w w w . L a w y e r S e r v i c e s . i n



The Registrar General, High Court of Karnataka v/s A. Shahid & Others

    Criminal Referred Case No. 1 of 2010

    Decided On, 06 October 2015

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE R.B. BUDIHAL

    For the Petitioner: S. Jayakara Shetty, Central Government Standing Counsel, C.H. Jadhav, Senior Counsel (Amicus Curiae). For the Respondents: Hashmath Pasha for M/s. Hashmath Pasha & Associates, Advocates.



Judgment Text

(Prayer: This Criminal Referred Case is registered under Section 395 Cr.P.C., the learned XXXIII A.C.C. and Sessions Judge and Special Judge (NDPS) Bangalore, has forwarded a record in Cr.No.52/2010 wherein the learned Judge has passed an order dated 26.5.2010 on the bail application filed by accused No.3 under Section 439 Cr.P.C. and on the bail applications filed by accused Nos.1 to 3 under Section 167(2) Cr.P.C., referring the matter to this Hon’ble Court under Section 395 Cr.P.C. about the validity or otherwise of the Central Government Gazette Notification dated 18.11.2009 in order to decide the bail applications aforesaid and vide order dated 9.6.2010 of the Hon’ble Chief Justice, the case was registered as Criminal Referred Case.)

Mohan M. Shantanagoudar, J.

1. The Special Judge (NDPS), Bengaluru by his order dated 26.5.2010 in Crime No.52/2010, referred the matter to this Court under Section 395 Cr.P.C. to examine the validity or otherwise of the Central Government Gazette Notification dated 18.11.2009.

2. Brief facts leading to this reference are as under:

The three accused were found in possession of 3.6 kilograms of charas on 3.3.2010; consequent upon which, Crime No.52/2010 was registered against all the three accused for the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’ Act for short). The applications for bail were filed by the accused in the said crime. It is contended by the learned counsel for the accused that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances for the purpose of imposition of punishment, it is the content of narcotic drug or psychotropic substance which alone shall be taken into consideration but not the entire mixture, for the purpose of determining whether the substance seized constitute ‘small quantity’ or ‘commercial quantity’. The accused relied upon the judgment of the Apex Court in the case of E. MICHEAL RAJ v. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU reported in 2008 (5) SCC 161.

Per contra, it is the contention of the learned counsel for the State that the entire mixtu

Please Login To View The Full Judgment!

re or any solution of any one or more narcotic drug or psychotropic substance of that particular drug which is mixed with one or more neutral substances shall be taken into consideration for the purpose of determining whether the same would constitute ‘small quantity’ or ‘commercial quantity’. The Counsel for the State relied upon the notification bearing No.S.O.2941 E dated 18.11.2009 issued by the Ministry of Finance (Department of Revenue), Government of India, which reads thus:

'(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 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 aforementioned notification dated 18.11.2009 replaced the part of the notification dated 19.10.2001. Validity or otherwise of the said notification is to be determined in this reference petition.

3. Sri. C.H. Jadhav, learned Senior Counsel appointed as Amicus Curiae by this Court relying upon the aforementioned notification dated 18.11.2009 contends that the entire mixture or any solution of any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers etc., which is mixed with one or more neutral substances shall have to be taken into consideration for the purpose of determining whether it would constitute ‘small quantity’ or ‘commercial quantity’. He further submits that the notification dated 18.11.2009 is valid and that the Central Government is empowered to issue the notification.

4. Per contra, it is the contention of the learned counsel for the accused that the actual content of narcotic drug or psychotropic substance only shall be taken into consideration and not the entire mixture having one or more neutral substances for the purpose of determining whether it would constitute ‘small quantity’ or ‘commercial quantity’. The learned counsel for the accused heavily relied upon the judgment of the Apex Court in the case of E. MICHEAL RAJ (supra) to contend that the notification dated 18.11.2009 runs contrary to the judgment of the Supreme Court cited supra and hence, the same is invalid and cannot be acted upon at all.

