1. Challenge to a Central Government notification amending drug quantification parameters under the Narcotic Drugs and Psychotropic Substances Act, 1985. (Para 1 )
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2017 Supreme(SC) 620
SUPREME COURT OF INDIA
Dipak Misra, A.M. Khanwilkar, JJ.
Hira Singh & Anr. – Appellants
Versus
Union of India & Anr. – Respondents
CRIMINAL APPEAL NO.722 OF 2017 (Arising out of SLP (Crl.) NO. 6092 OF 2014) WITH Criminal Appeal No.721 of 2017 (@ of SLP (Crl.) No.8674 of 2014) Civil Appeal No.5218 of 2017 (@ of SLP (C) No.21465 of 2014) W.P. (Crl.) Nos.77 and 154 of 2016 AND W.P. (Crl.) No.186 of 2014
Decided On : 03-07-2017
Advocates Appeared:
For Appellant(s) : Mr. R.K. Kapoor, Mr. D.S. Pheruman, Ms. Kheyali, Mr. Rajat Kapoor, Ms. Shweta Kapoor, Mr. Anis Ahmed Khan, AOR, Mr. Nikhil Jain, AOR, Mr. Manoj Swarup, Adv., Mr. Vipul Jindal, Adv., Mr. Ajay Kumar, AOR, Ms. Upasana Nath, Adv., Mr. Sunil Dutt, Adv., Mr. Rashmi Singh, AOR,
For Respondent(s): Mr. Jagjit Singh Chhabra, AOR, Mr. Kuldip Singh, AOR, Mr. B. Krishna Prasad, AOR.
For Appellant(s) : Mr. R.K. Kapoor, Mr. D.S. Pheruman, Ms. Kheyali, Mr. Rajat Kapoor, Ms. Shweta Kapoor, Mr. Anis Ahmed Khan, AOR, Mr. Nikhil Jain, AOR, Mr. Manoj Swarup, Adv., Mr. Vipul Jindal, Adv., Mr. Ajay Kumar, AOR, Ms. Upasana Nath, Adv., Mr. Sunil Dutt, Adv., Mr. Rashmi Singh, AOR,
For Respondent(s): Mr. Jagjit Singh Chhabra, AOR, Mr. Kuldip Singh, AOR, Mr. B. Krishna Prasad, AOR.
IMPORTANT POINT
In case of diversity of opinion in different Benches, matter should be referred to larger Bench.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 21 – E. Micheal Raj considering Note 4 of notification dated 19.10.2001 under Narcotic Drugs and Psychotropic Substances Act, 1985 not adverting to note 2 – Also not referring to entry no. 239 and the interplay between the various provisions of the Act – Also not referring to earlier decisions in (1994) 3 SCC 440 and (2004) 4 SCC 446 – However the decision in E. Micheal Raj on section 21 binding on the concurrent Bench. (Para 10)
(2008) 5 SCC 161; (1994) 3 SCC 440; (2004) 4 SCC 446 – Referred
Administration of justice – Practice and procedure – (2008) 5 SCC 161 subsequently followed or distinguished in many – Significant issues raised by respondents – Different Coordinate Benches having diverse opinion – Matter referred to larger Bench – Questions for reference formulated. (Para 10, 11, 12)
(2011) 4 SCC 441; (2013) 6 SCC 595; (2016) 1 SCC 315; (2005) 7 SCC 550 – Referred
Facts of the case:
Notification issued by the Central Government bearing No. S.O.2941(E) dated 18.11.2009, amending Notification No. S.O.1055(E) dated 19.10.2001 and thereby inserting Note 4 (four) in the table at the end of Note 3 (three) was challenged on the ground of being ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985. The High Court of Delhi and the High Court of Punjab and Haryana rejected the challenge.
Finding of the Court:
In view of the significance of the issues raised and diversity of opinion in different Benches, matter needs to be referred to larger Bench.
Result: Matter referred to larger Bench.
Judgement Key Points
Certainly. Based on the provided legal document, here are the key points:
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The case involves a challenge to a notification issued by the Central Government that amended existing rules under the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically inserting Note 4 into the relevant table (!) .
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The core issue is whether the Central Government has the authority under the Act to modify the parameters for quantifying drugs, particularly in relation to defining "small" and "commercial" quantities based on the aggregate weight of preparations containing narcotic drugs or psychotropic substances (!) (!) .
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The notification's validity is questioned on grounds that it may be beyond the powers conferred by the Act, especially since the Act deals specifically with narcotic drugs and psychotropic substances, and does not explicitly authorize such indirect modifications (!) .
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The notification in question pertains to entry no. 239, which deals with mixtures or preparations of the specified drugs, and it aims to define quantities based on the total weight of the mixture rather than the pure drug content (!) (!) .
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There is a significant debate regarding the interpretation of provisions related to "manufactured drugs" and "preparations," and whether the Act permits the classification of offences based on the total weight of mixtures or solely on the actual content of the narcotic or psychotropic substances (!) .
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The decision emphasizes that the determination of "small" or "commercial" quantities should be based on the actual drug content, not the total weight of the mixture, aligning with the purpose of the Act to impose proportionate punishments (!) (!) .
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The interpretation of terms such as "neutral substance," "preparation," and "mixture" is crucial, and their definitions influence the legal understanding of how quantities should be measured for offence classification (!) (!) .
