WP(CRL) 326/09 & 384/09 Page No. 1 of 38 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 06.05.2009 + WP (CRL) 326/2009 RAJESH SHARMA ... Petitioner - Versus - UNION OF INDIA & OTHERS ... Respondents AND + WP (CRL) 384/2009 NAFE SINGH ... Petitioner - Versus - UNION OF INDIA & OTHERS ... Respondents Advocates who appeared in this case:- For the Petitioners : Mr K.T.S. Tulsi, Sr Advocate with Mr Sanjiv Kumar, Mr S.S. Dass, Mr S.K. Santoshi, Mr Sumit Arora and Mr Rohit Aggarwal For the Respondent No.1 : Mr P.P. Malhotra, ASG with Mr Satish Aggarwal, Mr Shirish Aggarwal, Mr Shankar Chabra For the Respondent No.2. : Ms Meera Bhatia CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE P.K. BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in Digest ? YES WP(CRL) 326/09 & 384/09 Page No. 2 of 38 BADAR DURREZ AHMED, J 1. These petitions seeking the issuance of a writ of habeas corpus are directed against the detention orders passed against the petitioners in each of the petitions by the Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, New Delhi in purported exercise of powers conferred under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ‗the PIT-NDPS Act‖). The detention order in the case of the petitioner Rajesh Sharma in WP (CRL) 326/2009 was made on 27.02.2009, whereas the detention order in respect of the petitioner Nafe Singh in WP (CRL) 384/2009 was made on 13.03.2009. 2. Both Rajesh Sharma and Nafe Singh were arrested with other co- accused Diwakar Gupta and Amit Kohli on 06.05.2008 on the allegation that they had indulged in illegal trading of diazepam, lorazepam, alprazolam, clonazepam and phenobarbitone. These are all drugs specified in Schedule ‗H‘ to the Drugs and Cosmetics Rules, 1945. It is also an admitted position that they are psychotropic substances and are specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‗the NDPS Act‘). However, these substances are not mentioned in WP(CRL) 326/09 & 384/09 Page No. 3 of 38 Schedule-I to the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as ‗the NDPS Rules‘). 3. Both Rajesh Sharma and Nafe Singh applied for bail. Their bail applications were rejected by the learned Special Judge, NDPS, New Delhi on 31.10.2008. Thereafter, two of the co-accused, namely, Diwakar Gupta and Amit Kohli filed bail applications before this court. However, the same were sought to be withdrawn on the submission that there was a change of circumstances, namely, that the investigation had been completed and that the learned Special Judge had not considered the decisions of the Supreme Court and of this court in State of Uttaranchal v. Rajesh Kumar Gupta: 2007 (1) SCC 355 and Rajender Gupta v. The State: 2005 III AD (Cr.) DHC 606, respectively, in the proper perspective. Consequently, liberty was granted to the said co- accused to move a fresh bail application before the learned Special Judge who was directed to deal with the aforesaid judgments in the correct perspective. The said order was of a learned Single Judge of this court on 01.12.2008. Thereafter, the learned Special Judge, after considering the aforesaid decisions, granted bail to the co-accused Diwakar Gupta and Amit Kohli on 24.12.2008. This was followed by the grant of bail to the petitioners in these writ petitions, namely, Rajesh Sharma and Nafe Singh on 07.01.2009. On 09.02.2009, both Rajesh Sharma and Nafe Singh alongwith other co-accused persons WP(CRL) 326/09 & 384/09 Page No. 4 of 38 entered appearance through their counsel in the applications filed by the respondent No.2 (Narcotics Control Bureau) for cancellation of the bail granted to the said persons. While the cancellation of bail applications were pending before this court, the aforesaid detention orders have been passed on the dates indicated above and both Rajesh Sharma and Nafe Singh were taken into custody and sent to jail where they are presently detained. 4. Mr K.T.S. Tulsi, the learned senior advocate, appearing on behalf of the petitioners, made a three-fold submission. First of all, according to him, the impugned orders of detention reflect total non-application of mind inasmuch as the order granting bail to the petitioners has not been considered in the proper perspective. He submitted that there was non- application of mind on the part of the detaining authority to the reasons contained in the orders granting bail to the petitioners, wherein the judgment of the Supreme Court in the case of Rajesh Kumar Gupta (supra) was considered. Secondly, it was contended by Mr Tulsi that there is no basis for arriving at the satisfaction that export of the medicines / drugs referred to above would constitute ―illicit trafficking‖ within the meaning of Section 2(e) of the PIT-NDPS Act when the said substances were clearly covered by the exception to Section 8 of the NDPS Act. Lastly, Mr Tulsi submitted that personal liberty is so sacrosanct and so