Delhi HC Upholds Listing Of Ketamine As Psychotropic Substance Under NDPS Act [Read Judgment]

The High Court of Delhi on Tuesday upheld the inclusion of Ketamine in the list of psychotropic substances for the purposes of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

Upholding the inclusion, the Bench comprising Chief Justice G. Rohini and Justice Jayant Nath noted that there existed enough material before the Centre evidencing trafficking of Ketamine. It further took note of the fact that both, the Commission on Narcotic Drugs (CND) and the International Narcotics Control Board (INCB), had recommended to put in place appropriate control measures to address the growing problem of Ketamine abuse and diversion to illicit channel for non-medical use.

The Court was hearing a petition filed by one Vishal Puri, who has been in custody since 2014 after 1,195.2 kilos of Ketamine Hydrochloride was seized from him. Mr. Puri had now challenged a Notification dated 10 February, 2011, whereby Ketamine was included in the list of psychotropic substances, and the consequential Notification dated 21 June, 2011, which had specified the ‘small’ and ‘commercial’ quantity of Ketamine for the purpose of penal provisions of the NDPS Act.

The State had submitted that Ketamine was notified as a psychotropic substance under the NDPS Act, as it was felt that more deterrent measures were needed to address its smuggling and abuse.

Mr. Puri had, however, contended that since ‘Ketamine’ is not a psychotropic substance under the Convention on Psychotropic Substances, 1971, it should not be included in the list of psychotropic substances under the impugned Notification.

He had further averred that the notification did not comply with the conditions set out in Clauses (a) and (b) of Section 3 of the NDPS Act. As per Section 3 of the NDPS Act, the Central Government is empowered to add to, by issuance of a notification in the Official Gazette, the list of psychotropic substances specified in the Schedule. Such notification can be issued only on being satisfied that it is necessary or expedient to do so on the basis of (a) the information and evidence which has become available to it; and (b) the modifications or provisions (if any) which have been made to, or in any International Convention with respect to such substance. These conditions, it was contended, are conjunctive, and hence, demand a simultaneous compliance by any notification issued in this regard.

The Court, however, held that the word “and” used in Sections 3 (a) and 3(b) of the NDPS Act should be read as “or”, and that the two clauses need to be given a disjunctive reading “so as to give effect to the intention of the legislature lest sub-section 3(a) would be rendered otiose”. It, thereby, upheld the impugned notifications.

Read the Judgment here.