HIRA SINGH AND ANOTHER versus UNION OF INDIA AND ANOTHER
[2020] 4 S.C.R. 1130, Supreme Court of India, 2020
Outcome: Reference answered
Segment: Ratio
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HIRA SINGH AND ANOTHER
v.
UNION OF INDIA AND ANOTHER
(Criminal Appeal No. 722 of 2017)
APRIL 22, 2020
[ARUN MISHRA, INDIRA BANERJEE
AND M. R. SHAH, JJ.]
Narcotic Drugs or Psychotropic Substances Act, 1985 – s.21
– In case of seizure of mixture of Narcotic Drugs or Psychotropic
Substances with one or more neutral substance(s), the quantity of
neutral substance(s) is not to be excluded and has to be taken into
consideration along with actual content by weight of the offending
drug, while determining the “small or commercial quantity” of the
Narcotic Drugs or Psychotropic Substances – The decision in the
case of E. Micheal Raj taking the contrary view is not a good law
– s.21 of the NDPS Act is not stand-alone provision and must be
construed along with other provisions in the statute including
Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O
1055(E) dated 19.10.2001 – Challenge to Notification dated
18.11.2009 adding “Note 4” to the Notification dated 19.10.2001
specifying small quantity and commercial quantity of NDPS
covered under the NDPS Act was clarificatory and by way of
abundant caution and the same is not ultra vires to the Scheme
and the relevant provisions of the NDPS Act – Drug trafficking.
Answering the reference, the Court
HELD: 1. In the case of E.Micheal Raj, while holding that
in the mixture of a narcotic drug or psychotropic substance with
one or more neutral substance, the quantity of
neutral substance
is not to be taken into consideration and it is only the actual
content by weight of the narcotic drug which is relevant for the
purposes of determining whether it would constitute “small
quantity or commercial quantity”, this Court has not at all
considered the relevant entry in the Notification dated
19.10.2001. What was seized was heroin which falls in Entry 56.
What was seized was not opium and/or opium derivative. There
is no specific finding even given by this Court that it would fall
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under Entry 239 namely any mixture or preparation that of with
or without the neutral material. Therefore, the case of mixture
of narcotic drugs or psychotropic substance was not at all in
direct consideration of this Court. Even it does not appear that
this Court took into consideration Note 2 of the Notification
dated 19.10.2001. If note 2 would have been considered by this
Court and seized material was “Heroin” in that case and what
was seized was 4.5 kg heroin, the Court would have considered
the same as a “commercial quantity” as considering Entry 56,
5gms is “small quantity” and 250 gms and above is a
“commercial quantity”. The Statement of Objects and Reasons
concerning the Amendment Act, 2001 was also not properly
appreciated and/or considered and/or properly construed.
Considering the statement of objects and reasons concerning
the Amendment Act of 2001, by which, two tier punishment was
provided one for small quantity and another for commercial
quantity, it cannot be said that intention of the legislature was
to consider only the actual content by weight of offending drug
for the purpose of determining whether it would constitute small
quantity or commercial quantity. [Paras 6.3, 6.4, 7] [1154-E-H;
1155-A-D]
2. As per the preamble of NDPS Act, 1985, it is an Act to
consolidate and amend the law relating to Narcotic Drugs, to
make stringent provisions for the control andregulation of
operation relating to Narcotic Drugs and Psychotropic
Substances and to provide for forfeiture of the property derived
from or use in illicit traffic in Narcotic Drugs and Psychotropic
Substance. The Statement of objects and reasons and the
preamble of the NDPS Act imply that the Act is required to act
as a deterrent and the provisions must be stringent enough to
ensure that the same act as deterrents and it was never the
intention of the legislature to exclude the quantity of neutral
substance and to consider only the actual content by weight of
offending drug which is relevant for determining whether it would
constitute small quantity or commercial quantity. Right from sub-
clause (viia) and (xxiiia) of Section 2 of NDPS Act, emphasis is
on Narcotic and Drug or Psychotropic Substance (Sections 21,
22, 23, 24, 27 and 43). Even in the table attached to Notification
dated 19.10.2001, column no. 2 is with respect to name of
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Narcotic Drug and Psychotropic Substance and column nos. 5
and 6 are with respect to “small quantity and commercial
quantity”. Note 2 of Notification dated 19.10.2001 specifically
provides that quantity shown against the respective drugs listed
in the table also apply to the preparations of the drug and the
preparations of substances of note 1. As per Note 1, the small
quantity and commercial quantity given against the respective
drugs listed in the table apply to isomers ..., whenever existence
of such substance is possible. Therefore, for the determination
of “small quantity or the commercial quantity” with respect to
Narcotic Drugs and Psychotropic Substance mentioned in column
no.2 the quantity mentioned in the clauses 5 and 6 are required
to be taken into consideration. However, in the case of mixture
of the narcotic drugs / psychotropic drugs mentioned in column
no.2 and any mixture or preparation that of with or without the
neutral material of any of the drugs mentioned in table, lesser
of the small quantity between the quantities given against the
respective Narcotic Drugs or Psychotropic Substances forming
part of mixture and lesser of commercial quantity between the
quantities given against the respective narcotic drugs or
psychotropic substance forming part of the mixture is to be
taken into consideration. As per example, mixture of 100 gm is
seized and the mixture is consisting of two different Narcotic
Drugs and Psychotropic Substance with neutral material, one
drug is heroin and another is methadone, lesser of commercial
quantity between the quantities given against the aforesaid two
respective Narcotic Drugs and Psychotropic Substance is
required to be considered. For the purpose of determination of
the “small quantity or commercial quantity”, in case of entry 239
the entire weight of the mixture / drug by whatever named called
weight of neutral material is also required to be considered
subject to what is stated hereinabove. If the view taken by this
Court in the case of E. Micheal Raj is accepted, in that case, it
would be adding something to the relevant provisions of the
statute which is not there and/or it was never intended by the
legislature. [Para 8.2] [1158-B-H; 1158-A-B]
3. It is important to note that illicit drugs are seldom sold
in a pure form. They are almost always adulterated or cut with
other substance. Caffeine is mixed with heroin, it causes that
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heroin to vaporize at a lower rate. That could allow users to take
the drug faster and get a big punch sooner. Aspirin, crushed
tablets, they could have enough power to amend reversal doses
of drugs. Take example of heroin. It is known as powerful and
illegal street drug and opiate derived from morphine. This drug
can easily be “cut” with a variety of different substances. This
means that drug dealer will add other drugs or non-intoxicating
substances to the drug so that they can sell more of it at a lesser
expense to themselves. Brown-sugar/smack is usually made
available in powder form. The substances is only about 20%
heroin. The heroin is mixed with other substances like chalk
powder, zinc oxide, because of these, impurities in the drug,
brown-sugar is cheaper but more dangerous. These are only few
examples to show and demonstrate that even mixture of narcotic
drugs or psychotropic substance is more dangerous. Therefore,
what is harmful or injurious is the entire mixture/tablets with
neutral substance and Narcotic Drugs or Psychotropic
Substances. Therefore, if it is accepted that it is only the actual
content by weight of offending drug which is relevant for the
purpose of determining whether it would constitute small
quantity or commercial quantity, in that case, the object and
purpose of enactment of NDPS Act would be frustrated. There
may be few punishment for “commercial quantity”. Certainly that
would not have been the intention of the
legislature. Even
considering the definition of “manufacture”, “manufactured
drug” and the “preparation” conjointly, the total weight of such
“manufactured drug” or “preparation”, including the neutral
material is required to be considered while determining small
quantity or commercial quantity. If it is interpreted in such a
manner, then and then only, the objects and purpose of NDPS
Act would be achieved. Any other intention to defeat the object
and purpose of enactment of NDPS Act viz. to Act is deterrent.
[Paras 8.3, 8.4] [1159-C-H; 1160-A]
4. The problem of drug addicts is international and the
mafia is working throughout the world. It is a crime against the
society and it has to be dealt with iron hands. Use of drugs by
the young people in India has increased. The drugs are being
used for weakening of the nation. During the British regime,
control was kept on the traffic of dangerous drugs by enforcing
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the Opium Act, 1857, the Opium Act, 1875 and the Dangerous
Drugs Act, 1930. However, with the passage of time and the
development in the field of illicit drug traffic and during abuse
at national and international level, many deficiencies in the
existing laws have come to notice. Therefore, in order to remove
such deficiencies and difficulties, there was urgent need for the
enactment of a comprehensive legislation on Narcotic Drugs and
Psychotropic Substances, which led to enactment of NDPS Act.
