Hira Singh and Another vs Union of India and Another

HELD: 1. In the case of E.Micheal Raj, 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 given by this Court that it would fall under Entry 239 namely any mixture or preparation that of with or without the neutral material. Therefore, the case of mixture of narcotic drugs or psychotropic substance was not at all in direct consideration of this Court. Even it does not appear that this Court took into consideration Note 2 of the Notification dated 19.10.2001. 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”. The Statement of Objects and Reasons concerning the Amendment Act, 2001 was also not properly appreciated and/or considered and/or properly construed. Considering the statement of objects and reasons concerning the Amendment Act of 2001, by which, two tier punishment was provided one for small quantity and another for commercial quantity, it cannot be said that intention of the legislature was to consider only the actual content by weight of offending drug for the purpose of determining whether it would constitute small quantity or commercial quantity. [Paras 6.3, 6.4, 7] [1154-E-H; 1155-A-D]

2. As per the preamble of NDPS Act, 1985, it is an Act to consolidate and amend the law relating to Narcotic Drugs, to make stringent provisions for the control andregulation of operation relating to Narcotic Drugs and Psychotropic Substances and to provide for forfeiture of the property derived from or use in illicit traffic in Narcotic Drugs and Psychotropic Substance. The Statement of objects and reasons and the preamble of the NDPS Act imply that the Act is required to act as a deterrent and the provisions must be stringent enough to ensure that the same act as deterrents and 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 determining whether it would constitute small quantity or commercial quantity. Right from subclause (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 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”. Note 2 of 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. 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, 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, 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. 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. 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 subject to what is stated hereinabove. If the view taken by this Court in the case of E. Micheal Raj 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. [Para 8.2] [1158-B-H; 1158-A-B]

3. It is important to note 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 power 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 powder 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 more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, 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”. Certainly that would not have been the intention of the legislature. Even considering the definition of “manufacture”, “manufactured drug” and the “preparation” conjointly, the total weight of such “manufactured drug” or “preparation”, including the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects and purpose of NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of NDPS Act viz. to Act is deterrent. [Paras 8.3, 8.4] [1159-C-H; 1160-A]

4. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime, control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857, the Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. The Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. 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. [Para 8.5] [1160-B-F]

5. 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 and psychotropic substance covered under the NDPS Act, 1985 can be said to be clarificatory in nature and / or by way of ex abundanti cautela/abundant caution. [Para 9] [1160-H; 1161-A]

E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 : [2008] 4 SCR 644 – Not good law.

Md. Jaffar Alam v. The State, Criminal Misc. Case No. 37461 of 2011 ; Directorate of Enforcement v. Deepak Mahajan and Another (1994) 3 SCC 440 : [1994] 1 SCR 445 ; Ouseph v. State of Kerala (2004) 4 SCC

446 ; Murlidhar Meghraj Loya and Another v. State of Maharashtra and Others (1976) 3 SCC 684 : [1977]

1 SCR 1 ; Reema Aggarwal v. Anupam and Others (2004) 3 SCC 199 : [2004] 1 SCR 378 ; Rajinder Singh v. State of Punjab (2015) 6 SCC 477 : [2015] 2 SCR 835 – referred to.

Chapman v. United States (1991) 500 US 453 – referred to.