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TMI Blog2017 (7) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... ee). The appeals forming part of this batch of matters have arisen from the judgment and order of the High Court of Delhi and of the High Court of Punjab and Haryana respectively, rejecting the challenge to the impugned notification being ultra vires. That notification is assailed on the ground that the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") does not confer any power upon the Central Government to vary the parameters of the quantification of the drugs. The offence defined in the Act is specific to narcotic drugs or the psychotropic substances. No punishment is provided for or can be given in respect of non narcotic drugs or the non psychotropic substances. If that cannot be done directly, it cannot be achieved indirectly muchless by issuance of a notification. Further, Note 4 (four) at best pertains to entry no. 239 dealing with the non-descript mixture or preparation with or without a natural material, of the specified drugs referred to in entries 1 to 238 of the notification specifying "small quantity" and "commercial quantity". That entry no. 239 by no means can be considered as the source of power to insert Note 4 (four). Furthermore, the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /entry which refers to any mixture or preparation that of with/without a natural material, of any of the drugs noted in entries 1 to 238. The natural meaning of such an entry is that even if any of the specified drugs are mixed with any other drug or with any other material, the aggregate quantity thereof ought to be reckoned by applying the following parameters: a) Lesser of the small quantities given against the respective narcotic drugs or psychotropic substances mentioned above (entry nos.1 to 238) forming part of the mixture. b) Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above (entry nos. 1 to 238) forming part of the mixture. 3. The real grievance of the respondents, however, is that the decision in E. Micheal Raj (supra) has omitted to consider the interplay between different provisions of the Act. It has focused only on the interpretation of Section 21 of the Act, without giving effect to the purport of the said provision. In that, Section 21 refers to any "manufactured drug" or any "preparation" containing any manufactured drug. The expression "manufactured drug" has been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four) inserted by the impugned notification must be gauged and determined on its own merit keeping in mind the purpose and object for which the same has been inserted and without reference to the decision of this Court in E. Micheal Raj (supra). Reliance is then placed on the decision of this Court in the case of Directorate of Enforcement Vs. Deepak Mahajan (1994) 3 SCC 440 to contend that the Court should not adopt a pedantic approach. In that, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislation inane. Further, it is permissible for the courts to have functional approach and look into the legislative intention and sometimes it may even be necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile. 7. It is submitted that the Act nowhere uses the term "pure content" of the drug or substance. That has been evolved by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21 (c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) 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 purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaborately dealt with the issue finally answered in E. Micheal Raj (supra). 10. It was possible to examine the wider issues raised by the respondents upon accepting their argument that the decision in E. Micheal Raj (supra) is per incuriam. However, in our view, that decision has interpreted Section 21 of the Act. That interpretation would bind us. Moreover, that decision has been subsequently noted in other decisions of this Court in the case of Harjit Singh Vs. State of Punjab (2011) 4 SCC 441, Kashmiri Lal Vs. State of Haryana (2013) 6 SCC 595, State Through Intelligence Officer, and Narcotics Control Bureau Vs. Mushtaq Ahmad and Others (2016) 1 SCC 315 - followed or distinguished. In Amarsingh Ramjibhai Barot vs. State of Gujarat (2005) 7 SCC 550, quantity of entire mixture was reckoned and not limited to the pure drug content therein. Significantly, in none of these decisions, was the Court called upon to examine the issues now raised by the respondents. Further, all these decisions are of two Judges Bench. 11. Thus, considering the significance of the issues raised by the respondents and the grounds of challenge of the appellants/petitioners concerning the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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