said Notification dated 18.11.2009 cannot be applied retrospectively and therefore, has no application so far as the instant case is concerned.” Since in the present case, the contraband is alleged to have been recovered from the petitioner on 14.10.2010 i.e. after the publication of notification dated 18.11.2009, therefore, the position in law as it existed on the date of recovery of the contraband has to be examined. Since on that day the as per the clarification, the entire mixture is to be taken into consideration, therefore, the quantity alleged to be recovered from the petitioner is a commercial quantity. The judgment relied upon by the learned counsel for the petitioner in Kumari Tanuja's case (supra), is of no help to the arguments raised. In the aforesaid case, the High Court in the judgment reported as Vijay Shrichand Daulatani Vs. State of Maharashtra (1985) 2 Bom. CR 488 held that Gosavi or Bawa is a Nomadic tribe in the Presidency of Bombay 8 Criminal Misc. No. M-35827 of 2010 (O&M) and continue as such even in the State of Maharashtra. But by way of resolution dated 01.04.1987, whereby the benefit of reservation for the Nomadic tribe was declined to the writ petitioner. It was, in these circumstances, the Hon’ble Supreme Court held that the resolution dated 01.04.1987 is beyond the executive power of the State. Such resolution was passed only to set at naught or to get over decision of the Court. In the aforesaid case, the Court has held to the following effect: “11. These decisions have specifically held that if the Executive or the Legislature wants to render a judicial decisions ineffective, it can only do so by removing or altering or neutralizing the legal basis of the judgment which is sought to be made ineffective and that neither the Legislature nor in the Executive has the power of simply declaring the earlier decisions of the Courts as invalid or not binding. In the instant case judgment in Vijay Daulatani’s case (1985 (2) Bom CR 488) was rendered after considering all the existing Government Resolutions and Circulars. It is by interpreting these Resolutions and Circulars, the Division Bench of the Bombay High Court came to the conclusion that the community ‘Bawa’ which migrated from the State of Sindh, was included in the list of Nomadic tribes. This finding was affirmed by this Court while dismissing the special leave petition filed by the State against the said judgment. A perusal of the Resolution dated 01.04.1987 shows that the said Resolution merely reiterates the various Resolutions passed earlier by the Government which were considered and rejected in Vijay Daulatani’s case. …As stated by the Full Bench of the High Court, a perusal of the Resolution dated 01.04.1987 shows that, in effect, it was merely overruling the judgment of the High Court in Vijay Daulatani’s case, which is not permissible in law. The State has not altered or neutralized the legal basis of the judgment of the High Court in Daulatani’s case by producing relevant additional material or by applying its mind to the reasons given by the Bombay High Court in Daulatani’s case.” 9 Criminal Misc. No. M-35827 of 2010 (O&M) The said judgment, in fact, supports the view taken above that though the judgment cannot be set at naught by executive action, but the basis of the judgment can be altered or neutralized. Independent of the notification, suffice it to state that the judgment in E. Micheal Raj’s case (supra), has been explained in Harjit Singh’s case (supra), wherein the substance recovered was opium in the form of coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. It was found that the opium derivatives have to be dealt with under Entry No.93, whereas Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity and that quantity of morphine is a decisive factor. It was held to the following effect: “24. The Notification applicable herein specifies small and commercial quantities of various narcotic drugs and psychotropic substances for each contraband material. Entry 56 deals with Heroin, Entry 77 deals with Morphine, Entry 92 deals with Opium, Entry 93 deals with Opium Derivatives and so on and so forth. Therefore, the Notification also makes a distinction not only between Opium and Morphine but also between Opium and Opium Derivatives. Undoubtedly, Morphine is one of the derivatives of the Opium. Thus, the requirement under the law is first to identify and classify the recovered substance and then to find out under what entry it is required to be dealt with. If it is Opium as defined in clause (a) of Section 2(xv) then the percentage of Morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as specified in clause (b) of Section 2(xv) of NDPS Act, that the quantify of morphine contents become relevant. 25. Thus, the aforesaid judgment in E. Micheal Raj (Supra) has no application in the instant case as it does not relate to a mixture of 10 Criminal Misc. No. M-35827 of 2010 (O&M) narcotic drugs or psychotropic substances with one or more substances. The material so recovered from the appellant is opium in terms of Section 2(xv) of the NDPS Act. In such a fact-situation, determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92.” In view of the above, we do not find any merit in the present petition. The same is accordingly dismissed. (HEMANT GUPTA) JUDGE (A.N. JINDAL) JUDGE 26.05.2011 Ajp/Vimal 11