HIRA SINGH AND ANOTHER versus UNION OF INDIA AND ANOTHER

[2020] 4 S.C.R.

HIRA SINGH AND ANOTHER

UNION OF INDIA AND ANOTHER

(Criminal Appeal No. 722 of 2017)

APRIL 22, 2020

[ARUN MISHRA, INDIRA BANERJEEAND M. R. SHAH, JJ.]

Narcotic Drugs or Psychotropic Substances Act, 1985 – s.21– In case of seizure of mixture of Narcotic Drugs or PsychotropicCSubstances with one or more neutral substance(s), the quantity ofneutral substance(s) is not to be excluded and has to be taken intoconsideration along with actual content by weight of the offendingdrug, while determining the “small or commercial quantity” of theNarcotic Drugs or Psychotropic Substances – The decision in theDcase of E. Micheal Raj taking the contrary view is not good law– s.21 of the NDPS Act is not stand-alone provision and must beconstrued along with other provisions in the statute includingNotification No.S.O.2942(E) dated 18.11.2009 and Notification S.O1055(E) dated 19.10.2001 – Challenge to Notification dated18.11.2009 adding “Note 4” to the Notification dated 19.10.2001Especifying small quantity and commercial quantity of NDPScovered under the NDPS Act was clarificatory and by way ofabundant caution and the same is not ultra vires to the Schemeand the relevant provisions of the NDPS Act – Drug trafficking.

Answering the reference, the CourtF

HELD: 1. In the case of E.Micheal Raj, while holding thatin the mixture of narcotic drug or psychotropic substance withone or more neutral substance, the quantity of neutral substanceis not to be taken into consideration and it is only the actualcontent by weight of the narcotic drug which is relevant for theGpurposes of determining whether it would constitute “smallquantity or commercial quantity”, this Court has not at allconsidered the relevant entry in the Notification dated19.10.2001. What was seized was heroin which falls in Entry 56.What was seized was not opium and/or opium derivative. ThereHis no specific finding even given by this Court that it would fall

under Entry 239 namely any mixture or preparation that of withor without the neutral material. Therefore, the case of mixtureof narcotic drugs or psychotropic substance was not at all indirect consideration of this Court. Even it does not appear thatthis Court took into consideration Note 2 of the Notificationdated 19.10.2001. If note 2 would have been considered by thisCourt and seized material was “Heroin” in that case and whatwas seized was 4.5 kg heroin, the Court would have consideredthe same as “commercial quantity” as considering Entry 56,5gms is “small quantity” and 250 gms and above is a“commercial quantity”. The Statement of Objects and Reasonsconcerning the Amendment Act, 2001 was also not properlyappreciated and/or considered and/or properly construed.Considering the statement of objects and reasons concerningthe Amendment Act of 2001, by which, two tier punishment wasprovided one for small quantity and another for commercialquantity, it cannot be said that intention of the legislature wasto consider only the actual content by weight of offending drugfor the purpose of determining whether it would constitute smallquantity 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 toconsolidate and amend the law relating to Narcotic Drugs, tomake stringent provisions for the control andregulation ofoperation relating to Narcotic Drugs and PsychotropicSubstances and to provide for forfeiture of the property derivedfrom or use in illicit traffic in Narcotic Drugs and PsychotropicSubstance. The Statement of objects and reasons and thepreamble of the NDPS Act imply that the Act is required to actas deterrent and the provisions must be stringent enough toensure that the same act as deterrents and it was never theintention of the legislature to exclude the quantity of neutralsubstance and to consider only the actual content by weight ofoffending drug which is relevant for determining whether it wouldconstitute small quantity or commercial quantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS Act, emphasis ison Narcotic and Drug or Psychotropic Substance (Sections 21,22, 23, 24, 27 and 43). Even in the table attached to Notificationdated 19.10.2001, column no. 2 is with respect to name of

ANarcotic Drug and Psychotropic Substance and column nos. 5and 6 are with respect to “small quantity and commercialquantity”. Note 2 of Notification dated 19.10.2001 specificallyprovides that quantity shown against the respective drugs listedin the table also apply to the preparations of the drug and thepreparations of substances of note 1. As per Note 1, the smallBquantity and commercial quantity given against the respectivedrugs listed in the table apply to isomers ..., whenever existenceof such substance is possible. Therefore, for the determinationof “small quantity or the commercial quantity” with respect toNarcotic Drugs and Psychotropic Substance mentioned in columnCno.2 the quantity mentioned in the clauses 5 and 6 are requiredto be taken into consideration. However, in the case of mixtureof the narcotic drugs / psychotropic drugs mentioned in columnno.2 and any mixture or preparation that of with or without theneutral material of any of the drugs mentioned in table, lesser

of the small quantity between the quantities given against theDrespective Narcotic Drugs or Psychotropic Substances formingpart of mixture and lesser of commercial quantity between thequantities given against the respective narcotic drugs orpsychotropic substance forming part of the mixture is to betaken into consideration. As per example, mixture of 100 gm isEseized and the mixture is consisting of two different NarcoticDrugs and Psychotropic Substance with neutral material, onedrug is heroin and another is methadone, lesser of commercialquantity between the quantities given against the aforesaid tworespective Narcotic Drugs and Psychotropic Substance isrequired to be considered. For the purpose of determination ofFthe “small quantity or commercial quantity”, in case of entry 239the entire weight of the mixture / drug by whatever named calledweight of neutral material is also required to be consideredsubject to what is stated hereinabove. If the view taken by thisCourt in the case of E. Micheal Raj is accepted, in that case, itGwould be adding something to the relevant provisions of thestatute which is not there and/or it was never intended by thelegislature. [Para 8.2] [1158-B-H; 1158-A-B]

3. It is important to note that illicit drugs are seldom soldin pure form. They are almost always adulterated or cut withHother substance. Caffeine is mixed with heroin, it causes that

heroin to vaporize at lower rate. That could allow users to takethe drug faster and get big punch sooner. Aspirin, crushedtablets, they could have enough power to amend reversal dosesof drugs. Take example of heroin. It is known as powerful andillegal street drug and opiate derived from morphine. This drugcan easily be “cut” with variety of different substances. Thismeans that drug dealer will add other drugs or non-intoxicatingsubstances to the drug so that they can sell more of it at lesserexpense to themselves. Brown-sugar/smack is usually madeavailable in powder form. The substances is only about 20%heroin. The heroin is mixed with other substances like chalkpowder, zinc oxide, because of these, impurities in the drug,brown-sugar is cheaper but more dangerous. These are only fewexamples to show and demonstrate that even mixture of narcoticdrugs or psychotropic substance is more dangerous. Therefore,what is harmful or injurious is the entire mixture/tablets withneutral substance and Narcotic Drugs or PsychotropicSubstances. Therefore, if it is accepted that it is only the actualcontent by weight of offending drug which is relevant for thepurpose of determining whether it would constitute smallquantity or commercial quantity, in that case, the object andpurpose of enactment of NDPS Act would be frustrated. Theremay be few punishment for “commercial quantity”. Certainly thatwould not have been the intention of the legislature. Evenconsidering the definition of “manufacture”, “manufactureddrug” and the “preparation” conjointly, the total weight of such“manufactured drug” or “preparation”, including the neutralmaterial is required to be considered while determining smallquantity or commercial quantity. If it is interpreted in such amanner, then and then only, the objects and purpose of NDPSAct would be achieved. Any other intention to defeat the objectand 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 themafia is working throughout the world. It is crime against thesociety and it has to be dealt with iron hands. Use of drugs bythe young people in India has increased. The drugs are beingused for weakening of the nation. During the British regime,control was kept on the traffic of dangerous drugs by enforcing

Athe Opium Act, 1857, the Opium Act, 1875 and the DangerousDrugs Act, 1930. However, with the passage of time and thedevelopment in the field of illicit drug traffic and during abuseat national and international level, many deficiencies in theexisting laws have come to notice. Therefore, in order to removesuch deficiencies and difficulties, there was urgent need for theBenactment of comprehensive legislation on Narcotic Drugs andPsychotropic Substances, which led to enactment of NDPS Act.The Act is special law and has laudable purpose to serveand is intended to combat the menace otherwise bent upondestroying the public health and national health. The guilty mustCbe in and the innocent ones must be out. The punishment partin drug trafficking is an important one but its preventive part ismore important. Therefore, prevention of illicit traffic in NarcoticDrugs 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 theDlife and liberty of the innocent persons. Therefore, the provisionsof NDPS Act are required to be interpreted keeping in mind theobject and purpose of NDPS Act; impact on the society as wholeand the Act is required to be interpreted literally and not liberallywhich may ultimately frustrate the object, purpose and preambleEof 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, “Note4” has been added to the Notification S.O.1055(E) dated19.10.2001 specifying small quantity and commercial quantity of

Fthe narcotic drugs and psychotropic substance covered underthe 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 ControlGBureau (2008) 5 SCC 161 : [2008] 4 SCR 644 – Notgood law.

