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TMI Blog2009 (5) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner Rajesh Sharma in WP (CRL) 326/2009 was made on 27.02.2009, whereas the detention order in respect of the petitioner Nafe Singh in WP (CRL) 384/2009 was made on 13.03.2009. 2. Both Rajesh Sharma and Nafe Singh were arrested with other co- accused Diwakar Gupta and Amit Kohli on 06.05.2008 on the allegation that they had indulged in illegal trading of diazepam, lorazepam, alprazolam, clonazepam and phenobarbitone. These are all drugs specified in Schedule 'H' to the Drugs and Cosmetics Rules, 1945. It is also an admitted position that they are psychotropic substances and are specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'). However, these substances are not mentioned in Schedule-I to the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as 'the NDPS Rules'). 3. Both Rajesh Sharma and Nafe Singh applied for bail. Their bail applications were rejected by the learned Special Judge, NDPS, New Delhi on 31.10.2008. Thereafter, two of the co-accused, namely, Diwakar Gupta and Amit Kohli filed bail applications before this court. However, the same were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to Section 8 of the NDPS Act. Lastly, Mr Tulsi submitted that personal liberty is so sacrosanct and so high in the scale of the constitutional values that it places an obligation on the detaining authority to show that the order of detention meticulously accords with the procedure established by law. He submitted that what the petitioners are alleged to be doing was not an offence under the NDPS Act and, therefore, would not be covered by the expression 'illicit trafficking'. Thus, according to him, the detention orders could not have been made when the alleged act was itself not an offence. He submitted, in the context of the seriousness of the problem of 'illicit trafficking' in drugs and psychotropic substances, that when it comes to infringement of fundamental rights, the High Court, irrespective of the severity and gravity of the evil, has to intervene as the gravity of evil cannot furnish sufficient reasons for invading the personal liberty of citizens except for and in accordance with the procedure established by law. Elaborating on these submissions, Mr Tulsi contended that the non-application of mind by the detaining authority is writ large on the detention order itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen it is the admitted position that they were allopathic drugs which find mention in Schedule 'H' of the Drugs and Cosmetics Rules, 1945. Consequently, it was submitted that there was no violation of the provisions of the NDPS Act and, therefore, the activity allegedly indulged in by the petitioners could not be regarded as 'illicit traffic' within the meaning of Section 2 (e) of the PIT-NDPS Act. 6. Mr P.P. Malhotra, the learned Additional Solicitor General of India, appearing on behalf of the respondents, submitted that the decision of the Supreme Court in the case of Rajesh Kumar Gupta (supra) did not have any application to the facts of the present petitions for various reasons. First of all, according to him, the said judgment did not decide the merits of the matter as to whether the NDPS Act was applicable or not in the case of export out of India of the psychotropic substances mentioned in the Schedule to the NDPS Act. He also contended that the said decision did not deal with Sections 8 and 22 of the NDPS Act nor with Rule 58 of the NDPS Rules. Furthermore, he submitted that the said decision arose in the context of a bail application, under Section 37 of the NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." "80. Application of the Drugs and Cosmetics Act, 1940 not barred.-- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder." NDPS Rules CHAPTER VI IMPORT EXPORT AND TRANSHIPMENT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES 53. General prohibition.--Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office box or through a bank is prohibited." 8. Mr Malhotra submitted that on a plain reading of Section 8 of the NDPS Act, it is clear that no person can export from India any narcotic drug or psychotropic substance except for medical or scientific purposes and that, too, in the manner and extent provided under the NDPS Act or the NDPS Rules. He submitted that the manner and extent indicated under the said Act and the Rules impose a requirement by way of licence, permit or authorisation. Rule 58 deals with application for export authorisation. According to him, Rule 53 deals with psychotropic substances specified in Schedule-I to the NDPS Rules. However, Rule 58 deals with psychotropic substances specified in the Schedule to the NDPS Act. He submitted that no word of an Act or the Rules could be said to be redundant. The legislature is deemed to be aware of the language used by it in the Act. The Central Government, in framing the NDPS Rules, is also deemed to be aware of the distinction between the Schedule to the Act and Schedule-I to the NDPS Rules. He submitted that the different language employed in Rule 58 compared with that employed in Rule 53 clearly demonstrates that Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.: 2000 (5) SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case: 1996 (3) SCC 88. In Nanjudaiah case:1996 (10) SCC 619, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only Clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent." 10. It was further contended by Mr Malhotra that the petitioners have acted in violation of Section 8 of the NDPS Act inasmuch as they have indulged in the export of psychotropic substances in contravention of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present writ petitions, have purportedly been made under Section 3(1) of the PIT- NDPS Act. The said provision reads as under:- "3. Power to make orders detaining certain persons.-- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained." It is apparent that a detention order is made with a view to preventing a person from engaging in 'illicit traffic in narcotic drugs and psychotropic substances'. Section 2(e) of the PIT-NDPS Act defines illicit traffic in the following manner, to the extent relevant:- "2. Definitions.--In this Act, unless the context otherwise requires, -- (a) xxxx xxxx xxxx xxxx (b) xxxx xxxx xxxx xxxx (c) xxxx xxxx xxxx xxxx (d) xxxx xxxx xxxx xxxx (e) ―illicit traffic‖, in relation to narcotic drugs and ps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the NDPS Act would have to be taken. 'Psychotropic substances' has been defined in Section 2 (xxiii) as under:- "2. Definitions.--In this Act, unless the context otherwise requires, -- xxxxx xxxxx xxxxx xxxxx xxxxx (xxiii) "Psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule." 16. In the present petitions, there is no dispute that the substances in question are psychotropic substances within the meaning of a psychotropic substance under Section 2 (xxiii) of the NDPS Act. All of them find mention in the Schedule to the NDPS Act. Alprazolam is mentioned at S.No. 30, clonazepam is mentioned at S.No.38, diazepam is mentioned at S.No.43, lorazepam is mentioned at S.No.56 and phenobarbitol is mentioned at S.No.69 of the Schedule to the NDPS Act. However, these psychotropic substances do not find mention in Schedule-I to the NDPS Rules. 17. As already pointed out, there is no dispute that the substances in question, in which the petitioners are allegedly said to be involved in the trade of export f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the narcotic drug and psychotropic substance, which is to be imported into or exported out of India, is subject to an import certificate or export authorisation issued under the provisions of Chapter VI and for the purposes mentioned in Chapter VII-A. It is, therefore, clear that Rule 53 relates only to those psychotropic substances which are specified in Schedule-I to the NDPS Rules. The prohibition does not extend to all psychotropic substances mentioned in the Schedule to the NDPS Act, but only to those which are specified in Schedule-I to the NDPS Rules. The proviso to Rule 53 would only apply to the psychotropic substances specified in Schedule- I and, therefore, the provisions of Chapter VII-A would only be triggered if the psychotropic substances which are sought to be imported into or exported out of India find place in Schedule-I to the NDPS Rules. 20. Much reliance was placed by Mr Malhotra on the provisions of Rule 58 of the NDPS Rules to submit that since this rule only mentions psychotropic substances specified in the Schedule to the Act, no psychotropic substance, whether mentioned in Schedule-I to the NDPS Rules or not, could be exported out of India without an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on only extends to the psychotropic substances mentioned in Schedule-I to the NDPS Rules and not to all psychotropic substances mentioned in the schedule to the NDPS Act. 21. Another reason for not agreeing with the submissions made by Mr Malhotra is that if it is accepted that any psychotropic substance specified in the Schedule to the NDPS Act would require export authorisation before it could be exported out of India, then it would mean that the general prohibition contained in Rule 53 would be rendered redundant. It is obvious that all psychotropic substances mentioned in Schedule-I to the NDPS Rules are also included in the Schedule to the NDPS Act, but not the other way round. This is so because the list of psychotropic substances provided under Schedule-I to the NDPS Rules is a sub-set of the larger list of the psychotropic substances specified in the Schedule to the NDPS Act. If Rule 58 were to be read in the manner suggested by Mr Malhotra, then irrespective of the general prohibition contained in Rule 53, even those psychotropic substances which find mention in Schedule-I to the NDPS Rules, would be permitted to be exported out of India, of course, after an export author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave committed any offence under Section 8 read with Section 22 of the NDPS Act. In this connection, the Supreme Court analysed various provisions of the NDPS Act and the NDPS Rules, including Sections 8 and 22 of the NDPS Act and Rule 53 of the NDPS Rules. While construing the prohibition contained in Section 8 of the NDPS Act, the Supreme Court observed as under:- "... The said provision contains an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder." 23. The Supreme Court specifically observed that it had not been brought to their notice that the NDPS Act provided for the manner and extent of the passion of the contraband. The NDPS Rules, however, provided for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, import, export, etc. of the contraband. In this connection, the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to the NDPS Rules. In this context, the Supreme Court made a categorical observation as under:- ... If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.