Rajasthan HC Seeks Centre's Response On Not Specifying Small Or Commercial Quantity Of Opium Poppy Plants Under NDPS Act

Dealing with a suo moto case registered this year, the Rajasthan High Court, Jodhpur Bench has sought Centre's response on explaining the rationale behind its notification dated 19th October 2001 for not specifying small or commercial quantity for cultivation of Papaver somniferum commonly known as opium poppy or poppy plants under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Issuing notice to Union of India, through Ministry of Finance, Department of Revenue and also to the State of Rajasthan, a vacation bench comprising of Justice Dinesh Mehta ordered thus:

"This Court deems it expedient to call upon the Central Government to explain the rationale behind insertion of "Note.3" in the notification dated 19.10.2001, instead of prescribing small and commercial quantity."

Furthermore, it said:

"The Court would examine expediency, legality or proprietary of the 3rd note in the notification. The court may further issue appropriate direction(s) to the Central Government (if deemed necessary) to prescribe small quantity and commercial quantity in terms of number of plants or area cultivated so as to bring the notification in consonance and harmony with the provisions and scheme of the Act."

According to Note 3 of the notification, it has been provided that "Small Quantity" and "Commercial Quantity"with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotics Drugs and Psychotropic Substances Act,1985.

Looking at the aforesaid note, the Court opined that "In the opinion of this Court since the very cultivation of opium poppy without a license is prohibited under section 18 of the Act of 1985, the view of the Central Government that cultivation of opium poppy irrespective of its quantity is covered by section 18(c) of the Act of 1985, apparently runs contrary to statutory position."

Furthermore, according to the Court, every case of cultivation of poppy plants irrespective of number is considered punishable under sec. 18(c) of the Act and that such offenders are being released on bail without ensuring compliance of sec. 37(1)(b) of the Act.

According to the provision, it has been provided that in case an offence involves commercial quantity, the Court would afford an opportunity of hearing to the Public Prosecutor and record its satisfaction of belief that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.

Analysing sec. 16 (Punishment for contravention in relation to coca plant and coca leaves), 18 (Punishment for contravention in relation to opium poppy and opium) and 20 (Punishment for contravention in relation to cannabis plant and cannabis) of the Act, the Court observed thus:

"...when it comes to provisions qua cultivation of poppy plants, the offence has been kept at par with the offence of production, manufacture, processing, sale, purchase, transportation, imports inter-State, exports inter-State or use and accordingly punishment under section 18 has been prescribed based on the quantity in question."

According to the Court, on account of Note No.3 appended with the notification, regardless of the number of plants, an accused/cultivator claims immunity from rigors of sec. 37(1)(b) of the Act of 1985 and the courts are left with no other option but to do away with the requirements of sec. 37(1)(b) of the Act.

"Note No.3 in the notification dated 19.10.2001 is,thus,prima facie incongruous and contrary to the provisions of section 18 of the Act of 1985, because the Parliament has held even the cultivation of opium poppy an equally serious offence as its manufacture, processing, production, sale and purchase etc. by the legislature." The Court observed at the outset.

The matter will now be listed before the roster bench on 12th July 2021.

Title: Suo Moto v. UOI S.B. Criminal Misc(Pet.) No. 2877/2021

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