Advocates:
['Mr S LODH', 'PP', '', 'ASST SG']

HIGH COURT OF TRIPURA

AGARTALA

Crl.Ref. 1/2020

Court on its Own Motion,

High Court of Tripura, Agartala

-----Petitioner(s)

Versus

The Union of India,

Represented by the Secretary to the Ministry of Home Affairs,

South Block, New Delhi-110001

-----Respondent(s)

For the Petitioner (s)

:

Mr. S. Lodh, Amicus Curiae

For the respondents(s)

:

Mr. B. Majumder, ASGI.

Mr. R. Datta, P.P.

Date of hearing

:

01.04.2021

Date of judgment

& order

:

04.06.2021

Whether fit for reporting

:

YES

HON'BLE MR. JUSTICE S. TALAPATRA

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

JUDGMENT & ORDER

In exercise of power conferred by Section 395 (2) of the Code

of Criminal Procedure, the Special Judge (under NDPS Act), West

Tripura, Agartala has made the reference for opinion of this court

whether the clause (viiib) of Section 2 can be read in Section-27A in

Page 2 of 18

place of the clause (viiia) of Section 2. The reference as formulated

by the Special Judge reads as under:

“Whether provision of clause (viiia) of section 2 of

NDPS Act* is required to be read in section 27-A of the

Act as it stands now or whether present clause (viiib) of

section 2 is required to be read in section 27-A in place

of clause (viiia).”

*Narcotic Drugs and Psychotropic Substances Act, 1985.

02.

Whether present clause (viiib) of Section 2 can be read in

Section-27 A of the NDPS Act in place of the clause (viiia)? The

reference has to be understood in the perspective of the legislative

change. Section 27-A reads as follows:

“27A.

Punishment

for

financing

illicit

traffic

and

harbouring offenders.- Whoever indulges in financing,

directly or indirectly, any of the activities specified in

sub-clauses (i) to (v) of clause (viiia) of section 2 or

harbours

any

person

engaged

in

any

of

the

aforementioned activities, shall be punishable with

rigorous imprisonment for a term which shall not be

less than ten years but which may extend to twenty

years and shall also be liable to fine which shall not be

less than one lakh ruppes but which may extend to two

lakh rupees:

Provided that the court may, for reasons to be recorded

in the judgment, impose a fine exceeding two lakh

rupees.”

03.

Sub-clause (viiia) of Section 2 of the NDPS Act was

amended, re-lettered and relocated at the clause (viiib) of Section 2

of the NDPS Act by the Narcotic Drugs and Psychotropic Substances

(Amendment) Act, 2014 which came into effect from 01.03.2014. By

the said amendment, Section-2 (viiia) has been re-lettered as:

“(viiia) „essential narcotic‟ drug means a narcotic drug

notified by the Central Government for medical and

scientific use.”

Page 3 of 18

Content of the former Section-2, clause (viiia) of the

NDPS Act has been re-lettered and relocated at Section-2, clause

(viiib) and after the amendment, the clause(viiib) of Section-2 reads

as follows:

“(viiib) „illicit traffic‟ in relation to narcotic drugs and

psychotropic substances, means-

(i)cultivating any coca plant or gathering any portion of

coca plant;

(ii)cultivating the opium poppy or any cannabis plant;

(iii)engaging

in

the

production,

manufacture,

possession,

sale,

purchase,

transportation,

warehousing, concealment, use or consumption, import

inter-State, export inter-State, import into India, export

from India or transshipment, of narcotic drugs or

psychotropic substances;

(iv)dealing in any activities in narcotic drugs or

psychotropic substances other than those referred to in

sub-clauses (i) to (iii); or

(v)handling or letting out any premises for the carrying

on of any of the activities referred to in sub-clauses (i)

to (iv);

other than those permitted under this Act, or any rule

or order made, or any condition of any licence, term or

authorization issued, thereunder, and includes-

(1)financing,

directly

or

indirectly,

any

of

the

aforementioned activ