M.R.SHAH, J. - (1.) Not agreeing with the view taken by this Court in the case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 taking the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration (paragraphs 15 and 19), the following questions are referred to a three Judge Bench, vide order dated 3.7.2017: (a) Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to 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 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS 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 NDPS Act permit the Central Government to resort to such dispensation ? (d) Does the NDPS 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 NDPS Act is a stand along provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug ? Arguments on behalf of the Union of India
(2.) Shri Aman Lekhi, learned Additional Solicitor General of India appearing on behalf of the Union of India has vehemently submitted that the decision in E Micheal Raj (supra) has omitted to consider the interplay between different provisions of the NDPS Act. It is submitted that it has focused only on the interpretation of Section 21 of the NDPS Act, without giving effect to the purport of the said provision. It is submitted that the view taken by this Court in the case of E Micheal Raj (supra) in paragraphs 15 and 19 that 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, and the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purposes of imposition of punishment, it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration is clearly wrong and as such contrary to the entire scheme of the NDPS Act. He argued that if the entire scheme including the object and purpose of the NDPS Act is considered, it can be seen that where drugs are sold as mixture the determination for the purposes of punishment would be aggregated quantity of the mixture; 2.1 In the case of E Micheal Raj (supra), this Court has failed to consider that the expression "offending material" finds no mention in the NDPS Act. It is submitted that it is also not the intention of the legislature to levy punishment based on content of the offending drug in the mixture. It is submitted that in the case of E Micheal Raj (supra), this Court has erred in relying upon the decision in the case of Ouseph vs. State of Kerala (2004) 4 SCC 446 as the said decision was not binding as precedent as it passed sub-silentio the issue with which E Micheal Raj (supra) was seized with; 2.2 While deciding the case in the case of E Micheal Raj (supra), this Court has ignored material provisions of the NDPS Act and the entire statutory scheme to reach a conclusion which was not borne out both by the spirit and the terms of the statute and defeated the very object behind the enactment and the amendment; 2.3 The NDPS Act, as originally enacted in 1985 included in Section 2(xx) the definition of 'preparation'. It is submitted that the definition of 'preparation' reveals that preparation means "in relation to NDPS" one or more drugs or substance in dosage or solution or mixture. The 'mixture' is defined as mechanical mixture or two or more substances as distinct from chemical combination or a fluid with foreign substance in suspension or foreign element in a composition. The 'solution' is defined as a liquid or semi-liquid preparation obtained by the combination of a solid with the solvent. The 'dosage' means a definite quantity or something regarded as analogous to medicine in use or effect. A bare look at the definitions, it is apparent that a drug or substance can be mixed with one or more substances (mixture) or change its physical state by means of any fluid or solvent (solution) or be divided or apportioned (dosage). In other words, the NDPS Act as originally enacted dealt not only with the pure content of the drug or psychotropic substance but, its preparation in a mixture, solution or dosage. In the case of E Micheal Raj (supra), there is no reference to the aforesaid; 2.4 That as per Section 2(xxxiii), also as originally enacted, defining 'psychotropic substance' shows that psychotropic substance includes "a preparation of such substance". It is submitted that the said section has to be read with the Schedule appended to the NDPS Act. The Schedule itself, in Entry 77, included "salts and preparation" of the list of psychotropic substance mentioned in Entry 1 to 76 of the Schedule. The original NDPS Act therefore dealt with "preparations" of psychotropic substances. Further, contravention relating to psychotropic substance was punishable under Section 22 of the NDPS Act and reading Section 22 with Section 2(xx), 2 (xxxiii) and the Schedule makes it apparent that punishment covered preparation of psychotropic substance and was not based on pure substance content. Even Section 2(xiv) of the NDPS Act, as originally enacted, defined 'narcotic drugs', they were defined to mean (i) Coca leaf; (ii) Cannabis; (iii) Opium; (iv) Poppy Straw; and (v) Manufactured drugs. Each of the above was defined separately. Therefore, even in the NDPS Act, as originally enacted, the 'narcotic drugs' included their mixtures and preparations. It is only in the definition of 'poppy straw' that the expression mixture or preparation finds no mention; 2.5 He argued that the only provision in the NDPS Act, as originally enacted, which specified the quantity was Section 27, the said section mentioned "small quantity or narcotic drugs or psychotropic substance" and provided for milder punishment where it is proved that possession in contravention of the NDPS Act or rule was intended for personal consumption or there was consumption of any narcotic drug or psychotropic substance. It is submitted that "small quantity" was notified in Notification No. S.O.827 of 14.11.1985 which included only 5 drugs. By subsequent notifications, additions were made and more drugs were included in the list. Therefore the "small quantity" under the amended Act is much higher than that specified in the earlier notification under the original NDPS Act. Thus, the NDPS Act, as originally enacted, insofar as narcotic drugs and psychotropic substances are concerned, only recognized "small quantity where possession was for personal consumption or there was consumption. The punishment prescribed under the NDPS Act, originally