2017 (4) TMI 574 - HC - Indian Laws

Penal provisions of the NDPS Act - inclusion of Ketamine in the list of Psychotropic Substances specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 vide Notification dated 10.02.2011 of the Ministry of Finance, Government of India - Held that - The word and appearing in between clause (a) and clause (b) of Section 3 of NDPS Act should be read as or and the two clauses need to be given a disjunctive reading so as to give effect to the intention of the legislature lest sub-section 3(a) would be rendered otiose. The law is well settled that while considering the validity of the delegated legislation, the scope of judicial review is limited. The interference would be warranted only if it is shown that the statutory authority failed to exercise the power conferred within the four corners of the specific provision contained in the relevant statute under which the power is conferred or where the power was exercised on grounds which were not germane or relevant to the policy and purpose of the Act or where it was made on grounds which were mala fide. We have already held that the word and appearing in between clause (a) and clause (b) of Section 3 of NDPS Act should be read as or so as to give effect to the true intention of the legislature. We have also taken note of the fact that both CND and INCB recommended to put in place appropriate control measures to address the growing problem of Ketamine abuse and diversion to illicit channel for non-medical use. We are also satisfied that there is enough material before the Respondent with regard to trafficking of Ketamine. That being the case, Section 3(a) of the NDPS Act has been satisfied and the Respondent cannot be held to have exceeded the power conferred thereunder in issuing the impugned Notification dated 10.02.2011. Consequently, the challenge to the Notification dated 21.06.2011 which specifies the small and commercial quantity of Ketamine for the purpose of penal provisions of the NDPS Act does not survive.

Summary

Issues Involved:
1. Challenge to the inclusion of 'Ketamine' in the list of Psychotropic Substances under the NDPS Act via Notification dated 10.02.2011.
2. Challenge to the consequential Notification dated 21.06.2011 specifying 'small' and 'commercial' quantities of Ketamine.
3. Compliance with mandatory statutory requirements under Section 3 of the NDPS Act.
4. Interpretation of Section 3 of the NDPS Act regarding the conjunctive or disjunctive reading of Clauses (a) and (b).

Issue-wise Detailed Analysis:

1. Challenge to the inclusion of 'Ketamine' in the list of Psychotropic Substances under the NDPS Act via Notification dated 10.02.2011:
The petitioner challenged the inclusion of 'Ketamine' in the list of Psychotropic Substances specified in the Schedule to the NDPS Act via Notification dated 10.02.2011. The petitioner argued that this notification was issued without following the mandatory statutory requirements under Section 3 of the NDPS Act. It was contended that 'Ketamine' is not listed as a psychotropic substance under the Convention on Psychotropic Substances, 1971, and hence should not have been included in the Schedule.

2. Challenge to the consequential Notification dated 21.06.2011 specifying 'small' and 'commercial' quantities of Ketamine:
The petitioner also challenged the Notification dated 21.06.2011, which specified the 'small' and 'commercial' quantities of Ketamine as '10 gms' and '500 gms' respectively. The petitioner argued that this notification was a consequence of the illegal inclusion of Ketamine in the list of psychotropic substances and hence should be quashed.

3. Compliance with mandatory statutory requirements under Section 3 of the NDPS Act:
The petitioner argued that the Notification dated 10.02.2011 was issued without complying with the mandatory requirements of Section 3 of the NDPS Act. Section 3 requires the Central Government to be satisfied based on (a) information and evidence regarding the nature, effects, and abuse of the substance, and (b) modifications or provisions in any International Convention. The petitioner contended that both conditions must be satisfied conjunctively before issuing such a notification.

4. Interpretation of Section 3 of the NDPS Act regarding the conjunctive or disjunctive reading of Clauses (a) and (b):
The court examined whether Clauses (a) and (b) of Section 3 of the NDPS Act should be read conjunctively or disjunctively. The petitioner argued for a conjunctive reading, meaning both conditions must be met. The respondent contended that the clauses are disjunctive, meaning either condition could suffice for the issuance of the notification.

Consideration on Merits:

Compliance with Section 3 of the NDPS Act:
The court noted that Section 3 of the NDPS Act allows the Central Government to add substances to the list of psychotropic substances if satisfied based on information and evidence regarding the substance's abuse or scope for abuse, or modifications in international conventions. The court found that the phrase "if any" in Clause (b) indicates that this clause is not mandatory. Thus, Clause (a) and Clause (b) should be read disjunctively.

Validity of the Notifications:
The court held that the word "and" between Clauses (a) and (b) should be read as "or" to give effect to the legislative intent. The court found that there was sufficient material before the respondent regarding the abuse and trafficking of Ketamine. The recommendations from the Commission on Narcotic Drugs (CND) and the International Narcotics Control Board (INCB) to control Ketamine were also noted.

Judgment:
The court concluded that the Notification dated 10.02.2011, including Ketamine in the list of psychotropic substances, was valid and issued within the powers conferred by Section 3 of the NDPS Act. Consequently, the challenge to the Notification dated 21.06.2011 specifying the 'small' and 'commercial' quantities of Ketamine also failed. The writ petition was dismissed, and the court did not find merit in any of the petitioner's contentions.