NDPS - Quantity Of Neutral Substances In Mixture Must Be Taken Into Account With Actual Drug Weight To Determine 'Small Or Commercial Quantity' : SC

In a significant verdict, the Supreme Court on Wednesday held that the quantity of neutral substances in a mixture containing narcotic drugs or psychotropic substances must be taken into account along with the actual weight of the offending drug while determining 'small or commercial quantity' under the Narcotic Drugs and Psychotropic Substances Act, 1985.

On this view, a three-judge bench overruled the 2008 decision E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, which had held that only the actual weight of the drug in a mixture will matter under the NDPS Act, and that the weight of the neutral substances can be excluded.

A three-judge bench comprising Justices Arun Mishra, Indira Banerjee and M R Shah thus answered a reference made in 2017 doubting the correctness of E Micheal Raj.

The question before the court was "whether while determining the small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), the quantity of neutral substance(s) is not to be taken into consideration or it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity?".

The bench noted that the substance that was seized in E.Micheal Raj was 4 kgs of heroin, which would fall in Entry 56 of the Notification dated 19.10.2001 under NDPS Act. As per the said Notification, 5gms is a small quantity and 250 gm is the commercial quantity in case of heroin.

The bench in E Micheal Raj considered Heroin as Opium derivative and hence a "manufactured drug". Therefore, that bench was not dealing with a mixture containing drug.

"the case of mixture of narcotic drugs or psychotropic substance was not at all in direct consideration of this Court", the bench noted as regards E Micheal Raj case. 

Considering the statement of objects and reasons of the NDPS Act, the bench observed that "it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity".

The bench also noted that drugs are mostly sold as a mixture, and never in a pure form. 

"At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealer will add other drugs or non -intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown-sugar / smack is usually made available in power form. The substances is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous", read the judgment authored by Justice M R Shah.

Citing the above examples, the court said that even mixture of narcotic drugs or psychotropic substance is more dangerous.

"Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for "commercial quantity". Certainly that would not have been the intention of the legislature"

The bench stressed that the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of the Act, considering its impact on the society.

Validity of 2009 notification

After the E Micheal Raj decision, the Central Government issued a notification in 2009 to state that the quantity of neutral substances in a drug mixture should also be recoked.

This was by adding Note 4 to the 2001 notification which specified 'small' and 'commercial quantities' in relation to various drug. Note 4 reads as follows:

"The quantities shown in column 5 and 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 substance of the particular drug in dosage form or isomers, esters, ethers and salts or these drugs, including salts or esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." 

The Court upheld this notification and said that it was inserted by Union as a matter of "abundant caution" and was "clarificatory" in nature.

"the impugned Notification dated 18.11.2009 adding "Note 4" to the earlier Notification dated 19.10.2001, cannot be said to be contrary to the scheme and the various provisions of the NDPS Act", the bench said.

The reference was answered as follows :

"(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or 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 and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;

(III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act".

Additional Solicitor General Aman Lekhi, appearing for the Union Government, submitted that the 2008 judgment will make it difficult to punish drug peddlers.

Case Details
Title : Hira Singh v Union of India
Case No : Criminal Appeal No. 722 of 2017
Coram : Justices Arun Mishra, Indira Banerjee and M R Shah
Appearances : Aman Lekhi, Additional Solicitor General;  
Senior Advocates Manoj Swarup, Anand Grover Adv R K Kapoor for private parties.

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