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BOMBAY HIGH COURT
M.S. Sonak and Bharat P. Deshpande, JJ.
H.S. Arun Kumar – Applicant
versus
State of Goa – Respondent
Criminal Application (Bail) No.752/2021 (F)
Decided on 9.11.2022
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 2(xx) – Whether combined weight of L.S.D. and blotter or just weight of pure L.S.D. is relevant to determine small or commercial quantity and consequent punishment under NDPS Act, 1985 – Blotter paper forms an integral part of L.S.D. (drug) when put on it for consumption and, as such, weight of blotter paper containing L.S.D. will have to be considered for determining a small or commercial quantity of offending drug under NDPS Act, 1985 – Blotter paper that carries drug (L.S.D. drops) which facilitates its consumption as a whole, is a preparation, mixture, or neutral substance within meaning of NDPS Act 1985 – L.S.D. will have to be classified as a psychotropic substance and not a drug – Chemical fusion is not essential in context of a mixture – In a mixture, mixed elements retain their original properties – When two or more substances are combined by physical methods in any proportion and no new substance is formed, it is called a mixture – This is the difference between a mixture and a compound – Mixtures can be homogeneous or heterogeneous. (Paras 82, 113 and 114)
(B) Interpretation of Statute – Rules of Construction – Just as a court of law must not add words or fill in gaps or a lacuna, effort should also be made to give meaning to each and every word used by Legislature – It is not a sound construction principle to brush aside words in a Statute as being inapposite surplusage if they can have appropriate application in the circumstances conceivably within contemplation of Statute – Courts always presume that Legislature inserted every part thereof for a purpose and legislative intention is that every part of Statute should have an effect. (Paras 69, 70 and 71)
Result: Reference answered.
JUDGMENT
M.S. Sonak, J.—Heard the learned Counsel.
2. The issue in this reference is whether the combined weight of the L.S.D. and the blotter or just the weight of the pure L.S.D. is relevant to determine the small or commercial quantity and the consequent punishment under the NDPS Act, 1985.
3. Hitesh Hemant Malhotra vs. State of Maharashtra, 2020 S.C.C. online Bom. 3581, delivered by S. K.Shinde, J. holds that only the weight of the Pure L.S.D. matters. In Narcotics Control Bureau vs. Anuj Keshwani and Anr., 2021 SCC OnLine Bom 4548, Revati Mohite Dere, J. holds that the combined weight of the blotter impregnated with L.S.D. is determinative in such matters.
4. On 28.07.2022, S. K. Shinde, J. made a referral order in Criminal Application (Bail) No.752/2021 (F) after noticing the above conflict and formulated the following questions for reference to a Bench of two Judges.
(i) Whether blotter paper forms an integral part of the L.S.D. (drug), when put on it for consumption and, as such, weight of blotter paper containing L.S.D. will have to be considered for the purpose of determining small or commercial quantity of the offending drug, under the Narcotic Drugs & Psychotropic Substances Act, 1985?
(ii) Whether blotter paper that carries drug (L.S.D. drops) which facilitate its consumption, as a whole is preparation or mixture or neutral substance within the meaning of the Narcotic Drugs & Psychotropic Substances Act, 1985?
5. Based on the above, The Hon’ble The Chief Justice, by Order dated 02.08.2022, referred the above two issues raised for consideration by the Regular Division Bench. Accordingly, the reference was heard on 12.10.2022, 17.10.2022, 18.10.2022 and 19.10.2022. Upon conclusion of the hearing, reference was reserved for orders on 19.10.2022, which was the last sitting of the Division Bench before the Diwali vacations.
6. At the outset, Mr Anil Singh learned Additional Solicitor General of India submitted that this reference was incompetent and should be returned unanswered because the referral order neither disagrees with nor doubts the reasoning and conclusion in Anuj Keshwani (supra). He submits that the referral order does not quote Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 and opines that the matter could be more advantageously heard by a Bench of two or more judges. He submits that the absence of such “jurisdictional facts,” the reference is incompetent. He relies on Arun Kumar & Ors. vs. Union of India, 2007 (1) SCC 732, Trimurti Fragrances (P) Ltd. vs. Government of N.C.T., Delhi, 2022 SCC OnLine SC 1247 and Kerala State Science and Technology Museum vs. Rambal Co. & Ors., 2006 (6) SCC 258 in support of these contentions.
7. Mr Rizwan Merchant points out that the referral order notes the conflict between Hitesh Malhotra (supra), which was incidentally delivered by the referral judge and Anuj Keshwani (supra). He submits that the referral order must be read and construed holistically. He presents that Hitesh Malhotra (supra) and Anuj Keshwani (supra) have considered Hira Singh vs. Union of India, (2020) 20 SCC 272, and therefore the doctrine of per incuriam was not attracted. Mr Merchant relied on some decisions in support of his submissions. Based upon this, Mr Merchant submits that the reference was perfectly competent.
8. In our judgment, the referral order must be read and construed holistically, keeping in mind the background in which the same was made. The orders of the Court are not Statutes and, therefore, must not be interpreted like Statutes. The circumstance that the referral judge decided Hitesh Malhotra (supra) is also relevant and cannot be ignored.
9. The referral order explicitly refers to the conflict between Hitesh Malhotra (supra) and Anuj Keshwani (supra). The referral order styles the view of the Coordinate Bench in Anuj Keshwani (supra) as
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