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SC to revisit the law laid down in E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau and the vires of “Note-4”.

Supreme Court is set to examine the constitutional validity of the Notification dated 18-11-2009  that added “Note – 4”   to the notification published as S.O. 1055 (E) dated   19-10-2001.55 (E) of the Narcotic Drugs and Psychotropic Substances Act.

The Special Leave Petition was preferred by two accused persons convicted under Section u/s. 22(C) and 8(C) of the NDPS Act for the possession of psychotropic substance in mixture or solution in ampoules. The NDPS Act classified narcotic drugs and psychotropic substances into “small” and “commercial” quantities and notification S.O 1055(E), dated 19.10.2001 was inserted that specified quantity thresholds for 239 entries. Followed by the said amendment Hon’ble Supreme Court in  E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau (2008)5 SCC 161 held that “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 content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.”

In order to overcome the judgment of the Apex Court in E. Micheal Raj v. Intelligence Officer, the Central Government vide Notification dated 18.11.2009 added “Note – 4”   which mandates that the quantities provided in the Column 5 & 6  of the Table relating to the respective drugs shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in  dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.

The petitioners contention was that even as per the prosecution they were allegedly in possession of only “small quantity” if the court takes into account the “pure drug content” and  not the entire mixture found in their possession. The Note 4 which mandates taking into account the entire mixture is arbitrary and violative of Article 14 of the Constitution of India.

As per Note-4, a preparation containing a particular quantity of psychotropic substance and a pure psychotropic substance containing same quantity is being treated differently under the NDPS Act. Say for example, the psychotropic substance namely Buprenorphine having quantity less than 1 gram is considered to be small quantity under the Act and for the possession of which the maximum punishment prescribed under Section 22(a) of the Act is imprisonment for 6 months with fine of Rs.10,000/-.  But, in a preparation of Buprenorphine weighing 20 grams in which the actual quantity of Buprenorphine content is less than 1 grams and the possession of which will be treated as possession of commercial quantity and higher punishment is prescribed for the offence in the Act.  It is pertinent to note that, nowadays there are advanced scientific methods to find out the net content of psychotropic substance from a preparation mixed with psychotropic substance. In such circumstances, the classification as small and commercial quantity as above is unreasonable and is violative of Article 14 and 21 of the Constitution of India, 1950.

The petitioners also referred to the Judgment of the Apex Court in Hira Singh & Anr. v. Union of India (2017) 7 SCALE 156, wherein a similar issue was raised and was referred to larger bench after framing issues. The issues that have been framed for the consideration of the larger bench are:

“(a) Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry no.239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Act with Section 21?

(b) Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?

(c) Does the Act permit the Central Government to resort to such dispensation?

(d) Does the 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?

(e) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with “manufactured drug” and “preparation” containing any manufactured drug?”

 

Read the order below:

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