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

446 ; Murlidhar Meghraj Loya and Another v. Stateof 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 ; RajinderSingh v. State of Punjab (2015) 6 SCC 477 : [2015] 2SCR 835 – referred to.

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

Case Law Reference

Criminal

Appeal No. 722 of 2017.

From the Judgment and Order dated 06.11.2012 of the HighCourt of Delhi at New Delhi in W.P. (Criminal) No. 1552 of 2010.

With

Civil Appeal No. 5218 of 2017, Criminal Appeal Nos. 444, 884,984 of 2016, 721, 1557, 388, 1678, 2156, 2155 of 2017, W.P. (Criminal)Nos. 186 of 2014, 77 and 154 of 2016.

Aman Lekhi, ASG, Vikas Mahajan, AAG, R. Balasubramanian,Manoj Swarup, Anand Grover, Sr. Advs., Ms. Sunita Rani Singh,B. Krishna Prasad, Vibu Shanker Mishra, S.S. Ray, B.V. Balaram Das,Ms. Samta P. Mishra, Ms. Seema Bengani, Anas Zaid, Ms. Binu Tamta,Ritwiz Rishabh, Ms. Shivani Mishra, Ujjwal Sinha, Ms. Mehak Huria,Aniket seth, Ms. Lakshita Sachdev, Ms. Divya Behl, Vipul Jindal, AjayKumar, Neelmani Pant, Ms. Vidisha Swarup, Ms. Tripti Tandon, SunilFernandes, Samyak Gangwal, R.K. Kapoor, Ms. Shweta Kapoor, RajatKapoor, Anis Ahmed Khan, Ms. Priya Pandea, Renjith B. Marar,Ms. Lakshmi N. Kaimal, Mehendra Kumawat, A. Karthik, SangramS. Saron, Nihil Jain, Shree Pal Singh, Ms. Upasana Nath, Anupam

AMishra, P.D. Sharma, Sudhir Kumar Gupta, Vinod Sharma, Anil Kumar,Joydip Roy, Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, VipinNair, P.B. Suresh, Karthik Jayashankar, Jagjit Singh Chhabra,Ms. Jaspreet Gogia, M.P. Parthiban, A.S. Vairawan, R. Sudhakaran,Hardik Gautam, Ms. Shalini Mishra, Ms. Sneha Kalita, Zoheb Hossain,K. Mehrotra, Advs. for the appearing parties.B

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Not agreeing with the view taken by this Court in the case ofE. Micheal Raj v. Intelligence Officer, Narcotic Control BureauC(2008) 5 SCC 161 taking the view that when any narcotic drug orpsychotropic substance is found mixed with one or more neutralsubstance/s, for the purpose of imposition of punishment it is the contentof the narcotic drug or psychotropic substance which shall be takeninto consideration (paragraphs 15 and 19), the following questions arereferred to three Judge Bench, vide order dated 3.7.2017:D

(a) Whether the decision of this Court in E. Micheal Raj(supra) requires reconsideration having omitted to takenote of entry no. 239 and Note 2 (two) of the notificationdated 19.10.2001 as also the interplay of the otherprovisions of the Narcotic Drugs and PsychotropicESubstances Act, 1985 (for short “the NDPS Act”) withSection 21?

(b) Does the impugned notification issued by the CentralGovernment entail in redefining the parameters forconstituting an offence and more particularly forFawarding punishment?

(c) Does the NDPS Act permit the Central Government toresort to such dispensation?

(d) Does the NDPS Act envisage that the mixture ofnarcotic drug and seized material/substance should beGconsidered as preparation in totality or on the basisof the actual drug content of the specified narcotic drug?

(e) Whether Section 21 of the NDPS Act is stand alongprovision or intrinsically linked to the other provisionsdealing with “manufactured drug” and “preparation”Hcontaining any manufactured drug?

Arguments on behalf of the Union of India

2. Shri Aman Lekhi, learned Additional Solicitor General of Indiaappearing on behalf of the Union of India has vehemently submittedthat the decision in Micheal Raj (supra) has omitted to considerthe interplay between different provisions of the NDPS Act. It issubmitted that it has focused only on the interpretation of Section 21of the NDPS Act, without giving effect to the purport of the saidprovision. It is submitted that the view taken by this Court in the caseof Micheal Raj (supra) in paragraphs 15 and 19 that it is only theactual content by weight of the narcotic drug which is relevant for thepurposes of determining whether it would constitute small quantity orcommercial quantity, and the view that when any narcotic drug orpsychotropic substance is found mixed with one or more neutralsubstance/s, for the purposes of imposition of punishment, it is thecontent of the narcotic drug or psychotropic substance which shall betaken into consideration is clearly wrong and as such contrary to theentire scheme of the NDPS Act. He argued that if the entire schemeincluding the object and purpose of the NDPS Act is considered, it canbe seen that where drugs are sold as mixture the determination for thepurposes of punishment would be aggregated quantity of the mixture;

2.1 In the case of Micheal Raj (supra), this Court has failedto consider that the expression “offending material” finds no mentionin the NDPS Act. It is submitted that it is also not the intention of thelegislature to levy punishment based on content of the offending drugin the mixture. It is submitted that in the case of Micheal Raj(supra), this Court has erred in relying upon the decision in the caseof Ouseph v. State of Kerala (2004) 4 SCC 446 as the said decisionwas not binding as precedent as it passed sub-silentio the issue withwhich Micheal Raj (supra) was seized with;

2.2 While deciding the case in the case of Micheal Raj(supra), this Court has ignored material provisions of the NDPS Actand the entire statutory scheme to reach conclusion which was notborne out both by the spirit and the terms of the statute and defeatedthe very object behind the enactment and the amendment;

2.3 The NDPS Act, as originally enacted in 1985 included inSection 2(xx) the definition of ‘preparation’. It is submitted that thedefinition of ‘preparation’ reveals that preparation means “in relationto NDPS” one or more drugs or substance in dosage or solution or

Amixture. The ‘mixture’ is defined as mechanical mixture or two or moresubstances as distinct from chemical combination or fluid with foreignsubstance in suspension or foreign element in composition. The‘solution’ is defined as liquid or semi-liquid preparation obtained bythe combination of solid with the solvent. The ‘dosage’ means adefinite quantity or something regarded as analogous to medicine in useBor effect. bare look at the definitions, it is apparent that drug orsubstance can be mixed with one or more substances (mixture) orchange its physical state by means of any fluid or solvent (solution) orbe divided or apportioned (dosage). In other words, the NDPS Act asoriginally enacted dealt not only with the pure content of the drug orCpsychotropic substance but, its preparation in mixture, solution ordosage. In the case of Micheal Raj (supra), there is no referenceto the aforesaid;

