Court holds that the mixture's neutral substance must be included when assessing narcotic quantities under the NDPS Act.

1. The Court is convened through Video Conferencing.

2. Leave granted.

3. The instant appeal, by way of special leave, is directed against order dated 25.06.2018 passed by the High Court of Judicature at Madras in Crl.R.C. No. 1575 of 2017 whereby the High Court allowed the Criminal Revision Petition and granted bail to the respondents, who are charged with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act').

4. The issue raised in the instant appeal is that when the question relating to determination of quantity of narcotic / psychotropic substances in a mixture has been referred to a larger Bench, the High Court could not have decided the issue of law in granting bail to the respondents without considering the judgment rendered by this Court in Hira Singh v. Union of India , (2017) 8 SCC 162 .

5. Although service is complete on respondent Nos. 1 and 2 yet, no one has appeared on their behalf.

6. Heard learned Additional Solicitor General appearing on behalf of the appellant as also the learned senior counsel appearing on behalf of respondent No. 3.

7. Not agreeing with the view taken by this Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (Criminal Appeal No. 1250/2005) reported in (2008) 5 SCC 161 , five questions were referred to a three - Judge Bench vide order dated 03.07.2017. One of the questions referred for consideration to the three - Judge Bench was: -
"Does the NDPS Act envisage that the mixture of narcotic drug and seized material / substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?"

8. The above question was answered by the three - Judge Bench in Criminal Appeal No. 722 of 2017 ( Hira Singh v. Union of India ), reported in (2017) 8 SCC 162 , in the following manner: -
"(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances."

9. In view of the above, we are of the considered view that ends of justice would be met if the impugned order passed by the High Court granting bail to the respondents herein is set aside. The impugned order passed by the High Court is, accordingly, set aside. The respondents are directed to surrender before the trial court within a period of two weeks from today. Upon surrender, the respondents are at liberty to make a fresh application for bail before the trial court which shall be considered on its own merits and in accordance with law.

10. The appeal stands disposed of accordingly.

11. As a sequel to the above, pending interlocutory application also stands disposed of.