The Act is a special law and has a laudable purpose to serve
and is intended to combat the menace otherwise bent upon
destroying the public health and national health. The guilty must
be in and the innocent ones must be out. The punishment part
in drug trafficking is an important one but its preventive part is
more important. Therefore, prevention of illicit traffic in Narcotic
Drugs and Psychotropic Substances Act came to be introduced.
The aim was to prevent illicit traffic rather than punish after the
offence was committed. The Courts will have to safeguard the
life and liberty of the innocent persons. Therefore, the provisions
of NDPS Act are required to be interpreted keeping in mind the
object and purpose of NDPS Act; impact on the society as a whole
and the Act is required to be interpreted literally and not liberally
which may ultimately frustrate the object, purpose and preamble
of the Act. [Para 8.5] [1160-B-F]
5.
The challenge to the impugned Notification No.2942(E)
dated 18.11.2009 issued by the Union of India, by which, “Note
4” has been added to the Notification S.O.1055(E) dated
19.10.2001 specifying small quantity and commercial quantity of
the narcotic drugs and psychotropic substance covered under
the NDPS Act, 1985 can be said to be clarificatory in nature and
/ or by way of ex abundanti cautela/abundant caution. [Para 9]
[1160-H; 1161-A]
E. Micheal Raj v. Intelligence Officer, Narcotic Control
Bureau (2008) 5 SCC 161 : [2008] 4 SCR 644 – Not
good law.
Md. Jaffar Alam v. The State, Criminal Misc. Case No.
37461 of 2011 ; Directorate of Enforcement v. Deepak
Mahajan and Another (1994) 3 SCC 440 : [1994]  1
SCR 445 ; Ouseph v. State of Kerala (2004) 4 SCC
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446 ; Murlidhar Meghraj Loya and Another v. State
of Maharashtra and Others (1976) 3 SCC 684 : [1977]
1 SCR 1 ; Reema Aggarwal v. Anupam and Others
(2004) 3 SCC 199 : [2004] 1 SCR 378 ; Rajinder
Singh v. State of Punjab (2015) 6 SCC 477 : [2015] 2
SCR 835 – referred to.
Chapman v. United States (1991) 500 US 453 –
referred to.
Case Law Reference
[2008] 4 SCR 644
Not good law
Para 1
(2004) 4 SCC 446
referred to
Para 2.1
[1977] 1 SCR 1
referred to
Para 2.13
[2004] 1 SCR 378
referred to
Para 2.13
[2015] 2 SCR 835
referred to
Para 2.13
[1994] 1 SCR 445
referred to
Para 8.1
 Criminal
Appeal No. 722 of 2017.
From the Judgment and Order dated 06.11.2012 of the High
Court of Delhi at New Delhi in W.P. (Criminal) No. 1552 of 2010.
With
Civil Appeal No. 5218 of 2017, Criminal Appeal Nos. 444, 884,
984 of 2016, 721, 1557, 388, 1678, 2156, 2155 of 2017, W.P. (Criminal)
Nos. 186 of 2014, 77 and 154 of 2016.
Aman Lekhi, ASG, Vikas Mahajan, AAG, R. Balasubramanian,
Manoj Swarup, Anand Grover, Sr. Advs., Ms. Sunita Rani Singh,
B. Krishna Prasad, Vibu Shanker Mishra, S.S. Ray, B.V. Balaram Das,
Ms. Samta P. Mishra, Ms. Seema Bengani, Anas Zaid, Ms. Binu Tamta,
Ritwiz Rishabh, Ms. Shivani Mishra, Ujjwal Sinha, Ms. Mehak Huria,
Aniket seth, Ms. Lakshita Sachdev, Ms. Divya Behl, Vipul Jindal, Ajay
Kumar, Neelmani Pant, Ms. Vidisha Swarup, Ms. Tripti Tandon, Sunil
Fernandes, Samyak Gangwal, R.K. Kapoor, Ms. Shweta Kapoor, Rajat
Kapoor, Anis Ahmed Khan, Ms. Priya Pandea,
Renjith B. Marar,
Ms. Lakshmi N. Kaimal, Mehendra Kumawat, A. Karthik, Sangram
S. Saron, Nihil Jain, Shree Pal Singh, Ms. Upasana Nath, Anupam
HIRA SINGH v. UNION OF INDIA
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Mishra, P.D. Sharma, Sudhir Kumar Gupta, Vinod Sharma, Anil Kumar,
Joydip Roy, Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Vipin
Nair, P.B. Suresh, Karthik Jayashankar, Jagjit Singh Chhabra,
Ms. Jaspreet Gogia, M.P. Parthiban, A.S. Vairawan, R. Sudhakaran,
Hardik Gautam, Ms. Shalini Mishra, Ms. Sneha Kalita, Zoheb Hossain,
K. Mehrotra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Not agreeing with the view taken by this Court in the case of
E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau
(2008) 5 SCC 161 taking the view that when any narcotic drug or
psychotropic substance is found mixed with one or more neutral
substance/s, for the purpose of imposition of punishment it is the content
of the narcotic drug or psychotropic substance which shall be taken
into consideration (paragraphs 15 and 19), the following questions are
referred to a three Judge Bench, vide order dated 3.7.2017:
(a) Whether the decision of this Court in E. Micheal Raj
(supra) requires reconsideration having omitted to take
note of entry no. 239 and Note 2 (two) of the notification
dated 19.10.2001 as also the interplay of the other
provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short “the NDPS Act”) with
Section 21?
(b) Does the impugned notification issued by the Central
Government entail in redefining the parameters for
constituting an offence and
more particularly for
awarding punishment?
(c) Does the NDPS Act permit the Central Government to
resort to such dispensation?
(d) Does the NDPS Act envisage that the mixture of
narcotic drug and seized material/substance should be
considered as a preparation in totality or on the basis
of the actual drug content of the specified narcotic drug?
(e) Whether Section 21 of the NDPS Act is a stand along
provision or intrinsically linked to the other provisions
dealing with “manufactured drug” and “preparation”
containing any manufactured drug?
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Arguments on behalf of the Union of India
2. Shri Aman Lekhi, learned Additional Solicitor General of India
appearing on behalf of the Union of India has vehemently submitted
that the decision in E Micheal Raj (supra) has omitted to consider
the interplay between different provisions of the NDPS Act.  It is
submitted that it has focused only on the interpretation of Section 21
of the NDPS Act, without giving effect to the purport of the said
provision.  It is submitted that the view taken by this Court in the case
of E Micheal Raj (supra) in paragraphs 15 and 19 that it is only the
actual content by weight of the narcotic drug which is relevant for the
purposes of determining whether it would constitute small quantity or
commercial quantity, and the view that when any narcotic drug or
psychotropic substance is found mixed with one or more neutral
substance/s, for the purposes of imposition of punishment, it is the
content of the narcotic drug or psychotropic substance which shall be
taken into consideration is clearly wrong and as such contrary to the
entire scheme of the NDPS Act. He argued that if the entire scheme
including the object and purpose of the NDPS Act is considered, it can
be seen that where drugs are sold as mixture the determination for the
purposes of punishment would be aggregated quantity of the mixture;
2.1 In the case of E Micheal Raj (supra), this Court has failed
to consider that the expression “offending material” finds no mention
in the NDPS Act.  It is submitted that it is also not the intention of the
legislature to levy punishment based on content of the offending drug
in the mixture.  It is submitted that in the case of E Micheal Raj
(supra), this Court has erred in relying upon the decision in the case
of Ouseph v. State of Kerala (2004) 4 SCC 446 as the said decision
was not binding as precedent as it passed sub-silentio the issue with
which E Micheal Raj (supra) was seized with;
2.2 While deciding the case in the case of E Micheal Raj
(supra), this Court has ignored material provisions of the NDPS Act
and the entire statutory scheme to reach a conclusion which was not
borne out both by the spirit and the terms of the statute and defeated
the very object behind the enactment and the amendment;
2.3 The NDPS Act, as originally enacted in 1985 included in
Section 2(xx) the definition of ‘preparation’.  It is submitted that the
definition of ‘preparation’ reveals that preparation means “in relation
to NDPS” one or more drugs or substance in dosage or solution or
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mixture.  The ‘mixture’ is defined as mechanical mixture or two or more
substances as distinct from chemical combination or a fluid with foreign
substance in suspension or foreign element in a composition.  The
‘solution’ is defined as a liquid or semi-liquid preparation obtained by
the combination of a solid with the solvent.  The ‘dosage’ means a
definite quantity or something regarded as analogous to medicine in use
or effect.  A bare look at the definitions, it is apparent that a drug or
substance can be mixed with one or more substances (mixture) or
change its physical state by means of any fluid or solvent (solution) or
be divided or apportioned (dosage).  In other words, the NDPS Act as
originally enacted dealt not only with the pure content of the drug or
psychotropic substance but, its preparation in a mixture, solution or
dosage.  In the case of E Micheal Raj (supra), there is no reference
to the aforesaid;
2.4 That as per Section 2(xxxiii), also as originally enacted,
defining ‘psychotropic substance’ shows that psychotropic substance
includes “a preparation of such substance”.  It is submitted that the
said section has to be read with the Schedule appended to the NDPS
Act. The Schedule itself, in Entry 77, included “salts and preparation”
of the list of psychotropic substance mentioned in Entry 1 to 76 of the
Schedule. The original NDPS Act therefore dealt with “preparations”
of psychotropic substances.
