TMI Blog2009 (5) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... WP (CRL) 326/2009 was made on 27.02.2009, whereas the detention order in respect of the petitioner Nafe Singh in WP (CRL) 384/2009 was made on 13.03.2009. 2. Both Rajesh Sharma and Nafe Singh were arrested with other co- accused Diwakar Gupta and Amit Kohli on 06.05.2008 on the allegation that they had indulged in illegal trading of diazepam, lorazepam, alprazolam, clonazepam and phenobarbitone. These are all drugs specified in Schedule H' to the Drugs and Cosmetics Rules, 1945. It is also an admitted position that they are psychotropic substances and are specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act'). However, these substances are not mentioned in Schedule-I to the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as the NDPS Rules'). 3. Both Rajesh Sharma and Nafe Singh applied for bail. Their bail applications were rejected by the learned Special Judge, NDPS, New Delhi on 31.10.2008. Thereafter, two of the co-accused, namely, Diwakar Gupta and Amit Kohli filed bail applications before this court. However, the same were sought to be withdrawn on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PS Act. Lastly, Mr Tulsi submitted that personal liberty is so sacrosanct and so high in the scale of the constitutional values that it places an obligation on the detaining authority to show that the order of detention meticulously accords with the procedure established by law. He submitted that what the petitioners are alleged to be doing was not an offence under the NDPS Act and, therefore, would not be covered by the expression illicit trafficking . Thus, according to him, the detention orders could not have been made when the alleged act was itself not an offence. He submitted, in the context of the seriousness of the problem of illicit trafficking in drugs and psychotropic substances, that when it comes to infringement of fundamental rights, the High Court, irrespective of the severity and gravity of the evil, has to intervene as the gravity of evil cannot furnish sufficient reasons for invading the personal liberty of citizens except for and in accordance with the procedure established by law. Elaborating on these submissions, Mr Tulsi contended that the non-application of mind by the detaining authority is writ large on the detention order itself when, according to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the admitted position that they were allopathic drugs which find mention in Schedule H' of the Drugs and Cosmetics Rules, 1945. Consequently, it was submitted that there was no violation of the provisions of the NDPS Act and, therefore, the activity allegedly indulged in by the petitioners could not be regarded as illicit traffic' within the meaning of Section 2 (e) of the PIT-NDPS Act. 6. Mr P.P. Malhotra, the learned Additional Solicitor General of India, appearing on behalf of the respondents, submitted that the decision of the Supreme Court in the case of Rajesh Kumar Gupta (supra) did not have any application to the facts of the present petitions for various reasons. First of all, according to him, the said judgment did not decide the merits of the matter as to whether the NDPS Act was applicable or not in the case of export out of India of the psychotropic substances mentioned in the Schedule to the NDPS Act. He also contended that the said decision did not deal with Sections 8 and 22 of the NDPS Act nor with Rule 58 of the NDPS Rules. Furthermore, he submitted that the said decision arose in the context of a bail application, under Section 37 of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 80. Application of the Drugs and Cosmetics Act, 1940 not barred.-- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder. NDPS Rules CHAPTER VI IMPORT EXPORT AND TRANSHIPMENT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES 53. General prohibition.-- Subject to the other provisions of this Chapter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consignments of any narcotic drug or psychotropic substance through a post office box or through a bank is prohibited. 8. Mr Malhotra submitted that on a plain reading of Section 8 of the NDPS Act, it is clear that no person can export from India any narcotic drug or psychotropic substance except for medical or scientific purposes and that, too, in the manner and extent provided under the NDPS Act or the NDPS Rules. He submitted that the manner and extent indicated under the said Act and the Rules impose a requirement by way of licence, permit or authorisation. Rule 58 deals with application for export authorisation. According to him, Rule 53 deals with psychotropic substances specified in Schedule-I to the NDPS Rules. However, Rule 58 deals with psychotropic substances specified in the Schedule to the NDPS Act. He submitted that no word of an Act or the Rules could be said to be redundant. The legislature is deemed to be aware of the language used by it in the Act. The Central Government, in framing the NDPS Rules, is also deemed to be aware of the distinction between the Schedule to the Act and Schedule-I to the NDPS Rules. He submitted that the different language employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive function under the disguise of interpretation. 