2.4 That as per Section 2(xxxiii), also as originally enacted,defining ‘psychotropic substance’ shows that psychotropic substanceDincludes “a preparation of such substance”. It is submitted that thesaid section has to be read with the Schedule appended to the NDPSAct. The Schedule itself, in Entry 77, included “salts and preparation”of the list of psychotropic substance mentioned in Entry 1 to 76 of theSchedule. The original NDPS Act therefore dealt with “preparations”of psychotropic substances. Further, contravention relating toEpsychotropic substance was punishable under Section 22 of the NDPSAct and reading Section 22 with Section 2(xx), 2 (xxxiii) and theSchedule makes it apparent that punishment covered preparation ofpsychotropic substance and was not based on pure substance content.Even Section 2(xiv) of the NDPS Act, as originally enacted, definedF‘narcotic drugs’, they were defined to mean (i) Coca leaf; (ii) Cannabis;(iii) Opium; (iv) Poppy Straw; and (v) Manufactured drugs.Each of theabove was defined separately. Therefore, even in the NDPS Act, asoriginally enacted, the ‘narcotic drugs’ included their mixtures andpreparations. It is only in the definition of ‘poppy straw’ that theexpression mixture or preparation finds no mention;G

2.5 He argued that the only provision in the NDPS Act, asoriginally enacted, which specified the quantity was Section 27, the saidsection mentioned “small quantity or narcotic drugs or psychotropicsubstance” and provided for milder punishment where it is proved thatpossession in contravention of the NDPS Act or rule was intended forHpersonal consumption or there was consumption of any narcotic drug

or psychotropic substance. It is submitted that “small quantity” wasnotified in Notification No. S.O.827 of 14.11.1985 which included only5 drugs. By subsequent notifications, additions were made and moredrugs were included in the list. Therefore the “small quantity” underthe amended Act is much higher than that specified in the earliernotification under the original NDPS Act. Thus, the NDPS Act, asoriginally enacted, insofar as narcotic drugs and psychotropic substancesare concerned, only recognized “small quantity where possession wasfor personal consumption or there was consumption. The punishmentprescribed under the NDPS Act, originally enacted except in Section20 which in some circumstances contemplated imprisonment up to 5years, provided for punishment of not less than 10 years, but extendableto 20 years.The NDPS Act, as originally enacted, covered preparationsof the narcotic drugs and psychotropic substances and not merely theirpure drug content;2.6 That in the year 1989, the NDPS Act was amended by ActNo.2 of 1989. That notwithstanding the amendment, the original schemeof punishment under NDPS Act covering preparations and not just purecontent was not interfered with. In the year 2001, the NDPS Act wasfurther amended and clauses (viia) defining “commercial quantity” and(xxiiia) defining “small quantity” were added.A bare look at the twosections shows that the same covered quantity greater/lesser, as thecase may be, than the “quantity specified” by the Central Governmentby notification in the official gazette of the narcotic drugs andpsychotropic substances. Even in/after the 2001 amendment, no changewas made in the definition of “preparation” or in the definition of“narcotic drugs” and “psychotropic substances”, more particularly evenafter the addition of the definitions of “small quantity” and “commercialquantity”. Even the residuary entry in the list of PsychotropicSubstances, i.e., Entry 77 in the Schedule of the NDPS Act, as originallyenacted, is retained even after the amendment as ‘Entry 111’ of thesaid Schedule. The only reason for the amendment in the year 2001was that all preparations in the NDPS Act, as originally enacted, wereuniformly punishable with imprisonment from 10 to 20 years and eventhe condition for bail did not make any reference to the quantity. It wasfor this reason that Section 37 itself was amended to specifically dealwith “commercial quantity” by the amendment of 2001;

2.7 He argued that the “commercial quantity” would necessarilyapply to preparations of narcotic drugs and psychotropic substances as

Athe clauses which were added needed to be read with the provisionsof the statute which already stood therein and had not been amended.This was consistent with the scheme of the NDPS Act, as originallyenacted. The amendment did not in any manner whatsoever tinker withthe same. It is for this reason that the amended Act referred in thenewly inserted clauses to “commercial quantity” and “small quantity”.BThe emphasis therefore was on the quantity in relation to the drug/substance and not the content of the drug/substance. It was never theintent to modify the application of the statute to deal with pure quantityof the narcotic drugs and psychotropic substance. The same came tobe reinforced by the notification published by the Central GovernmentCafter coming of the 2001 Amendment which contained Note 2 as under:

“2. The quantities shown against the respective drugs listed abovealso apply to the preparations of the drugs and the preparationsof the substances of Note 1 above.”

It is submitted that what was provided in Note 2 was alwaysDthere since the original enactment.

2.8 He argued that the “small quantity” now mentioned in thenotification is much higher than the “small quantity” in the NDPS Actas originally enacted. It is for this reason that both Sections 27 andSection 64A have also been amended. The possession having beenEtaken out of Section 27, there was no need to provide for milderpunishment for possession as under Section 27 of the original NDPSAct. Section 27 as amended therefore is confined to “consuming” anynarcotic drugs or psychotropic substance only and the immunity underSection 64A is limited to ‘addicts’ amongst those to whom Section 27Fapplies, in other words, possession even of “small quantity” is outsideSection 27 of the amended Act and immunity is not available to all thepersons to whom Section 27 applies but, only to such of them as are‘addicts’. This is change consequential upon the grading of punishmentbut, the punishment continues to relate only to the quantities of thenarcotic drugs and psychotropic substance which includes theirGpreparations and not the pure drug content;2.9 Even without Note 4 of the notification, the NDPS Act wouldapply to the entire mixture or solution of the narcotic drugs andpsychotropic substance. It is further submitted that the addition of Note4 under the notification of 2009, is irrelevant to the controversy andHJudgment in Micheal Raj (supra) cannot be sustained even if Note

4 is ignored. The notification therefore does not in any manner re-definethe parameters for constituting an offence or awarding punishment underthe NDPS Act. Shri Lekhi, learned Additional Solicitor General of Indiahas heavily relied upon the decision of the U.S. Supreme Court in thecase of Chapman v. United States (1991) 500 US 453 in support ofhis submission that the sentences should be based exclusively on theweight of the “mixture or substance” and not on the content – puredrug. It is submitted that in the said case, the petitioner was convictedof selling 10 sheets of blotter paper containing 1000 doses of LSD. Theweight of LSD alone was approximately 50mg and combined weightof the LSD and the blotter paper was 5.7 grams. The petitioner wassentenced for mandatory minimum sentence of 5 years which wasapplicable for offences of distributing more than 1 gram of the substance.It is submitted that before the US Supreme Court, it was contended onbehalf of the petitioner that weight of the carrier should not be includedwhen computing the appropriate sentence for LSD distribution. TheU.S. Supreme Court rejected the said contention and observed and heldas under:

“We think that petitioners reading of the statute, reading thatmakes the penalty turn on the net weight of the drug rather thanthe gross weight of the carrier and drug together is not plausibleone.The statute refers to “mixture or substance containing adetectable amount”. So long as it contains detectable amount,the entire mixture or substance is to be weighed when calculatingthe sentence.

This reading is confirmed by the structure of the statute. Withrespect to various drugs, including heroin, cocaine, and LSD, itprovides for mandatory minimum sentences for crimes involvingcertain weights of “mixture or substance containing detectableamount” of the drugs. With respect to other drugs, however,namely phencyclidine (PCP) or methamphetamine, it provides fora mandatory minimum sentence based either on the weight of amixture or substance containing detectable amount of the drug,or on lower weights of pure PCP or methamphetamine. Forexample, S. 841(b)(1)(A)(iv) provides for mandatory 10 yearminimum sentence for any person who distributes “100 gramsor more of … PCP…or 1 kilogram or more of mixture orsubstance containing detectable amount of .. PCP…” Thus,with respect to these two drugs, Congress clearly distinguished

Abetween the pure drug and “mixture or substance containing adetectable amount of” the pure drug. But with respect to drugssuch as LSD, which petitioners distributed, Congress declaredthat sentences should be based exclusively on the weight of the“mixture or substance”. Congress knew how to indicate thatthe weight of the pure drug was to be used to determine theBsentence, and did not make that distinction with respect to LSD.”

“…A “mixture” is defined to include “a portion of matterconsisting of two or more components that do not bear fixedproportion to one another….”

C“…By measuring the quantity of the drugs according to the“street weight” of the drugs in the diluted form in which theyare sold, **1928 rather than according to the net weight ofthe active component, the statute and the SentencingGuidelines increase the penalty for persons who possess largequantities of drugs, regardless of their purity. That is rationalDsentencing scheme.”