high in the scale of the constitutional values that it WP(CRL) 326/09 & 384/09 Page No. 5 of 38 places an obligation on the detaining authority to show that the order of detention meticulously accords with the procedure established by law. He submitted that what the petitioners are alleged to be doing was not an offence under the NDPS Act and, therefore, would not be covered by the expression ―illicit trafficking‖. Thus, according to him, the detention orders could not have been made when the alleged act was itself not an offence. He submitted, in the context of the seriousness of the problem of ―illicit trafficking‖ in drugs and psychotropic substances, that when it comes to infringement of fundamental rights, the High Court, irrespective of the severity and gravity of the evil, has to intervene as the gravity of evil cannot furnish sufficient reasons for invading the personal liberty of citizens except for and in accordance with the procedure established by law. Elaborating on these submissions, Mr Tulsi contended that the non-application of mind by the detaining authority is writ large on the detention order itself when, according to the detaining authority, mere inclusion of the substances in question in the Schedule to the NDPS Act was sufficient for making the detention order. This is apparent from the opening paragraph of the grounds of detention which reads as under:- ―The Narcotics Control Bureau, Delhi Zonal Unit, hereafter referred to as NCB, received information on 5.5.2008 from an Informer about a group of persons dealing in illicit smuggling of prescription drugs listed in the schedule of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). The names of the persons intimated were (i) Shri Rajesh Sharma of Shakarpur, Delhi (ii) Shri Diwakar WP(CRL) 326/09 & 384/09 Page No. 6 of 38 Gupta (iii) Shri Amit Kohli of Krishna Nagar, Delhi (iv) Shri Ashish Nagpal (v) Shri Nafe Singh. It was intimated that the above mentioned persons were extracting orders of medicines from US based clients over Internet and these orders were being executed through courier parcels.‖ (underlining added) It is also apparent from the following paragraph of the grounds for detention which reads as under:- ―On 20.06.2008, the samples of drugs seized were sent to Central Forensic Science Laboratory, Hyderabad for chemical analysis. In their report dated 25.08.2008 the Laboratory reported that Clonazepam, Lorazepam, Alprazolam, Diazepam and Phenobarbitone were detected in some of the exhibits. These medicines are listed amongst the psychotropic substances in the Schedule to NDPS Act, 1985.‖ (underlining added) 5. Mr Tulsi placed strong reliance on the decision of the Supreme Court in the case of Rajesh Kumar Gupta (supra) to contend that mere mention of the substances in the Schedule to the NDPS Act would not be sufficient and, to make the activity of import and export of the said psychotropic substances illegal, it would be necessary that the said substances also find mention in Schedule-I to the NDPS Rules, 1985. According to him, the Supreme Court made it clear in Rajesh Kumar Gupta (supra) that unless the drugs / psychotropic substances find place in Schedule-I to the NDPS Rules, the provisions of Section 8 of the NDPS Act, which contains the prohibition, would have no application whatsoever. Consequently, mere inclusion of the said WP(CRL) 326/09 & 384/09 Page No. 7 of 38 substances in the Schedule to the NDPS Act, would by itself not be sufficient to lead to the conclusion that import and export in them is prohibited, particularly when it is the admitted position that they were allopathic drugs which find mention in Schedule ‗H‘ of the Drugs and Cosmetics Rules, 1945. Consequently, it was submitted that there was no violation of the provisions of the NDPS Act and, therefore, the activity allegedly indulged in by the petitioners could not be regarded as ‗illicit traffic‘ within the meaning of Section 2 (e) of the PIT-NDPS Act. 6. Mr P.P. Malhotra, the learned Additional Solicitor General of India, appearing on behalf of the respondents, submitted that the decision of the Supreme Court in the case of Rajesh Kumar Gupta (supra) did not have any application to the facts of the present petitions for various reasons. First of all, according to him, the said judgment did not decide the merits of the matter as to whether the NDPS Act was applicable or not in the case of export out of India of the psychotropic substances mentioned in the Schedule to the NDPS Act. He also contended that the said decision did not deal with Sections 8 and 22 of the NDPS Act nor with Rule 58 of the NDPS Rules. Furthermore, he submitted that the said decision arose in the context of a bail application, under Section 37 of the NDPS Act and was not a decision on merits. He said that from the said judgment itself, it is clear that the WP(CRL) 326/09 & 384/09 Page No. 8 