ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. An interesting question arises in the present intra Court appeal filed by the appellants M/s. Chhaganbhai Amarsinhbhai Parmar and Ors. trader and consumers aggrieved by the judgment and order dated 28.4.2016 of the learned Single Judge dismissing the writ petition filed by the appellants.

2. The appellants-writ petitioners claimed in this Special Civil Application that "Poppy Capsule" is not "Poppy Straw" and, therefore, the Central Government as well as the State Government could not ban the consumption of the "Poppy Capsule" under Section 74A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short) and the relief was claimed by the petitioners on the anvil of Article 19(1)(g) and 21 of the Constitution of India namely, Freedom of Life and Freedom of Trade.

3. The bone of contention raised by Mr.P.J.Kanabar, the learned counsel for the appellants is that "Poppy Capsule" is not a Narcotic Substance and is not covered by the definition of Narcotic Drugs under Section 2(xiv) which includes only coca leaf, cannabis (hemp), opium, "Poppy Straw" and all manufactured drugs out of such substances and since "Poppy Capsule" is not mentioned in the said definition it is not so covered. It was also urged on behalf of the appellants that Gujarat Poppy Capsule Rules, 1963 defined "Poppy Capsule" and accordingly to Rule

2(1) of these Rules "Poppy Capsule" (Papaver Somniforum L) includes Poppy which has been lanced and dried and from which juice has been extracted they are either in their original form or cut, crushed or powdered form.

4. On this genesis, a case was sought to be built up by the appellants which are in the category of traders of the said commodities and consumers in two different Writ Appeals before us. A challenge was laid to the order issued by the State Government on 5.5.2015 whereby, in terms of the various Notifications of the Central Government, the State Government issued an Order of 1st June, 2015 gradually reducing the quantity of consumption of "Poppy Capsules" from 500 grams to 400 grams and so on over a period of one year finally totally ban the consumption of "Poppy Capsule" w.e.f. 1.4.2016 in the State of Gujarat. 5. Learned Single Judge elaborately discussed all the contentions raised on behalf of the appellants and negatived them by the detailed and well reasoned order made on 28.4.2016 which is in appeal before us. The said order dated 5.5.2015 was passed by the State Government under Section 139 of the Gujarat Prohibition Act, 1949 on the ground that the Central Government has repeatedly recommended and insisted upon discontinuing the use of "Poppy Straw" covered by the provisions of NDPS Act, 1985 and in consequence of these consistent directions of the Central Government, the State Government thought it proper to gradually reduce and finally discontinue the use of "Poppy Straw" in the form of "Poppy Capsule" w.e.f. 1.4.2016. The other shade of argument raised by the learned counsel for the appellants is that since the quantity of opium in the "Poppy Capsule" does not include any preparation containing more than 0.2% of morphine, therefore, it does not have any adverse effect on the health of any person and, therefore, should not fall within mischief of NDPS Act, 1985.

6. On the other hand, Mr. Utkarsh Sharma, learned counsel for the State vehemently opposed the submissions and urged before us that "Poppy Capsule" is not different from the "Poppy Straw" as it is only after the extraction of juice from the "Poppy Straw" in the cut, dried form or in powdered form, the said quantity of 0.2% is put in the capsule and is sold in the market, which is having the harmful effect and the very intention of directions issued by the Central Government and the impugned order issued on the State Government on 5.5.2015 was to prohibit the abuse of drugs, as it is a prohibited drug or Narcotic Substance under the provisions of NDPS Act and th