Further, contravention relating to
psychotropic substance was punishable under Section 22 of the NDPS
Act and reading Section 22 with Section 2(xx), 2 (xxxiii) and the
Schedule makes it apparent that punishment covered preparation of
psychotropic substance and was not based on pure substance content.
Even Section 2(xiv) of the NDPS Act, as originally enacted, defined
‘narcotic drugs’, they were defined to mean (i) Coca leaf; (ii) Cannabis;
(iii) Opium; (iv) Poppy Straw; and (v) Manufactured drugs.Each of the
above was defined separately. Therefore, even in the NDPS Act, as
originally enacted, the ‘narcotic drugs’ included their mixtures and
preparations. It is only in the definition of ‘poppy straw’ that the
expression mixture or preparation finds no mention;
2.5 He argued that the only provision in the NDPS Act, as
originally enacted, which specified the quantity was Section 27, the said
section mentioned “small quantity or narcotic drugs or psychotropic
substance” and provided for milder punishment where it is proved that
possession in contravention of the NDPS Act or rule was intended for
personal consumption or there was consumption of any narcotic drug
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or psychotropic substance.  It is submitted that “small quantity” was
notified in Notification No. S.O.827 of 14.11.1985 which included only
5 drugs. By subsequent notifications, additions were made and more
drugs were included in the list. Therefore the “small quantity” under
the amended Act is much higher than that specified in the earlier
notification under the original NDPS Act.  Thus, the NDPS Act, as
originally enacted, insofar as narcotic drugs and psychotropic substances
are concerned, only recognized “small quantity where possession was
for personal consumption or there was consumption. The punishment
prescribed under the NDPS Act, originally enacted except in Section
20 which in some circumstances contemplated imprisonment up to 5
years, provided for punishment of not less than 10 years, but extendable
to 20 years.The NDPS Act, as originally enacted, covered preparations
of the narcotic drugs and psychotropic substances and not merely their
pure drug content;
2.6 That in the year 1989, the NDPS Act was amended by Act
No.2 of 1989. That notwithstanding the amendment, the original scheme
of punishment under NDPS Act covering preparations and not just pure
content was not interfered with.  In the year 2001, the NDPS Act was
further amended and clauses (viia) defining “commercial quantity” and
(xxiiia) defining “small quantity” were added.A bare look at the two
sections shows that the same covered quantity greater/lesser, as the
case may be, than
the “quantity specified” by the Central Government
by notification in the official gazette of the narcotic drugs and
psychotropic substances. Even in/after the 2001 amendment, no change
was made in the definition of “preparation” or in the definition of
“narcotic drugs” and “psychotropic substances”, more particularly even
after the addition of the definitions of “small quantity” and “commercial
quantity”. Even the residuary entry in the list of Psychotropic
Substances, i.e., Entry 77 in the Schedule of the NDPS Act, as originally
enacted, is retained even after the amendment as ‘Entry 111’ of the
said Schedule. The only reason for the amendment in the year 2001
was that all preparations in the NDPS Act, as originally enacted, were
uniformly punishable with imprisonment from 10 to 20 years and even
the condition for bail did not make any reference to the quantity. It was
for this reason that Section 37 itself was amended to specifically deal
with “commercial quantity” by the amendment of 2001;
2.7 He argued that the “commercial quantity” would necessarily
apply to preparations of narcotic drugs and psychotropic substances as
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[M. R. SHAH, J.]
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the clauses which were added needed to be read with the provisions
of the statute which already stood therein and had not been amended.
This was consistent with the scheme of the NDPS Act, as originally
enacted.  The amendment did not in any manner whatsoever tinker with
the same. It is for this reason that the amended Act referred in the
newly inserted clauses to “commercial quantity” and “small quantity”.
The emphasis therefore was on the quantity in relation to the drug/
substance and not the content of the drug/substance. It was never the
intent to modify the application of the statute to deal with pure quantity
of the narcotic drugs and psychotropic substance. The same came to
be reinforced by the notification published by the Central Government
after coming of the 2001 Amendment which contained Note 2 as under:
“2. The quantities shown against the respective drugs listed above
also apply to the preparations of the drugs and the preparations
of the substances of Note 1 above.”
It is submitted that what was provided in Note 2 was always
there since the original enactment.
2.8 He argued that the “small quantity” now mentioned in the
notification is much higher than the “small quantity” in the NDPS Act
as originally enacted.  It is for this reason that both Sections 27 and
Section 64A have also been amended.  The possession having been
taken out of Section 27, there was no need to provide for milder
punishment for
possession as under Section 27 of the original NDPS
Act. Section 27 as amended therefore is confined to “consuming” any
narcotic drugs or psychotropic substance only and the immunity under
Section 64A is limited to ‘addicts’ amongst those to whom Section 27
applies, in other words, possession even of “small quantity” is outside
Section 27 of the amended Act and immunity is not available to all the
persons to whom Section 27 applies but, only to such of them as are
‘addicts’. This is a change consequential upon the grading of punishment
but, the punishment continues to relate only to the quantities of the
narcotic drugs and psychotropic substance which includes their
preparations and not the pure drug content;
2.9 Even without Note 4 of the notification, the NDPS Act would
apply to the entire mixture or solution of the narcotic drugs and
psychotropic substance.  It is further submitted that the addition of Note
4 under the notification of 2009, is irrelevant to the controversy and
Judgment in E Micheal Raj (supra) cannot be sustained even if Note
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4 is ignored. The notification therefore does not in any manner re-define
the parameters for constituting an offence or awarding punishment under
the NDPS Act.  Shri Lekhi, learned Additional Solicitor General of India
has heavily relied upon the decision of the U.S. Supreme Court in the
case of Chapman v. United States (1991) 500 US 453 in support of
his submission that the sentences should be based exclusively on the
weight of the “mixture or substance” and not on the content – pure
drug.  It is submitted that in the said case, the petitioner was convicted
of selling 10 sheets of blotter paper containing 1000 doses of LSD.  The
weight of LSD alone was approximately 50mg and combined weight
of the LSD and the blotter paper was 5.7 grams.  The petitioner was
sentenced for mandatory minimum sentence of 5 years which was
applicable for offences of distributing more than 1 gram of the substance.
It is submitted that before the US Supreme Court, it was contended on
behalf of the petitioner that weight of the carrier should not be included
when computing the appropriate sentence for LSD distribution.  The
U.S. Supreme Court rejected the said contention and observed and held
as under:
“We think that petitioners reading of the statute, a reading that
makes the penalty turn on the net weight of the drug rather than
the gross weight of the carrier and drug together is not a plausible
one.The statute refers to a “mixture or substance containing a
detectable
amount”.  So long as it contains a detectable amount,
the entire mixture or substance is to be weighed when calculating
the sentence.
This reading is confirmed by the structure of the statute. With
respect to various drugs, including heroin, cocaine, and LSD, it
provides for mandatory minimum sentences for crimes involving
certain weights of a “mixture or substance containing a detectable
amount” of the drugs. With respect to other drugs, however,
namely phencyclidine (PCP) or methamphetamine, it provides for
a mandatory minimum sentence based either on the weight of a
mixture or substance containing a detectable amount of the drug,
or on lower weights of pure PCP or methamphetamine.  For
example, S. 841(b)(1)(A)(iv) provides for a mandatory 10 year
minimum sentence for any person who distributes “100 grams
or more of … PCP…or 1 kilogram or more of a mixture or
substance containing a detectable amount of .. PCP…”  Thus,
with respect to these two drugs, Congress clearly distinguished
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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between the pure drug and a “mixture or substance containing a
detectable amount of” the pure drug.  But with respect to drugs
such as LSD, which petitioners distributed, Congress declared
that sentences should be based exclusively on the weight of the
“mixture or substance”.  Congress knew how to indicate that
the weight of the pure drug was to be used to determine the
sentence, and did not make that distinction with respect to LSD.”