14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.: 2000 (5) SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case: 1996 (3) SCC 88. In Nanjudaiah case:1996 (10) SCC 619, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only Clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent. 10. It was further contended by Mr Malhotra that the petitioners have acted in violation of Section 8 of the NDPS Act inasmuch as they have ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons ought to be rejected. 12. The detention orders, which are in question in the present writ petitions, have purportedly been made under Section 3(1) of the PIT- NDPS Act. The said provision reads as under:- 3. Power to make orders detaining certain persons.-- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained. It is apparent that a detention order is made with a view to preventing a person from engaging in illicit traffic in narcotic drugs and psychotropic substances . Section 2(e) of the PIT-NDPS Act defines illicit traffic in the following manner, to the extent relevant:- 2. Definitions.--In this Act, unless the context otherwise requires, -- (a) xxxx xxxx xxxx xxxx (b) xxxx xxxx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purview of the PIT-NDPS Act. The expression psychotropic substances has not been defined in the PIT-NDPS Act. Consequently, in view of Section 2 (h) of the PIT-NDPS Act, the meaning ascribed to that expression under the NDPS Act would have to be taken. Psychotropic substances' has been defined in Section 2 (xxiii) as under:- 2. Definitions.--In this Act, unless the context otherwise requires, -- xxxxx xxxxx xxxxx xxxxx xxxxx (xxiii) Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. 16. In the present petitions, there is no dispute that the substances in question are psychotropic substances within the meaning of a psychotropic substance under Section 2 (xxiii) of the NDPS Act. All of them find mention in the Schedule to the NDPS Act. Alprazolam is mentioned at S.No. 30, clonazepam is mentioned at S.No.38, diazepam is mentioned at S.No.43, lorazepam is mentioned at S.No.56 and phenobarbitol is mentioned at S.No.69 of the Schedule to the NDPS Act. However, these psychotropic substances do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at subject to the other provisions of Chapter VI, import into and export out of India of narcotic drugs and psychotropic substances specified in Schedule-I is prohibited provided that the said rule would not apply in case the narcotic drug and psychotropic substance, which is to be imported into or exported out of India, is subject to an import certificate or export authorisation issued under the provisions of Chapter VI and for the purposes mentioned in Chapter VII-A. It is, therefore, clear that Rule 53 relates only to those psychotropic substances which are specified in Schedule-I to the NDPS Rules. The prohibition does not extend to all psychotropic substances mentioned in the Schedule to the NDPS Act, but only to those which are specified in Schedule-I to the NDPS Rules. The proviso to Rule 53 would only apply to the psychotropic substances specified in Schedule- I and, therefore, the provisions of Chapter VII-A would only be triggered if the psychotropic substances which are sought to be imported into or exported out of India find place in Schedule-I to the NDPS Rules. 20. Much reliance was placed by Mr Malhotra on the provisions of Rule 58 of the NDPS Rules to submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause of the use of the expression subject to Rule 53 ... , has specifically been made sub-servient to Rule 53. It is clear that the prohibition contained in Rule 53 would also apply to Rule 58. But that prohibition only extends to the psychotropic substances mentioned in Schedule-I to the NDPS Rules and not to all psychotropic substances mentioned in the schedule to the NDPS Act. 21. Another reason for not agreeing with the submissions made by Mr Malhotra is that if it is accepted that any psychotropic substance specified in the Schedule to the NDPS Act would require export authorisation before it could be exported out of India, then it would mean that the general prohibition contained in Rule 53 would be rendered redundant. It is obvious that all psychotropic substances mentioned in Schedule-I to the NDPS Rules are also included in the Schedule to the NDPS Act, but not the other way round. This is so because the list of psychotropic substances provided under Schedule-I to the NDPS Rules is a sub-set of the larger list of the psychotropic substances specified in the Schedule to the NDPS Act. If Rule 58 were to be read in the manner suggested by Mr Malhotra, then irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Supreme Court. The High Court, in that case, was of the opinion that the substance in question, i.e., phenobarbitone was not listed in Schedule-I to the NDPS Rules and, therefore, the accused could not be said to have committed any offence under Section 8 read with Section 22 of the NDPS Act. In this connection, the Supreme Court analysed various provisions of the NDPS Act