of 38 Supreme Court was taking a prima facie view of the matter and, in any event, in that case, the Supreme Court felt that because of the fact that the accused had already been in custody for a period of more than two years, it was not a fit case where they should exercise their discretionary jurisdiction under Article 136 of the Constitution. Consequently, he submitted that in Rajesh Kumar Gupta (supra), the Supreme Court did not decide any question on merits and refused to exercise its extraordinary jurisdiction under Article 136 of the Constitution of India and, therefore, the said decision cannot be considered as having settled the law. 7. With regard to interpreting various provisions of the Act and the Rules, he submitted that it would be necessary to refer to Sections 8, 22 and 80 of the NDPS Act and Rules 53 and 58 of the NDPS Rules for the purposes of deciding this case. The relevant portions of the said provisions are as under:- NDPS Act “8. Prohibition of certain operations.—No person shall— (a) xxxxx xxxxx xxxxx xxxxx; or (b) xxxxx xxxxx xxxxx xxxxx; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, WP(CRL) 326/09 & 384/09 Page No. 9 of 38 except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:‖ xxxxx xxxxx xxxxx xxxxx xxxxx‖ ―22. Punishment for contravention in relation to psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.‖ ―80. Application of the Drugs and Cosmetics Act, 1940 not barred.— The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.‖ WP(CRL) 326/09 & 384/09 Page No. 10 of 38 NDPS Rules CHAPTER VI IMPORT EXPORT AND TRANSHIPMENT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES 53. General prohibition.—Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I is prohibited: Provided that nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorisation issued under the provision of this Chapter and for the purposes mentioned in Chapter VII-A. 53-A. Prohibition on export.—(1) Subject to the provisions of sub-rule (2), no person shall export any of the narcotic drug or psychotropic substance or preparation containing any of such narcotic drug or psychotropic substance specified in Schedule II to the countries or to the region of such country specified therein. (2) Notwithstanding anything contained in sub-rule (1) above, the Narcotics Commissioner may authorize export of specified quantities of such narcotic drug or psychotropic substance or preparation containing such narcotic drug or psychotropic substance on the basis of special import licence issued by the Competent Authority of the country mentioned in Schedule II which intends such import by way of issuance of special import licence. The shipment of the consignment so allowed shall be accompanied by a copy of such special import licence duly endorsed by the Narcotics Commissioner.‖ xxxxx xxxxx xxxxx xxxxx xxxxx “58. Application for export authorisation.—(1) Subject to rule 53 and rule 53-A, no narcotic drugs, or psychotropic substances specified in the Schedule of the Act, shall be exported out of India without an export authorisation in respect of the consignment issued by the issuing authority in Form No.5 appended to these rules. WP(CRL) 326/09 & 384/09 Page No. 11 of 38 (2) The exporter applying for an export authorisation under sub-rule (1) shall submit,— (a) where the export authorisation relates to narcotic drug, alongwith his application the original or an autnenticated copy of the excise permit issued by the concerned State Government; and (b) the import certificate in original, issued by the Government of the importing country certifying the official approval of the concerned Government. (3) The application for the export authorisation shall state such details as may be specified by the Narcotics Commissioner.‖ xxxxx xxxxx xxxxx xxxxx xxxxx “63. Prohibition of import and export of consignments through a post office box, etc.—The import or export of consignments of any narcotic drug or psychotropic substance through a post office box or through a bank is prohibited.‖ 8. Mr Malhotra submitted that on a plain reading of Section 8 of the NDPS Act, it is clear that no person can export from India any narcotic drug or psychotropic substance except for medical or scientific purposes and that, too, in the manner and extent provided under the NDPS Act or the NDPS Rules. He submitted that the manner and extent indicated under the said Act and the Rules impose a requirement by way of licence, permit or authorisation. Rule 58 deals with application for export authorisation. According to him, Rule 53 deals with psychotropic substances specified in Schedule-I to the NDPS Rules. However, Rule 58 deals with psychotropic substances specified WP(CRL) 326/09 & 384/09 Page No. 12 of 38 in the Schedule to the NDPS Act. He submitted that no word of an Act or the Rules could be said to be redundant. The legislature is deemed to be aware of the language used by it in the Act. The Central Government, in framing the NDPS Rules, is also deemed to be aware of the distinction between the Schedule to the Act and Schedule-I to the NDPS Rules. He submitted that the different language employed in Rule 58 compared with that employed in Rule 53 clearly demonstrates that Rule 58 is applicable to all the psychotropic substances mentioned in the Schedule to the NDPS Act. Since the substances in question are admittedly covered under the Schedule to the NDPS Act, they cannot be exported without export authorisation granted in terms of Rule 58 of the NDPS Rules. 