The quantity of the neutral substance is to be considered along with the actual content of the weight of the offending drug while determining small and commercial quantities under the NDPS Act.

ORDER

CRIMINAL APPEAL NO.912/2010,Criminal Appeal No.219/2022 [@ SLP(Crl) No.1541/2014 (II-C)], Crl.A. No.1192/2010,Crl.A.No.1063/2011, Crl.A. No. 1085/2016, Crl.A. No. 1090/2016, Crl.A. No.1092/2016, Crl.A. No.1091/2016, Crl.A. No.107/2017, Criminal Appeal No.2207/2010, Criminal Appeal No.1089/2016 & Criminal Appeal No.1088/2016

Leave granted in SLP [Crl.] No.1541/2014.

2. It is stated by both the counsels for the appellant and the accused that the matters were kept aside in terms of the order dated 12.09.2018 to await the judgment in Hira Singh & Anr. v. Union of India & Anr. case which judgment has now been delivered and reported as Hira Singh & Anr. v. Union of India & Anr.- (2020) SCC Online SC 382. This Court has opined on the issue whether the actual content of the weight of the offending drug is to be considered or whether as a whole procedure has to be looked into on the basis of the larger objective of the Narcotic Drugs and Psychotropic Substances Act to opine as under:

“65. 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. Michael Raj (supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances;

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

(IV) Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed.”

3. The effect of the aforesaid is that the quantity of the neutral substance is not to be excluded and to be taken into consideration along with the actual content of the weight of the offending drug while determining small and commercial quantities.

4. The aforesaid being the position and the appeals being allowed by the High Court predicated only on a view to the contrary without examination of the merits of the appeal, there is no option but to set aside the impugned judgment and remit the matter back to the High Court for consideration of the appeal on merits keeping the aforesaid judgment in mind.

5. We may further note the submissions of learned counsels for the respondent(s) that the number of respondents may have served substantive part of sentence and if there are no other cases subsequently brought against them, the High Court may consider confining the sentence to the period undergone. This would be an aspect to be examined by the High Court but is naturally dependent on the minimum sentence to be imposed.

6. We call upon the State to place a chart qua all the accused i.e. whether they are charged with any other cases in this behalf for the High Court to be able to take a call in the matter.

7. The appeals are allowed in the aforesaid terms leaving parties to bear their own costs.

Criminal Appeal Nos.234-236/2022 [In SLP [CRL.] No