PUNJAB AND HARYANA HIGH COURT
S.S. Saron and S.P. Bangarh JJ.
Inderjeet Singh @ Laddi and Ors. —Petitioners
versus
State of Punjab —Respondent
CRM No.M-13140 of 2012, 14461, 20282 and C.R.M.No.M-1379 of 2013
Decided on 31.1.2014

IMPORTANT POINT
When a law visits a person with serious penal consequences extra care is indeed to be taken that those whom legislature did not intend to be covered by express language of statute are not roped in by stretching language of law.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 2 (xi)—Drugs and Cosmetics Act, 1940—Sections 18 and 26A—Drugs and Cosmetics Rules 1945—Rule 97—Manufactured drug—Purview—Dextropropoxyphene and Diphenoxylate—Whether an accused can be tried for an offence under NDPS Act in case he is found in possession of ‘manufactured drugs’ which fall in definition of ‘manufactured drug’ in terms of Section 2 (xi) of NDPS Act and has been notified as such by notifications dated 14.11.1985 and 29.1.1993 as manufactured drugs but contain an exception as regards percentage of dosage in drug— Manufactured drugs are part of narcotic drugs and a person found contravening and in possession of bulk quantity which is such that it is used for other than therapeutic or medicinal purposes but for intoxication or to get a stimulant effect or is in possession of psychotropic substance in respect of drugs which find a mention under Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules, 1945 can be tried and prosecuted under NDPS Act—Manufactured drugs of which there has been contravention in present cases have been sold, purchased, distributed, stored, transported, carried etc. in a bulk form and mostly these are without proper licences or authorizations—In respect of such drugs which are carried in bulk form, notification dated 18.11.2009 would apply and question that these drugs contain an exception would not be applicable as exceptions would apply when drugs are for medicinal or therapeutic use—Besides, quantity of manufactured drugs is not to be determined on per capsule basis when these are carried without proper licence or authorization—Mere dosage of manufactured drug in one capsule is not to be considered but dosage in number of capsules together is to be considered for purpose of determining as to whether exceptions provided in notification dated 14.11.1985 declaring narcotic substances and preparations as mentioned therein to be manufactured drugs—In case of contravention of Section 21 NDPS Act relating to manufactured drugs, Note 4 of notification 18.11.2009 would apply—Quantity in respect of which there is a contravention is ‘small quantity’, ‘lesser than commercial quantity’ but greater than ‘small quantity’ or ‘commercial quantity’ is to apply to entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form etc. wherever existence of such substance is possible and not just its pure drug content— Merely because prosecution for a violation of provisions of D&C Act and 1945 Rules framed thereunder entails some kind of penalty would not be a bar to trial of cases in respect of which there has been a contravention of Section 21 of NDPS Act—In each case it would be required to be seen whether drug in respect of which there is alleged to be a contravention by an offender is indeed in violation of NDPS Act and this is to be determined and examined with reference to notified manufactured drugs as mentioned in notification dated 14.11.1985 and 29.1.1993. (Paras 16, 36, 39, 43 and 55)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 21—Criminal prosecution—For trial of offences under NDPS Act proper procedure and guidelines have been provided—Procedure provided for trial and prosecution of offences under NDPS Act would not in any manner be hit by Article 14 of Constitution—Even if it covers only a class of cases which are mentioned in NDPS it would not be bad and fact that in such cases prosecution chooses as to which cases are to be tried under special procedure would not affect validity of NDPS Act and mere availability of two procedure does not vitiate one of them that is special procedure under NDPS Act—It is for State to decide as to in which of the two enactments, NDPS Act or D&C Act is prosecution to be launched. (Para 39)

       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 2 (xi)—Drugs and Cosmetics Act, 1940—Sections 18 and 26A—Drugs and Cosmetics Rules 1945—Rule 97—Manufactured drug—Purview—Provisions of NDPS Act including providing for prosecution in respect of manufactured drugs are stringent and harsh—These have been enacted to curb menace of drug trafficking—Violation of procedural provisions which are generally meant for affording a reasonable and adequate opportunity to offender are conceived in his interest and violation of procedural provision does not automatically vitiate investigation unless it is shown to have occasioned failure of justice or resulted in prejudice—When a law visits a person with serious penal consequences extra care is indeed to be taken that those whom legislature did not intend to be covered by express language of statute are not roped in by stretching language of law—However, on that account to say that offenders who have contravened and indulged in clandestine sale of narcotic drugs and manufactured drugs that have been notified by Central Government in official gazette—Wherever there is a violation of provisions of NDPS Act and NDPS Rules, then offence comes within ambit of said Act and Rules—Prosecution against offenders can be validly launched under NDPS Act. (Paras 41 and 52)

       Result: Reference answered.