9. Mr Malhotra submitted that the words of a statute have to be given their natural meaning. If the plain and natural meaning is given to the rules, according to him, it is clear that Rule 58 deals with the Schedule to the NDPS Act and Rule 53 deals with Schedule-I to the NDPS Rules. According to him, they are independent of each other and consequently, it cannot be said that the petitioners have not committed any offence under the Act. Mr Malhotra placed reliance on the decision of the Supreme Court in the case of Padmasundara Rao and Ors. v. State of Tamil Nadu and Ors.: 2002 (3) SCC 533, wherein WP(CRL) 326/09 & 384/09 Page No. 13 of 38 the Supreme Court made the following observations with regard to interpretation of a statute:- ―12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage: 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama: 1990 (1) SCC 277. 13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. Transport Commissioner and Ors. etc.: 1977 (2) SCC 273 it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.: 2000 (5) SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case: 1996 (3) SCC 88. In Nanjudaiah case:1996 (10) SCC 619, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not WP(CRL) 326/09 & 384/09 Page No. 14 of 38 only Clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.‖ 10. It was further contended by Mr Malhotra that the petitioners have acted in violation of Section 8 of the NDPS Act inasmuch as they have indulged in the export of psychotropic substances in contravention of the ―manner and to the extent‖ prescribed under the NDPS Act and the NDPS Rules. Consequently, the petitioners have made themselves liable for punishment under Section 22 of the NDPS Act read with Section 8 of the NDPS Act and Rule 58 of the NDPS Rules. 11. It was also contended by Mr Malhotra that the fact that the substances in question are also mentioned in Schedule ‗H‘ to the Drugs and Cosmetics Rules, 1945 would not make any difference to the case at hand. He submitted that Section 80 of the NDPS Act made it clear that the provisions of the NDPS Act or the NDPS Rules would be in addition to and not in derogation of the Drugs and Cosmetics Act, 1940 or the Rules made thereunder. Similarly, Section 2 of the Drugs and Cosmetics Act, 1940 made it clear that the provisions of that Act would be in addition to and not in derogation of the dangerous Drugs Act, 1930 and any other law for the time being in force. Consequently, Mr Malhotra submitted that the Drugs and Cosmetics Act, 1940 and the NDPS Act are independent statutes and operate in different fields. WP(CRL) 326/09 & 384/09 Page No. 15 of 38 Finally, he submitted that the Supreme Court in the case of Sanjay Kumar Kedia v. Narcotics Control Bureau and Another: 2008 (1) JCC (Narcotics) 9 held that phentermine and butalbital were psychotropic substances and, therefore, they fell within the prohibition contained in Section 8 of the NDPS Act. According to Mr Malhotra, this decision clearly overrides the judgment of the Supreme Court in the case of Rajesh Kumar Gupta (supra) inasmuch as it unequivocally holds that if a substance is a psychotropic substance, it is covered under Section 8 of the NDPS Act. He also made a reference to a decision of the Supreme Court in the case of Customs, New Delhi v. Ahmadalieva Nodira: 2004 (3) SCC 549, which, according to him, was a decision of a Bench comprising of three Hon‘ble Judges of the Supreme Court and would prevail over the decision in the case of Rajesh Kumar Gupta (supra). In Ahmadalieva Nodira (supra), the recovery was in respect of the psychotropic substance known as diazepam which was held to be covered under the NDPS Act. Mr Malhotra also placed reliance on the decision of the Supreme Court in the case of Ravindran @ John v. Supdt. of Customs: 2007 (6) SCC 410. Consequently, Mr Malhotra submitted that the present petitions ought to be rejected. 12. The detention orders, which are in question in the present writ petitions, have purportedly been made under Section 3(1) of the PIT- NDPS Act. The said provision reads as under:- WP(CRL) 326/09 & 384/09 Page No. 16 of 38 ―3. Power to make orders detaining certain persons.— (1) The Central Government or a State Government, or any officer of the Central Government, not