Neutral Substance Quantity Cannot Be Ignored While Labelling Contraband Recovered As 'Small' Or 'Commercial' Quantity : Supreme Court

The Supreme Court reiterated that neutral substance quantity cannot be ignored while labelling the quantity of contraband recovered as 'small quantity' or 'commercial quantity'.

In this case, the Kerala High Court (in the impugned judgment that was delivered in 2007) had relied on its earlier judgment in E. Micheal Raj V. Intelligence Officer, Narcotic Control Bureau 2005(2) Crimes 181 while allowing appeal filed by the accused who were convicted in an NDPS case.

When the appeal against this judgment came up for hearing last week, the bench of Justices Sanjay Kishan Kaul and Abhay S. Oka noted that the judgment in E. Micheal Raj [(2008) 5 SCC 161] was later overruled in Hira Singh Vs. Union of India.

"There is no cavil to the issue that the judicial pronouncement now settles the issue in "Hira Singh & Anr. Vs. Union of India & Anr." reported as 2020 SCC Online SC 382 opining that the decision of this Court relied upon in the impugned judgment- "E. Micheal Raj V. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161" is no more good law and in determining as to what is the quantity, the neutral substance quantity is not be ignored.", the bench said.

While allowing the appeal filed by the State, the bench observed:

"The aforesaid being the position, there is little choice with us but to allow the appeal and uphold the sentence as imposed by the Trial Court of 10 years. Though we do realize the travesty of the situation arising from prolonged pendency of the present appeal where the impugned judgment is of vintage 28.3.2007 i.e. 15 years old."

Hira Singh Judgment

In Hira Singh (supra), the three judges bench of the Supreme Court had held thus:

(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.

Case details

Intelligence Officer, Thiruvananthapuram vs K K Naushad | 2022 LiveLaw (SC) 978 | CrA 1726/2019 | 17 Nov 2022 | Justices Sanjay Kishan Kaul and Abhay S. Oka

For Appellant(s) Mr. Sanjay Kumar Tyagi, Adv. Mr. Shetty Uday Kumar Sagar, Adv. Mr. Arvind Kumar Sharma, Adv. Mr. Gurmeet Singh Makker, AOR

For Respondent(s) Mr. E. M. S. Anam, AOR

Headnotes

Narcotic Drugs and Psychotropic Substances Act, 1985 ; Section 21- 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 - Referred to Hira Singh Vs. Union of India AIR 2020 SC 3255

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