and the NDPS Rules, including Sections 8 and 22 of the NDPS Act and Rule 53 of the NDPS Rules. While construing the prohibition contained in Section 8 of the NDPS Act, the Supreme Court observed as under:- ... The said provision contains an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder. 23. The Supreme Court specifically observed that it had not been brought to their notice that the NDPS Act provided for the manner and extent of the passion of the contraband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used therein fell within the purview of Schedules G' and H' of the Drugs and Cosmetics Act. It was also not in dispute that the same were mentioned in the Schedule to the NDPS Act, but did not find place in Schedule-I appended to the NDPS Rules. In this context, the Supreme Court made a categorical observation as under:- ... If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.‖ The Supreme Court further observed that:- In view of the fact that all the drugs being Item No. 1, 2, 3, 4, 6 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression medicinal purposes . Consequently, the Supreme Court was of the view that inasmuch as the NDPS Act would in itself not apply, Section 37 thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, the Supreme Court made the observations with regard to a legal question as it was necessary for the Supreme Court to examine and to come to a conclusion. It is not as if these observations were made by the way. They were essential for ascertaining the true and correct legal position. Insofar as the law is concerned, the Supreme Court considered the same in Rajesh Kumar Gupta (supra) and gave its conclusive verdict thereon. The decision was prima facie not on a point of law, but on the question of facts. 26. In any event, an obiter dictum of the Supreme Court is normally considered to be binding on the High Courts in the absence of a direct pronouncement on that question elsewhere by the Supreme Court. This is exactly what was held by the Supreme Court in Oriental Insurance Company Limited v.Meena Variyal Others: 2007 (5) SCC 428. Furthermore, even if the observations were to be regarded as obiter dicta, as pointed out in Commissioner of Income-tax, Hyderabad- deccan v. Vazir Sultan Sons: 1959 Supp (2) SCR 375, the obiter dicta of the Supreme Court are entitled to considerable weight. The same view is expressed by the Supreme Court in Director of Settlements, A.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the NDPS Rules was not considered in Rajesh Kumar Gupta (supra). However, the general principles indicated above would apply. In any event, we have already analysed the interplay between these provisions and have indicated that Rule 58 of the NDPS Rules is sub-servient to Rule 53. Consequently, Rule 58 would only come into play in respect of psychotropic substances which are listed in the Schedule to the NDPS Act but do not find mention in Schedule-I to the NDPS Rules. It is for this reason that Rule 58 only refers to the psychotropic substances mentioned in the Schedule to the Act because those psychotropic substances which find mention in Schedule-I to the NDPS Rules are clearly prohibited and for which no authorisation can be granted whatsoever. 32. As indicated above, Mr Malhotra had placed reliance on the decision of the Supreme Court in Ahmadalieva Nodira (supra) and had submitted that this decision being that of a Bench comprising of three Hon'ble Judges of the Supreme Court would override the decision in Rajesh Kumar Gupta (supra) which was rendered by a Bench comprising of only two Hon'ble Judges of the Supreme Court. First of all, there is nothing in this d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, after receiving orders over the internet, it cannot be said with any degree of definiteness that they were indulging in 'illicit traffic of psychotropic substances' as understood in the context of Section 3(1) of the PIT-NDPS Act. There are clear indications that the export of the psychotropic substances in question, not being part of Schedule-I to the NDPS Rules, would per se not amount to an activity prohibited under the NDPS Act read with the NDPS Rules. In the worst, from the standpoint of the petitioners, the question as to whether their alleged activity falls within the expression 'illicit traffic' would be a debatable one. It is obvious that where it is a clear case that the alleged activity, even if taken to be established against the petitioners, does not amount to illicit traffic, there is no question of maintaining the detention orders. But, even if the issue is debatable as to whether the activities of the petitioners fall within the expression 'illicit traffic', we feel that a detention order would still not be a prophylactic which would be available to the executive under the Constitutional regime. The reason is obvious. Personal liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Claues (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be jealously watched and enforced by the Court . Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission: May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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