“…A “mixture” is defined to include “a portion of matter
consisting of two or more components that do not bear a fixed
proportion to one another….”
“…By measuring the quantity of the drugs according to the
“street weight” of the drugs in the diluted form in which they
are sold, **1928 rather than according to the net weight of
the active component, the statute and the Sentencing
Guidelines increase the penalty for persons who possess large
quantities of drugs, regardless of their purity.  That is a rational
sentencing scheme.”
(underline is ours)
2.10 He argued that as such the NDPS Act does not make any
distinction between pure drug and a preparation containing the drug.
The Act applies to the street weight of the drug in the form in which
they are sold rather than the net weight of the active component. This
is what the Act has consistently been provided since its inception. The
appellants want this Court to read the statute in a manner the provisions
do not warrant.  It is submitted
that for instance, a “small quantity” of
heroin is 5 grams, which if taken as only the pure drug content will
translate into 100 grams of street level heroin.  At the rate of 0.25 gram
heroin the mixture of 100 grams of heroin can yield about 400 doses
of heroin. It can never nor could have been the intention of the
legislature or for that matter of the Government to send the person who
possesses or sells heroin equivalent to 400 doses to a mere six months
imprisonment. That therefore if the submission on behalf of the appellants
is accepted, in that case, it will be contrary to the object and purposes
of enactment of the NDPS Act and in most of the cases there will be
no punishment for the “commercial quantity” and the real culprits/
accused will go away with the minor punishment;
2.11 It is further argued that as per the Crawford on
Interpretation of Law (Statutory Construction) “the Court should strive
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to avoid a construction which will tend to make the statute unjust,
oppressive, unreasonable, absurd, mischievous or contrary to the public
interest. That construction should be accepted which will make the
statute effective and productive of the most good, as it is presumed
that these results were intended by the legislature. In order to carry
out the legislature intent, it is therefore apparent that the statute should
be given a rational, logical and sensible interpretation”;
2.12 It is further pointed out that the NDPS Act has been passed
as per Statement of Object and Reasons, to “strengthen the existing
controls over drug abuse, considerably enhanced the penalties particularly
for trafficking offences, make provisions for exercising effective control
over psychotropic substances”.  The stringency of control cannot
disregard the conditions in which the Act applies.  The definitions clearly
show that the object of the Act was to deal with the street weight of
the drugs in the diluted form in which they are sold and not the net
weight of the active component.  The legislature know that the inactive
ingredients will be combined with the pure drugs and substances and it
would be the drugs or substances so prepared that would be sold to
the consumers.  He argued, if the arguments of the appellants are
accepted, the legislative intent would be frustrated through a
construction which will render the Act sterile and which in the
circumstances in which the
Act is to operate cannot be called either
rational or sensible.
2.13 Shri Lekhi, learned Additional Solicitor General of India has
also relied upon the decision of this Court in the case of urlidhar
Meghraj Loya and another v. State of Maharashtra and others
(1976) 3 SCC 684, as well as, Reema Aggarwal v. Anupam and
others (2004) 3 SCC 199 in support of his submission that while
interpreting and/or considering a particular statute, a judge must not alter
the material of which the Act is woven, but he can and should iron out
the creases.  The appellants want this Court to alter the material of
which the NDPS Act is woven.In the case of Rajinder Singh v. State
of Punjab (2015) 6 SCC 477, it was observed and held by this Court
that a statute must be given a fair, pragmatic, and common-sense
interpretation so as to fulfil the object sought to be achieved by
Parliament.  Therefore, the judgment in E Micheal Raj (supra) is
wrong and the preparations in totality and not the actual drug content
will be seen for computing the quantity.  It is submitted that as such
E Micheal Raj (supra) is per incuriam and even the notification of
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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2009 does not redefine the parameters for constituting the offence under
the NDPS Act.  Section 21 of the NDPS Act is not a standalone
provision and must be construed along with the other provisions in the
statute as it is a settled principle of law that every statute must be
construed as a whole and words in the statute take their meaning from
the context and have to be understood to make a consistent enactment,
i.e., ex visceribus actus.  It is submitted that even the insertion of Note
4 was ex abundanti cautela and even without it the same intention
could be culled out from the statute as it stood.  It made no changebut
was intended only to remove any misconception and was used merely
by way of abundant caution.
3. Shri R.K. Kapoor, learned Advocate appearing on behalf of
the appellant in Criminal Appeal No. 722 of 2017 has made the following
submissions:
3.1 That the challenge in the present appeal is to the impugned
notification dated 18.11.2009 issued by the Central Government in
exercise of the powers conferred by Clauses (viia) and (xxiiia) of
Section 2 of the NDPS Act.  The Central Government did not have
the power to issue the impugned notification  by which it has empowered
the inclusion of quantity of the neutral material also along with the
quantity of the narcotic drugs or psychotropic substances in columns 5
& 6 of the table, in relation to the narcotic drugs or psychotropic
substances mentioned in the
corresponding entry in column nos. 2 to 4
of the said table.  Such power to include the neutral material is not
provided under clauses (viia) and (xxiiia) of Section 2 of the NDPS
Act.  Thus, the impugned notification dated 18.11.2019 is ultra vires
the provisions of the NDPS Act, read with the amended 2001 Act which
brought about rationalisation in awarding the punishment;
3.2 By the impugned notification, Note 4 has been added after
Note 3 at the end of the table appended to the NDPS Act, included
vide Notification S.O. 1055 (E) dated 19.10.2001, whereby the
notification was issued specifying “small quantity” and “commercial
quantity” of the narcotic drugs or psychotropic substances mentioned
in column nos. 5 & 6 of the table, in relation to the narcotic drugs or
psychotropic substances mentioned in the corresponding entry in column
nos. 2 to 4 of the said table;
3.3 The result of the issuance of the impugned notification is that
the offender would be awarded the punishment by looking into the total
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quantity of the material found in possession of the offender even if on
chemical analysis it is found that the actual content of the narcotic drug
or psychotropic substance is covered under the “small quantity”, but
by adding the neutral material the punishment awarded is for
“commercial quantity”.  For instance, there are two offenders.  One
“A” is having quantity of 4 grams heroin which is less than the “small
quantity” which is 5 grams, mentioned in column no.5 of the table.
Another “B” is in possession of 1 gram of heroin, but has mixed it with
“neutral material” of 250 grams, it becomes 251 grams, more than the
“commercial quantity” which is 250 grams as per column no.6 of the
table.  It is submitted that if these two offenders “A” and “B” are
convicted, then “A” would be given a punishment for 1 year while “B”
can be given up to 20 years though actual content of the offending drug
is lesser in case of “B”.  It means one year punishment for heroin and
19 years for “neutral material” which is not otherwise punishable under
the NDPS Act.  Thus, the effect of Note 4 is more the dilution, less
the potency of the drug, but more the punishment.Therefore, it would
lead to injustice and would lead to variation in the punishment of the
accused depending upon the quantity of the “neutral material” instead
of the “drug material”;
3.4 The only power given to the Government is to increase or
reduce the quantity of the narcotic drugs or psychotropic substance
mentioned in column no.5 and 6 and nothing more.  For instance, in
the case of heroin, the quantity for the “small quantity” can be reduced
from 5 gram to 1 gram, and for “commercial quantity”, it can also be
reduced from 250 grams to 100 grams or so, but no “neutral material”
can be permitted to be added to award the quantum of punishment;
3.5 No “neutral material” has been specified in column no.2 or
column no.4 of the table.  If “neutral material” was also to be made
punishable under the NDPS Act, then it should have been mentioned
under column no.2 and 4 of the table and then correspondingly the
quantity of the “neutral material” would also have been specified under
“small quantity” and “commercial quantity” under column nos. 5 and 6
of the table.  Since “neutral material” is neither a narcotic drug nor a
psychotropic substance, it has not been mentioned under column nos.
