Hira Singh vs Uoi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.722 OF 2017 (Arising out of SLP (Crl.) NO. 6092 OF 2014)

Hira Singh & Anr. ..…Appellants

Versus

Union of India & Anr. ..…Respondents WITH

Criminal Appeal No.721 of 2017 (@ of SLP (Crl.) No.8674 of 2014)

Civil Appeal No.5218 of 2017 (@ of SLP (C) No.21465 of 2014)

W.P. (Crl.) Nos.77 and 154 of 2016 AND W.P. (Crl.) No.186 of 2014

JUDGMENT

A.M. KHANWILKAR J.

1. The conundrum in these matters is to quash or not to

quash the notification issued by the Central Government bearing

No. S.O.2941(E) dated 18.11.2009, amending Notification No.

S.O.1055(E) dated 19.10.2001 and thereby inserting Note 4 (four) Signature Not Verified Digitally signed by CHETAN KUMAR

in the table at the end of Note 3 (three). The appeals forming part Date: 2017.07.03 18:22:41 IST Reason:

of this batch of matters have arisen from the judgment and order 2

of the High Court of Delhi and of the High Court of Punjab and

Haryana respectively, rejecting the challenge to the impugned

notification being ultra vires. That notification is assailed on the

ground that the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short “the Act”) does not confer any power upon

the Central Government to vary the parameters of the

quantification of the drugs. The offence defined in the Act is

specific to narcotic drugs or the psychotropic substances. No

punishment is provided for or can be given in respect of non

narcotic drugs or the non psychotropic substances. If that cannot

be done directly, it cannot be achieved indirectly muchless by

issuance of a notification. Further, Note 4 (four) at best pertains

to entry no. 239 dealing with the non-descript mixture or

preparation with or without a natural material, of the specified

drugs referred to in entries 1 to 238 of the notification specifying

“small quantity” and “commercial quantity”. That entry no. 239

by no means can be considered as the source of power to insert

Note 4 (four). Furthermore, the effect of the notification is to

undermine the decision of this Court in the case of E. Micheal

Raj Vs. Intelligence Officer, Narcotic Control Bureau 1.

That cannot be countenanced. For, the effect of the decision of 1 (2008) 5 SCC 161 3

this Court cannot be diluted in any manner and that too by

issuance of a statutory notification or an executive action.

According to the appellants/petitioners, invocation of Note 4

(four) would have the inevitable effect of not only diluting the

decision of this Court but would also defeat the legislative intent

behind the amendment of 2001 - regarding rationalisation of

sentencing policy so as to ensure that the drug traffickers who

traffic in significant quantities of drugs are punished with

deterrent sentence but the addicts or those who commit less

serious offences are sentenced by providing less severe

punishment.

2. The respondents, on the other hand, contend that the

Central Government is fully competent and in fact, empowered

under Sections 76 and 77 of the Act to issue such notification for

carrying out the purposes of the Act. The impugned notification

has been issued in compliance with the prescribed procedure, to

notify the limits of the various drugs not in terms of the pure

drug content but the aggregate weight of the seized substance as

a “preparation” if it contained the specified drug. This is so

because the drug is almost never sold in its pure form. It is

always used in a mixture (a ‘preparation’). For instance, the 4

street level purity of heroin (Diacetylmorphine) is only about 5-10

percent. If “small” and “commercial” quantity were to be

ascertained on the basis of pure drug content of the samples of

the seized substance, it would become necessary to determine

the purity of the seized drug, which, only a few State Forensic

Laboratories in the country are capable of doing it. It will clog

them with undue amount of work. According to the respondents,

a pragmatic approach was adopted by the Central Government to

define the “small” and “commercial” quantity in terms of the total

quantity of preparation containing the specified drug. For that

reason, the threshold of “small” and “commercial” quantities as

per the notification dated 19.10.2001 have been kept at a fairly

high level. It is then contended that entry no. 239 specified in the

notification dated 19.10.2001, is essentially in the nature of a

residuary clause/entry which refers to any mixture or

preparation that of with/without a natural material, of any of the

drugs noted in entries 1 to 238. The natural meaning of such an

entry is that even if any of the specified drugs are mixed with any

other drug or with any other material, the aggregate quantity

thereof ought to be reckoned by applying the following

parameters:

5

a) Lesser of the small quantities given against the respective

narcotic drugs or psychotropic substances mentioned above

(entry nos.1 to 238) forming part of the mixture.

b) Lesser of the commercial quantity between the quantities

given against the respective narcotic drugs or psychotropic

substances mentioned above (entry nos. 1 to 238) forming part of

the mixture.

