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TMI Blog2017 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. - W. P. (C) 11416/2015 - - - Dated:- 11-4-2017 - Ms. G. Rohini, CJ And Jayant Nath, JJ. For the Petitioner : Mr. Anand Grover, Sr. Adv. with Mr.Saurabh Chauhan, Mr.Varun Jain and Ms.Tripati Tandon, Advocates For the Respondent : Mr. Sanjeev Narula, CGSC with M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 whereby 'Ketamine' has been included in the list of psychotropic substances and the consequential Notification dated 21.06.2011 specifying the 'small' and 'commercial' quantities of 'Ketamine' for the purpose of penal provisions under the Act may be extracted hereunder: MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 10th February, 2011 S.O. 311(E). - Whereas the Central Government is satisfied, on the basis of information and evidence which has become available to it with respect to the nature and effect of, or the scope of abuse or, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material, that it is necessary or expedient to add the following substance or natural material or salt or preparation of such substance or material in the list of psychotropic substances specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) Act; Now, therefore, in exercise of the powers conferred by Section 3 of the said Act, the Central Government hereby makes the following addition in the list of psychotropic substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2 gm. 238D Amineptine (7-[10,11-dihydro-5H- dibenxo [a,d] cyclohepten- 5-yl) amino] heptanoic acid 20 1 kg. 238E Ketamine 2-(2-chlorphenyl)-2- (methylamino) cyclohexanone 10 500 gm. [F.No. N-11012/2/2011-NC-II] SATYANARAYANA DASH, Under Secy. 6. We have heard Shri Anand Grover, the learned Senior Counsel appearing for the petitioner and Shri Sanjeev Narula, the learned Central Government Standing Counsel appearing for the respondent/UOI. 7. The submissions made on behalf of the petitioner challenging the impugned Notification dated 10.02.2011 may be summarised as under: (i) The impugned Notification has been issued without following the procedure established under Section 3 of the NDPS Act and therefore on that ground itself, the impugned notification is liable to be struck down. (ii) 'Ketamine' is not a psychotropic substance under the Convention on Psychotropic Substances, 1971 whereas all other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions and the overall scheme of the NDPS Act shows that to delegate the power to the executive including the power to undertake measures and make statutory rules, the legislature intended that the executive be guided by International Conventions on narcotic drugs and psychotropic substances. 10. It is also submitted by the learned Senior Counsel appearing for the petitioner that the compliance with sub-section (a) of Section 3 of the NDPS Act is also not fulfilled since the abuse of 'Ketamine' in India is not too much as is evident from the information furnished on an application under the RTI Act by the Ministry of Social Justice and Empowerment, Government which is a nodal Ministry and National Drug Dependence Treatment Centre, AIIMS, Ghaziabad, the Nodal Agency. 11. Moreover, Clause (a) of Section 3 of the NDPS Act requires the respondent to have information and evidence with respect to the abuse or the scope of abuse of Ketamine in the country and no such information was available with the respondent at the time of issuing the impugned Notification. Thus, the Notification dated 10.02.2011 has been issued without complying with the provisions of sub sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead abuse and trafficking in Ketamine, in particular in East and South-East Asia which also affects States in other regions and to consider controlling the use of Ketamine by placing it on the list of substances controlled under their National legislation where the domestic situation so requires. Subsequently, in its 50th Session also, the Commission had adopted another resolution similar to the one adopted in the 49th Session. 13. In accordance with the Single Convention on Narcotic Drugs, 1961, in the year 1968, the International Narcotics Control Board was established as an independent and quasi-judicial body to implement the United Nations International Drug conventions. In its annual report for the year 2008, the International Narcotics Control Board, while welcoming the adoption by the Commission on Narcotic Drugs of its resolutions in its 49th and 50th Sessions, called upon all Governments to implement them without delay. 14. As far as the challenge to the Notification dated 21.06.2011 is concerned, it is submitted by the respondents that Section 2(viia) and (xxiiia) of the NDPS Act empower the Central Government to notify the commercial quantity and small quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. (viia) commercial quantity , in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette; (xxiiia) small quantity , in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. 18. It is no doubt true that the phrase and has been employed in between Clause (a) and Clause (b) of Section 3 of the NDPS Act, however, we do not find any substance in the contention on behalf of the petitioner that both Clause (a) and Clause (b) are conjunctive. It is relevant to note that Clause (b) of Section 3 expressly provides that the modifications or provisions (if any) which have been made to any International Convention with respect to such substance, natural material or salt or preparation of such substance or material. It appears to us that the phrase if any employed in Section 3(b) manifests the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for investing the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc., with the power 'of investigation of offences under the said laws. (iii) Since the enactment of the aforesaid three Central Acts a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions , which entail several obligations which are not covered or are only partly covered by the present Acts. (iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded. 2. In view of what has been stated above, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c case of the respondent that Ketamine which is a popular anaesthetic in veterinary medicine is subject to abuse and the same is gradually rising in India and that there were reports of abuse of Ketamine on a large scale in some South-East Asian countries and there had been persistent complaints from the said countries about the trafficking of Ketamine in India. It is also explained that Ketamine has a wide range of effects in human including analgesic, anaesthesia, hallucination, elevated blood pressure and bronchodilation. 24. It is also the specific case of the respondent that prior to the issuance of the Notification dated 10.02.2011, the only control over Ketamine was through a Notification issued by the Director of Foreign Trade, as per which, prior to the export of Ketamine from India, a No Objection Certificate was required from Narcotics Commissioner. Although there were several seizures of consignments of Ketamine attempted to be smuggled out of India, in order to provide more deterrent measures against trafficking of Ketamine, it was felt necessary to notify it as a psychotropic substance under the NDPS Act also. 25. In the light of the legal position noticed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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