TaxTMI 
TaxTMI 
2017 (4) TMI 574
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....The prayer in the writ petition reads as under: "(a) Declare that the Notification S.O. 311, dated 10th February 2011 has been issued ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985 and has no force in law; (b) Issue an appropriate writ or order or direction to quash and set aside the Notification S.O. 311, dated 10th February, 2011 and entry No.238E in the notification S.O. 1430(E) dated 21st June, 2011. (c) Grant cost of this petition in favour of the Petitioner." 3. It is pleaded that in relation to the seizure of 1195.2kg of 'Ketamine Hydrochloride', summons under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') were issued to the petitioner by the Department of Revenue Intelligence. On 22.04.2014, he was produced before the Additional Chief Magistrate, Mumbai and was remanded to custody in District Jail, Jalgaon. Since then, the petitioner has been in custody. 4. It is further pleaded that the allegations in the complaint related to commission of offences under NDPS Act in relation to a psychotropic substance, i.e. 'Ketamine' which was included in the list of psychotropic substanc....
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.... of Finance, Department of Revenue, published in the Gazette of India Extraordinary ,Part II, Section 3, Sub-section (ii), vide number S.O.1055(E), dated the 19th October, 2001, namely:- In the said notification, in the Table, after serial number 238 and the entries relating thereto, the following serial numbers and the entries shall be inserted, namely:- S.No. Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name) Other non- proprietary name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) (1) (2) (3) (4) (5) (6) "238A Dihydroetorphine 7,8-dihydro-7a-[1-(R)- hydroxy-1-methylbuty 1]- 6,14-endo- ethanotetrapydrooripavine 0.01 0.05 gm. 238B Oripavine 2 100 gm. 238C Remifentanil 1-(2-methoxy carbonylethyl)-4- (phenylpropionylamino) piperidine-4-carboxylic acid methyl ester 0.004 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." ....
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....adesh, AIR 1965 SC 1583, Municipal Corporation of Delhi vs. Tek Chand Bhatia, (1980) 1 SCC 158, Sri Nasiruddin vs. State Transport Appellate Tribunal, (1975) 2 SCC 671, Competition Commission of India vs. Steel Authority of India Ltd. & Anr., (2010) 10 SCC 744 and M. Satyanarayana vs. State of Karnataka & Anr., (1986) 2 SCC 512. 9. Placing reliance upon the observations made by the Supreme Court in para 7 in Union of India vs. Sanjeev Deshpande, (2014) 13 SCC 01, wherein the primacy and weight accorded to International Conventions in framing the NDPS Act was noticed by the Supreme Court, it is submitted by the learned Senior Counsel for the petitioner that the various provisions 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 ....
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....ters pertaining to the aims of the Conventions and see to their implementation. The Commission also reviews and analyses the global drug control situations considering the interrelated issues of prevention of drug abuse, rehabilitation of drug addict etc. The said Commission in its 49th Session, while recognising the emerging problem of widespread abuse of Ketamine and being deeply concerned by the threat being posed to the well being of people and society by the diversion of Ketamine for illicit use and by rise in the abuse of and trafficking in that substance, had resolved to call upon Member States to pay particular attention to the emerging problem of widespread 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 y....
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....ternational Convention with respect to such substance, natural material or salt or preparation of such substance or material. by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the Schedule such substance or natural material or salt or preparation of such substance or material." 17. We may also refer to the definitions of 'psychotropic substance' under Section 2(xxiii), 'commercial quantitiy' under Section 2(viia) and 'small quantity' under Section 2(xxiiia). (xxiii) "psychotropic substance" means any substance, natural or synthetic, or any natural 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 notifica....
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.... to meet the challenge of well-organized gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of 3 years with or without fine and 4 years imprisonment with or without fine for repeats offences. Further, no minimum punishment is prescribed in the present laws, as a result of which the courts with nominal punishment have sometimes let off drug traffickers. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighboring countries and destined mainly to Western countries. (ii) The existing Central laws do not provide 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 ....
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....rty. 22. We have also taken note of the fact that both the Commission on Narcotic Drugs (CND) which was established by the Economic and Social Council to assist the said Council in supervising the application of the International Drug Control Treaties and the International Narcotics Control Board (INCB) which is an independent and quasi judicial monitoring body for implementation of the United Nations International Drug Control Conventions 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. 23. It is the specific 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 r....