3. The real grievance of the respondents, however, is that the

decision in E. Micheal Raj (supra) has omitted to consider the

interplay between different provisions of the Act. It has focused

only on the interpretation of Section 21 of the Act, without giving

effect to the purport of the said provision. In that, Section 21

refers to any “manufactured drug” or any “preparation”

containing any manufactured drug. The expression

“manufactured drug” has been defined in Section (2) (xi) which in

turn spells out drugs which are separately defined such as - coca

derivatives [Section 2 (v)], medicinal cannabis [Section 2 (xii)],

opium derivatives [Section 2 (xvi)] and poppy straw concentrate

[Section 2 (xix)]. Similarly, the expression “preparation” has been

defined in Section 2 (xx) which in turn refers to narcotic drugs

[Section 2 (xiv)] or psychotropic substance [Section 2 (xxiii)]. The 6

expression “mixture” has not been defined in the Act. So also, the

expressions “heroin” and “natural material” or for that matter

“neutral material” does not find place in the definition provision

of the Act. The expression “neutral substance” has been, for the

first time, used in the case of E. Micheal Raj (supra) by this

Court. According to the respondents, the expression

“preparation” as also “psychotropic substance” has been

articulated on the lines of the provisions of the UN Conventions

on drug matters, namely, the UN Single Convention on Narcotic

Drugs, 1961 and the UN Convention on Psychotropic

Substances, 1971, to which India is a signatory. The notification

issued by the Central Government is to fulfill the obligations cast

on the signatory countries to the said conventions. The comity of

countries thereto are wedded to eradicate the menace of drugs

across the globe.

4. It is further submitted that the intention of framers of the

impugned notification is that even if the specified drugs are sold

in a form of mixture, i.e., it is mixed with any other

drug/materials, the determination for the purposes of

punishment would be the aggregate quantity of the mixture. In

other words, the presence of any of the specified drug in whatever 7

quantity or so to say percentage in the preparation or mixture

form would be enough to constitute the specified crime (of

possession, sale, consumption etc.).

5. According to the respondents, the decision of this Court in

E. Micheal Raj (supra) is per incuriam - because it has failed to

notice entry no. 239 in the notification and also Note 2 (two)

which intend to achieve the same purpose as in the impugned

notification. It is submitted that Note 4 (four) inserted by the

impugned notification is essentially a clarificatory one. It does not

alter the paradigm of the provisions constituting an offence or the

sentencing policy as such.

6. Alternatively, it is submitted that the efficacy of Note 4 (four)

inserted by the impugned notification must be gauged and

determined on its own merit keeping in mind the purpose and

object for which the same has been inserted and without

reference to the decision of this Court in E. Micheal Raj (supra). Reliance is then placed on the decision of this Court in the case

of Directorate of Enforcement Vs. Deepak Mahajan2 to

contend that the Court should not adopt a pedantic approach. In

that, a bare mechanical interpretation of the words and 2 (1994) 3 SCC 440 8

application of the legislative intent devoid of concept of purpose

and object will render the legislation inane. Further, it is

permissible for the courts to have functional approach and look

into the legislative intention and sometimes it may even be

necessary to go behind the words and enactment and take other

factors into consideration to give effect to the legislative intention

and the purpose and spirit of the enactment so that no absurdity

or practical inconvenience may result and the legislative exercise

and its scope and object may not become futile.

7. It is submitted that the Act nowhere uses the term “pure

content” of the drug or substance. That has been evolved by this

Court in E. Micheal Raj (supra). Further, the notification dated

19.10.2001 does not make any distinction between “pure drug

content” and the preparation or mixture. Because, what is

commercially sold is a dosage, solution or mixture. Instances

have been given by the respondents as to how the exposition of

this Court in E. Micheal Raj (supra) has resulted in giving

undue benefit to the drug traffickers. For instance, a “small

quantity” of heroin is 5 gram, which if taken as only the pure

drug content will translate into 100 grams of street level heroin.

At the rate of 0.25 gram heroin the mixture of 100 grams of 9

heroin can yield about 400 doses of heroin. It can never nor

could have been the intention of the legislature or for that matter

of the Government to send the person who possesses or sells

heroin equivalent to 400 doses to a mere six months

imprisonment. It is contended that the test applied in the case of

E. Micheal Raj (supra) of percentage or actual content of weight

of the narcotic drug has the facet of relativity theory - by

comparison with the entire quantity of the offending drugs seized

and recovered from the offender. The offenders will get double

benefit because, the notification dated 19.10.2001 has already

provided for a higher level of bench mark to constitute “small”,

“intermediary” or “commercial” quantity.

8. We have heard Shri Manoj Swarup, Shri R.K. Kapoor, Shri

Sangram S. Saron and Shri R.B. Singhal for the

appellants/petitioners and Shri Ranjit Kumar Solicitor General

assisted by Ms. Binu Tamta for the respondents - Union of India.

Before we embark upon the course to be adopted, we deem it

apposite to advert to the relevant portion of the exposition of this

Court in E. Micheal Raj (supra). This is a decision of two Judges

Bench. In paragraph 15 of the reported judgment, the Court

observed thus:

10

“15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalize 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 rationalised 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.” (emphasis supplied)

The principle stated in this decision is that the rate of purity of

the drug is decisive for determining the quantum of sentence –

for “small”, “intermediary” or “commercial” quantity. The

punishment must be based on the volume or content of the 11

offending drug in the mixture and not on the aggregate weight of

the mixture as such. In other words, the quantity of the neutral

substance 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 purpose of

determining the quantity with reference to the quantum of

punishment.