5. As mentioned supra, the notification dated 18.11.2009 substituted earlier notification dated 19.10.2001. The Apex Court in the case of E. MICHEAL RAJ (supra), while considering the effect of 2001 notification has observed thus:

'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 rationalized 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 content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.'

Finally, the Apex Court concluded that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances for the purpose of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.

In effect, the Apex Court in the aforementioned judgment concluded that it is only 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. The Apex Court further observed that the intention of the legislature for introduction of the amendment was to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.

It is needless to observe that, the Apex Court has made aforementioned observations while interpreting the notification dated 19.10.2001. In the said notification dated 19.10.2001, there was no provision for dealing with the situation where the mixture was of just one narcotic drug or psychotropic substance with neutral material. It is in this context of the notification dated 19.10.2001 prior to its amendment in the year 2009 that the decision in E. MICHEAL RAJ (supra) has been rendered by the Apex Court. Now a specific note (i.e. Note 4) has been added by virtue of the notification dated 18.11.2009 so as to include the case of a narcotic drug or psychotropic substance mixed with a neutral material. While the case of a mixture of two drugs and combination of more than one drug and psychotropic substance was specifically dealt with under Sl.No.239 of the notification dated 19.10.2001, there was no provision for dealing with the situation where the mixture was of just one narcotic drug or psychotropic substance with neutral material. The distinction between Sl.No.239 of the notification dated 19.10.2001 and Note 4 of the notification dated 18.11.2009 is that while Sl.No.239 required that the mixture was of one narcotic drug with another narcotic drug or psychotropic substance which may or may not also include neutral material whereas Note 4 widens the scope by introducing a mixture of one drug or psychotropic substance with a neutral substance. It is not at all necessary that the mixture must contain more than one drug or psychotropic substance along with neutral material for the said Note 4 to apply.

6. Section 2(viia) of the NDPS Act defines 'commercial quantity' whereas Section 2(xxiiia) defines 'small quantity' in relation to narcotic drugs and psychotropic substances. The ‘commercial quantity’ as well as the ‘small quantity’ in the aforementioned provisions are determined based on the notification issued by the Central Government published in the official gazette. Thus, the Central Government is empowered to issue notification and to publish in the official gazette determining the ‘commercial quantity’ or ‘small quantity’ as and when the suitable occasion arises. Thus, it is clear from the definition of ‘small quantity’ and ‘commercial quantity’ that such quantities are based on the specifications to be made in the notification issued by the Central Government from time to time. It is always open for the Central Government to issue notification and amend notification, if need be, for fixing the 'small quantities' and 'commercial quantities' based on the exigencies. Hence, it is not open for the accused to contend that the Central Government is not empowered to bring out notification of the kind, which is the subject matter before us.

7. Section 2(iii)(a) of the NDPS Act defines 'charas', which is the subject matter of the litigation before the Court below. 'Narcotic Drug' is defined under Section 2(xiv); that means and includes coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods. The terms 'manufacture' as well as 'manufactured drug' are also defined under Sections 2(x) and (xi) respectively. If we read these definitions homogeneously, it is clear that ‘charas’ also comes under the manufactured goods. The word 'preparation' has been defined under Section 2(xx) which inter alia, means any solution or mixture, in whatever physical state, containing one or more such narcotic drug or psychotropic substance. It is obvious that if there is only one narcotic drug and we are referring to a mixture, then the other material must be neutral material.