2 and 4 and, therefore, cannot be made punishable under Note 4;
3.6 In the year 2001, NDPS (Amendment) Act, 2001 was
brought to rationalise the quantum of punishment for addicts and less
serious offenders and severe punishment for serious offenders;
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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3.7 This Court in the case of E.Micheal Raj (supra) held that
only the quantity of the offending article is to be taken into consideration
for the purpose of punishment.  If it has been mixed with any other
substance, which is non-offending substance, then not the whole bulk
is to be taken into consideration and that the punishment must be graded
in relation to the quantity of the offending article only;
3.8 A person can be convicted and punished only to the extent it
has been specifically provided under the provisions of the NDPS Act.
If a person has to be punished then there must be specific power and
provision for punishment and only to the extent the punishment has been
provided for the commission of a particular contravention and for a
particular specified substance as mentioned under column nos. 2 and 4
of the schedule appended to the Act and not otherwise.Under the NDPS
Act, Section 21 provides for punishment for contravention in relation
to manufactured drugs and preparations thereof.  Section 22 deals with
punishment for contravention in relation to psychotropic substances.  But
there is no punishment for “neutral material” under the NDPS Act;
3.9 It is settled law that what cannot be done directly can also
not be done indirectly.  The NDPS Act was enacted by the Parliament.
When in the NDPS Act itself the “neutral substance” has not been
made punishable, the “neutral substance” cannot be made punishable
by
the exercise of the executive power by the Central Government by
issuing he impugned notification.  Where ever “neutral material” was
to be included it has been specified under the NDPS Act itself.  It
cannot be added with each drug as mentioned in the table.
3.10 The expression “mixture” as such has not been defined
under the NDPS Act, but it has a reference under the definition of the
word “preparation”.  Even in the word “preparation”, the reference is
again to one or more of such drugs or psychotropic substances, but
there is no reference to any “neutral material”.
3.11 Making the above submissions, it is submitted that thus the
Central Government has no power to make any amendment in Act No.
9 of 2001 and make the whole of the quantity of the allegedly recovered
material from the offender as the “small, commercial or non-commercial
quantity”, by directing the inclusion of the “neutral substance” in it.
Therefore, the notification dated 18.11.2009 is liable to be declared ultra
vires and be struck down.
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4. Shri Manoj Swarup, learned Senior Advocate appearing on
behalf of the appellant in Criminal Appeal No. 721 of 2017 – Gursewak
Singh @ Sewak v. State of Punjab, in addition, has made the following
submissions:
4.1 The Act itself contemplates inclusion of “neutral material”.
Reliance is placed upon Sections 2(iii), 2(vi), 2(xv) and 2(xvi).  That
the Act itself provides the places where “neutral material” would be
taken into account. The “neutral material” should be confined to the
places permitted by the Act.  Note 4 is to be limited to only such areas
where “neutral material” is permitted by the Act.  Only then Note 4
would be serving a clarificatory purpose;
4.2 In the event Note 4 goes beyond this, then Note 4 seeks to
add something which is not in the Act.  In that event, Note 4 would be
legislating, identifying and defining what would constitute a criminal
offence and in the process, Note 4 would be expanding the area
covered by the Act.  It is submitted that this would be impermissible in
law.If “neutral material” is included across the board in all the narcotic
drugs or psychotropic substances, then the object of the 2001
Amendment Act to rationalize sentence structure would be frustrated;
4.3 The Judgment of this Court in the case of E. Micheal Raj
(supra) had noticed the distinction between “small quantity” and
“commercial quantity” and the Objects and Reasons of the 2001
Amendment Act.  It is thereafter that the Court concludes that the 2001
Amendment Act makes punishable vis-à-vis the “offending substance”.
It is submitted that there was no need to discuss Entry No. 239 of the
2001 notification in detail in the said judgment as Entry No. 239 was
contained merely in a notification and was not the source of power.
Therefore, E.Micheal Raj (supra) rightly concludes that the punishment
should be commensurate to the quantity of the “offending substance”
only;
5. Shri Anand Grover, learned Senior Advocate appearing on
behalf of the proposed Intervenor – the applicant – Indian Drug
Manufacturers’ Association has, by and large, made the same
submissions which are made by the learned Senior Advocate(s)/
Advocate(s) appearing on behalf of the appellants.  In addition, the
following submissions are made:
5.1 In laying down thresholds for “small quantity” and
“commercial quantity” for narcotic drugs and psychotropic substances
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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vide the 2001 notification, the Central Government refers to the
“chemical name” of the concerned drug in column 4 of the table.  Thus,
the “chemical name”, which identifies a particular substance in terms
of its actual chemical composition, is relevant for determining the
quantity of such substance.  If it were not, there would be no need to
have column 4 and the chemical description of a substance in the 2001
notification, which lays down small and commercial quantity of narcotic
drugs and psychotropic substances;
5.2 The only drugs for which the entry in column (4) for chemical
name is not given in the 2001 notification are ‘natural/plant-based drugs’
namely, Cannabis and cannabis resin (Charas, Hashish) at S. No. 23;
Coca Leaf at S. No. 26; Ganja at S. No. 55; Opium at S. No. 92; Opium
Straw at S. No. 110 and Preparation made from the extract of tincture
of Indian Hemp at S. No. 111.  That the aforesaid is consistent with
the statutory definitions of the aforesaid substances, which allude to
‘with or without neutral material’;
5.3 The quantity of the narcotic drug is also relevant for the
purposes of determining whether a particular preparation is subject to
the provisions of the NDPS Act or not.  This is borne out by clause
(xi) of section 2 of the NDPS Act which empowers the Central
Government to notify a narcotic substance or preparation either to be
a manufactured drug or to not be a manufactured drug;
5.4 By
making the percentage content of the drug irrelevant, the
impugned notification has the effect of bringing pharmaceutical
preparations that are exempt from the NDPS Act, under the fold of
the law through the backdoor.
i) E.g.: Entry 35 ‘Codeine’ in the list of manufactured
drugs vide Notification S.O. 826(E) dated 14/11/1985,
Notification S.O. 40(E) dated 29/02/1993 and
Notification S.O. 1431(E) dated 21.6.2011 (hereinafter
collectively referred to as “notification on manufactured
drugs”).
ii) Similar exemptions are contained at Entries at Sl. No.
35, 36, 37, 48, 70, 76, 83 and 87 of the notification on
manufactured drugs.
5.5 The impugned notification is, therefore, inconsistent with the
notification on manufactured drugs issued by the Central Government
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in exercise of powers conferred by section 2(xi)(b) of the NDPS Act
to declare a narcotic substance or preparation to be a manufactured
drug or not to be a manufactured drug;
5.6 He argued that for legitimate entities like the members of
the Applicant – IDMA, the impugned notification leads to arbitrary and
absurd consequences in that the license is given in terms of actual
quantity of the drug, while punishment is imposed on the basis or total
bulk quantity;
5.7 The Respondent was aware that the impugned notification
is beyond the powers conferred under sections 2(viia) and (xxiiia) for
notifying ‘commercial’ and ‘small’ quantities of narcotic drugs and
psychotropic substances under the NDPS Act.Accordingly, it sought
to introduce legislative amendments in 2011 by introducing the NDPS
(Amendment) Bill, 2011 (Bill 78 of 2011) in the Lok Sabha on 8th
September, 2011.The Proposed amendments in section 2(viia) and
2(xiiia) of the NDPS Act were as follows:
Section 2(viia) “commercial quantity”, in relation to a narcotic
drug, psychotropic substance or any preparation of such drug or such
substance, means any quantity of such drug, substance or preparation
of such drug or substance greater than the quantity specified, in terms
of the pure drug content or otherwise, by the Central Government by
notification in the Official Gazeete” (proposed amendments are
underlined)
Identical changes were proposed in definition of section 2(xxiiia)
for ‘small quantity’;
5.8
The aforesaid proposed amendments were rejected by a
Parliamentary Standing Committee with the following observations: -
“meanings denoted by the terms/expressions ‘preparation’ and
‘otherwise’ in proposed amendments are vague and unspecific.
Such ambiguity in the clause would lead to arbitrariness in the
interpretation of the law and may weaken the rationalized penalty
structure proposed amendments intent to provide specific
provisions for considering the pure drug content of a recovery
to determine the consequential penalty/punishment for an
offender, no word/term/clause with ambiguous meaning should
be used in the provisions.”
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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The Respondent withdrew the aforesaid amendments in 2013.
