TMI Blog2017 (7) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 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? The registry is directed to place the matters before the Hon ble Chief Justice of India for seeking appropriate directions to place the matters before a larger bench. - CRIMINAL APPEAL NO.722 OF 2017 (Arising out of SLP (Crl.) NO. 6092 OF 2014) WITH Criminal Appeal No.721 of 2017 (@ of SLP (Crl.) No.8674 of 2014),Civil Appeal No.5218 of 2017 (@ of SLP (C) No.21465 of 2014), W.P. (Crl.) Nos.77 and 154 of 2016 AND W. - - - Dated:- 3-7-2017 - Dipak Misra and A.M. Khanwilkar, JJ. For the Appellant : Mr. R.K. Kapoor, Adv., Mr. D.S. Ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut would also defeat the legislative intent behind the amendment of 2001 - regarding rationalisation of sentencing policy so as to ensure that the drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence but the addicts or those who commit less serious offences are sentenced by providing less severe punishment. 2. The respondents, on the other hand, contend that the Central Government is fully competent and in fact, empowered under Sections 76 and 77 of the Act to issue such notification for carrying out the purposes of the Act. The impugned notification has been issued in compliance with the prescribed procedure, to notify the limits of the various drugs not in terms of the pure drug content but the aggregate weight of the seized substance as a preparation if it contained the specified drug. This is so because the drug is almost never sold in its pure form. It is always used in a mixture (a preparation ). For instance, the street level purity of heroin (Diacetylmorphine) is only about 5-10 percent. If small and commercial quantity were to be ascertained on the basis of pure drug content of the samples of the seized substance, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, the expressions heroin and natural material or for that matter neutral material does not find place in the definition provision of the Act. The expression neutral substance has been, for the first time, used in the case of E. Micheal Raj (supra) by this Court. According to the respondents, the expression preparation as also psychotropic substance has been articulated on the lines of the provisions of the UN Conventions on drug matters, namely, the UN Single Convention on Narcotic Drugs, 1961 and the UN Convention on Psychotropic Substances, 1971, to which India is a signatory. The notification issued by the Central Government is to fulfill the obligations cast on the signatory countries to the said conventions. The comity of countries thereto are wedded to eradicate the menace of drugs across the globe. 4. It is further submitted that the intention of framers of the impugned notification is that even if the specified drugs are sold in a form of mixture, i.e., it is mixed with any other drug/materials, the determination for the purposes of punishment would be the aggregate quantity of the mixture. In other words, the presence of any of the specified drug in whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rug content will translate into 100 grams of street level heroin. At the rate of 0.25 gram heroin the mixture of 100 grams of heroin can yield about 400 doses of heroin. It can never nor could have been the intention of the legislature or for that matter of the Government to send the person who possesses or sells heroin equivalent to 400 doses to a mere six months imprisonment. It is contended that the test applied in the case of E. Micheal Raj (supra) of percentage or actual content of weight of the narcotic drug has the facet of relativity theory - by comparison with the entire quantity of the offending drugs seized and recovered from the offender. The offenders will get double benefit because, the notification dated 19.10.2001 has already provided for a higher level of bench mark to constitute small , intermediary or commercial quantity. 8. We have heard Shri Manoj Swarup, Shri R.K. Kapoor, Shri Sangram S. Saron and Shri R.B. Singhal for the appellants/petitioners and Shri Ranjit Kumar Solicitor General assisted by Ms. Binu Tamta for the respondents - Union of India. Before we embark upon the course to be adopted, we deem it apposite to advert to the relevant portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such. In other words, the quantity of the neutral substance is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug, which is relevant for the purpose of determining the quantity with reference to the quantum of punishment. 9. The respondents have rightly pointed out that the expression neutral substance has not been defined in the Act. That obviously has been coined by the Court to describe the other component of the mixture or preparation (other than the specified narcotic drug or psychotropic substance). We are also in agreement with the respondents that, the said decision nowhere makes reference to Note 2 (two) of the notification dated 19.10.2001 and that the same may have some bearing on the issue under consideration. This decision also does not refer to entry no. 239 and the interplay between the various provisions alluded to earlier while noting the argument of the respondents. That may have some bearing on the issue th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? 13. It will be open to the parties to persuade the larger Bench to reformulate the aforementioned questions or frame additional question(s), if they so desire. 14. In view of the above, we direct the registry to place the matters before the Hon ble Chief Justice of India for seeking appropriate directions to place the matters before a larger bench. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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