The word 'cannabis (hemp)' as defined under Section 2(iii) of the NDPS Act, means the ‘charas’, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. The said definition further makes it clear that the ‘cannabis (hemp)’ means any mixture, with or without any neutral material, of any of the forms of cannabis mentioned in the said definition or any drink prepared therefrom. Therefore, the word 'preparation' includes reference to a mixture of one narcotic drug with a neutral material. Once we understand this, it becomes clear that the Central Government has been given power to specify the quantity of this ‘preparation’ or mixture of narcotic drug and a neutral substance. Hence, the only inescapable conclusion that can be arrived is that the Central Government has power to specify the quantities shown in column Nos.5 and 6 of the table appended to the notification with reference to the entire mixture and not just its pure drug content. In this context, submission of the learned Amicus Curiae that the decision of the Apex Court in the case of E. MICHEAL RAJ (supra) was rendered at a point of time when this so-called ‘‘loop-hole’’ had not been plugged, deserves to be accepted. Hence, the contention of the learned counsel for the accused that this Court is taking view contrary to the decision of the Supreme Court cannot be accepted. As mentioned supra, the judgment of the Supreme Court in the case of E. MICHEAL RAJ was rendered while interpreting 2001 notification. Subsequently, notification of the year 2009 is issued. The dictum laid-down in the case E. MICHEAL RAJ (supra), would not create a bar for the Central Government to issue the notification afresh subsequently. We reiterate that this Court is called upon to give its opinion regarding validity or otherwise of the notification dated 18.11.2009. In view of the aforementioned reasons, we are of the clear view that the Central Government has got power to specify the quantity of preparation of the mixture of the narcotic drug and a neutral substance.

8. It is relevant to note that, the question relating to the validity of the very notification arose before the Division Bench of Delhi High Court in the case of ABDUL MATEEN v. UOI AND ANOTHER (W.P. (Crl) 1552/2010) disposed of on 6.11.2012). The Division Bench of Delhi High Court considering all the relevant provisions observed thus:

'9. We have to first of all examine whether the legislature had empowered the Central Government to bring out a notification of the kind which is impugned before us. As indicated by us earlier in this judgment, the law prior to the issuance of the notification dated 18.11.2009 had been settled by the Supreme Court by holding that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is only the content of the narcotic drug or psychotropic substance which has to be taken into consideration. That position is sought to be altered by virtue of the impugned notification dated 18.11.2009 inasmuch as the entire mixture and not just the pure drug content has to be considered by virtue of the said notification. The question which arises is whether the Central Government had the power to bring out such a notification. While the case of a mixture of two drugs and combination of more than one drug and psychotropic substance was specifically dealt with under Sl.No.239 of the notification dated 19.10.2001, there was no provision for dealing with the situation where the mixture was of just one narcotic drug or psychotropic substance with neutral material. It is in the context of the notification dated 19.10.2001 prior to its amendment in 2009 that the decision in Ansar Ahmed and E. Micheal Raj (supra) had been rendered. Now a specific note (that is note 4) has been added by virtue of the notification dated 18.11.2009 so as to include the case of a narcotic drug or psychotropic substance mixed with a neutral material. The distinction between Sl.No.239 and note 4 is that while Sl.No.239 required that the mixture was of one narcotic drug with another narcotic drug or psychotropic substance which may or may not also include neutral material, Note 4 widens the scope by introducing a mixture of one drug or psychotropic substance with a neutral substance. It is not at all necessary that the mixture must contain more than one drug or psychotropic substance along with neutral material for the said Note 4 to apply.

10. In order to understand as to whether the Central Government had the legislative mandate to do so, it would be necessary to examine as to what the exact limits of power of the Central Government were under section 2(viia) and 2(xxiiia). Whether we consider 2(viia) which defines the commercial quantity or section 2(xxiiia) which defines small quantity the language is virtually identical. The ‘small quantity’ and the ‘commercial quantity’ are in relation to narcotic drugs and psychotropic substances. The Central Government has been given the power to specify, by a notification in the official gazette, the quantity representing the small quantity or commercial quantity in relation to each narcotic drug and psychotropic substance. In the present case we are concerned with heroin and, therefore, we shall restrict our discussion to narcotic drugs. Narcotic drugs are defined in section 2(xiv) to include 'all manufactured drugs'. The latter expression has also been defined in section 2(xi) to inter alia, mean 'opium derivative'. And, ‘opium derivative’ itself has been defined in section 2(xvi) to, inter alia, mean diacetylmorphine and all ‘preparations’ containing more than 0.2% of morphine or containing ‘any’ diacetylmorphine. In other words a preparation containing ‘any’ diacetylmorphine would be regarded as an opium derivative.

