NDPS Act- Whether Weight Of Neutral Substance Be Ignored In Manufactured Drugs With Minuscule Percentage Of Narcotic Substance? Delhi HC Refers Issues To Larger Bench

The Delhi High Court on Friday referred to larger bench the issue as to whether the weight of neutral substance can be ignored in cases of manufactured drugs with Miniscule percentage of narcotic substance in them? 

Justice Subramonium Prasad referred the following issues to a larger bench:

- Whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?
- Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?
- Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?

The development came while the bench granted interim bail for 90 days to the petitioner against whom a complaint case was filed after bottles containing Codeine Phosphate, which is a manufactured drug under the NDPS Act, were recovered form him while he was traveling to Saudi Arabia in a flight.

The petitioner was handed over to the Saudi Arab Airlines Staff on their suspicion and was further handed over with his baggage to the Customs

Authorities. Accordingly, on inspection, it was found that each bottle weighed 100 grams containing Codeine concentration of 0.17% which translates to

about 18.7 grams of concentrated codeine in total 110 bottles.

Petitioner's bail plea was rejected by the Special NDPS judge after observing that he was having 11,000 ml of cough syrup and therefore held that it was a commercial quantity, thereby committing an offence involving commercial quantity under the Act.

The point of consideration before the bench was "whether the rigour of Section 37 of the NDPS Act which regulates the grant of bail for offence involving commercial quantity of drugs is attracted or not?"

In view of the facts of the case, the Court relied on plethora of judgments on the subject and observed that the a distinction has been created between illicit substances which are sold in mixtures containing neutral substances or which may have the effect of enhancing the effect of the offending substance or facilitate its abuse and a non offending substance or preparation with bifacial qualities "which may have the miniscule quantities of a substance which are also used for medicinal purposes and are available in medical shops across country."

"Codeine is a Schedule H-1 Drug, under the Drugs and Cosmetics Act, 1940, and is not to be sold without a valid prescription. Any Codeine based cough syrup ideally should not be available without a prescription. The reality however is different. This Court can take judicial notice of the fact that any person desirous of obtaining a Codeine based cough syrup can do so without much difficulty." The Court observed at the outset.

Furthermore, the Court said:

"Even if the person is using a codeine cough syrup for illicit reasons, of obtaining a 'high', possessing a single bottle of codeine cough syrup will ensure that such user is treated on par with a person who possesses even 19 kilograms of ganja. Hypothetically, a family where there are a number of people having chronic cough problem procures 10 bottles of cough syrup before embarking on a trip to ensure adequate supply of the cough syrup, would be deemed to be in possession of a commercial quantity of Codeine, and would face a minimum of 10 years imprisonment. This obviously wasnot and could not be the intention of the legislature or the true meaning of the judgment of the Supreme Court in Hira Singh's case."

While referring the questions to be considered by a larger bench, the Court however granted interim bail to the petitioner subject to his furnishing of a personal bond in the sum of Rs.35,000/- with surety in the like amount to the satisfaction of the Trial Court.

Title: MOHD AHSAN v. CUSTOMS

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