(underline is ours)

2.10 He argued that as such the NDPS Act does not make anydistinction between pure drug and preparation containing the drug.The Act applies to the street weight of the drug in the form in whichEthey are sold rather than the net weight of the active component. Thisis what the Act has consistently been provided since its inception. Theappellants want this Court to read the statute in manner the provisionsdo not warrant. It is submitted that for instance, “small quantity” ofheroin is 5 grams, which if taken as only the pure drug content willFtranslate into 100 grams of street level heroin. At the rate of 0.25 gramheroin the mixture of 100 grams of heroin can yield about 400 dosesof heroin. It can never nor could have been the intention of thelegislature or for that matter of the Government to send the person whopossesses or sells heroin equivalent to 400 doses to mere six monthsimprisonment. That therefore if the submission on behalf of the appellantsGis accepted, in that case, it will be contrary to the object and purposesof enactment of the NDPS Act and in most of the cases there will beno punishment for the “commercial quantity” and the real culprits/accused will go away with the minor punishment;

2.11 It is further argued that as per the Crawford onHInterpretation of Law (Statutory Construction) “the Court should strive

to avoid construction which will tend to make the statute unjust,oppressive, unreasonable, absurd, mischievous or contrary to the publicinterest. That construction should be accepted which will make thestatute effective and productive of the most good, as it is presumedthat these results were intended by the legislature. In order to carryout the legislature intent, it is therefore apparent that the statute shouldbe given rational, logical and sensible interpretation”;

2.12 It is further pointed out that the NDPS Act has been passedas per Statement of Object and Reasons, to “strengthen the existingcontrols over drug abuse, considerably enhanced the penalties particularlyfor trafficking offences, make provisions for exercising effective controlover psychotropic substances”. The stringency of control cannotdisregard the conditions in which the Act applies. The definitions clearlyshow that the object of the Act was to deal with the street weight ofthe drugs in the diluted form in which they are sold and not the netweight of the active component. The legislature know that the inactiveingredients will be combined with the pure drugs and substances and itwould be the drugs or substances so prepared that would be sold tothe consumers. He argued, if the arguments of the appellants areaccepted, the legislative intent would be frustrated through aconstruction which will render the Act sterile and which in thecircumstances in which the Act is to operate cannot be called eitherrational or sensible.2.13 Shri Lekhi, learned Additional Solicitor General of India hasalso relied upon the decision of this Court in the case of urlidharMeghraj Loya and another v. State of Maharashtra and others(1976) 3 SCC 684, as well as, Reema Aggarwal v. Anupam andothers (2004) 3 SCC 199 in support of his submission that whileinterpreting and/or considering particular statute, judge must not alterthe material of which the Act is woven, but he can and should iron outthe creases. The appellants want this Court to alter the material ofwhich the NDPS Act is woven.In the case of Rajinder Singh v. Stateof Punjab (2015) 6 SCC 477, it was observed and held by this Courtthat statute must be given fair, pragmatic, and common-senseinterpretation so as to fulfil the object sought to be achieved byParliament. Therefore, the judgment in Micheal Raj (supra) iswrong and the preparations in totality and not the actual drug contentwill be seen for computing the quantity. It is submitted that as suchE Micheal Raj (supra) is per incuriam and even the notification of

A2009 does not redefine the parameters for constituting the offence underthe NDPS Act. Section 21 of the NDPS Act is not standaloneprovision and must be construed along with the other provisions in thestatute as it is settled principle of law that every statute must beconstrued as whole and words in the statute take their meaning fromthe context and have to be understood to make consistent enactment,Bi.e., ex visceribus actus. It is submitted that even the insertion of Note4 was ex abundanti cautela and even without it the same intentioncould be culled out from the statute as it stood. It made no changebutwas intended only to remove any misconception and was used merelyby way of abundant caution.

C3. Shri R.K. Kapoor, learned Advocate appearing on behalf ofthe appellant in Criminal Appeal No. 722 of 2017 has made the followingsubmissions:

3.1 That the challenge in the present appeal is to the impugnednotification dated 18.11.2009 issued by the Central Government inDexercise of the powers conferred by Clauses (viia) and (xxiiia) ofSection 2 of the NDPS Act. The Central Government did not havethe power to issue the impugned notification by which it has empoweredthe inclusion of quantity of the neutral material also along with thequantity of the narcotic drugs or psychotropic substances in columns 5E& 6 of the table, in relation to the narcotic drugs or psychotropicsubstances mentioned in the corresponding entry in column nos. 2 to 4of the said table. Such power to include the neutral material is notprovided under clauses (viia) and (xxiiia) of Section 2 of the NDPSAct. Thus, the impugned notification dated 18.11.2019 is ultra viresthe provisions of the NDPS Act, read with the amended 2001 Act whichFbrought about rationalisation in awarding the punishment;

3.2 By the impugned notification, Note 4 has been added afterNote 3 at the end of the table appended to the NDPS Act, includedvide Notification S.O. 1055 (E) dated 19.10.2001, whereby thenotification was issued specifying “small quantity” and “commercialGquantity” of the narcotic drugs or psychotropic substances mentionedin column nos. 5 & 6 of the table, in relation to the narcotic drugs orpsychotropic substances mentioned in the corresponding entry in columnnos. 2 to 4 of the said table;

3.3 The result of the issuance of the impugned notification is thatHthe offender would be awarded the punishment by looking into the total

quantity of the material found in possession of the offender even if onchemical analysis it is found that the actual content of the narcotic drugor psychotropic substance is covered under the “small quantity”, butby 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 “smallquantity” 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 thetable. It is submitted that if these two offenders “A” and “B” areconvicted, then “A” would be given punishment for 1 year while “B”can be given up to 20 years though actual content of the offending drugis lesser in case of “B”. It means one year punishment for heroin and19 years for “neutral material” which is not otherwise punishable underthe NDPS Act. Thus, the effect of Note 4 is more the dilution, lessthe potency of the drug, but more the punishment.Therefore, it wouldlead to injustice and would lead to variation in the punishment of theaccused depending upon the quantity of the “neutral material” insteadof the “drug material”;

3.4 The only power given to the Government is to increase orreduce the quantity of the narcotic drugs or psychotropic substancementioned in column no.5 and 6 and nothing more. For instance, inthe case of heroin, the quantity for the “small quantity” can be reducedfrom 5 gram to 1 gram, and for “commercial quantity”, it can also bereduced from 250 grams to 100 grams or so, but no “neutral material”can be permitted to be added to award the quantum of punishment;

3.5 No “neutral material” has been specified in column no.2 orcolumn no.4 of the table. If “neutral material” was also to be madepunishable under the NDPS Act, then it should have been mentionedunder column no.2 and 4 of the table and then correspondingly thequantity of the “neutral material” would also have been specified under“small quantity” and “commercial quantity” under column nos. 5 and 6of the table. Since “neutral material” is neither narcotic drug nor apsychotropic substance, it has not been mentioned under column nos.2 and 4 and, therefore, cannot be made punishable under Note 4;

3.6 In the year 2001, NDPS (Amendment) Act, 2001 wasbrought to rationalise the quantum of punishment for addicts and lessserious offenders and severe punishment for serious offenders;

A3.7 This Court in the case of E.Micheal Raj (supra) held thatonly the quantity of the offending article is to be taken into considerationfor the purpose of punishment. If it has been mixed with any othersubstance, which is non-offending substance, then not the whole bulkis to be taken into consideration and that the punishment must be gradedin relation to the quantity of the offending article only;B

3.8 person can be convicted and punished only to the extent ithas been specifically provided under the provisions of the NDPS Act.If person has to be punished then there must be specific power andprovision for punishment and only to the extent the punishment has beenprovided for the commission of particular contravention and for aCparticular specified substance as mentioned under column nos. 2 and 4of the schedule appended to the Act and not otherwise.Under the NDPSAct, Section 21 provides for punishment for contravention in relationto manufactured drugs and preparations thereof. Section 22 deals withpunishment for contravention in relation to psychotropic substances. ButDthere is no punishment for “neutral material” under the NDPS Act;3.9 It is settled law that what cannot be done directly can alsonot be done indirectly. The NDPS Act was enacted by the Parliament.When in the NDPS Act itself the “neutral substance” has not beenmade punishable, the “neutral substance” cannot be made punishableEby the exercise of the executive power by the Central Government byissuing he impugned notification. Where ever “neutral material” wasto be included it has been specified under the NDPS Act itself. Itcannot be added with each drug as mentioned in the table.

