IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 12918 of 2011(L) ----------------------- PETITIONER(S): ---------- BINU, AGED 36 YEARS, S/O.NARAYANAN, KETTEZHATH HOUSE, NETTOOR, ERNAKULAM DISTRICT. BY ADV. SRI.T.D.ROBIN SRI.P.LEAN JOSE RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE), NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION, (CRIME NO.140/2011 OF THE PANANGAD POLICE STATION), PIN-682 506. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1 PUBLIC PROSECUTOR SRI. C.S. HRITHWIK FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON 09/06/2011 DELIVERED THE FOLLOWING: CR V. RAMKUMAR, J. ........................................................ W.P. (C ) No. 12918 of 2011 ......................................................... Dated: 9th day of June, 2011. JUDGMENT In this Writ Petition filed under Article 226 of the Constitution of India, the petitioner who is the first accused in Crime No. 140 of 2011 of Panangad Police Station for an offence punishable under Sec. 22 ( c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act for short) read with Sec. 34 I.P.C. challenges Ext.P3 notification dated 18-11-2009 as per which a “note” has been added with effect from 18-11-2009 as “Note - 4” to the notification published as S.O. 1055 (E) dated 19-10-2001. The said Note 4 reads as follows:- “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 W.P. (C ) No. 12918 of 2011 -:2:- 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”. (F.No.662/33/2008-NC-1) VIMALA BHAKSHI, Under Secretary”. THE POLICE VERSION 2. The case of the prosecution as revealed by the final report in the above crime is as follows:- On 24-01-2011 at about 7.20 p.m. the petitioner (A1) was found in possession of 842 ampules of buprenorphine injunction, 140 ampules of diazepam and 107 ampules of promethezine in an air bag kept beneath the cot in one of the bedrooms of a rented house belonging to one Sherif at Kaithavalappil in Nettoor where the petitioner is residing. The petitioner was arrested then and there. The case was detected by the 3rd respondent Sub Inspector of Police, Panangad on getting credible information before the detection. One Harshan (A2) and one Sibil (A3) who were allegedly found in the vicinity of the said house each carrying 25 ampules of diazepam for sale W.P. (C ) No. 12918 of 2011 -:3:- were also arrested. Each of the three accused persons were carrying mobile phones. A2 and A3 had cash worth Rs. 4000/- and Rs. 400/- respectively on their person. The contraband psychotropic substances, mobile phones and cash were seized under a search list. 3. The petitioner along with A2 and A3 (Harshan & Sibil) were produced before the Sessions Court, Ernakulam and were remanded to judicial custody. Applications for bail filed by the petitioner as Crl.M.C. 190 and 306 of 2011 before the Sessions Court Ernakulam were dismissed by that Court holding inter alia that the buprenorphine seized was of commercial quantity attracting Section 37 of the N.D.P.S. Act. Exts. P1 and P2 are the orders dismissing the bail applications. Subsequently the petitioner moved this Court seeking bail as per B.A. 1916 of 2011. The said application was dismissed by this Court also on 16-3-2011 holding inter alia that the psychotropic substances seized from the possession of the petitioner “attracted commercial quantity” which in turn W.P. (C ) No. 12918 of 2011 -:4:- attracted the rigour of Sec. 37 of the N.D.P.S. Act. PETITIONER'S CASE 4. One ampule of buprenorphine injection contains only 0.6 mg. of buprenorphine in 2ml. of distilled water. The small quantity for buprenorphine as prescribed against Sl. No. 169 of the Notification dated 19-10-2001 is below 1 gram (i.e. below 1000 mg.) and its commercial quantity is above 20 grms. (i.e. above 20,000 mgs.) Going by the weight of buprenorphine content in the ampules, upto 1,666 ampules it will be small quantity only. Here, the total number of ampules of buprenorphine injection allegedly seized from the petitioner is only 842 which contain only 505.2 mgs. of buprenorphine which is below the small quantity of one gram. In order to get 20 gms. (i.e. 20000 mg.) of buprenorphine above which is the commercial quantity, there should be 33340 ampules. Likewise, the small quantity for diazepam which occurs at Sl. No. 194 of the Notification dated 19-10-2001 is below 20 grams (i.e. below 20000 mgs.) and its commercial quantity is W.P. (C ) No. 12918 of 2011 -:5:- above 500 grams. (i.e. above 500000 mgs.) 1 ml. of diazepam injection contains 5 mg of diazepam and one ampule of diazepam injection contains two ml. of the solution. This means that one ampule of diazepam injection contains 10 mg of diazepam. Therefore, even to constitute 20 grams (i.e. 20000 mgs.) of diazepam below which is the small quantity, there has to be 2000 ampules of diazepam injection. The total number of ampules of diazepam injection allegedly seized from the petitioner is only 140 which contain only 1400 mg. of diazepam which is far below the small quantity. In order to get 500 gms (i.e. 500000 mgs.) of diazepam above which is the commercial quantity, there has to be 50000000 ampules. 