TaxTMI 
TaxTMI 
2015 (10) TMI 2706
X X X X Extracts X X X X
X X X X Extracts X X X X
....gainst one Eswaramoorthy and against both of whom a final report has been filed for alleged offences under Sections 22(c), 27(A), 28, 29, 30 read with 8(c) of NDPS Act, read with Sections 116, 193, 195, 196, 120(b), 417, 109, 342, 466, 468, 469, 471, 420, 201 of the Indian Penal Code, 1908 and Sections 7, 15, 13(2), 13(1)(d), 19(1)(c) of the Prevention of Corruption Act and Rules 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act' in short), has come up with the above writ petition, seeking a declaration that the Notification bearing S.O.No.2941(E)/2009 dated 18.11.2009 is unconstitutional. 2. Heard Mr.B.Kumar, learned Senior counsel appearing for the petitioner and Mr.Su.Sriniv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....risonment which may extend up to ten years and fine which may extend up to rupees one lakh. 5. In exercise of the power conferred under the Act, to notify what could constitute a 'small quantity', the Central Government issues Notification from time to time. One Notification that was issued was in S.O.No.1055(E), dated 19.10.2001. The said Notification contained a table, having six columns. Column No.1 provides Serial Numbers. Column No.2 provides the names of the Narcotic drugs or a Psychotropic Substance. Column No.3 is intended to private, a non-proprietary name for the drug, whose name is mentioned in Column No.2. Column No.4 is intended to private the commercial name of the substance. Column Nos.5 and 6 of the table respective....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rcotic Drugs and Psychotropic Substances Act, 1985." 9. Therefore, in the light of the existing Notes in the table under Notification dated 19.10.2001, the Supreme Court had an occasion to consider in Ouseph Alias Thankachan vs. State of Kerala- (2004 Supreme Court Cases (Cri) 1303), what was a 'small quantity'. Though in the said case, the prosecution alleged that the appellant before the Supreme Court was found to be in possession of 110 ampoules of buprenorphine, the Supreme Court went by the Notification dated 23.07.1996, that was in existence before the Notification, in S.O.No.1055 of 2001, dated 19.10.2001, came into existence. 10. Similarly in E.Michaeal Raj vs. Intelligence Officer, Narcotic Control Bureau-((2008) 2 Suprem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1, it had given room for some kind of a misunderstanding in the minds of the Enforcement authorities to think that when a particular quantity of drug included in the table under the Notification is found along with something that is not included in the table, the entire weight could be taken into account for the purpose of determining whether what was in possession of the accused was small quantity or of commercial quantity. This according to the learned Senior counsel, amounts to making a non-drug, a drug under the Act. Since the notification of a drug or a substance as a Narcotic Drug or Psychotropic Substance, is purely a Legislative function, the learned Senior counsel contended that the impugned Notification, which was executive in nat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#39; or a 'commercial quantity'. This according to the learned Senior counsel, would virtually make an item or substance not included in the table as an item or substance automatically included in the table. 16. But we do not agree. All that Note No.4 inserted by the impugned Notification says is that the quantities shown in columns 5 and 6 of the table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs. It includes salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content....