Challenge Against 2009 Notification Under NDPS Act: SC Refers The Matter To A Three-Judge Bench [Read the Order]

The Supreme Court bench of Jutices Dipak Misra and A.M.Khanwilkar, on Monday, July 3, referred a challenge to the Central Government’s 2009 notification varying the parameters of the quantification of the drugs under the NDPS Act, to a three-Judge bench.

According to the notification, the presence of any of the specified drug in whatever quantity in the preparation or mixture form would be enough to constitute the specified crime of possession, sale, consumption, etc.

The notification was contrary to what the Supreme Court had held in E.Michael Raj v Intelligence Officer, Narcotics Control Bureau (2008) that the rate of purity of the drug is decisive for determining the quantum of sentence – for small, intermediary or commercial quantity.  The punishment, the judgment had held, muse be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such.

The bench found that the other benches of the Supreme Court had decided the matter in a way which was inconsistent with Michael Raj.  In Amarsingh Ramjibhai  Barot v State of Gujarat, (2005) another case decided by a two-Judge bench,  quantity of entire mixture was reckoned, and not limited to the pure drug content therein.

Therefore, the Dipak Misra-Khanwilkar bench decided to refer this case to a three-Judge bench, to consider whether the judgment in Michael Raj requires reconsideration and the Government could  redefine the parameters for constituting an offence and for awarding punishment under the Act.

The three-Judge bench also has to consider whether the Act envisages the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of actual drug content of the specified narcotic drug.

The questions referred to the consideration of three Judge Bench

(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?

Read the Order Here