The Central Government has the authority to specify the quantity of narcotic drugs and psychotropic substances, including mixtures with neutral substances, under the NDPS Act.

BADAR DURREZ AHMED, J.

1. This writ petition seeks the quashing of notification S.O. No. 2941 (E) dated 18.11.2009 issued by the Ministry of Finance, Department of Revenue, Government of India on the ground that it is ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’).

2. The petitioner is a citizen of Afganistan and is facing trial in the case entitled State v. Niyamatulah & Ors. which arises out of FIR No. 212/2009 of Police Station Crime Branch registered under section 21(c) of the NDPS Act. An alleged recovery of 500 grams of heroin was made from, inter alia, the petitioner. The Forensic Science Laboratory Report with regard to the said alleged heroin indicated that the substance allegedly recovered comprised of 44.5% diacetylmorphine (heroin). If this percentage is taken into account, then, according to the learned counsel for the petitioner the actual weight of heroin in the alleged recovery would be 222.5 grams. According to the learned counsel for the petitioner this would be less than the commercial quantity of 250 grams specified under notification S.O. 1055 (E) dated 19.10.2001. If the petitioner is right, then, the recovery would be of less than the commercial quantity prescribed for heroin and therefore the punishment could be for a term which could extend to 10 years with fine which could extend to Rs. 1 lakh. However, if the petitioner’s submission is not accepted then the alleged recovery would be of a commercial quantity inasmuch as the commercial quantity specified for heroin under the said notification S.O 1055 (E) dated 19.10.2001 is 250 grams and above. If that were to be the case, then, the punishment involved has to be not less than 10 years and may extend to 20 years with fine which cannot be less than Rs. 1 lakh and may extend to Rs. 2 lakh.

3. Prior to the issuance of the impugned notification S.O. 2941 (E) dated 18.11.2009, there was a controversy that had been set at rest by a decision of the Supreme Court in the case of E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau: 2008 (5) SCC 161. The Supreme Court, after analyzing the provisions of the NDPS Act as also entries 56 and 239 of the notification dated 19.10.2001, observed that the offending substance in that case, which contained diacetylmorphine, was an opium derivative and hence a manufactured drug. The Supreme Court then observed as under:-

“15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a 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. It is only the actual