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2020 (4) TMI 671 - SC - Indian LawsMixing of Drugs - psychotropic substance - allegation that narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purposes of imposition of punishment - validity of 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. It is submitted that 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. 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? HELD THAT - This Court in the case of E. MICHEAL RAJ VERSUS INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU 2008 (3) TMI 674 - SUPREME COURT indicates 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 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 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. 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 - 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. 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. Validity of Notification No. 2942(E) dated 18.11.2009 - HELD THAT - Notification dated 19.10.2001 specifies the small quantity and commercial quantity with respect to respective narcotic drugs and psychotropic substances. As observed, 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. Application disposed off.
Issues Involved:
1. Reconsideration of the decision in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008). 2. Interpretation of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) regarding mixtures containing narcotic drugs and neutral substances. 3. Validity of the notification issued by the Central Government regarding the calculation of narcotic drug quantities. 4. Determination of whether Section 21 of the NDPS Act is a standalone provision. 5. Impact of the notification dated 18.11.2009 on the parameters for punishment under the NDPS Act. Detailed Analysis: 1. Reconsideration of E. Micheal Raj Decision: The Supreme Court revisited the decision in E. Micheal Raj, which held that for mixtures of narcotic drugs with neutral substances, only the actual content by weight of the narcotic drug should be considered for determining small or commercial quantities. The Court noted that this decision did not consider the relevant notification and statutory provisions adequately. Specifically, the Court found that the decision ignored Note 2 of the Notification dated 19.10.2001, which applies the specified quantities to preparations of the drug. The Court concluded that the decision in E. Micheal Raj was not a good law. 2. Interpretation of the NDPS Act Regarding Mixtures: The Court analyzed the NDPS Act, including its preamble and statement of objects and reasons, which emphasize stringent control over narcotic drugs and psychotropic substances. The Court held that the Act's intent was to consider the entire mixture, including neutral substances, when determining the quantity of narcotic drugs or psychotropic substances. The Court reasoned that excluding neutral substances would undermine the Act's deterrent purpose and lead to absurd results, such as minor punishments for large quantities of diluted drugs. 3. Validity of the Notification Issued by the Central Government: The notification dated 18.11.2009 added Note 4 to the earlier Notification dated 19.10.2001, clarifying that the quantities shown in the table apply to the entire mixture or solution, not just the pure drug content. The Court upheld this notification, stating it was clarificatory and consistent with the NDPS Act's scheme. The Court rejected arguments that the notification was ultra vires, noting that it did not redefine the parameters for constituting an offense but merely clarified the existing provisions. 4. Determination of Whether Section 21 is a Standalone Provision: The Court held that Section 21 of the NDPS Act, which deals with punishment for contravention in relation to manufactured drugs and preparations, is not a standalone provision. It must be construed in conjunction with other provisions of the NDPS Act and relevant notifications. The Court emphasized that the entire statutory scheme should be considered to ensure a consistent and rational interpretation. 5. Impact of the Notification Dated 18.11.2009: The Court found that the notification dated 18.11.2009, which added Note 4 to the Notification dated 19.10.2001, was not ultra vires and did not redefine the parameters for punishment under the NDPS Act. The Court held that the notification was consistent with the Act's intent to include the entire mixture's weight, including neutral substances, when determining quantities for punishment. Consequently, the Court dismissed the challenges to the notification and upheld its validity. Conclusion: The Supreme Court overruled the decision in E. Micheal Raj, holding that the entire mixture, including neutral substances, should be considered when determining small or commercial quantities of narcotic drugs or psychotropic substances. The Court upheld the validity of the notification dated 18.11.2009, which clarified this interpretation, and emphasized that Section 21 of the NDPS Act must be read in conjunction with other provisions and relevant notifications.
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