2ml. of buprenorphine injection weighs 2.18 grms. If Note 4 to the notification dated 19-10-2001 as inserted by Ext.P3 amendment is interpreted to mean that the entire weight of the contents of one ampule is to be reckoned for deciding the small quantity or commercial quantity , then even one ampule containing 2ml.of buprenorphine injection which is the W.P. (C ) No. 12918 of 2011 -:6:- minimum quantity of the injection available in the market would be above the small quantity. In other words, there will not be any small quantity for buprenorphine injection. Likewise, going by the Current Index of Medical Specialties (CIMS) which is a handbook published for the use of doctors, pharmacists, druggists and chemists, 1 ml. of diazepam injunction contains 5 mg. of the drug. If so, the total drug content in 140 ampules will be 1.40 grams (140 x 2x 5 = 1400 mgs.) which is small quantity, it being below 5 gms. Shaji v. Kerala State - ILR 2004 (2) Kerala 600 is the only decision in which a Division Bench of this Court held that buprenorphine dissolved in water, being a solution is a “preparation of psychotropic substance” within the meaning of Sec. 2 (xxiii) of the N.D.P.S. Act and, therefore, the weight of the entire contents of all the ampules has to be taken into account for deciding whether the seized material is small quantity or commercial quantity. The said decision was not followed by another Division Bench of this Court in Siyad v. State of Kerala - 2005 (4) KLT 590 wherein W.P. (C ) No. 12918 of 2011 -:7:- the decisions in Ouseph v. State of Kerala - (2004) 4 SCC 446, Sajan Abraham v. State of Kerala - 2004 (2) KLT 122 (SC) and Hussain v. State of Kerala (2000) 8 SCC 139 and entry No. 239 of the Notification dated 19-10-2001 were relied on to hold that the pure drug content of the seized material alone was to be reckoned for deciding whether what was seized was small quantity or commercial quantity . To the same effect is the decision of the Supreme Court in Michel Raj v. Intelligence Officer - 2008 (2) KLT SC and State of N.C. T. of Delhi v. Ashif Khan - (2009) 4 SCC 42. The Delhi High Court also has taken a similar view in Mohd. Sayed v. Customs - 2002 (4) Crimes 497 and Ansar Ahmed etc. v. State (Govt of NCT of Delhi - 2005 (4) Crimes 598. Ext.P3 amendment inserting Note - 4 to the Notification dated 19-10-2001 has been brought about with a view to render the decision of the Apex Court in Michel Raj's case ineffective without removing, altering or neutralising the legal basis of the judgment. It is not permissible since it amounts to legislative overruling of a binding judicial verdict. W.P. (C ) No. 12918 of 2011 -:8:- (See State of Maharashtra and Others v. Kumari Tanuja -AIR (1999) SC 791). If the weight of the entire contents of the ampules is to be taken into account for deciding whether it is small quantity or commercial quantity then Entry No. 239 in the Notification dated 19-10-2001 will be rendered unworkable. The very purpose behind the Parliament coming out with a drastic amendment of the N.D.P.S. Act in the year 2001 was to give effect to the reformative approach towards drug addicts so as to minimize their misery by reducing the rigour of the strict bail provisions and rationalising the sentence structure so as to ensure that drug addicts and those who commit less serious offences are not denied bail and are eventually sentenced to less severe punishment. All the decisions referred to above and taking the same view have been rendered with the above legislative policy in mind . Apart from the fact that Ext.P3 notification is bad in law since it purports to defeat the interpretation given by the Supreme Court, it is also ultra vires the Constitution. Hence, this Court may issue a writ of W.P. (C ) No. 12918 of 2011 -:9:- certiorari quashing Ext.P3 notification dated 