1. The Special Judge (NDPS), Bengaluru by his order dated 26.5.2010 in Crime No. 52 of 2010, referred the matter to this Court under Section 395 Cr. P.C. to examine the validity or otherwise of the Central Government Gazette Notification dated 18.11.2009.

2. Brief facts leading to this reference are as under:-

The three accused were found in possession of 3.6 kilograms of charas on 3.3.2010, consequent upon which, Crime No. 52 of 2010 was registered against all the three accused for the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). The applications for bail were filed by the accused in the said crime. It is contended by the learned counsel for the accused that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances for the purpose of imposition of punishment, it is the content of narcotic drug or psychotropic substance which alone shall be taken into consideration but not the entire mixture, for the purpose of determining whether the substance seized constitute small quantity or commercial quantity. The accused relied upon the judgment of the Apex Court in the case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, 2008 (5) SCC 161.

Per contra, it is the contention of the learned counsel for the State that the entire mixture or any solution of any one or more narcotic drug or psychotropic substance of that particular drug which is mixed with one or more neutral substances shall be taken into consideration for the purpose of determining whether the same would constitute small quantity or commercial quantity. The Counsel for the State relied upon the notification bearing No. S.O. 2941 E dated 18.11.2009 issued by the Ministry of Finance (Department of Revenue), Government of India, which reads thus:

“(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.”

The aforementioned notification dated 18.11.2009 replaced the part of the notification dated 19.10.2001. Validity or otherwise of the said notification is to be determined in this reference petition.

3. Sri C.H. Jadhav, learned Senior Counsel appointed as Amicus Curiae by this Court relying upon the aforementioned notification dated 18.11.2009 contends that the entire mixture or any solution of any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers etc. which is mixed with one or more neutral substances shall have to be taken into consideration for the purpose of determining whether it would constitute small quantity or commercial quantity. He further submits that the notification dated 18.11.2009 is valid and that the Central Government is empowered to issue the notification.

4. Per contra, it is the contention of the learned counsel for the accused that the actual content of narcotic drug or psychotropic substance only shall be taken into consideration and not the entire mixture having one or more neutral substances for the purpose of determining whether it would constitute small quantity or commercial quantity. The learned counsel for the accused heavily relied upon the judgment of the Apex Court in the case of E. Micheal Raj (supra) to contend that the notification dated 18.11.2009 runs contrary to the judgment of the Supreme Court cited supra and hence, the same is invalid and cannot be acted upon at all.

5. As mentioned supra, the notification dated 18.11.2009 substituted earlier notification dated 19.10.2001. The Apex Court in the case of E. Micheal Raj (supra), while considering the effect of