While determining the “small or commercial quantity” of the Narcotic Drugs, no exclusion of quantity of neutral substance(s): SC

The SC on April 22, 2020 {HIRA SINGH AND ANOTHER v. UNION OF INDIA AND ANOTHER} held that 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.

It was further held by the SC Bench, comprising of Justice Arun Mishra,  Justice Indira Banerjee & Justice M. R. Shah, the decision of the Supreme Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 - 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.

It was observed that 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.

It was held, 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. It was held that right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (Sections 21, 22, 23, 24, 27 and 43). Even in the table attached to the Notification dated 19.10.2001, column no. 2 is with respect to name of Narcotic Drug and Psychotropic Substance and column nos. 5 and 6 are with respect to “small quantity and commercial quantity”. It was observed that Note 2 of the Notification dated 19.10.2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. And, as per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the table apply to isomers ..., whenever existence of such substance is possible.

Therefore, it was held that for the determination of “small quantity or the commercial quantity” with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no.2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, it was observed that in the case of mixture of the narcotic drugs / psychotropic drugs mentioned in column no.2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. That is, as per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered. It was held that 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. 

It was held that if the view taken earlier by the Supreme Court in the case of E. Micheal Raj (Supra) 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. 

Therefore, it was held that if it is accepted that it is 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, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for “commercial quantity”. It was observed that certainly that would not have been the intention of the legislature.

It was held that Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification were dismissed.

In the present case, the matter was referred to three judges Bench of the SC for answering the question, that is,  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 ? In other words, the question as to whether while 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 for the purpose of determining whether it would constitute small quantity or commercial quantity?

The Reference was answered as aforesaid by the SC, by overruling the earlier judgment of the SC in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161.