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The Court recognizes the importance of considering the interplay between various provisions of the Act and the relevant notifications, and notes that previous judgments may have omitted this aspect, necessitating a larger Bench for an authoritative ruling (!) (!) .
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The case has been referred to a larger Bench to resolve the significant legal questions, including the scope of the Central Government's powers under the Act, the correct method for quantifying drugs in mixtures, and the interpretation of relevant provisions in light of international obligations and legislative intent (!) (!) (!) .
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The overarching principle is that the punishment should be based on the actual content of the narcotic or psychotropic substance in a mixture, not on the total weight of the mixture, to ensure proportionate sentencing and effective enforcement of drug laws (!) (!) .
These points summarize the legal issues, the arguments presented, and the directions for a larger judicial review as reflected in the document.
Legal Category Hierarchy
Table of Contents
2. Appellants contest the notification's validity and dilution of judicial precedent; respondents argue the government is empowered to determine quantity based on aggregate weight of preparations. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 )
3. The court observed a conflict between the government's notification and a prior two-judge bench decision regarding whether pure drug content or aggregate weight determines sentencing. (Para 8 , 9 , 10 )
4. A conflict between a two-judge bench's statutory interpretation and executive notifications on matters of seminal public importance warrants reference to a larger bench for authoritative pronouncement. (Para 10 , 11 )
5. The matter is referred to a larger bench of at least three judges to resolve the legal questions regarding drug quantification and the notification's validity. (Para 11 , 12 , 14 )
6. Does the weight of the neutral substance in a mixture count toward the quantity of a narcotic drug for sentencing?
A two-judge bench previously held that only the actual content by weight of the narcotic drug is relevant, excluding neutral substances. However, the government argues that the aggregate weight of the preparation should be reckoned to avoid giving undue benefits to drug traffickers. (Para 8 , 9 )
7. Can the Central Government redefine parameters for constituting an offence or awarding punishment through a notification?
The court has referred this as a key question for a larger bench, examining whether the Act permits the government to resort to such dispensation via notification to vary the parameters of drug quantification. (Para 1 , 12 )
8. What is the procedural course when a two-judge bench decision is alleged to be per incuriam?
While a two-judge bench's interpretation is binding on another two-judge bench, the court may refer the matter to a larger bench for an authoritative pronouncement to ensure judicial rectitude when the decision is alleged to have omitted key statutory provisions. (Para 10 , 11 )
JUDGMENT
A.M. KHANWILKAR J.
1. The conundrum in these matters is to quash or not to quash the notification issued by the Central Government bearing No. S.O.2941(E) dated 18.11.2009, amending Notification No. S.O.1055(E) dated 19.10.2001 and thereby inserting Note 4 (four) in the table at the end of Note 3 (three). The appeals forming part of this batch of matters have arisen from the judgment and order of the High Court of Delhi and of the High Court of Punjab and Haryana respectively, rejecting the challenge to the impugned notification being ultra vires. That notification is assailed on the ground that the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) does not confer any power upon the Central Government to vary the parameters of the quantification of the drugs. The offence defined in the Act is specific to narcotic drugs or the psychotropic substances. No punishment is provided for or can be given in respect of non narcotic drugs or the non psychotropic substances. If that cannot be done directly, it cannot be achieved indirectly muchless by issuance of a notification. Further, Note 4 (four) at best pertains to entry no. 239 dealing with the non-descript mixture or preparation with or without a natural material, of the specified drugs referred to in entries 1 to 238 of the notification specifying “small quantity” and “commercial quantity”. That entry no. 239 by no means can be considered as the source of power to insert Note 4 (four). Furthermore, the effect of the notification is to undermine the decision of this Court in the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161. That cannot be countenanced. For, the effect of the decision of this Court cannot be diluted in any manner and that too by issuance of a statutory notification or an executive action. According to the appellants/petitioners, invocation of Note 4 (four) would have the inevitable effect of not only diluting the decision of this Court but would also defeat the legislative intent behind the amendment of 2001 -regarding rationalisation of sentencing policy so as to ensure that the drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence but the addicts or those who commit less serious offences are sentenced by providing less severe punishment.
2. The respondents, on the other hand, contend that the Central Government is fully competent and in fact, empowered under Sections 76 and 77 of the Act to issue such notification for carrying out the purposes of the Act. The impugned notification has been issued in compliance with the prescribed procedure, to notify the limits of the various drugs not in terms of the pure drug content but the aggregate weight of the seized substance as a “preparation” if it contained the specified drug. This is so because the drug is almost never sold in its pure form. It is always used in a mixture (a ‘preparation’). For instance, the street level purity of heroin (Diacetylmorphine) is only about 5-10 percent. If “small” and “commercial” quantity were to be ascertained on the basis of pure drug content of the samples of the seized substance, it would become necessary to determine the purity of the seized drug, which, only a few State Forensic Laboratories in the country are capable of doing it. It will clog them with undue amount of work. According to the respondents, a pragmatic approach was adopted by the Central Government to define the “small” and “commercial” quantity in terms of the total quantity of preparation containing the specified drug. For that reason, the threshold of “small” and “commercial” quantities as per the notification dated 19.10.2001 have been kept at a fairly high level. It is then contended that entry no. 239 specified in the notification dated 19.10.2001, is essentially in the nature of a residuary clause/entry which refers to any mixture or preparation that of with/without a natural material,
