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TMI Blog2020 (4) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.11.2009 adding Note 5 of the clause to the Notification S.O.1055(E) dated 19.10.2001 fails. Application disposed off. - CRIMINAL APPEAL NO. 722 OF 2017 - - - Dated:- 22-4-2020 - CIVIL APPEAL NO. 5218 OF 2017 CRIMINAL APPEAL NO. 721 OF 2017 WRIT PETITION(CRIMINAL) NO.186/2014 CRIMINAL APPEAL NO. 444 OF 2016 CRIMINAL APPEAL NO. 1557 OF 2017 WRIT PETITION (CRL.) NO. 77 OF 2016 CRIMINAL APPEAL NO. 884 OF 2016 CRIMINAL APPEAL NO. 984 OF 2016 WRIT PETITION(CRL.) NO. 154 OF 2016 CRIMINAL APPEAL NO. 388 OF 2017 CRIMINAL APPEAL NO. 1678 OF 2017 CRIMINAL APPEAL NO. 2156 OF 2017 CRIMINAL APPEAL NO. 2155 OF 2017 JUSTICE ARUN MISHRA, JUSTICE INDIRA BANERJEE And JUSTICE M. R. SHAH For the Appellant : Mr. Renjith B. Marar,Adv. Ms. Lakshmi N. Kaimal, AOR Mr. Anupam Mishra, AOR Mr. P. D. Sharma, AOR Mr. Sudhir Kumar Gupta, AOR Mr. B. Krishna Prasad, AOR Mr. Nikhil Jain, AOR Mr. Anis Ahmed Khan, AOR Mr. Shree Pal Singh, AOR Ms. Upasana Nath, AOR Mr. Ajay Kumar, AOR For the Respondent : Mr. Anand Grover,Sr.Adv. Ms. Tripti Tandon,Adv. Ms. Nupur Kumar,Adv. Mr. Samyak Gangwal,Adv. Mr. Sunil Fernandes, AOR Mr. Vinod Sharma, AOR Mr. Jagjit Singh Chhabra, AOR Mr. B. V. Balaram Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purposes of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration is clearly wrong and as such contrary to the entire scheme of the NDPS Act. He argued that if the entire scheme including the object and purpose of the NDPS Act is considered, it can be seen that where drugs are sold as mixture the determination for the purposes of punishment would be aggregated quantity of the mixture; 2.1 In the case of E Micheal Raj (supra), this Court has failed to consider that the expression offending material finds no mention in the NDPS Act. It is submitted that it is also not the intention of the legislature to levy punishment based on content of the offending drug in the mixture. It is submitted that in the case of E Micheal Raj (supra), this Court has erred in relying upon the decision in the case of Ouseph v. State of Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered preparation of psychotropic substance and was not based on pure substance content. Even Section 2(xiv) of the NDPS Act, as originally enacted, defined narcotic drugs , they were defined to mean (i) Coca leaf; (ii) Cannabis; (iii) Opium; (iv) Poppy Straw; and (v) Manufactured drugs. Each of the above was defined separately. Therefore, even in the NDPS Act, as originally enacted, the narcotic drugs included their mixtures and preparations. It is only in the definition of poppy straw that the expression mixture or preparation finds no mention; 2.5 He argued that the only provision in the NDPS Act, as originally enacted, which specified the quantity was Section 27, the said section mentioned small quantity or narcotic drugs or psychotropic substance and provided for milder punishment where it is proved that possession in contravention of the NDPS Act or rule was intended for personal consumption or there was consumption of any narcotic drug or psychotropic substance. It is submitted that small quantity was notified in Notification No. S.O.827 of 14.11.1985 which included only 5 drugs. By subsequent notifications, additions were made and more drugs were included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which were added needed to be read with the provisions of the statute which already stood therein and had not been amended. This was consistent with the scheme of the NDPS Act, as originally enacted. The amendment did not in any manner whatsoever tinker with the same. It is for this reason that the amended Act referred in the newly inserted clauses to commercial quantity and small quantity . The emphasis therefore was on the quantity in relation to the drug/substance and not the content of the drug/substance. It was never the intent to modify the application of the statute to deal with pure quantity of the narcotic drugs and psychotropic substance. The same came to be reinforced by the notification published by the Central Government after coming of the 2001 Amendment which contained Note 2 as under: 2. The quantities shown against the respective drugs listed above also apply to the preparations of the drugs and the preparations of the substances of Note 1 above. It is submitted that what was provided in Note 2 was always there since the original enactment. 2.8 He argued that the small quantity now mentioned in the notification is much higher than the small q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stribution. The U.S. Supreme Court rejected the said contention and observed and held as under: We think that petitioners reading of the statute, a reading that makes the penalty turn on the net weight of the drug rather than the gross weight of the carrier and drug together is not a plausible one. The statute refers to a mixture or substance containing a detectable amount . So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence. This reading is confirmed by the structure of the statute. With respect to various drugs, including heroin, cocaine, and LSD, it provides for mandatory minimum sentences for crimes involving certain weights of a mixture or substance containing a detectable amount of the drugs. With respect to other drugs, however, namely phencyclidine (PCP) or methamphetamine, it provides for a mandatory minimum sentence based either on the weight of a mixture or substance containing a detectable amount of the drug, or on lower weights of pure PCP or methamphetamine. For example, S. 841(b)(1)(A)(iv) provides for a mandatory 10 year minimum sentence for any person who distributes 100 grams or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the minor punishment; 