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SUPREME COURT OF INDIA
ARUN MISHRA, INDIRA BANERJEE, M.R. SHAH, JJ.
HIRA SINGH AND ANOTHER – APPELLANTS
VERSUS
UNION OF INDIA AND ANOTHER – RESPONDENTS
CRIMINAL APPEAL NO. 722 OF 2017 WITH CIVIL APPEAL NO. 5218 OF 2017; CRIMINAL APPEAL NO. 721 OF 2017; WRIT PETITION (CRIMINAL) NO. 186 OF 2014; CRIMINAL APPEAL NO. 444 OF 2016; CRIMINAL APPEAL NO. 1557 OF 2017; WRIT PETITION (CRIMINAL) NO. 77 OF 2016; CRIMINAL APPEAL NO. 884 OF 2016; CRIMINAL APPEAL NO. 984 OF 2016; WRIT PETITION (CRIMINAL) NO. 154 OF 2016; CRIMINAL APPEAL NO. 388 OF 2017; CRIMINAL APPEAL NO. 1678 OF 2017; CRIMINAL APPEAL NO. 2156 OF 2017 AND CRIMINAL APPEAL NO. 2155 OF 2017.
Decided on : 22-04-2020
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 21 – Commission of drug offence – Parameters – Notification dated 18.11.2019 – A person can be convicted and punished only to the extent it has been specifically provided under provisions of NDPS Act – If a person has to be punished then there must be specific power and provision for punishment and only to the extent punishment has been provided for commission of a particular contravention and for a particular specified substance as mentioned under column nos. 2 and 4 of schedule appended to the Act and not otherwise – What cannot be done directly can also not be done indirectly – NDPS Act was enacted by Parliament – When in NDPS Act itself “neutral substance” has not been made punishable, “neutral substance” cannot be made punishable by exercise of executive power by Central Government by issuing impugned notification – Where ever “neutral material” was to be included it has been specified under NDPS Act itself – It cannot be added with each drug as mentioned in the table. (Paras 3.8 and 3.9)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 21 – Commission of drug offence – Parameters – Notification dated 18.11.2019 – In determining quantity involved in a mixture of two or more drugs, it is substance with a lesser or lower threshold, whether for ‘small’ or ‘commercial’ quantity, which will be used as reference – It is only actual content by weight of offending drug to be considered for the purpose of determining whether it would constitute small quantity or commercial quantity – It was never intention of legislature to exclude quantity of neutral substance and to consider only actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity – For determination of “small quantity or commercial quantity” with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no.2 quantity mentioned in clauses 5 and 6 are required to be taken into consideration – However, in case of mixture of narcotic drugs / psychotropic drugs mentioned in column no.2 and any mixture or preparation that of with or without neutral material of any of drugs mentioned in table, lesser of small quantity between quantities given against respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between quantities given against respective narcotic drugs or psychotropic substance forming part of mixture is to be taken into consideration – Provisions of NDPS Act are required to be interpreted keeping in mind object and purpose of NDPS Act; impact on society as a whole and Act is required to be interpreted literally and not liberally which may ultimately frustrate object, purpose and preamble of the Act – Section 21 of NDPS Act is not stand-alone provision and must be construed along with other provisions in statute including provisions in NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001 – Challenge to Notification dated 18.11.2009 adding “Note 4” to Notification dated 19.10.2001, fails – Same is not ultra vires to Scheme and relevant provisions of NDPS Act – Writ petitions and Civil Appeal dismissed. (Paras 5.10, 7, 8.2, 8.5 and 10)
Facts of the Case:
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 content of the specific narcotic drugs? Question as to whether 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), the quantity of neutral substance(s) is not to be taken into consideration or it is only actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity?
Findings of the Court:
Now, so far as the challenge to the impugned Notification No.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) dated 19.10.2001 specifying small quantity and commercial quantity of the narcotic drugs and psychotropic substance covered under the NDPS Act, 1985 is concerned, as such it can be said to be clarificatory in nature and / or by way of ex abundanti cautela /abundant caution.
Result : Reference answered.
JUDGMENT
M.R. Shah, J.
Not agreeing with the view taken by this Court in the case of E. Micheal Raj vs. 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 parameters for constituting an offence and more particularly for awarding punishment ?
(c) Does the NDPS Act permit the Central Government to resort to such dispensation ?
(d) Does the NDPS Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug ?
(e) Whether Section 21 of the NDPS Act is a stand along provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug ?
Arguments on behalf of the Union of India
2. Shri Aman Lekhi, learned Additional Solicitor General of India appearing on behalf of the Union of India has vehemently submitted that the decision in E Micheal Raj (supra) has omitted to consider the interplay between different provisions of the NDPS Act. It is submitted that it has focused only on the interpretation of Section 21 of the NDPS Act, without giving effect to the purport of the said provision. It is submitted that the view taken by this Court in the case of E Micheal Raj (supra) in paragraphs 15 and 19 that 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, and the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purposes of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration is clearly wrong and as such contrary to the entire scheme of the NDPS Act. He argued that if the entire scheme including the object and purpose of the NDPS Act is considered, it can be seen that where drugs are sold as mixture the determination for the purposes of punishment would be aggregated quantity of the mixture;
2.1 In the case of E Micheal Raj (supra), this Court has failed to consider that the expression "offending material" finds no mention in the NDPS Act. It is submitted that it is also not the intention of the legislature to levy punishment based on content of the offending drug in the mixture. It is submitted that in the case of E Micheal Raj (supra), this Court has erred in relying upon the decision in the case of Ouseph vs. State of Kerala (2004) 4 SCC 446 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
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