TaxTMI 
TaxTMI 
2020 (4) TMI 671
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..... Balaram Das, AOR Mr. Nishe Rajen Shonker, AOR Mr. B. Krishna Prasad, AOR Mr. Vipin Nair, AOR Ms. Jaspreet Gogia, AOR Ms. Sneha Kalita, AOR Mr. Parthivan,Adv. Mr. Zoheb Hossain, AOR Mr. Kalrav Mehrotra,Adv JUDGMENT M. R. Shah, J. Not agreeing with the view taken by this Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 taking the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration (paragraphs 15 and 19), the following questions are referred to a three Judge Bench, vide order dated 3.7.2017: (a) Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry no. 239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") with Section 21? (b)Does the impugned notification issued by the Central Government entail in redefining the par....
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....6 as the said decision was not binding as precedent as it passed sub-silentio the issue with which E Micheal Raj (supra) was seized with; 2.2 While deciding the case in the case of E Micheal Raj (supra), this Court has ignored material provisions of the NDPS Act and the entire statutory scheme to reach a conclusion which was not borne out both by the spirit and the terms of the statute and defeated the very object behind the enactment and the amendment; 2.3 The NDPS Act, as originally enacted in 1985 included in Section 2(xx) the definition of 'preparation'. It is submitted that the definition of 'preparation' reveals that preparation means "in relation to NDPS" one or more drugs or substance in dosage or solution or mixture. The 'mixture' is defined as mechanical mixture or two or more substances as distinct from chemical combination or a fluid with foreign substance in suspension or foreign element in a composition. The 'solution' is defined as a liquid or semi-liquid preparation obtained by the combination of a solid with the solvent. The 'dosage' means a definite quantity or something regarded as analogous to medicine in use or effect. A bare look at the definitions, it is ap....
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.... quantity" under the amended Act is much higher than that specified in the earlier notification under the original NDPS Act. Thus, the NDPS Act, as originally enacted, insofar as narcotic drugs and psychotropic substances are concerned, only recognized "small quantity where possession was for personal consumption or there was consumption. The punishment prescribed under the NDPS Act, originally enacted except in Section 20 which in some circumstances contemplated imprisonment up to 5 years, provided for punishment of not less than 10 years, but extendable to 20 years. The NDPS Act, as originally enacted, covered preparations of the narcotic drugs and psychotropic substances and not merely their pure drug content; 2.6 That in the year 1989, the NDPS Act was amended by Act No.2 of 1989. That notwithstanding the amendment, the original scheme of punishment under NDPS Act covering preparations and not just pure content was not interfered with. In the year 2001, the NDPS Act was further amended and clauses (viia) defining "commercial quantity" and (xxiiia) defining "small quantity" were added. A bare look at the two sections shows that the same covered quantity greater/lesser, as the c....
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....y enacted. It is for this reason that both Sections 27 and Section 64A have also been amended. The possession having been taken out of Section 27, there was no need to provide for milder punishment for possession as under Section 27 of the original NDPS Act. Section 27 as amended therefore is confined to "consuming" any narcotic drugs or psychotropic substance only and the immunity under Section 64A is limited to 'addicts' amongst those to whom Section 27 applies, in other words, possession even of "small quantity" is outside Section 27 of the amended Act and immunity is not available to all the persons to whom Section 27 applies but, only to such of them as are 'addicts'. This is a change consequential upon the grading of punishment but, the punishment continues to relate only to the quantities of the narcotic drugs and psychotropic substance which includes their preparations and not the pure drug content; 2.9 Even without Note 4 of the notification, the NDPS Act would apply to the entire mixture or solution of the narcotic drugs and psychotropic substance. It is further submitted that the addition of Note 4 under the notification of 2009, is irrelevant to the controversy and Jud....
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....a mixture or substance containing a detectable amount of .. PCP..." Thus, with respect to these two drugs, Congress clearly distinguished between the pure drug and a "mixture or substance containing a detectable amount of" the pure drug. But with respect to drugs such as LSD, which petitioners distributed, Congress declared that sentences should be based exclusively on the weight of the "mixture or substance". Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence, and did not make that distinction with respect to LSD." "...A "mixture" is defined to include "a portion of matter consisting of two or more components that do not bear a fixed proportion to one another...." "...By measuring the quantity of the drugs according to the "street weight" of the drugs in the diluted form in which they are sold, **1928 rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme." (underline is ours) 2.10 He argued that as such the NDPS Act does not make a....