2.11 It is further argued that as per the Crawford on Interpretation of Law (Statutory Construction) the Court should strive to avoid a construction which will tend to make the statute unjust, oppressive, unreasonable, absurd, mischievous or contrary to the public interest. That construction should be accepted which will make the statute effective and productive of the most good, as it is presumed that these results were intended by the legislature. In order to carry out the legislature intent, it is therefore apparent that the statute should be given a rational, logical and sensible interpretation ; 2.12 It is further pointed out that the NDPS Act has been passed as per Statement of Object and Reasons, to strengthen the existing controls over drug abuse, considerably enhanced the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances . The stringency of control cannot disregard the conditions in which the Act applies. The definitions clearly show that the object of the Act was to deal with the street weight of the drugs in the diluted form in which they are sold and not the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 has made the following submissions: 3.1 That the challenge in the present appeal is to the impugned 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. The Central Government did not have the power to issue the impugned notification by which it has empowered the inclusion of quantity of the neutral material also along with the quantity of the narcotic drugs or psychotropic substances in columns 5 6 of the table, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in column nos. 2 to 4 of the said table. Such power to include the neutral material is not provided under clauses (viia) and (xxiiia) of Section 2 of the NDPS Act. Thus, the impugned notification dated 18.11.2019 is ultra vires the provisions of the NDPS Act, read with the amended 2001 Act which brought about rationalisation in awarding the punishment; 3.2 By the impugned notification, Note 4 has been added after Note 3 at the end of the table appended to the NDPS Act, included vide Notification S.O. 1055 (E) dated 19.10.2001, whereby the notification was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the NDPS Act, then it should have been mentioned under column no.2 and 4 of the table and then correspondingly the quantity of the neutral material would also have been specified under small quantity and commercial quantity under column nos. 5 and 6 of the table. Since neutral material is neither a narcotic drug nor a psychotropic substance, it has not been mentioned under column nos. 2 and 4 and, therefore, cannot be made punishable under Note 4; 3.6 In the year 2001, NDPS (Amendment) Act, 2001 was brought to rationalise the quantum of punishment for addicts and less serious offenders and severe punishment for serious offenders; 3.7 This Court in the case of E.Micheal Raj (supra) held that only the quantity of the offending article is to be taken into consideration for the purpose of punishment. If it has been mixed with any other substance, which is nonoffending substance, then not the whole bulk is to be taken into consideration and that the punishment must be graded in relation to the quantity of the offending article only; 3.8 A person can be convicted and punished only to the extent it has been specifically provided under the provisions of the NDPS Act. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfined to the places permitted by the Act. Note 4 is to be limited to only such areas where neutral material is permitted by the Act. Only then Note 4 would be serving a clarificatory purpose; 4.2 In the event Note 4 goes beyond this, then Note 4 seeks to add something which is not in the Act. In that event, Note 4 would be legislating, identifying and defining what would constitute a criminal offence and in the process, Note 4 would be expanding the area covered by the Act. It is submitted that this would be impermissible in law. If neutral material is included across the board in all the narcotic drugs or psychotropic substances, then the object of the 2001 Amendment Act to rationalize sentence structure would be frustrated; 4.3 The Judgment of this Court in the case of E. Micheal Raj (supra) had noticed the distinction between small quantity and commercial quantity and the Objects and Reasons of the 2001 Amendment Act. It is thereafter that the Court concludes that the 2001 Amendment Act makes punishable vis- -vis the offending substance . It is submitted that there was no need to discuss Entry No. 239 of the 2001 notification in detail in the said judgment as Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list of manufactured drugs vide Notification S.O. 826(E) dated 14/11/1985, Notification S.O. 40(E) dated 29/02/1993 and Notification S.O. 1431(E) dated 21.6.2011 (hereinafter collectively referred to as notification on manufactured drugs ). ii) Similar exemptions are contained at Entries at Sl. No. 35, 36, 37, 48, 70, 76, 83 and 87 of the notification on manufactured drugs. 