3.10 The expression “mixture” as such has not been definedFunder the NDPS Act, but it has reference under the definition of theword “preparation”. Even in the word “preparation”, the reference isagain to one or more of such drugs or psychotropic substances, butthere is no reference to any “neutral material”.

3.11 Making the above submissions, it is submitted that thus theGCentral Government has no power to make any amendment in Act No.9 of 2001 and make the whole of the quantity of the allegedly recoveredmaterial from the offender as the “small, commercial or non-commercialquantity”, by directing the inclusion of the “neutral substance” in it.Therefore, the notification dated 18.11.2009 is liable to be declared ultravires and be struck down.H

4. Shri Manoj Swarup, learned Senior Advocate appearing onbehalf of the appellant in Criminal Appeal No. 721 of 2017 – GursewakSingh @ Sewak v. State of Punjab, in addition, has made the followingsubmissions:

4.1 The Act itself contemplates inclusion of “neutral material”.Reliance is placed upon Sections 2(iii), 2(vi), 2(xv) and 2(xvi). Thatthe Act itself provides the places where “neutral material” would betaken into account. The “neutral material” should be confined to theplaces permitted by the Act. Note 4 is to be limited to only such areaswhere “neutral material” is permitted by the Act. Only then Note 4would be serving clarificatory purpose;

4.2 In the event Note 4 goes beyond this, then Note 4 seeks toadd something which is not in the Act. In that event, Note 4 would belegislating, identifying and defining what would constitute criminaloffence and in the process, Note 4 would be expanding the areacovered by the Act. It is submitted that this would be impermissible inlaw.If “neutral material” is included across the board in all the narcoticdrugs or psychotropic substances, then the object of the 2001Amendment Act to rationalize sentence structure would be frustrated;

4.3 The Judgment of this Court in the case of E. Micheal Raj(supra) had noticed the distinction between “small quantity” and“commercial quantity” and the Objects and Reasons of the 2001Amendment Act. It is thereafter that the Court concludes that the 2001Amendment Act makes punishable vis-à-vis the “offending substance”.It is submitted that there was no need to discuss Entry No. 239 of the2001 notification in detail in the said judgment as Entry No. 239 wascontained merely in notification and was not the source of power.Therefore, E.Micheal Raj (supra) rightly concludes that the punishmentshould be commensurate to the quantity of the “offending substance”only;

5. Shri Anand Grover, learned Senior Advocate appearing onbehalf of the proposed Intervenor – the applicant – Indian DrugManufacturers’ Association has, by and large, made the samesubmissions which are made by the learned Senior Advocate(s)/Advocate(s) appearing on behalf of the appellants. In addition, thefollowing submissions are made:

5.1 In laying down thresholds for “small quantity” and“commercial quantity” for narcotic drugs and psychotropic substances

Avide 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 particular substance in termsof its actual chemical composition, is relevant for determining thequantity of such substance. If it were not, there would be no need tohave column 4 and the chemical description of substance in the 2001Bnotification, which lays down small and commercial quantity of narcoticdrugs and psychotropic substances;

5.2 The only drugs for which the entry in column (4) for chemicalname is not given in the 2001 notification are ‘natural/plant-based drugs’namely, Cannabis and cannabis resin (Charas, Hashish) at S. No. 23;CCoca Leaf at S. No. 26; Ganja at S. No. 55; Opium at S. No. 92; OpiumStraw at S. No. 110 and Preparation made from the extract of tinctureof Indian Hemp at S. No. 111. That the aforesaid is consistent withthe statutory definitions of the aforesaid substances, which allude to‘with or without neutral material’;

5.3 The quantity of the narcotic drug is also relevant for thepurposes of determining whether particular preparation is subject tothe provisions of the NDPS Act or not. This is borne out by clause(xi) of section 2 of the NDPS Act which empowers the CentralGovernment to notify narcotic substance or preparation either to beEa manufactured drug or to not be manufactured drug;

5.4 By making the percentage content of the drug irrelevant, theimpugned notification has the effect of bringing pharmaceuticalpreparations that are exempt from the NDPS Act, under the fold ofthe law through the backdoor.

i) E.g.: Entry 35 ‘Codeine’ in the list of manufactureddrugs vide Notification S.O. 826(E) dated 14/11/1985,Notification S.O. 40(E) dated 29/02/1993 andNotification S.O. 1431(E) dated 21.6.2011 (hereinaftercollectively referred to as “notification on manufactureddrugs”).

ii) Similar exemptions are contained at Entries at Sl. No.35, 36, 37, 48, 70, 76, 83 and 87 of the notification onmanufactured drugs.

5.5 The impugned notification is, therefore, inconsistent with theHnotification on manufactured drugs issued by the Central Government

in exercise of powers conferred by section 2(xi)(b) of the NDPS Actto declare narcotic substance or preparation to be manufactureddrug or not to be manufactured drug;

5.6 He argued that for legitimate entities like the members ofthe Applicant – IDMA, the impugned notification leads to arbitrary andabsurd consequences in that the license is given in terms of actualquantity of the drug, while punishment is imposed on the basis or totalbulk quantity;

5.7 The Respondent was aware that the impugned notificationis beyond the powers conferred under sections 2(viia) and (xxiiia) fornotifying ‘commercial’ and ‘small’ quantities of narcotic drugs andpsychotropic substances under the NDPS Act.Accordingly, it soughtto introduce legislative amendments in 2011 by introducing the NDPS(Amendment) Bill, 2011 (Bill 78 of 2011) in the Lok Sabha on 8[th]September, 2011.The Proposed amendments in section 2(viia) and2(xiiia) of the NDPS Act were as follows:

Section 2(viia) “commercial quantity”, in relation to narcoticdrug, psychotropic substance or any preparation of such drug or suchsubstance, means any quantity of such drug, substance or preparationof such drug or substancegreater than the quantity specified, in termsof the pure drug content or otherwise, by the Central Governmentbynotification in the Official Gazeete” (proposed amendments areunderlined)

Identical changes were proposed in definition of section 2(xxiiia)for ‘small quantity’;

5.8 The aforesaid proposed amendments were rejected by aParliamentary 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 theinterpretation of the law and may weaken the rationalized penaltystructure proposed amendments intent to provide specificprovisions for considering the pure drug content of recoveryto determine the consequential penalty/punishment for anoffender, no word/term/clause with ambiguous meaning shouldbe used in the provisions.”

1150SUPREME COURT REPORTS

AThe Respondent withdrew the aforesaid amendments in 2013.They are not part of the NDPS (Amendment) Act, 2014 (Act 16 of2014);

5.9 Entry 239 talks of mixture or preparation of two or moredrugs with or without neutral material and has asterisk (*, **) in columnB5 and 6. TheAsterisks are explained by indicating that the lesser ofthe small quantities of the respective narcotic drugs or psychotropicsubstances will be taken for determining the small quantity and lesserof the commercial quantity will be taken to determine commercialquantity.Entry 239 along with asterisk makes it clear that it comes intoCoperation only when the seizure is combination of two or more drugs,i.e. – combination of two or more narcotic drugs [eg: ‘charas’ and‘ganja’], or two or more psychotropic substances [e.g.: ‘Fentanyl’ and‘Zolipidem’] or combination of narcotic drugs and psychotropicsubstances [eg: ‘Cocaine’ and ‘Lysergide (LSD)].The wording in EntryD239 of 2001 notification is similar to that in entry (viii) in the Table tosection 31A of the NDPS Act, which also deals with mixture of twoor more drugs. That neither entry (viii) in the Table to section 31A ofthe NDPS Act nor Entry 239 of the 2001 notification suggest that in amixture of two or more narcotic drugs, the weight of the entire mixture

i.e. the aggregate weight of both the drugs has to be taken intoEconsideration;

