2022 (9) TMI 1151 - HC - Indian Laws

Supreme Court: Consider Neutral Substance Weight in Drug Cases.

MOHD AHSAN Versus CUSTOMS

The Supreme Court held in the case that the weight of the neutral substance cannot be ignored when determining the nature of the quantity seized in cases ... Commercial quantity under the NDPS Act - percentage of a narcotic drug - recovery of 110 bottles of Phensedyl New weighing 100 gms each and having a Codeine concentration of 0.17% per bottle - Seeking grant of bail In case of manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between or not? Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug? HELD THAT:- It is an admitted position that in the present case, the seized substance i.e. 110 bottles of ‘Phensedyl New’ is a ‘preparation’ within the meaning of Section 2(xx) of the NDPS Act. Such ‘preparation’ to be declared as ‘manufactured drug’ would have to be notified by the Central Government under Section 2(xi)(b) of the NDPS Act. All ‘manufactured drugs’ are included within the definition of the ‘narcotic drug’ under Section 2(xiv) of the NDPS Act. In other words, a preparation to be included in the NDPS Act, would at the first instance have to be declared a ‘manufactured drug’. At this stage, it is also pertinent to take note of Entry 35 in notification titled “Manufactured Narcotics Drug” (as contained in Government of India Notification No. S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 21.09.1993 and S.O. no. 1431 (E) dated 21.06.2011) issued in exercise of powers conferred by Sub Clause (b) of Clause (xi) of Section 2 of the NDPS Act which pertains to substance Methyl Morphine - as per the aforesaid notification, if any ‘manufactured drug’ within the meaning of Section 2(xi)(b) of NDPS Act contains not more than 100 mg of Methyl Morphine, commonly known as Codeine, per dosage unit, and in that drug, Codeine is compounded with one or more ingredients and if in the said drug the concentration of Codeine is not more than 2.5% in undivided preparation, and the drug has been established in therapeutic practice, it will not be a ‘preparation’ within the meaning of ‘manufactured drug’ and, therefore it will not to be a ‘narcotic drug’. If the contraband seized falls within the provisions of NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between - If the alleged contraband seized falls within the definition of ‘manufactured drug’ under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid ‘Note 4’ will be applicable. This matter may be placed before the appropriate bench for considering the question of grant of bail. Issues Involved:1. Whether the weight of the neutral substance should be ignored while determining the nature of the quantity seized in cases involving manufactured drugs with a minuscule percentage of a narcotic substance.2. Applicability of Note 4 of the S.O. 1055 (E) dated 19th October 2001 to manufactured drugs with a minuscule percentage of a narcotic drug.3. Applicability of Note 4 to cough syrups containing a minuscule percentage of Codeine due to its medicinal value and availability.Issue-wise Detailed Analysis:1. Weight of Neutral Substance in Determining Quantity:The court addressed whether the weight of the neutral substance should be ignored when determining the nature of the quantity seized. The Supreme Court in Hira Singh vs. Union of India (2020) held that 'the quantity of the entire substance would be considered for the purposes of ascertaining whether it is a commercial quantity, intermediate quantity or small quantity.' Therefore, the weight of the neutral substance cannot be ignored.2. Applicability of Note 4 of S.O. 1055 (E) to Manufactured Drugs:The court considered whether Note 4 of the S.O. 1055 (E) dated 19th October 2001 should be held inapplicable to manufactured drugs containing a minuscule percentage of a narcotic drug. The Supreme Court in Hira Singh clarified that 'the quantity of neutral substance(s) is not to be excluded' when determining the nature of the quantity seized. Thus, Note 4 applies to all manufactured drugs containing narcotic substances, irrespective of the percentage.3. Applicability of Note 4 to Cough Syrups Containing Codeine:The court examined whether Note 4 should apply to cough syrups containing a minuscule percentage of Codeine due to its medicinal value and availability. The judgment in Iqbal Singh vs. State (2020) was considered, where it was held that cough syrup containing Codeine Phosphate would not fall within the definition of 'manufactured drug' under the NDPS Act due to its medicinal use. However, the court noted that the NDPS Act and the Drugs and Cosmetics Act must be read harmoniously. The court referred to Rule 52A of the NDPS Rules, which regulates the possession and use of essential narcotic drugs, including Codeine. The court concluded that if the contraband falls under Rule 52A, then violation of the said Rules would be punishable under the NDPS Act, making Note 4 applicable to such substances, including cough syrup.Conclusion:The court answered the referred questions as follows:- The weight of the neutral substance is not to be ignored while determining the nature of the quantity seized.- Note 4 of the S.O. 1055 (E) applies to manufactured drugs containing a minuscule percentage of a narcotic drug.- Note 4 is applicable to cough syrups containing a minuscule percentage of Codeine if the contraband is covered by Rule 52A of the NDPS Rules.The matter was referred back to the appropriate bench for considering the question of grant of bail.