‖ The Supreme Court further observed that:- In view of the fact that all the drugs being Item No. 1, 2, 3, 4, 6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes". Consequently, the Supreme Court was of the view that inasmuch as the NDPS Act would in itself not apply, Section 37 thereof would, prima facie have no application in view of the exception contained in Section 8 thereof read with the NDPS Rules. Resultantly, the Supreme Court declined to interfere with the order of the High Court granting bail. 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e essential for ascertaining the true and correct legal position. Insofar as the law is concerned, the Supreme Court considered the same in Rajesh Kumar Gupta (supra) and gave its conclusive verdict thereon. The decision was prima facie not on a point of law, but on the question of facts. 26. In any event, an obiter dictum of the Supreme Court is normally considered to be binding on the High Courts in the absence of a direct pronouncement on that question elsewhere by the Supreme Court. This is exactly what was held by the Supreme Court in Oriental Insurance Company Limited v.Meena Variyal & Others: 2007 (5) SCC 428. Furthermore, even if the observations were to be regarded as obiter dicta, as pointed out in Commissioner of Income-tax, Hyderabad- deccan v. Vazir Sultan & Sons: 1959 Supp (2) SCR 375, the obiter dicta of the Supreme Court are entitled to considerable weight. The same view is expressed by the Supreme Court in Director of Settlements, A.P. v. M.R. Apparao (supra) where the Supreme Court observed:- "Such an obiter may not have a binding precedent ..... , but it cannot be denied that it is of considerable weight." 27. In State of Haryana v. Ranbir @ Rana: 2006 (5) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Rules is sub-servient to Rule 53. Consequently, Rule 58 would only come into play in respect of psychotropic substances which are listed in the Schedule to the NDPS Act but do not find mention in Schedule-I to the NDPS Rules. It is for this reason that Rule 58 only refers to the psychotropic substances mentioned in the Schedule to the Act because those psychotropic substances which find mention in Schedule-I to the NDPS Rules are clearly prohibited and for which no authorisation can be granted whatsoever. 32. As indicated above, Mr Malhotra had placed reliance on the decision of the Supreme Court in Ahmadalieva Nodira (supra) and had submitted that this decision being that of a Bench comprising of three Hon'ble Judges of the Supreme Court would override the decision in Rajesh Kumar Gupta (supra) which was rendered by a Bench comprising of only two Hon'ble Judges of the Supreme Court. First of all, there is nothing in this decision which contradicts what has been considered and settled in Rajesh Kumar Gupta (supra). In Ahmadalieva Nodira (supra), the provisions of the NDPS Rules were not even considered nor was the issue of Schedule-I to the NDPS Rules in contrast to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear indications that the export of the psychotropic substances in question, not being part of Schedule-I to the NDPS Rules, would per se not amount to an activity prohibited under the NDPS Act read with the NDPS Rules. In the worst, from the standpoint of the petitioners, the question as to whether their alleged activity falls within the expression 'illicit traffic' would be a debatable one. It is obvious that where it is a clear case that the alleged activity, even if taken to be established against the petitioners, does not amount to illicit traffic, there is no question of maintaining the detention orders. But, even if the issue is debatable as to whether the activities of the petitioners fall within the expression 'illicit traffic', we feel that a detention order would still not be a prophylactic which would be available to the executive under the Constitutional regime. The reason is obvious. Personal liberty is a hallowed right of any person. It cannot be taken away when the very act which is sought to be prevented cannot definitely be classified as an illegal or prohibited act falling within the expression 'illicit traffic in psychotropic substances‖ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Claues (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission: "May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at'‖ least those safeguards are not denied to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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