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....e know that the inactive ingredients will be combined with the pure drugs and substances and it would be the drugs or substances so prepared that would be sold to the consumers. He argued, if the arguments of the appellants are accepted, the legislative intent would be frustrated through a construction which will render the Act sterile and which in the circumstances in which the Act is to operate cannot be called either rational or sensible. 2.13 Shri Lekhi, learned Additional Solicitor General of India has also relied upon the decision of this Court in the case of urlidhar Meghraj Loya and another v. State of Maharashtra and others (1976) 3 SCC 684, as well as, Reema Aggarwal v. Anupam and others (2004) 3 SCC 199 in support of his submission that while interpreting and/or considering a particular statute, a judge must not alter the material of which the Act is woven, but he can and should iron out the creases. The appellants want this Court to alter the material of which the NDPS Act is woven. In the case of Rajinder Singh v. State of Punjab (2015) 6 SCC 477, it was observed and held by this Court that a statute must be given a fair, pragmatic, and common-sense interpretation so ....
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....ty" of the narcotic drugs or psychotropic substances mentioned in column nos. 5 & 6 of the table, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in column nos. 2 to 4 of the said table; 3.3 The result of the issuance of the impugned notification is that the offender would be awarded the punishment by looking into the total quantity of the material found in possession of the offender even if on chemical analysis it is found that the actual content of the narcotic drug or psychotropic substance is covered under the "small quantity", but by adding the neutral material the punishment awarded is for "commercial quantity". For instance, there are two offenders. One "A" is having quantity of 4 grams heroin which is less than the "small quantity" which is 5 grams, mentioned in column no.5 of the table. Another "B" is in possession of 1 gram of heroin, but has mixed it with "neutral material" of 250 grams, it becomes 251 grams, more than the "commercial quantity" which is 250 grams as per column no.6 of the table. It is submitted that if these two offenders "A" and "B" are convicted, then "A" would be given a punishment for 1 year wh....
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....and provision for punishment and only to the extent the punishment has been provided for the commission of a particular contravention and for a particular specified substance as mentioned under column nos. 2 and 4of the schedule appended to the Act and not otherwise. Under the NDPS Act, Section 21 provides for punishment for contravention in relation to manufactured drugs and preparations thereof. Section 22 deals with punishment for contravention in relation to psychotropic substances. But there is no punishment for "neutral material" under the NDPS Act; 3.9 It is settled law that what cannot be done directly can also not be done indirectly. The NDPS Act was enacted by the Parliament. When in the NDPS Act itself the "neutral substance" has not been made punishable, the "neutral substance" cannot be made punishable by the exercise of the executive power by the Central Government by issuing he impugned notification. Where ever "neutral material" was to be included it has been specified under the NDPS Act itself. It cannot be added with each drug as mentioned in the table. 3.10 The expression "mixture" as such has not been defined under the NDPS Act, but it has a reference under th....
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....ce of power. Therefore, E.Micheal Raj (supra) rightly concludes that the punishment should be commensurate to the quantity of the "offending substance" only; 5. Shri Anand Grover, learned Senior Advocate appearing on behalf of the proposed Intervenor - the applicant - Indian Drug Manufacturers' Association has, by and large, made the same submissions which are made by the learned Senior Advocate(s)/Advocate(s) appearing on behalf of the appellants. In addition, the following submissions are made: 5.1 In laying down thresholds for "small quantity" and "commercial quantity" for narcotic drugs and psychotropic substances vide the 2001 notification, the Central Government refers to the "chemical name" of the concerned drug in column 4 of the table. Thus, the "chemical name", which identifies a particular substance in terms of its actual chemical composition, is relevant for determining the quantity of such substance. If it were not, there would be no need to have column 4 and the chemical description of a substance in the 2001 notification, which lays down small and commercial quantity of narcotic drugs and psychotropic substances; 5.2 The only drugs for which the entry in column (4....