5.10 In determining the quantity involved in mixture of two ormore drugs, it is the substance with lesser or lower threshold, whetherfor ‘small’ or ‘commercial’ quantity, which will be used as the reference.FTo illustrate, mixture weighing 200 gms is seized. The constituentsof the said seizure are: - 110 gms of charas and 90 gms of ganja. Asper the 2001 notification, the small quantity of charas at entry 23 is100 gms while the small quantity of ganja at entry 55 is 1000 gms or1 kg. By virtue of Entry 239, the quantity seized in this case will bedetermined in relation to charas and not in relation to ganja.GAccordingly, the person from whom such seizure is effected will beliable for intermediate quantity [quantity of charas found being morethan the small quantity but less than commercial quantity] and will notbe able to claim the benefit of the quantity threshold for ganja, thoughganja found on him is lesser than the small quantity of ganjas pecifiedHin the 2001 notification;

5.11 He argued that E. Micheal Raj (supra) is decided correctlyas it reviews various provisions of the NDPS Act; examines legislativeintent of the NDPS Amendments in 2001; correctly decides that punitiveconsequences under the NDPS quantity are relatable to actual amountof offending material in the seizure; it reiterates the position stated inthe statute.

5.12 It is submitted that the Supreme Court of Bangladesh in itsdecision 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 realquantity of the narcotics in question be ascertained accurately and thelaw interpreted carefully and strictly.

Discussion

6. Having heard the learned advocates for the respective partiesand considering the reference order, the question which is posed forconsideration of this Court is whether the NDPS Act envisages mixtureof narcotic drugs and seized material / substance should be consideredas preparation in totality or on the basis of actual drug content of thespecific narcotic drugs ? In other words, the question as to whetherwhile determining the small or commercial quantity in relation to narcoticdrugs or psychotropic substances in mixture with one or more neutralsubstance(s), the quantity of neutral substance(s) is not to be taken intoconsideration or it is only the actual content by weight of the offendingdrug which is relevant for the purpose of determining whether it wouldconstitute small quantity or commercial quantity ? At this stage, it isrequired to be noted that as such and after the decision of this Court inthe case of E.Micheal Raj (supra) by Notification No.S.O.2942(E)dated 18.11.2009, “Note 4” has been added to NotificationS.O.1055(E) dated 19.10.2001 specifying the “small quantity andcommercial quantity” of the narcotic drugs or psychotropic substancescovered under the NDPS Act. Note 4 which has been added by theaforesaid Notification reads as follows:

“The quantities shown in column 5 and 6 of the Table relatingto the respective drugs shown in column 2 shall apply to theentire mixture or any solution or any one or more narcoticdrugs or psychotropic substance of the particular drug indosage form or isomers, esters, ethers and salts or thesedrugs, including salts or esters, ethers and isomers, whereverexistence of such substance is possible and not just its puredrug content.”

A6.1 At the outset, it is pertinent to note that as such prior to thedecision of this Court in the case of E.Micheal Raj (supra) taking theview that in the mixture of narcotic drugs or psychotropic substancethat one or more neutral substance/s, the quantity of the neutralsubstance/s is not to be taken into consideration while determining thesmall quantity or commercial quantity of narcotic drug or psychotropicBsubstance and only the actual content by weight of the narcotic drugwhich is relevant for the purposes of determining whether it wouldconstitute “small quantity or commercial quantity”, consistent viewwas that for the purpose of determining “small quantity or commercialquantity” the weight of entire manufactured drug / preparation / mixtureCseized including that of the neutral substance is required to be takeninto consideration. However, for the first time in the case of E. MichealRaj (Supra), contrary view is taken solely on considering NarcoticDrugs and Psychotropic Substances (Amendment) Act,2001, by whichSection 21 of the NDPS Act came to be amended.

D6.2 Therefore, first of all we would like to consider the reasoninggiven by this Court in the case of E. Micheal Raj (Supra). The factsindicate that what was seized in E. Micheal Raj (Supra) was 4 kgsof Heroin, which would fall in Entry 56 of the Notification dated19.10.2001. As per the Notification dated 19.10.2001 in case of Heroin5gms is small quantity and 250 gm is commercial quantity. However,Ethis Court considered the substance seized – Heroin as Opium derivativeand hence manufactured drug and therefore, treating the seized drugas opium derivative, this Court held the seized material as small quantityand awarded punishment accordingly. While holding so, this Courtconsidered the Statement of Objects and Reasons concerning theAmendment Act, 2001 and thereafter observed in para 12 to 15 as under:F

“12. The possession of offending substance would beconsidered an offence punishable under the NDPS Act, asheroin is an opium derivative as per Section 2(xvi)(e)whichsays that all preparations containing more than 0.2 percentof morphine or containing any diacetylmorphineµ is anGopium derivative. Further, according to Section 2(xi), allopium derivatives fall under the category of manufactureddrug. Thus, we conclude that the offending substance is anopium derivative and hence manufactured drug, thepossession of which is in contravention of the provisions ofHSection 8of the NDPS Act which prohibits certain operations

to the effect that no person shall produce, manufacture,possess, sell, purchase, transport, warehouse, use, consume,import inter-State, export inter-State, import into India, exportfrom India or tranship any narcotic drug or psychotropicsubstance.

13. In the present case, the opium derivative which has beenfound in possession of the accused-appellant is prohibitedunder Section 8of the NDPS Act and thus punishable underSection 21thereof. The question is only with regard to thequantum of punishment.

14. As consequence of the Amending Act, the sentencestructure underwent drastic change. The Amending Actforthe first time introduced the concept of commercial quantityin relation to narcotic drugs or psychotropic substances byadding clause (viia) in Section 2, which defines this term asany quantity greater than quantity specified by the CentralGovernment by notification in the Official Gazette. Further,the term ‘small quantity’ is defined in Section 2, clause (xxiiia),as any quantity lesser than the quantity specified by theCentral Government by notification in the Official Gazette.Under the rationalised sentence structure, the punishmentwould vary depending upon whether the quantity ofoffending material is ‘small quantity’,`commercial quantityor something in-between.

15. It appears from the Statement of Objects and Reasonsof the Amending Act of 2001 that the intention of thelegislature was to rationalize the sentence structure so as toensure that while drug traffickers who traffic in significantquantities of drugs are punished with deterrent sentence, theaddicts and those who commit less serious offences aresentenced to less severe punishment. Under the rationalisedsentence structure, the punishment would vary dependingupon the quantity of offending material. Thus, we find itdifficult to accept the argument advanced on behalf of therespondent that the rate of purity is irrelevant since anypreparation which is more than the commercial quantity of250 gms. and contains 0.2% of heroin or more would bepunishable under Section 21(c)of the NDPS Act, because the

Aintention of the legislature as it appears to us is to levypunishment based on the content of the offending drug inthe mixture and not on the weight of the mixture as such. Thismay be tested on the following rationale. Supposing 4 gms.of heroin is recovered from an accused, it would amount toa small quantity, but when the same 4 gms. is mixed with 50Bkgs. of the powered sugar, it would be quantified asa commercial quantity. In the mixture of narcotic drugor psychotropic substance with one or more neutralsubstance/s, the quantity of the neutral substance/s is not tobe taken into consideration while determining the smallCquantity or commercial quantity of narcotic drug orpsychotropic substance. It is only the actual content by weightof the narcotic drug which is relevant for the purposes ofdetermining whether it would constitute small quantity orcommercial quantity. The intention of the legislature forintroduction of the amendment as it appear to us is to punishDthe people who commit less serious offences with less severepunishment and those who commit grave crimes, such astrafficking in significant quantities, with more severepunishment.”