18-11-2009. STAND TAKEN BY THE UNION OF INDIA 5. A statement has been filed on behalf of the first respondent Union of India to the following effect:- Under the N.D.P.S. Act, any mixture of one or more drugs in whatever physical state qualifies to be called a “preparation” as defined under Sec. 2 (xx) of the Act. The penalties under the N.D.P.S. Act appl not only to the pure drugs but also to their preparations. Hence, if a drug, say, heroin is mixed with, say, Bournvita or Milk Powder, such a mixture is a preparation under the N.D.P.S. Act and the person who possesses, sells etc. such preparation is also liable for punishment like a person possessing pure heroin. Subsequently, it was felt that a distinction need to be made between major traffickers on the one hand and petty offenders and drug addicts on the other and, therefore, a system of graded punishment was introduced through an amendment of the N.D.P.S. Act in the year 2001. The terms “small quantity” and “commercial quantity” have been W.P. (C ) No. 12918 of 2011 -:10:- defined under Sec. 2 (xxiii a ) and Sec. 2 (vii a) . The rigor of Sec. 37 has been extended only to offences involving commercial quantity. The Central Government has been given the full power to decide what quantity should be fixed as small quantity and commercial quantity for each of the drugs. The limits fixed by the Central Government can also be changed through notification without any formal amendment of the Act. The small and commercial quantities will vary with the nature of the drug since all drugs are not equipotent . While fixing the limits of various drugs the Central Government had the option to decide the quantity in terms of the pure drug content or in terms of the weight of the seized substance which contains the specified drug as a preparation. After taking into account all aspects of the matter the Government decided to notify the limits of various drugs not in terms of the pure drug content but in terms of the weight of the seized substance containing the specified drug as a preparation . There were two reasons for this. The first reason was that the drugs are never sold in W.P. (C ) No. 12918 of 2011 -:11:- their pure form . They are always used in mixture (preparation). For instance, the street level purity of heroin is only about 5 to 10 percent. Secondly, most of the Forensic Laboratories have only the facility to test the presence or otherwise (qualitative test) of the drug in the form of preparation and do not have the equipments and the capability to test the purity i.e. the quality (qualitative test) of the drug in such form. If small and commercial quantities were to be notified in the form of pure drug content , then it would have become absolutely necessary to determine the purity of the seized drug which only a few laboratories in the country could do . If all the samples of drugs seized from the length and breadth of the country were to be sent to these laboratories, then it would clog them rendering their task difficult and time consuming. A practical way was to define small quantity and commercial quantity in terms of the total quantity of the preparations containing the specified drug. The threshold levels of small and commercial quantities under the notification dated 19-10-2001 have been kept fairly high . W.P. (C ) No. 12918 of 2011 -:12:- For instance, small quantity of heroin is 5 gms. which if taken as only the pure drug content, will translate into 100 gms. of street level heroin . At the rate of 0.25 grams of street level heroin mixture the said 100gms of street level heroin can yield about 400 dozes of heroin . It is not the intention of the Government to send a person who possesses or sells heroin equivalent to 400 dozes to a mere six months imprisonment. Anyone selling 400 dozes of street level heroin deserves not just a minor punishment of six months but at least 10 years. It was since the weight of the small and commercial quantities of the drugs had been linked to the preparations and not the pure drug content that in the notification dated 19-10-2001 Note - 2 was appended. The said note reads as follows: “The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of substances of Note - 1 above”. Thus it is evident that the same threshold levels apply not only to drugs but also to their preparations. Unfortunately, Note-2 to W.P. (C ) No. 12918 of 2011 -:13:- the above notification does not appear to have been brought to the notice of the Hon'ble Supreme Court in the case