NDPS Act | Weight Of Neutral Substance Not To Be Ignored While Determining Quantity Of Seized Contraband: Delhi High Court

The Delhi High Court on Friday observed that if the contraband seized falls within the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between.

A division bench comprising of Justice Siddharth Mridul and Justice Amit Sharma was dealing with a plea wherein three questions were referred to it by a single judge bench concerning the issue pertaining to miniscule percentage of a narcotic substance under the Act.

The development ensued in a bail plea filed by one Mohd. Ahsan in connection with an FIR registered against him under NDPS Act. The issue referred to larger bench was whether the weight of neutral substance can be ignored in cases of manufactured drugs with Miniscule percentage of narcotic substance in them? 

More particularly, the issue raised was whether the recovery of 110 bottles of Phensedyl New weighing 100 gms each and having a Codeine concentration of 0.17% per bottle would be considered as commercial quantity under the NDPS Act?

The questions thus raised were as follows:

- 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 notification in question stated if any manufactured drug within the meaning of sec. 2(xi)(b) of NDPS Act contains not more than 100 mg of Methyl Morphine and that if Codeine is compounded with one or more ingredients in the drug and the same has been established in therapeutic practice, it will not be a preparation within the meaning of manufactured drug and, therefore it will not to be a narcotic drug.

"A combined reading of Rule 52A of The NDPS Rules and Entry no. 35, in the aforementioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its inclusion under the category of "essential narcotic drug" under Section 9(1)(a)(va) of the NDPS Act 1985. In our considered opinion, Rule 52A further regulates the manner of possession and other related activities enumerated therein, with respect to substances/preparations covered under the aforesaid Entry 35," the Court said.

Thus, the Bench concluded that if the contraband recovered in a particular case is covered by Rule 52A of the NDPS Rules, then violation of the said Rules would be punishable under the NDPS Act.

"In that situation, Note 4 of the S.O. 1055 (E) dated 19th October, 2001 would be applicable to such substances including cough syrup," the Court added.

It added "If the alleged contraband seized falls within the definition of "manufactured drug" under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid "Note 4" will be applicable."

Therefore, while answering the questions referred to it, the Court posted the matter before the appropriate bench for considering the question of grant of bail.

It is pertinent to note that a division bench of High Court had in January this year issued notice on a PIL challenging the two notifications stipulating that mixture of narcotic drug and seized material should be considered as a preparation 'in totality', as opposed to actual quantity of drug.

The High Court single judge bench had last year 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.

Case Title: MOHD AHSAN v. CUSTOMS

Citation: 2022 LiveLaw (Del) 878

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