E6.3. On considering the aforesaid reasoning given by this Courtin the case of E.Micheal Raj (Supra), we are of the opinion that whileholding that in the mixture of narcotic drug or psychotropic substancewith one or more neutral substance, the quantity of neutral substanceis not to be taken into consideration and it is only the actual content byweight of the narcotic drug which is relevant for the purposes ofFdetermining whether it would constitute “small quantity or commercialquantity”, this Court has not at all considered the relevant entry in theNotification dated 19.10.2001. As observed herein above, what wasseized was heroin which falls in Entry 56. What was seized was notopium and / or opium derivative. There is no specific finding even givenGby this Court that it would fall under Entry 239 namely any mixture orpreparation that of with or without the neutral material. Therefore, thecase of mixture of narcotic drugs or psychotropic substance was notat all in direct consideration of this Court.

6.4. Even it does not appear that this Court took into considerationHNote 2 of the Notification dated 19.10.2001, which reads as follows:

“The quantities shown against the respective drugs listedabove also apply to the preparations of the drug and thepreparations of substances of note 1 above.”

If note 2 would have been considered by this Court and seizedmaterial was “Heroin” in that case and what was seized was4.5 kg heroin, the Court would have considered the same as a“commercial quantity” as considering Entry 56, 5gms is “smallquantity” and 250 gms and above is “commercial quantity”.Therefore, as such, we are not in agreement with the view takenby this Court in the case of E.Micheal Raj (Supra) taking theview that in mixture of narcotic drug or psychotropic substancewith one or more neutral substance, the quantity of neutralsubstance is not to be taken into consideration and it is only theactual content by weight of the narcotic drug which is relevantfor the purposes of determining whether it would constitute “smallquantity or commercial quantity”.

7. Even considering the reasons while arriving at aforesaidconclusion, it appears to us that the Statement of Objects and Reasonsconcerning the Amendment Act, 2001 has not been properly appreciatedand/or considered and/or properly construed. Considering the statementof objects and reasons concerning the Amendment Act of 2001, bywhich, two tier punishment was provided one for small quantity andanother for commercial quantity, it cannot be said that intention of thelegislature was to consider only the actual content by weight of offendingdrug for the purpose of determining whether it would constitute smallquantity or commercial quantity. The Statement of Objects and Reasonsof the Amendment Act, 2001 is as follows:“ The Statement of Objects and Reasons concerning theAmending Actof 2001 is as follows:

Narcotic Drugs and Psychotropic Substances Act, 1985provides deterrent punishment for various offences relatingto illicit trafficking in narcotic drugs and psychotropicsubstances. Most of the offences invite uniform punishmentof minimum ten years’ rigorous imprisonment which mayextend up to twenty years. While the Actenvisages severepunishments for drug traffickers, it envisages reformativeapproach towards addicts. In view of the general delay intrial it has been found that the addicts prefer not to invoke

Athe provisions of the Act. The strict bail provisions under theAct add to their misery.

Therefore, it is proposed to rationalise the sentence structure soas to ensure that while drug traffickers who traffic in significantquantities of drugs are punished with deterrent sentences, theBaddicts and those who commit less serious offences aresentenced to less severe punishment. This requires rationalisationof the sentence structure provided under the Act. It is alsoproposed to restrict the application of strict bail provisions to thoseoffenders who indulge in serious offences.”

On bare reading of the Statement of Objects and Reasons, itCcannot be said that the intention of the Legislature was to consider theactual content by weight of the offending drug for the purpose ofdetermining whether it would constitute small quantity or commercialquantity. Therefore, we are of the opinion while holding that it is onlythe actual content by weight of the offending drug to be consideredDfor the purpose of determining whether it would constitute small quantityor commercial quantity, this Court has read more than what was statedin the Statement of Objects and Reasons.

7.1 Therefore, while deciding the case in the case of E.MichealRaj (Supra), this Court had not at all considered Note 2 to theNotification dated 19.10.2001 and has read much more than what isEstated in the Statement of Objects and Reasons of Amendment Act,2001 and for the reasons stated herein below, even on merits also, weare not in agreement with the view taken by this Court in the case ofE.Micheal Raj (Supra) that for the purpose of determining the “smallor commercial quantity” in relation to narcotic drugs or psychotropicFsubstances in mixture with one or more neutral substance(s), thequantity of neutral substance(s) is not to be taken into consideration orit is only the actual content by weight of the offending drug which isrelevant. At this stage, it is required to be noted that even before thisCourt in the case of E.Micheal Raj (Supra), it was case of “heroin”and not at all case of mixture falling in entry 239 of the NotificationGdated 19.10.2001.

8. On merits whether any mixture of narcotic drugs orpsychotropic substances with one or more neutral substance(s) thequantity of neutral substance(s) is not to be taken into consideration orit is only the actual content by weight of the offending drug which isHrelevant for the purpose of determining whether it would constitute

“small quantity or commercial quantity”, the Statement of Objects andReasons of NDPS Act is required to be considered. As per thepreamble of NDPS Act, 1985, it is an Act to consolidate and amendthe law relating to Narcotic Drugs, to make stringent provisions forthe control and regulation of operation relating to Narcotic Drugs andPsychotropic Substances. To provide for forfeiture of the propertyderived from or use in illicit traffic in Narcotic Drugs and PsychotropicSubstance. The Statement of objects and reasons and the preamble ofthe NDPS Act imply that the Act is required to act as deterrent andthe provisions must be stringent enough to ensure that the same Actas deterrents.8.1. In the case of Directorate of Enforcement vs. DeepakMahajan and Another reported in (1994) 3 SCC 440, it is observedby this Court that every law is designed to further ends of justice butnot to frustrate on the mere technicalities. It is further observed thatthough the intention of the Court is only to expound the law and not tolegislate, nonetheless the legislature cannot be asked to sit to resolvethe difficulties in the implementation of its intention and the spirit ofthe law. It is the duty of the Court to mould or creatively interpret thelegislation by liberally interpreting the statute. In the said decision thisCourt has also quoted following passage in Maxwell on Interpretationof Statutes, 10[th] Edition page 229:

“Where the language of statute, in its ordinary meaningand grammatical construction, leads to manifestcontradiction of the apparent purpose of the enactment, orto some inconvenience or absurdity, hardship or injustice,presumably not intended, construction may be put upon itwhich modifies the meaning of the words, and even thestructure of the sentence. ... Where the main object andintention of statute are clear, it must not be reduced to anullity by the draftsman’s unskilfulness or ignorance of thelaw, except in case of necessity, or the absoluteintractability of the language used.”

Thereafter, it is further observed that to winch up the legislativeintent, it is permissible for courts to take into account the ostensiblepurpose and object and the real legislative intent. Otherwise, baremechanical interpretation of the words and application of the legislativeintent devoid of concept of purpose and object will render the legislatureinane. It is further observed that in given circumstances, it is permissible

Afor courts to have functional approaches and look into the legislativeintention and sometimes it may be even necessary to go behind the wordsand enactment and take other factors into consideration to give effectto the legislative intention and to the purpose and spirit of the enactmentso that no absurdity or practical inconvenience may result and thelegislative exercise and its scope and object may not become futile.B

8.2 Therefore, considering the statement of objects and reasonsand the preamble of the NDPS Act and the relevant provisions of theNDPS Act, it seems that it was never the intention of the legislature toexclude the quantity of neutral substance and to consider only the actualcontent by weight of offending drug which is relevant for the purposeCof determining whether it would constitute small quantity or commercialquantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPSAct emphasis is on Narcotic and Drug or Psychotropic Substance(Sections 21, 22,23,24, 27 and 43). Even in the table attached to theNotification dated 19.10.2001, column no. 2 is with respect to name ofNarcotic Drug and Psychotropic Substance and column nos. 5 and 6Dare with respect to “small quantity and commercial quantity”. Note 2of the Notification dated 19.10.2001 specifically provides that quantityshown against the respective drugs listed in the table also apply to thepreparations of the drug and the preparations of substances of note 1.As per Note 1, the small quantity and commercial quantity given againstEthe respective drugs listed in the table apply to isomers ..., wheneverexistence of such substance is possible. Therefore, for the determinationof “small quantity or the commercial quantity” with respect to NarcoticDrugs and Psychotropic Substance mentioned in column no.2 thequantity mentioned in the clauses 5 and 6 are required to be taken intoconsideration. However, in the case of mixture of the narcotic drugs /Fpsychotropic drugs mentioned in column no.2 and any mixture orpreparation that of with or without the neutral material of any of thedrugs mentioned in table, lesser of the small quantity between thequantities given against the respective Narcotic Drugs or PsychotropicSubstances forming part of mixture and lesser of commercial quantityGbetween the quantities given against the respective narcotic drugs orpsychotropic substance forming part of the mixture is to be taken intoconsideration. As per example, mixture of 100 gm is seized and themixture is consisting of two different Narcotic Drugs and PsychotropicSubstance with neutral material, one drug is heroin and another ismethadone, lesser of commercial quantity between the quantities givenHagainst the aforesaid two respective Narcotic Drugs and Psychotropic

