NDPS Act| Delhi High Court To Examine Legality Of Including Neutral Substances With Actual Drug Weight To Determine 'Small Or Commercial Quantity'
The Delhi High Court has issued notice on a writ petition, challenging two notifications issued by the Union Ministry of Finance, stipulating that mixture of narcotic drug and seized material should be considered as a preparation 'in totality', as opposed to actual quantity of drug. The Division Bench of Chief Justice DN Patel and Justice Jyoti Singh has issued notice to the...
The Delhi High Court has issued notice on a writ petition, challenging two notifications issued by the Union Ministry of Finance, stipulating that mixture of narcotic drug and seized material should be considered as a preparation 'in totality', as opposed to actual quantity of drug.
The Division Bench of Chief Justice DN Patel and Justice Jyoti Singh has issued notice to the Central government and has fixed the case for hearing next month.
The plea filed by one Rajeev TM, an accused under the Narcotic Drugs and Psychotropic Substances Act, states that the impugned notifications issued in the year 2001 and 2009 have the effect of penalising the preparation of a drug at par with the drug itself.
The same is challenged on two primary grounds:
1. Abuse of competence of Executive
It is argued that the NDPS Act requires only the pure narcotic drug / psychotropic substance to be considered for determining quantities and any neutral material should not be counted.
However, the impugned notifications have the joint and several "defect" of creating a new category of offence namely penalising the preparation of a drug at par with the drug itself.
For instance, it is illustrated, that if the notifications are applied, 4 grams of heroin would be small quantity, but if an addict mixes them with 50 kgs of powdered sugar then the same would be a commercial quantity that has ramifications as grave as incarceration up to 20 years.
"While the NDPS Act allows the Respondents to notify the quantity of any drug which would qualify as a commercial quantity or small quantity under the NDPS Act, they does not confer any power to expand the definition of drug to include preparation through notification," the plea states.
2. Violation of Articles 14 & 21 of Constitution
The impugned notifications create a situation where the objective of NDPS Act of rationalized sentencing by taking a reformative approach towards addicts is defeated and they are treated at par with drug traffickers.
Thus, it is alleged to be arbitrary and violative of Article 14 and 21 of the Constitution.
The plea states, "That there is no rational nexus between the classification created by these notifications and the object of the NDPS Act, and therefore, there is a violation of Article 14…The notifications violate Article 21 of the Indian Constitution also because it enhances the criminalization of possession of a drug if the said drug is mixed with enough neutral material."
Advocate J Sai Deepak appeared for the Petitioner. He submitted that Supreme Court has in the case of Hira Singh v. Union of India has taken the view that for determining the quantity of drug as "small quantity" or "commercial quantity" the entire quantity of drug would be taken into account i.e. the content of the pure drug and also the neutral materials in terms of the impugned notifications.
However, he added that the same is not an impediment in the filing of the instant Writ Petition as the Supreme Court had merely applied the impugned notifications.
The question of the vires of the impugned notifications was not a subject matter in the aforementioned judgment and thus there is no finding on the legality of the impugned notification, he added.
The petition is filed through Advocates Anzu K. Varkey, Avinash K Sharma, Pranav Krishna & Ashutosh Nagar.
Case Title: Rajeev T.M. v. Union of India