They are not part of the NDPS (Amendment) Act, 2014 (Act 16 of
2014);
5.9 Entry 239 talks of a mixture or preparation of two or more
drugs with or without neutral material and has asterisk (*, **) in column
5 and 6.  TheAsterisks are explained by indicating that the lesser of
the small quantities of the respective narcotic drugs or psychotropic
substances will be taken for determining the small quantity and lesser
of the commercial quantity will be taken to determine commercial
quantity.Entry 239 along with asterisk makes it clear that it comes into
operation only when the seizure is a combination of two or more drugs,
i.e. – a combination of two or more narcotic drugs [eg: ‘charas’ and
‘ganja’], or two or more psychotropic substances [e.g.: ‘Fentanyl’ and
‘Zolipidem’] or a combination of narcotic drugs and psychotropic
substances [eg: ‘Cocaine’ and ‘Lysergide (LSD)].The wording in Entry
239 of 2001 notification is similar to that in entry (viii) in the Table to
section 31A of the NDPS Act, which also deals with a mixture of two
or more drugs.  That neither entry (viii) in the Table to section 31A of
the NDPS Act nor Entry 239 of the 2001 notification suggest that in a
mixture of two or more narcotic drugs, the weight of the entire mixture
i.e. the aggregate weight of both the drugs has to be taken into
consideration;
5.10 In determining the quantity involved
in a mixture of two or
more drugs, it is the substance with a lesser or lower threshold, whether
for ‘small’ or ‘commercial’ quantity, which will be used as the reference.
To illustrate, a mixture weighing 200 gms is seized.  The constituents
of the said seizure are: - 110 gms of charas and 90 gms of ganja.  As
per the 2001 notification, the small quantity of charas at entry 23 is
100 gms while the small quantity of ganja at entry 55 is 1000 gms or
1 kg.  By virtue of Entry 239, the quantity seized in this case will be
determined in relation to charas and not in relation to ganja.
Accordingly, the person from whom such seizure is effected will be
liable for intermediate quantity [quantity of charas found being more
than the small quantity but less than commercial quantity] and will not
be able to claim the benefit of the quantity threshold for ganja, though
ganja found on him is lesser than the small quantity of ganjas pecified
in the 2001 notification;
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5.11 He argued that E. Micheal Raj (supra) is decided correctly
as it reviews various provisions of the NDPS Act; examines legislative
intent of the NDPS Amendments in 2001; correctly decides that punitive
consequences under the NDPS quantity are relatable to actual amount
of offending material in the seizure; it reiterates the position stated in
the statute.
5.12 It is submitted that the Supreme Court of Bangladesh in its
decision dated 08.05.2012 in the case of Md. Jaffar Alam v. The State,
Criminal Misc. Case No. 37461 of 2011 held that actual and real
quantity of the narcotics in question be ascertained accurately and the
law interpreted carefully and strictly.
Discussion
6. Having heard the learned advocates for the respective parties
and considering the reference order, the question which is posed for
consideration of this Court is whether the NDPS Act envisages mixture
of narcotic drugs and seized material / substance should be considered
as a preparation in totality or on the basis of actual drug content of the
specific narcotic drugs ? In other words, the question as to whether
while determining the small or commercial quantity in relation to narcotic
drugs or psychotropic substances in a mixture with one or more neutral
substance(s), the quantity of neutral substance(s) is not to be taken into
consideration or it is only the actual content by weight of the offending
drug which is relevant for the purpose of determining whether it would
constitute small quantity or commercial quantity ? At this stage, it is
required to be noted that as such and after the decision of this Court in
the case of E.Micheal Raj (supra) by Notification No.S.O.2942(E)
dated 18.11.2009,  “Note 4” has been added to  Notification
S.O.1055(E) dated 19.10.2001 specifying the “small quantity and
commercial quantity” of the  narcotic drugs or psychotropic substances
covered under the NDPS Act. Note 4 which has been added by the
aforesaid Notification reads as follows:
“The quantities shown in column 5 and 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 substance of the particular drug in
dosage form or isomers, esters, ethers and salts or these
drugs, including salts or esters, ethers and isomers, wherever
existence of such substance is possible and not just its pure
drug content.”
HIRA SINGH v. UNION OF INDIA
[M. R. SHAH, J.]
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6.1 At the outset, it is pertinent to note that as such prior to the
decision of this Court in the case of E.Micheal Raj (supra) taking  the
view that in the mixture of  narcotic drugs or psychotropic substance
that one or more neutral substance/s, the quantity of the neutral
substance/s is not to be taken into consideration while determining the
small quantity or commercial quantity of a narcotic drug or psychotropic
substance and only the actual content by weight of the narcotic drug
which is relevant for the purposes of determining whether it would
constitute “small quantity or commercial quantity”, a consistent view
was that for the purpose of determining a “small quantity or commercial
quantity”  the weight of entire manufactured drug / preparation / mixture
seized including that of the neutral substance is required to be taken
into consideration. However, for the first time in the case of E. Micheal
Raj (Supra), a contrary view is taken solely on considering Narcotic
Drugs and Psychotropic Substances (Amendment) Act,2001, by which
Section 21 of the NDPS Act came to be amended.
6.2 Therefore, first of all we would like to consider the reasoning
given by this Court in the case of E. Micheal Raj (Supra). The facts
indicate that what was seized in E. Micheal Raj (Supra) was 4 kgs
of Heroin, which would fall in Entry 56 of the Notification dated
19.10.2001. As per the Notification dated 19.10.2001 in case of Heroin
5gms is a small quantity and 250 gm is a commercial quantity. However,
this Court considered the substance seized – Heroin as Opium derivative
and hence a manufactured drug and therefore, treating the seized drug
as opium derivative, this Court held the seized material as small quantity
and awarded punishment accordingly. While holding so, this Court
considered the Statement of Objects and Reasons concerning the
Amendment Act, 2001 and thereafter observed in para 12 to 15 as under:
“12. The possession of offending substance would be
considered an offence punishable under the NDPS Act, as
heroin is an opium derivative as per Section 2(xvi)(e) which
says that all preparations containing more than 0.2 percent
of morphine or containing any diacetylmorphineµ is an
opium derivative. Further, according to Section 2(xi), all
opium derivatives fall under the category of manufactured
drug. Thus, we conclude that the offending substance is an
opium derivative and hence a manufactured drug, the
possession of which is in contravention of the provisions of
Section 8 of the NDPS Act which prohibits certain operations
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to the effect that no person shall 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.
13. In the present case, the opium derivative which has been
found in possession of the accused-appellant is prohibited
under Section 8 of the NDPS Act and thus punishable under
Section 21 thereof. The question is only with regard to the
quantum of punishment.
14. As a consequence of the Amending Act, the sentence
structure underwent a drastic change. The Amending Act for
the first time introduced the concept of commercial quantity
in relation to narcotic drugs or psychotropic substances by
adding clause (viia) in Section 2, which defines this term as
any quantity greater than a quantity specified by the Central
Government by notification in the Official Gazette. Further,
the term ‘small quantity’ is defined in Section 2, clause (xxiiia),
as any quantity lesser than the quantity specified by the
Central Government by notification in the Official Gazette.
Under the rationalised sentence structure, the punishment
would vary depending upon whether the quantity of
offending material is ‘small quantity’,`commercial quantity
or something in-between.
15. It appears from the Statement of Objects and Reasons
of the Amending Act of 2001 that the intention of the
legislature was to rationalize the sentence structure
so as to
ensure that while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent sentence, the
addicts and those who commit less serious offences are
sentenced to less severe punishment. Under the rationalised
sentence structure, the punishment would vary depending
upon the quantity of offending material. Thus, we find it
difficult to accept the argument advanced on behalf of the
respondent that the rate of purity is irrelevant since any
preparation which is more than the commercial quantity of
250 gms. and contains 0.2% of heroin or more would be
punishable under Section 21(c) of the NDPS Act, because the
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[M. R. SHAH, J.]
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intention of the legislature as it appears to us is to levy
punishment based on the content of the offending drug in
the mixture and not on the weight of the mixture as such. This
may be tested on the following rationale. Supposing 4 gms.
of heroin is recovered from an accused, it would amount to
a small quantity, but when the same 4 gms. is mixed with 50
kgs. of the powered sugar, it would be quantified as
a commercial quantity. In the mixture of a narcotic drug
or a psychotropic substance with one or more neutral
substance/s, the quantity of the neutral substance/s is not to
be taken into consideration while determining the small
quantity or commercial quantity of a narcotic drug or
psychotropic substance. It is only the actual content by weight
of the narcotic drug which is relevant for the purposes of
determining whether it would constitute small quantity or
commercial quantity. The intention of the legislature for
introduction of the amendment as it appear to us is to punish
the people who commit less serious offences with less severe
punishment and those who commit grave crimes, such as
trafficking in significant quantities, with more severe
punishment.”