11. The word ‘preparation’ itself has been defined in section 2(xx) to, inter alia, mean any solution or mixture, in whatever physical state containing one or more such narcotic drug or psychotropic substance. It is obvious that if there is only one narcotic drug and we are referring to a mixture, then the other material must be a neutral material. Therefore, the word 'preparation' includes reference to a mixture of one narcotic drug with a neutral material. Once we understand this, it becomes clear that the Central Government has been given the power to specify the quantity of this ‘preparation’ or mixture of a narcotic drug and a neutral substance. Once this is accepted then there is no escape from the conclusion that the Central Government had the power to specify the quantities shown in column 5 and 6 of the Table appended to the notification dated 19.10.2001 with reference to the entire mixture and not just its pure drug content. This is so because all preparations which contain diacetylmorphine would be opium derivatives which, in turn, would be manufactured drugs and that would lead us to the expression narcotic drugs. And, ultimately to the said expression as used in section 21 of the NDPS Act. We would tend to agree with the learned counsel for the respondent that the decision of the Supreme Court in the case of E. Micheal Raj (supra) was rendered at a point of time when this so-called 'loop-hole' had not been plugged and therefore it is not as if we are taking a view contrary to the Supreme Court. The Central Government, at that point of time had catered to a situation which involved a mixture of one or more narcotic drugs and psychotropic substances with or without neutral material. It had not dealt with a situation which involved one narcotic drug or one psychotropic substance with some neutral material. Unless and until there was a specific provision for it, the courts could not supply the gap particularly because these were penal provisions. Now, that the gap has been filled by the amendment to the notification dated 19.10.2001 by introducing note 4 therein, the earlier decisions would really not be applicable. We make it clear that apart from the challenge to the notification as being ultra vires the provisions of the NDPS Act, there is no challenge whatsoever to the provisions of the NDPS Act.'

(emphasis supplied)

The above said judgment rendered by the Division Bench of Delhi High Court is followed by the Division Bench of Punjab & Haryana in the case of HIRA SINGH v. UNION OF INDIA (CIVIL WRIT PETITION NO.18976/2013 decided on August 30, 2013).

9. The judgment in the case of HIRA SINGH cited supra was appealed before the Apex Court in SLP No.98/2014. The said petition was argued at length and thereafter, the said special leave petition was withdrawn by the petitioner therein on 17.1.2014.

10. At the cost of the repetition, we conclude that the law prior to issuance of notification dated 18.11.2009 had been settled by the Apex Court in the case of E. Micheal Raj cited supra holding that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is the only content of narcotic drug or psychotropic substance which has to be taken into consideration. This position is altered by virtue of the notification dated 18.11.2009 inasmuch as the entire mixture and not just its pure drug content has to be considered by virtue of the said notification.

It is also beneficial to note that the Apex Court in the case of HARJIT SINGH v. STATE OF PUNJAB reported in 2011 CRI.L.J. 2332 has ruled that the notification dated 18.11.2009 providing that whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposing punishment has got prospective effect, which means the notification dated 18.11.2009 operates from the date of said notification.

11. In our considered opinion, the point referred in this matter is fully covered by the observations and dictum laid-down by the Delhi High Court in the case of ABDUL MATEEN cited supra. We agree with the reasons assigned and the conclusion arrived at by the Delhi High Court. In view of the same, we answer the reference as under:

The Central Government’s notification dated 18.11.2009 bearing No. S.O.2941(E)/2009 is valid and the same operates with effect from 18.11.2009. Since the offence (in this matter) has occurred on 3.3.2010, the matter is governed by the notification dated 18.11.2009.

Office is directed to send back the records along with the copy of this order forthwith to the Trial Court for further proceedings.

Criminal R.C. stands disposed of accordingly.
O R