5.5 The impugned notification is, therefore, inconsistent with the notification on manufactured drugs issued by the Central Government in exercise of powers conferred by section 2(xi)(b) of the NDPS Act to declare a narcotic substance or preparation to be a manufactured drug or not to be a manufactured drug; 5.6 He argued that for legitimate entities like the members of the Applicant IDMA, the impugned notification leads to arbitrary and absurd consequences in that the license is given in terms of actual quantity of the drug, while punishment is imposed on the basis or total bulk quantity; 5.7 The Respondent was aware that the impugned notification is beyond the powers conferred under sections 2(viia) and (xxiiia) for notifying commercial and small quantities of narcotic drugs and psychotr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (LSD)]. The wording in Entry 239 of 2001 notification is similar to that in entry (viii) in the Table to section 31A of the NDPS Act, which also deals with a mixture of two or more drugs. That neither entry (viii) in the Table to section 31A of the NDPS Act nor Entry 239 of the 2001 notification suggest that in a mixture of two or more narcotic drugs, the weight of the entire mixture i.e. the aggregate weight of both the drugs has to be taken into consideration; 5.10 In determining the quantity involved in a mixture of two or more drugs, it is the substance with a lesser or lower threshold, whether for small or commercial quantity, which will be used as the reference. To illustrate, a mixture weighing 200 gms is seized. The constituents of the said seizure are: - 110 gms of charas and 90 gms of ganja. As per the 2001 notification, the small quantity of charas at entry 23 is 100 gms while the small quantity of ganja at entry 55 is 1000 gms or 1 kg. By virtue of Entry 239, the quantity seized in this case will be determined in relation to charas and not in relation to ganja. Accordingly, the person from whom such seizure is effected will be liable for intermediate quantity [qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire mixture or any solution or any one or more narcotic drugs or psychotropic substance of the particular drug in dosage form or isomers, esters, ethers and salts or these drugs, including salts or esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. 6.1 At the outset, it is pertinent to note that as such prior to the decision of this Court in the case of E.Micheal Raj (supra) taking the view that in the mixture of narcotic drugs or psychotropic substance that one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and 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 , a consistent view was that for the purpose of determining a small quantity or commercial quantity the weight of entire manufactured drug / preparation / mixture seized including that of the neutral substance is required to be taken into consideration. However, for the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term 'small quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material is 'small quantity', `commercial quantity or something in-between. 15. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not at all in direct consideration of this Court. 6.4. Even it does not appear that this Court took into consideration Note 2 of the Notification dated 19.10.2001, which reads as follows: The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of substances of note 1 above. If note 2 would have been considered by this Court and seized material was Heroin in that case and what was seized was 4.5 kg heroin, the Court would have considered the same as a commercial quantity as considering Entry 56, 5gms is small quantity and 250 gms and above is a commercial quantity . Therefore, as such, we are not in agreement with the view taken by this Court in the case of E.Micheal Raj (Supra) taking the view that in 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 . 7. Even considering the reasons while arrivin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial quantity, this Court has read more than what was stated in the Statement of Objects and Reasons. 7.1 Therefore, while deciding the case in the case of E.Micheal Raj (Supra), this Court had not at all considered Note 2 to the Notification dated 19.10.2001 and has read much more than what is stated in the Statement of Objects and Reasons of Amendment Act, 2001 and for the reasons stated herein below, even on merits also, we are not in agreement with the view taken by this Court in the case of E.Micheal Raj (Supra) that for the purpose of determining the small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), the quantity of neutral substance(s) is not to be taken into consideration or it is only the actual content by weight of the offending drug which is relevant. At this stage, it is required to be noted that even before this Court in the case of E.Micheal Raj (Supra), it was a case of heroin and not at all case of mixture falling in entry 239 of the Notification dated 19.10.2001. 8. On merits whether any mixture of narcotic drugs or psychotropic substances with one or more neutral su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take into account the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. It is further observed that in given circumstances, it is permissible for courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile. 8.2 Therefore, 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. Right fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute which is not there and/or it was never intended by the legislature. 8.3 At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be cut with a variety of different substances. This means that drug dealer will add other drugs or non -intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown-sugar / smack is usually made available in power form. The substances is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, 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. 9. Now, so far as the challenge to the impugned Notification No.2942(E) dated 18.11.2009 issued by the Union of India, by which, Note 4 has been added to the Notification S.O.1055(E) dated 19.10.2001 specifying small quantity and commercial quantity of the narcotic drugs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; (II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the small or commercial quantity of the Narcotic Drugs or Psychotropic Substances; (III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001; (IV). Challenge to Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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