9. The respondents have rightly pointed out that the

expression “neutral” substance has not been defined in the Act.

That obviously has been coined by the Court to describe the

other component of the mixture or preparation (other than the

specified narcotic drug or psychotropic substance). We are also

in agreement with the respondents that, the said decision

nowhere makes reference to Note 2 (two) of the notification dated

19.10.2001 and that the same may have some bearing on the

issue under consideration. This decision also does not refer to

entry no. 239 and the interplay between the various provisions

alluded to earlier while noting the argument of the respondents.

That may have some bearing on the issue that has been finally

answered. The judgment, however, after quoting the notification 12

dated 19.10.2001 took note of the purpose for which Amendment

Act of 2001 was brought into force and then proceeded to hold

that to achieve the said purpose of rationalisation of the sentence

structure, the purity of the narcotic drug from the recovery or

seizure made from the offender would be a decisive factor. In

other words, the actual content or weight of the narcotic drug or

psychotropic substance alone should be reckoned. For taking

that view support was drawn from the observations made in

another two Judges Bench decision in the case of Ouseph @

Thankachan Vs. State of Kerala3 which, however, has also not

elaborately dealt with the issue finally answered in E. Micheal

Raj (supra).

10. It was possible to examine the wider issues raised by the

respondents upon accepting their argument that the decision in

E. Micheal Raj (supra) is per incuriam. However, in our view,

that decision has interpreted Section 21 of the Act. That

interpretation would bind us. Moreover, that decision has been

subsequently noted in other decisions of this Court in the case of

Harjit Singh Vs. State of Punjab4, Kashmiri Lal Vs. State of

3 (2004) 4 SCC 446 4 (2011) 4 SCC 441 13

Haryana5, State Through Intelligence Officer, and Narcotics

Control Bureau Vs. Mushtaq Ahmad and Others6 - followed or

distinguished. In Amarsingh Ramjibhai Barot vs. State of

Gujarat7, quantity of entire mixture was reckoned and not

limited to the pure drug content therein. Significantly, in none of

these decisions, was the Court called upon to examine the issues

now raised by the respondents. Further, all these decisions are of

two Judges Bench.

11. Thus, considering the significance of the issues raised by

the respondents and the grounds of challenge of the

appellants/petitioners concerning the impugned notification, to

observe judicial rectitude and in deference to the aforementioned

decisions we direct that these matters be placed before atleast a

three Judges Bench for an authoritative pronouncement on the

matters in issue, which we think are of seminal public

importance.

12. The three Judges Bench may have to consider, amongst

others, the following questions:

5 (2013) 6 SCC 595 6 (2016) 1 SCC 315 7 (2005) 7 SCC 550 14

(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?

13. It will be open to the parties to persuade the larger Bench to

reformulate the aforementioned questions or frame additional

question(s), if they so desire.

15

14. In view of the above, we direct the registry to place the

matters before the Hon’ble Chief Justice of India for seeking

appropriate directions to place the matters before a larger bench.

.………………………………...J. (Dipak Misra)

………………………………….J. (A.M. Khanwilkar)

New Delhi Dated: July 3, 2017 16

ITEM NO.1502 COURT NO.2 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No.722/2017

HIRA SINGH Appellant(s) VERSUS

UOI Respondent(s)

WITH C.A. No.5218/2017 (IV) W.P.(Crl.) No.77/2016 (X) Crl.A. No.721/2017 (II-B) W.P.(Crl.) No.186/2014 (X) W.P.(Crl.) No.154/2016 (X)

Date : 03-07-2017 These matters were called on for pronouncement of Judgment today.

For Appellant(s) Mr. R.K. Kapoor, Adv. Mr. D.S. Pheruman, Adv. Ms. Kheyali, Adv. Mr. Rajat Kapoor, Adv. Ms. Shweta Kapoor, Adv. Mr. Anis Ahmed Khan, AOR

Mr. Nikhil Jain, AOR

Mr. Manoj Swarup, Adv. Mr. Vipul Jindal, Adv. Mr. Ajay Kumar, AOR

Ms. Upasana Nath, Adv. Mr. Sunil Dutt, Adv. Mr. Rashmi Singh, AOR

For Respondent(s) Mr. Jagjit Singh Chhabra, AOR

Mr. Kuldip Singh, AOR

Mr. B. Krishna Prasad, AOR 17

Hon'ble Mr. Justice A.M. Khanwilkar pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.

In terms of the signed reportable judgment, the Registry is directed to place the matters before the Hon'ble Chief Justice of India for seeking appropriate directions to place the matters before a larger Bench.

(Chetan Kumar) (H.S. Parasher) Court Master Court Master

(Signed reportable judgment is placed on the file)