Substance is required to be considered. For the purpose of determinationof the “small quantity or commercial quantity”, in case of entry 239the entire weight of the mixture / drug by whatever named called weightof neutral material is also required to be considered subject to what isstated hereinabove. If the view taken by this Court in the case ofE. Micheal Raj (Supra) is accepted, in that case, it would be addingsomething to the relevant provisions of the statute which is not thereand/or it was never intended by the legislature.8.3 At this stage, it is required to be noted that illicit drugs areseldom sold in pure form. They are almost always adulterated or cutwith other substance. Caffeine is mixed with heroin, it causes that herointo vaporize at lower rate. That could allow users to take the drugfaster and get big punch sooner. Aspirin, crushed tablets, they couldhave enough powder to amend reversal doses of drugs. Take exampleof heroin. It is known as powerful and illegal street drug and opiatederived from morphine. This drug can easily be “cut” with variety ofdifferent substances. This means that drug dealer will add other drugsor non -intoxicating substances to the drug so that they can sell moreof it at lesser expense to themselves. Brown-sugar / smack is usuallymade available in power 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 butmore dangerous. These are only few examples to show and demonstratethat even mixture of narcotic drugs or psychotropic substance is moredangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or PsychotropicSubstances. Therefore, if it is accepted that it is only the actual contentby weight of offending drug which is relevant for the purpose ofdetermining whether it would constitute small quantity or commercialquantity, in that case, the object and purpose of enactment of NDPSAct would be frustrated. There may be fewpunishment for “commercialquantity”. Certainly that would not have been the intention of thelegislature.

8.4. Even considering the definition of “manufacture”,“manufactured drug” and the “preparation” conjointly, the total weightof such “manufactured drug” or “preparation”, including the neutralmaterial is required to be considered while determining small quantityor commercial quantity. If it is interpreted in such manner, then andthen only, the objects and purpose of NDPS Act would be achieved.

AAny other intention to defeat the object and purpose of enactment ofNDPS Act viz. to Act is deterrent.

8.5. The problem of drug addicts is international and the mafiais working throughout the world. It is crime against the society and ithas to be dealt with iron hands. Use of drugs by the young people inBIndia has increased. The drugs are being used for weakening of thenation. During the British regime control was kept on the traffic ofdangerous drugs by enforcing the Opium Act, 1857. The Opium Act,1875 and the Dangerous Drugs Act, 1930. However, with the passageof time and the development in the field of illicit drug traffic and duringabuse at national and international level, many deficiencies in the existingClaws have come to notice. Therefore, in order to remove suchdeficiencies and difficulties, there was urgent need for the enactmentof comprehensive legislation on Narcotic Drugs and PsychotropicSubstances, which led to enactment of NDPS Act. As observed hereinabove, the Act is special law and has laudable purpose to serveDand is intended to combat the menace otherwise bent upon destroyingthe public health and national health. The guilty must be in and theinnocent ones must be out. The punishment part in drug trafficking isan important one but its preventive part is more important. Therefore,prevention of illicit traffic in Narcotic Drugs and PsychotropicSubstances Act, 1988 came to be introduced. The aim was to preventEillicit traffic rather than punish after the offence was committed.Therefore, the Courts will have to safeguard the life and liberty of theinnocent persons. Therefore, the provisions of NDPS Act are requiredto be interpreted keeping in mind the object and purpose of NDPS Act;impact on the society as whole and the Act is required to beFinterpreted literally and not liberally which may ultimately frustrate theobject, purpose and preamble of the Act. Therefore, the interpretationof the relevant provisions of the statute canvassed on behalf of theaccused and the intervener that quantity of neutral substance (s) is notto be taken into consideration and it is only actual content of the weightof the offending drug, which is relevant for the purpose of determiningGwhether it would constitute “small quantity or commercial quantity”,cannot be accepted.

9. Now, so far as the challenge to the impugned NotificationNo.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) datedH19.10.2001 specifying small quantity and commercial quantity of the

narcotic drugs and psychotropic substance covered under the NDPSAct, 1985 is concerned, as such it can be said to be clarificatory innature and / or by way of ex abundanti cautela / abundant caution.As observed herein above, while determining the small or commercialquantity in relation to narcotic drugs or psychotropic substances in amixture with one or more neutral substance(s), it includes the weightof neutral substance (s) also and not only the actual content by weightof the offending drug. Therefore, even if “Note 4” which has beenadded 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 decisionof this Court in the case of E. Micheal Raj (Supra) by way ofabundant caution, the Union of India has come out with Notificationdated 18.11.2009 adding “Note 4”. Thus, adding “Note 4” by Notificationdated 18.11.2009 to the earlier Notification dated 19.10.2001 can besaid to be clarificatory and by way of abundant caution only. Evenotherwise, for the reasons stated above, the impugned Notification dated18.11.2009 adding “Note 4” to the earlier Notification dated 19.10.2001,cannot be said to be contrary to the scheme and the various provisionsof the NDPS Act.9.1. At this stage, it is required to be noted that Notification dated19.10.2001 was issued in exercise of powers conferred by clauses (viia)and (xxiiia) of Section 2 of NDPS Act. Section 2(viia) defines“commercial quantity” and Section 2(xxiiia) defines “small quantity” andit means any quantity greater or lesser than the quantity specified bythe Central Government by Notification in the official gazette, as thecase may be. Notification dated 19.10.2001 specifies the small quantityand commercial quantity with respect to respective narcotic drugs andpsychotropic substances. As observed herein above, by abundantcaution and to make it further clear “Note 4” has been added.Therefore, it cannot be said to be ultra vires to Scheme and relevantprovisions of the NDPS Act, as contended on behalf of the accusedand intervener. Therefore, challenge to the impugned Notification dated18.11.2009 adding “Note 5” of the clause to the NotificationS.O.1055(E) dated 19.10.2001 fails.

10. In view of the above and for the reasons stated above,Reference is answered as under:

(I). The decision of this Court in the case of E. MichealRaj (Supra) taking the view that in the mixture ofnarcotic drugs or psychotropic substance with one or

Amore neutral substance(s), the quantity of the neutralsubstance(s) is not to be taken into consideration whiledetermining the small quantity or commercial quantityof narcotic drug or psychotropic substance and onlythe actual content by weight of the offending narcoticdrug which is relevant for the purpose of determiningBwhether it would constitute small quantity or commercialquantity, is not good law;

(II). In case of seizure of mixture of Narcotic Drugs orPsychotropic Substances with one or more neutralsubstance(s), the quantity of neutral substance(s) is notCto be excluded and to be taken into consideration alongwith actual content by weight of the offending drug,while determining the “small or commercial quantity” ofthe Narcotic Drugs or Psychotropic Substances;

(III). Section 21 of the NDPS Act is not stand-alone provisionDand must be construed along with other provisions in thestatute including provisions in the NDPS Act includingNotification No.S.O.2942(E) dated 18.11.2009 andNotification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding “NoteE4” to the Notification dated 19.10.2001, fails and it isobserved and held that the same is not ultra vires tothe Scheme and the relevant provisions of the NDPSAct. Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification standdismissed.

11. The Reference is answered accordingly. The IntervenerApplication stands disposed of. Now, respective Appeals be placedbefore the appropriate Court taking up such matters for deciding theappeals in accordance with law and on merits and in light of theobservations made hereinabove and our answer to the Reference, asGabove.

Devika Gujral

Reference answered.