6.3. On considering the aforesaid reasoning given by this Court
in the case of E.Micheal Raj (Supra), we are of the opinion that while
holding that in the mixture of a narcotic drug or psychotropic substance
with one or more neutral substance, the quantity of
neutral substance
is not to be taken into consideration and it is only the actual content by
weight of the narcotic drug which is relevant for the purposes of
determining whether it would constitute “small quantity or commercial
quantity”, this Court has not at all considered the relevant entry in the
Notification dated 19.10.2001. As observed herein above, what was
seized was heroin which falls in Entry 56. What was seized was not
opium and / or opium derivative. There is no specific finding even given
by this Court that it would fall under Entry 239 namely any mixture or
preparation that of with or without the neutral material. Therefore, the
case of mixture of narcotic drugs or psychotropic substance was not
at all in direct consideration of this Court.
6.4. Even it does not appear that this Court took into consideration
Note 2 of the Notification dated 19.10.2001, which reads as follows:
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“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.”
If note 2 would have been considered by this Court and seized
material was “Heroin” in that case and what was seized was
4.5 kg heroin, the Court would have considered the same as a
“commercial quantity” as considering Entry 56, 5gms is “small
quantity” and 250 gms and above is a “commercial quantity”.
Therefore, as such, we are not in agreement with the view taken
by this Court in the case of E.Micheal Raj (Supra) taking the
view that in mixture of a narcotic drug or psychotropic substance
with one or more neutral substance, the quantity of neutral
substance is not to be taken into consideration and it is only the
actual content by weight of the narcotic drug which is relevant
for the purposes of determining whether it would constitute “small
quantity or commercial quantity”.
7. Even considering the reasons while arriving at aforesaid
conclusion, it appears to us that the Statement of Objects and Reasons
concerning the Amendment Act, 2001 has not been properly appreciated
and/or considered and/or properly construed. Considering the statement
of objects and reasons concerning the Amendment Act of 2001, by
which, two tier punishment was provided one for small quantity and
another for commercial quantity, it cannot be said that intention of the
legislature was to consider only the actual content by
weight of offending
drug for the purpose of determining whether it would constitute small
quantity or commercial quantity. The Statement of Objects and Reasons
of the Amendment Act, 2001 is as follows:
“ The Statement of Objects and Reasons concerning the
Amending Act of 2001 is as follows:
Narcotic Drugs and Psychotropic Substances Act, 1985
provides deterrent punishment for various offences relating
to illicit trafficking in narcotic drugs and psychotropic
substances. Most of the offences invite uniform punishment
of minimum ten years’ rigorous imprisonment which may
extend up to twenty years. While the Act envisages severe
punishments for drug traffickers, it envisages reformative
approach towards addicts. In view of the general delay in
trial it has been found that the addicts prefer not to invoke
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the provisions of the Act. The strict bail provisions under the
Act add to their misery.
Therefore, it is proposed to rationalise the sentence structure so
as to ensure that while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent sentences, the
addicts and those who commit less serious offences are
sentenced to less severe punishment. This requires rationalisation
of the sentence structure provided under the Act. It is also
proposed to restrict the application of strict bail provisions to those
offenders who indulge in serious offences.”
On a bare reading of the Statement of Objects and Reasons, it
cannot be said that the intention of the Legislature was to consider the
actual content by weight of the offending drug for the purpose of
determining whether it would constitute small quantity or commercial
quantity. Therefore, we are of the opinion while holding that it is only
the actual content by weight of the offending drug to be considered
for the purpose of determining whether it would constitute small quantity
or commercial quantity, this Court has read more than what was stated
in the Statement of Objects and Reasons.
7.1 Therefore, while deciding the case in the case of E.Micheal
Raj (Supra), this Court had not at all considered Note 2 to the
Notification dated 19.10.2001 and has read much more than what is
stated in the Statement of Objects and Reasons of Amendment Act,
2001 and for the reasons stated herein below, even on merits also, we
are not in agreement with the view taken by this Court in the case of
E.Micheal Raj (Supra) that for the purpose of determining the “small
or commercial quantity” in relation to narcotic drugs or psychotropic
substances in a mixture with one or more neutral substance(s), the
quantity of neutral substance(s) is not to be taken into consideration or
it is only the actual content by weight of the offending drug which is
relevant. At this stage, it is required to be noted that even before this
Court in the case of E.Micheal Raj (Supra), it was a case of “heroin”
and not at all case of mixture falling in entry 239 of the Notification
dated 19.10.2001.
8. On merits whether any mixture of narcotic drugs or
psychotropic substances with one or more neutral substance(s)  the
quantity of neutral substance(s) is not to be taken into consideration or
it is only the actual content by weight of the offending drug which is
relevant for the purpose of determining whether it would constitute
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“small quantity or commercial quantity”, the Statement of Objects and
Reasons of NDPS Act is required to be considered. As per the
preamble of NDPS Act, 1985, it is an Act to consolidate and amend
the law relating to Narcotic Drugs, to make stringent provisions for
the control and regulation of operation relating to Narcotic Drugs and
Psychotropic Substances. To provide for forfeiture of the property
derived from or use in illicit traffic in Narcotic Drugs and Psychotropic
Substance. The Statement of objects and reasons and the preamble of
the NDPS Act imply that the Act is required to act as a deterrent and
the provisions must be stringent enough to ensure that the same Act
as deterrents.
8.1. In the case of Directorate of Enforcement vs. Deepak
Mahajan and Another reported in (1994) 3 SCC 440, it is observed
by this Court that every law is designed to further ends of justice but
not to frustrate on the mere technicalities. It is further observed that
though the intention of the Court is only to expound the law and not to
legislate, nonetheless the legislature cannot be asked to sit to resolve
the difficulties in the implementation of its intention and the spirit of
the law. It is the duty of the Court to mould or creatively interpret the
legislation by liberally interpreting the statute. In the said decision this
Court has also quoted following passage in Maxwell on Interpretation
of Statutes, 10th Edition page 229:
“Where the language of a statute, in
its ordinary meaning
and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or
to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the
structure of the sentence. ... Where the main object and
intention of a statute are clear, it must not be reduced to a
nullity by the draftsman’s unskilfulness or ignorance of the
law, except in a case of necessity, or the absolute
intractability of the language used.”
Thereafter, it is further observed that to winch up the legislative
intent, it is permissible for courts to take into account the ostensible
purpose and object and the real legislative intent. Otherwise, a bare
mechanical interpretation of the words and application of the legislative
intent devoid of concept of purpose and object will render the legislature
inane. It is further observed that in given circumstances, it is permissible
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for courts to have functional approaches and look into the legislative
intention and sometimes it may be even necessary to go behind the words
and enactment and take other factors into consideration to give effect
to the legislative intention and to the purpose and spirit of the enactment
so that no absurdity or practical inconvenience may result and the
legislative exercise and its scope and object may not become futile.
8.2 Therefore, considering the statement of objects and reasons
and the preamble of the NDPS Act and the relevant provisions of the
NDPS Act, it seems that it was never the intention of the legislature to
exclude the quantity of neutral substance and to consider only the actual
content by weight of  offending drug which is relevant for the purpose
of determining whether it would constitute small quantity or commercial
quantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS
Act emphasis is on Narcotic and Drug or Psychotropic Substance
(Sections 21, 22,23,24, 27 and 43). Even in the table attached to the
Notification dated 19.10.2001, column no. 2 is with respect to name of
Narcotic Drug and Psychotropic Substance and column nos. 5 and 6
are with respect to “small quantity and commercial quantity”. Note 2
of the Notification dated 19.10.2001 specifically provides that quantity
shown against the respective drugs listed in the table also apply to the
preparations of the drug and the
preparations of substances of note 1.