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....dments in 2011 by introducing the NDPS (Amendment) Bill, 2011 (Bill 78 of 2011) in the Lok Sabha on 8th September, 2011. The Proposed amendments in section 2(viia) and 2(xiiia) of the NDPS Act were as follows: Section 2(viia) "commercial quantity", in relation to a narcotic drug, psychotropic substance or any preparation of such drug or such substance, means any quantity of such drug, substance or preparation of such drug or substance greater than the quantity specified, in terms of the pure drug content or otherwise, by the Central Government by notification in the Official Gazeete" (proposed amendments are underlined) Identical changes were proposed in definition of section 2(xxiiia) for 'small quantity'; 5.8 The aforesaid proposed amendments were rejected by a Parliamentary Standing Committee with the following observations: - "meanings denoted by the terms/expressions 'preparation' and 'otherwise' in proposed amendments are vague and unspecific. Such ambiguity in the clause would lead to arbitrariness in the interpretation of the law and may weaken the rationalized penalty structure proposed amendments intent to provide specific provisions for considering the pure drug co....
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....not be able to claim the benefit of the quantity threshold for ganja, though ganja found on him is lesser than the small quantity of ganja specified in the 2001 notification; 5.11 He argued that E. Micheal Raj (supra) is decided correctly as it reviews various provisions of the NDPS Act; examines legislative intent of the NDPS Amendments in 2001; correctly decides that punitive consequences under the NDPS quantity are relatable to actual amount of offending material in the seizure; it reiterates the position stated in the statute. 5.12 It is submitted that the Supreme Court of Bangladesh in its decision dated 08.05.2012 in the case of Md. Jaffar Alam v. The State, Criminal Misc. Case No. 37461 of 2011 held that actual and real quantity of the narcotics in question be ascertained accurately and the law interpreted carefully and strictly. Discussion 6. Having heard the learned advocates for the respective parties and considering the reference order, the question which is posed for consideration of this Court 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 ....
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....tropic Substances (Amendment) Act,2001, by which Section 21 of the NDPS Act came to be amended. 6.2 Therefore, first of all we would like to consider the reasoning given by this Court in the case of E.Micheal Raj(Supra). The facts indicate that what was seized in E.Micheal Raj (Supra) was 4 kgs of Heroin, which would fall in Entry 56 of the Notification dated 19.10.2001. As per the Notification dated 19.10.2001 in case of Heroin 5gms is a small quantity and 250 gm is a commercial quantity. However, this Court considered the substance seized - Heroin as Opium derivative and hence a manufactured drug and therefore, treating the seized drug as opium derivative, this Court held the seized material as small quantity and awarded punishment accordingly. While holding so, this Court considered the Statement of Objects and Reasons concerning the Amendment Act, 2001 and thereafter observed in para 12 to 15 as under: "12. The possession of offending substance would be considered an offence punishable under the NDPS Act, as heroin is an opium derivative as per Section 2(xvi)(e) which says that all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine&m....
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....250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a 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. 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. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commi....
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....y 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. The Statement of Objects and Reasons of the Amendment Act, 2001 is as follows: " The Statement of Objects and Reasons concerning the Amending Act of 2001 is as follows: Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years' rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The str....
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.... is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", the Statement of Objects and Reasons of NDPS Act is required to be considered. 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 and regulation of operation relating to Narcotic Drugs and Psychotropic Substances. 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. 8.1. In the case of Directorate of Enforcement vs. Deepak Mahajan and Another reported in (1994) 3 SCC 440, it is observed by this Court that every law is designed to further ends of justice but not to frustrate on the mere technicalities. It is further observed that though the intention of the Court is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficultie....
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....he 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". 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. 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....
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.... 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. 8.4. 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. 8.5. 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. Duri....
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....ant caution. As observed herein above, 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), it includes the weight of neutral substance (s) also and not only the actual content by weight of the offending drug. Therefore, even if "Note 4" which has been added vide Notification dated 18.11.2009 is not added, in that case also, it makes no difference and / or change. It appears that after the decision of this Court in the case of E. Micheal Raj (Supra) by way of abundant caution, the Union of India has come out with a Notification dated 18.11.2009 adding "Note 4". Thus, adding "Note 4" by Notification dated 18.11.2009 to the earlier Notification dated 19.10.2001 can be said to be clarificatory and by way of abundant caution only. Even otherwise, for the reasons stated above, the impugned Notification dated 18.11.2009 adding "Note 4" to the earlier Notification dated 19.10.2001, cannot be said to be contrary to the scheme and the various provisions of the NDPS Act. 9.1. At this stage, it is required to be noted that Notification dated 19.10.2001 was issued in exercise of powers c....