of Micheal Raj v. N.C.B. As a result, the Hon'ble Supreme Court held that only the pure drug content should be considered to decide whether the quantity of the drug seized is small or commercial quantity. Applying the ratio in the above Judgment if 100 grams of street level heroin (400 doses) is seized from a person and if a sample therefrom is found to be only 5% pure , then it should be reckoned as 5 grams and not 100 gms and consequently it would be treated as small quantity in which case the punishment awarded cannot exceed six months. Results of quantitative test which will determine the exact quantity of the pure drug in the seized substance will take several months. Applying the ratio laid down by Supreme Court it cannot be said whether the quantity of the drug is small quantity or commercial quantity without completing the qualitative test. Taking advantage of the delay in competing the qualitative test , the accused persons in commercial quantity seizures are now arguing that the special W.P. (C ) No. 12918 of 2011 -:14:- provisions in Sec. 36 A (4) and Sec. 37 of the N.D.P.S. Act do not apply to them. In fact, those special provisions are themselves illustrative of the fact that the Government's intention while issuing the notification was not to link the quantity to the pure drug content but to the quantity of the seized substance which contains the drug. After the judgment of the Hon'ble Supreme Court in Michael Raj, the Government had two options. The first was to accept that only the pure drug content should be reckoned and accordingly revise the entire notification fixing lower threshold limits both for small and commercial quantities. The other alternative was to make it abundantly clear that the quantity referred to in the notification relates to the quantity of the seized preparations containing the drugs and not the pure drug content. The Government chose the second alternative by adding Note-4 through Ext. P3 notification. This notification only clarifies what was already indicated in the existing Note - 2 to the said notification. In view of this legal position, the challenge against Ext.P3 notification cannot succeed. This Writ Petition, W.P. (C ) No. 12918 of 2011 -:15:- may, therefore, be dismissed with costs. STAND TAKEN BY THE STATE GOVERNMENT 6. The petitioner and accused Nos. 2 and 3 are not drug addicts but were possessing the psychotropic substances for the purpose of sale. Besides clarifying that the small quantity and commercial quantity applies to the preparations and not merely the pure drug content, the Central Government had the power under Sec. 4 of the N.D.P.S. Act to issue Ext.P3 notification for preventing and combating the abuse of and illicit traffic in such noxious substances. 7. I heard Advocate Sri. T.D. Robin, the learned counsel appearing for the petitioner, Adv. Sri. P. Parameswaran Nair, Assistant Solicitor General of India appearing for the Union of India and Adv. Sri. C.S. Hrithwik, the learned Public Prosecutor who defended the State. All the above advocates made their submissions before me in support of the respective stand taken by them as above. JUDICIAL EVALUATION W.P. (C ) No. 12918 of 2011 -:16:- 8. After giving my anxious consideration to all the aspects of the matter, I am afraid that I find myself unable to agree with the arguments addressed on behalf of the petitioner. On the contrary, I am inclined to fully accept the contentions urged on behalf of the respondents, particularly, the Union of India. 9. Both diazepam and buprenorphine which were allegedly seized from the petitioner are psychotropic substances. The words “Psychotropic Substances” are defined under Sec. 2 (xxiii) of the N.D.P.S. Act as follows:- “Psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;” Thus, not only the psychotropic substances by themselves but also their salts and preparations if included in the list of psychotropic substances specified in the Schedule to the N.D.P.S. Act, will be psychotropic substances. Diazepam is Sl. W.P. (C ) No. 12918 of 2011 -:17:- No. 43 and Buprenorphine is Sl. No. 92 in the Schedule to the Act. Sl. No. 110 in the Schedule is “ Salts and preparations of above”. This means, salts and preparations of all the psychotropic substances specified as items 1 to 109 in the Schedule are also psychotropic substances. The expression “preparation” has been defined under Sec. 2 (xx) as follows:- “”preparation” in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances;” Thus, a