2017 (7) TMI 1427 - SC - Indian Laws

Constitutional Validity of Notification issued by the Central Government bearing No. S.O.2941(E) dated 18.11.2009, amending Notification No. S.O.1055(E) dated 19.10.2001 - Insertion of Note 4 (four) in the table at the end of Note 3 (three) - HELD THAT - Considering the significance of the issues raised by the respondents and the grounds of challenge of the appellants/petitioners concerning the impugned notification, to observe judicial rectitude and in deference to the mentioned decisions, it is directed that these matters be placed before atleast a three Judges Bench for an authoritative pronouncement on the matters in issue, which are of seminal public importance. The three Judges Bench may have to consider, amongst others, the following questions (a) Whether the decision of this Court in E. Micheal Raj 2008 (3) TMI 674 - SUPREME COURT 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 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 Act permit the Central Government to resort to such dispensation? (d) Does the 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 Act is a stand alone provision or intrinsically linked to the other provisions dealing with manufactured drug and preparation containing any manufactured drug? The registry is directed to place the matters before the Hon ble Chief Justice of India for seeking appropriate directions to place the matters before a larger bench.

Summary

Issues Involved:
1. Validity of the Central Government's notification dated 18.11.2009.
2. Authority of the Central Government under the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. Impact of the notification on the decision in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau.
4. Interpretation of "small quantity" and "commercial quantity" in the context of drug mixtures.
5. Legislative intent and sentencing policy under the Act.

Detailed Analysis:

1. Validity of the Central Government's Notification:
The primary issue is whether the notification issued by the Central Government on 18.11.2009, which amends the previous notification dated 19.10.2001 by inserting Note 4, is valid. The appellants argue that the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) does not empower the Central Government to alter the parameters for quantifying drugs. They contend that the notification undermines the Supreme Court's decision in E. Micheal Raj, which emphasized that punishment should be based on the pure drug content, not the aggregate weight of the mixture.

2. Authority of the Central Government:
The respondents assert that the Central Government is empowered under Sections 76 and 77 of the Act to issue such notifications. They argue that the notification was issued following the prescribed procedure to define "small" and "commercial" quantities based on the total weight of the preparation containing the specified drug, as drugs are rarely sold in pure form. This approach is pragmatic, considering the limited capacity of State Forensic Laboratories to determine the purity of seized drugs.

3. Impact on E. Micheal Raj Decision:
The appellants claim that the notification dilutes the decision in E. Micheal Raj, which held that the purity of the drug is decisive for determining the quantum of punishment. The respondents counter that the decision in E. Micheal Raj is per incuriam because it failed to consider entry no. 239 and Note 2 of the 2001 notification, which are relevant for determining the aggregate quantity of mixtures.

4. Interpretation of "Small Quantity" and "Commercial Quantity":
The respondents argue that entry no. 239 acts as a residuary clause for mixtures or preparations containing specified drugs. They contend that the aggregate quantity of the mixture should be considered for determining "small" and "commercial" quantities, as the drug is almost never sold in its pure form. The appellants, however, maintain that only the actual content of the narcotic drug should be considered, as emphasized in E. Micheal Raj.

5. Legislative Intent and Sentencing Policy:
The appellants argue that the legislative intent behind the 2001 amendment was to rationalize sentencing so that drug traffickers are punished with deterrent sentences, while addicts or those committing less serious offenses receive less severe punishment. They claim that the notification undermines this intent by considering the aggregate weight of the mixture. The respondents, however, argue that the notification aligns with international conventions and aims to eradicate the menace of drugs globally.

Referral to Larger Bench:
Given the significance of the issues and the potential need to reconsider the decision in E. Micheal Raj, the Court directed that the matters be placed before a larger bench for an authoritative pronouncement. The larger bench will consider whether the decision in E. Micheal Raj requires reconsideration, the implications of the notification, and the correct interpretation of the Act concerning drug mixtures.

Questions for Larger Bench:
The larger bench will address the following questions:
- Whether E. Micheal Raj requires reconsideration in light of entry no. 239 and Note 2 of the 2001 notification.
- Whether the impugned notification redefines the parameters for constituting an offense and awarding punishment.
- Whether the Act permits the Central Government to issue such a notification.
- Whether the Act envisages that the mixture should be considered in totality or based on the actual drug content.
- Whether Section 21 is a stand-alone provision or linked to other provisions dealing with "manufactured drug" and "preparation."

The registry was directed to place the matters before the Chief Justice of India for appropriate directions to constitute a larger bench.