As per Note 1, the small quantity and commercial quantity given against
the respective drugs listed in the table apply to isomers ..., whenever
existence of such substance is possible. Therefore, for the determination
of “small quantity or the commercial quantity” with respect to Narcotic
Drugs and Psychotropic Substance mentioned in column no.2 the
quantity mentioned in the clauses 5 and 6 are required to be taken into
consideration. However, in the case of mixture of the narcotic drugs /
psychotropic drugs mentioned in column no.2 and any mixture or
preparation  that of with or without the neutral material of any of the
drugs mentioned in table, lesser of the small quantity between the
quantities given against the respective Narcotic Drugs or Psychotropic
Substances forming  part of mixture and lesser of commercial quantity
between the quantities given against the respective narcotic drugs or
psychotropic substance forming part of the mixture is to be taken into
consideration. As per example, mixture of 100 gm is seized and the
mixture is consisting of two different Narcotic Drugs and Psychotropic
Substance with neutral material, one drug is heroin and another is
methadone, lesser of commercial quantity between the quantities given
against the aforesaid two respective Narcotic Drugs and Psychotropic
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Substance is required to be considered. For the purpose of determination
of the “small quantity or commercial quantity”, in case of entry 239
the entire weight of the mixture / drug by whatever named called weight
of neutral material is also required to be considered subject to what is
stated hereinabove. If the view taken by this Court in the case of
E. Micheal Raj (Supra) is accepted, in that case, it would be adding
something to the relevant provisions of the statute which is not there
and/or it was never intended by the legislature.
8.3 At this stage, it is required to be noted that illicit drugs are
seldom sold in a pure form. They are almost always adulterated or cut
with other substance. Caffeine is mixed with heroin, it causes that heroin
to vaporize at a lower rate. That could allow users to take the drug
faster and get a big punch sooner. Aspirin, crushed tablets, they could
have enough powder to amend reversal doses of drugs. Take example
of heroin. It is known as powerful and illegal street drug and opiate
derived from morphine. This drug can easily be “cut” with a variety of
different substances. This means that drug dealer will add other drugs
or non -intoxicating substances to the drug so that they can sell more
of it at a lesser expense to themselves. Brown-sugar / smack is usually
made available in power form. The substances is only about 20% heroin.
The heroin is mixed with other substances like chalk powder, zinc oxide,
because of
these, impurities in the drug, brown-sugar is cheaper but
more dangerous. These are only few examples to show and demonstrate
that even mixture of narcotic drugs or psychotropic substance is more
dangerous. Therefore, what is harmful or injurious is the entire mixture/
tablets with neutral substance and Narcotic Drugs or Psychotropic
Substances.  Therefore, if it is accepted that it is only the actual content
by weight of offending drug which is relevant for the purpose of
determining whether it would constitute small quantity or commercial
quantity, in that case, the object and purpose of enactment of NDPS
Act would be frustrated. There may be fewpunishment for “commercial
quantity”. Certainly that would not have been the intention of the
legislature.
8.4. Even considering the definition of “manufacture”,
“manufactured drug” and the “preparation” conjointly, the total weight
of such “manufactured drug” or “preparation”, including the neutral
material is required to be considered while determining small quantity
or commercial quantity. If it is interpreted in such a manner, then and
then only, the objects and purpose of NDPS Act would be achieved.
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Any other intention to defeat the object and purpose of enactment of
NDPS Act viz. to Act is deterrent.
8.5. The problem of drug addicts is international and the mafia
is working throughout the world. It is a crime against the society and it
has to be dealt with iron hands. Use of drugs by the young people in
India has increased. The drugs are being used for weakening of the
nation. During the British regime control was kept on the traffic of
dangerous drugs by enforcing the Opium Act, 1857. The Opium Act,
1875 and the Dangerous Drugs Act, 1930. However, with the passage
of time and the development in the field of illicit drug traffic and during
abuse at national and international level, many deficiencies in the existing
laws have come to notice. Therefore, in order to remove such
deficiencies and difficulties, there was urgent need for the enactment
of a comprehensive legislation on Narcotic Drugs and Psychotropic
Substances, which led to enactment of NDPS Act. As observed herein
above, the Act is a special law and has a laudable purpose to serve
and is intended to combat the menace otherwise bent upon destroying
the public health and national health. The guilty must be in and the
innocent ones must be out. The punishment part in drug trafficking is
an important one but its preventive part is more important. Therefore,
prevention of illicit traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 came to be
introduced.  The aim was to prevent
illicit traffic rather than punish after the offence was committed.
Therefore, the Courts will have to safeguard the life and liberty of the
innocent persons. Therefore, the provisions of NDPS Act are required
to be interpreted keeping in mind the object and purpose of NDPS Act;
impact on the society as a whole and the Act is required to be
interpreted literally and not liberally which may ultimately frustrate the
object, purpose and preamble of the Act. Therefore, the interpretation
of the relevant provisions of the statute canvassed on behalf of the
accused and the intervener that quantity of neutral substance (s) is not
to be taken into consideration and it is only actual content of the weight
of the offending drug, which is relevant for the purpose of determining
whether it would constitute “small quantity or commercial quantity”,
cannot be accepted.
9. Now, so far as the challenge to the impugned Notification
No.2942(E) dated 18.11.2009 issued by the Union of India, by which,
“Note 4” has been added to the Notification S.O.1055(E) dated
19.10.2001 specifying small quantity and commercial quantity of the
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narcotic drugs and psychotropic substance covered under the NDPS
Act, 1985 is concerned, as such it can be said to be clarificatory in
nature and / or by way of ex abundanti cautela / abundant  caution.
As observed herein above, while determining the small or commercial
quantity in relation to narcotic drugs or psychotropic substances in a
mixture with one or more neutral substance(s), it includes the weight
of neutral substance (s) also and not only the actual content by weight
of the offending drug. Therefore, even if “Note 4” which has been
added vide Notification dated 18.11.2009 is not added, in that case also,
it makes no difference and / or change. It appears that after the decision
of this Court in the case of E. Micheal Raj (Supra) by way of
abundant caution, the Union of India has come out with a Notification
dated 18.11.2009 adding “Note 4”. Thus, adding “Note 4” by Notification
dated 18.11.2009 to the earlier Notification dated 19.10.2001 can be
said to be clarificatory and by way of abundant caution only. Even
otherwise, for the reasons stated above, the impugned Notification dated
18.11.2009 adding “Note 4” to the earlier Notification dated 19.10.2001,
cannot be said to be contrary to the scheme and the various provisions
of the NDPS Act.
9.1. At this stage, it is required to be noted that Notification dated
19.10.2001 was issued in exercise of powers conferred by clauses (viia)
and (xxiiia) of Section 2 of NDPS Act. Section 2(viia) defines
“commercial quantity” and Section 2(xxiiia) defines “small quantity” and
it means any quantity greater or lesser than the quantity specified by
the Central Government by Notification in the official gazette, as the
case may be. Notification dated 19.10.2001 specifies the small quantity
and commercial quantity with respect to respective narcotic drugs and
psychotropic substances. As observed herein above, by abundant
caution and to make it further clear “Note 4” has been added.
Therefore, it cannot be said to be ultra vires to Scheme and relevant
provisions of the NDPS Act, as contended on behalf of the accused
and intervener. Therefore, challenge to the impugned Notification dated
18.11.2009 adding “Note 5” of the clause to the Notification
S.O.1055(E) dated 19.10.2001 fails.
10. In view of the above and for the reasons stated above,
Reference is answered as under:
(I). The decision of this Court in the case of E. Micheal
Raj (Supra) taking the view that in the mixture of
narcotic drugs or psychotropic substance with one or
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more neutral substance(s), the quantity of the neutral
substance(s) is not to be taken into consideration while
determining the small quantity or commercial quantity
of a narcotic drug or psychotropic substance and only
the actual content by weight of the offending narcotic
drug which is relevant for the purpose of determining
whether it would constitute small quantity or commercial
quantity, is not a good law;
(II). In case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances  with one or more neutral
substance(s), the quantity of neutral substance(s) is not
to be excluded and to be taken into consideration along
with actual content by weight of the offending drug,
while determining the “small or commercial quantity” of
the Narcotic Drugs or Psychotropic Substances;
(III). Section 21 of the NDPS Act is not stand-alone provision
and must be construed along with other provisions in the
statute including provisions in the NDPS Act including
Notification No.S.O.2942(E) dated 18.11.2009 and
Notification S.O 1055(E) dated 19.10.2001;
(IV). Challenge to Notification dated 18.11.2009 adding “Note
4” to the Notification dated 19.10.2001, fails and it is
observed and held that the same is not ultra vires to
the Scheme and the relevant provisions of the NDPS
Act.  Consequently, writ petitions and Civil Appeal No.
5218/2017 challenging the aforesaid notification stand
dismissed.
11. The Reference is answered
accordingly. The Intervener
Application stands disposed of.  Now, respective Appeals be placed
before the appropriate Court taking up such matters for deciding the
appeals in accordance with law and on merits and in light of the
observations made hereinabove and our answer to the Reference, as
above.
Devika Gujral
Reference answered.