preparation includes one or more narcotic drug or psychotropic substance either in dosage form or in any solution or mixture. But when we come to the definition of “narcotic drug” under Sec. 2 (xiv) of the N.D.P.S. Act, it reads as follows:- “Narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;” Unlike the definition of “psychotropic substance” the definition of “narcotic drug” does not by itself take in salts or preparations W.P. (C ) No. 12918 of 2011 -:18:- of any of the 5 drugs enumerated therein, namely:- i) Coca leaf ii) Cannabis (hemp) iii) Opium iv) Poppy straw v) Manufactured drug But each of the above 5 drugs are separately defined under the Act. The definitions of some of the aforesaid drugs each of which is a narcotic drug, include either their salts or preparations or mixtures. (See for instance Sec. 2 (iii) (a) ; Sec. 2 (iii)(c); 2 (vi) (b); Sec. 2 (v) (d) ; Sec.2(xi)(b); Sec. 2 (xv) (b) and 2 (xvi)(e). Under 2 (xi) of the Act the Central Government is given the power to declare by notification in the Official Gazette any other narcotic substance or preparation to be a manufactured drug. The following break-up chart will properly illustrate the concept of narcotic drug and psychotropic substance under the N.D.P.S. Act. W.P. (C ) No. 12918 of 2011 -:19:- NARCOTIC DRUG - Section 2 (xiv) means: P E N A L P R O V I S I O N : (1) Section 16 Coca leaf - Sec. 2(vi) means a) leaf of the coca plant (any species of the genus Erythroxylon) from other ecgonine alkaloids have not been removed. b) any mixture thereof, with or without any neutral material but dies containing 0.1 % or less of cocaine (2) Cannabis (Hemp) - Sec. 2(iii) means: Section 20(b) (ii) ................................... a) Charas i.e. separated resin in any form from cannabis plant and in hashish Section 20 (b)(ii) ................................... b) Ganja i.e. flowering or fruiting tops of cannabis plant (seeds & lea Section 20 (b) (ii) ................................... c) any mixture of (a) or (b) above with or without any neutral materi therefrom (3) Section 18 Opium-Section 2(xv) means: a) coagulated juice of opium poppy (plant of the species Papaver fr phenanthrene alkaloid can be extracted. b) any mixture of (a) with or without any neutral material but does n containing 0.2% or less of morphine. (4) Section 15 Poppy Straw-Section 2 (xviii) means: all parts (except the seeds ) of opium poppy in any form) after har (5) Section 21 Manufactured drug-Section 2 (xi) means a) i) All coca derivatives - means: Section 2(v) a) crude cocaine b) ecgonine and its derivatives c) cocaine and its salts ii) Medicinal Cannabis- or Medicinal hemp-Sec.(xii) means: any extract or tincture of cannabis (hemp) iii) Opium derivatives - Section 2 (xvi) means: 1) Medicinal opium i.e. opium adapted for medicinal pharmacopoeia in powder, granulated, mixed o ( Section 17 ) ........................................................................... 2) Prepared opium i.e. extract suitable for smoking a after opium is smoked. 3) Phenanthrene alkaloids i.e. morphine, codeine, the 4) Diacetylmorphine i.e. diamorphine (BROWN SUG 5) All preparations containing discetylmorphine or c hi W.P. (C ) No. 12918 of 2011 -:20:- Strictly speaking, coca plant, cannabis plant and opium poppy do not come under the definition of “narcotic drug” under Sec. 2 (xiv). But Sec.8 of the Act prohibits the cultivation of these plants and Secs. 16, 20(a)(i) and 18 provides for the punishment for cultivating coca plant, cannabis plant and opium poppy respectively. After it came into force on 14-11- 1985, the N.D.P.S. Act underwent drastic amendment in the year 1989 as per Central Act 2 of 1989 with effect from 29-5-1989. Except in the case of small quantity of narcotic drugs and psychotropic substances all other offences such as cultivation of coca plant, cannabis plant, opium poppy and production, manufacture, possession, sale, purchase, transport, warehousing, user, consumption, import inter-state, export inter-state, import into India , export from India or transshipment of any narcotic drug or psychotropic substance in contravention of the prohibition contained under Sec. 8 of the N.D.P.S. Act was sought to be tried by Special Courts and was sought to be punished with stringent penalty of not less W.P. (C ) No. 12918 of 2011 -:21:- than 10 years of rigorous imprisonment and fine of not less than Rs. 1 lakh. However, the provisions of the N.D.P.S. Act were further amended with effect from 2-10-2001