enacted except in Section 20 which in some circumstances contemplated imprisonment up to 5 years, provided for punishment of not less than 10 years, but extendable to 20 years. The NDPS Act, as originally enacted, covered preparations of the narcotic drugs and psychotropic substances and not merely their pure drug content; 2.6 That in the year 1989, the NDPS Act was amended by Act No.2 of 1989. That notwithstanding the amendment, the original scheme of punishment under NDPS Act covering preparations and not just pure content was not interfered with. In the year 2001, the NDPS Act was further amended and clauses (viia) defining "commercial quantity" and (xxiiia) defining "small quantity" were added. A bare look at the two sections shows that the same covered quantity greater/lesser, as the case may be, than the "quantity specified" by the Central Government by notification in the official gazette of the narcotic drugs and psychotropic substances. Even in/after the 2001 amendment, no change was made in the definition of "preparation" or in the definition of "narcotic drugs" and "psychotropic substances", more particularly even after the addition of the definitions of "small quantity" and "commercial quantity". Even the residuary entry in the list of Psychotropic Substances, i.e., Entry 77 in the Schedule of the NDPS Act, as originally enacted, is retained even after the amendment as 'Entry 111' of the said Schedule. The only reason for the amendment in the year 2001 was that all preparations in the NDPS Act, as originally enacted, were uniformly punishable with imprisonment from 10 to 20 years and even the condition for bail did not make any reference to the quantity. It was for this reason that Section 37 itself was amended to specifically deal with "commercial quantity" by the amendment of 2001; 2.7 He argued that the "commercial quantity" would necessarily apply to preparations of narcotic drugs and psychotropic substances as the clauses which were added needed to be read with the provisions of the statute which already stood therein and had not been amended. This was consistent with the scheme of the NDPS Act, as originally enacted. The amendment did not in any manner whatsoever tinker with the same. It is for this reason that the amended Act referred in the newly inserted clauses to "commercial quantity" and "small quantity". The emphasis therefore was on the quantity in relation to the drug/substance and not the content of the drug/substance. It was never the intent to modify the application of the statute to deal with pure quantity of the narcotic drugs and psychotropic substance. The same came to be reinforced by the notification published by the Central Government after coming of the 2001 Amendment which contained Note 2 as under: "2. The quantities shown against the respective drugs listed above also apply to the preparations of the drugs and the preparations of the substances of Note 1 above." It is submitted that what was provided in Note 2 was always there since the original enactment. 2.8 He argued that the "small quantity" now mentioned in the notification is much higher than the "small quantity" in the NDPS Act as originally enacted. It is for this reason that both Sections 27 and Section 64A have also been amended. The possession having been taken out of Section 27, there was no need to provide for milder punishment for possession as under Section 27 of the original NDPS Act. Section 27 as amended therefore is confined to "consuming" any narcotic drugs or psychotropic substance only and the immunity under Section 64A is limited to 'addicts' amongst those to whom Section 27 applies, in other words, possession even of "small quantity" is outside Section 27 of the amended Act and immunity is not available to all the persons to whom Section 27 applies but, only to such of them as are 'addicts'. This is a change consequential upon the grading of punishment but, the punishment continues to relate only to the quantities of the narcotic drugs and psychotropic substance which includes their preparations and not the pure drug content; 2.9 Even without Note 4 of the notification, the NDPS Act would apply to the entire mixture or solution of the narcotic drugs and psychotropic substance. It is further submitted that the addition of Note 4 under the notification of 2009, is irrelevant to the controversy and Judgment in E Micheal Raj (supra) cannot be sustained even if Note 4 is ignored. The notification therefore does not in any manner re-define the parameters for constituting an offence or awarding punishment under the NDPS Act. Shri Lekhi, learned Additional Solicitor General of India has heavily relied upon the decision of the U.S. Supreme Court in the case of Chapman vs. United States (1991) 500 US 453 in support of his submission that the sentences should be based exclusively on the weight of the "mixture or substance" and not on the content - pure drug. It is submitted that in the said case, the petitioner was convicted of selling 10 sheets of blotter paper containing 1000 doses of LSD. The weight of LSD alone was approximately 50mg and combined weight of the LSD and the blotter paper was 5.7 grams. The petitioner was sentenced for mandatory minimum sentence of 5 years which was applicable for offences of distributing more than 1 gram of the substance. It is submitted that before the US Supreme Court, it was contended on behalf of the petitioner that weight of the carrier should not be included when computing the appropriate sentence for LSD distribution. The U.S. Supreme Court rejected the said contention and observed and held as under: "We think that petitioners reading of the statute, a reading that makes the penalty turn on the net weight of the drug rather than the gross weight of the carrier and drug together is not a plausible one. The statute refers to a "mixture or substance containing a detectable amount". So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence. This reading is confirmed by the structure of the statute. With respect to various drugs, including heroin, cocaine, and LSD, it provides for mandatory minimum sentences for crimes involving certain weights of a "mixture or substance containing a detectable amount" of the drugs. With respect to other drugs, however, namely phencyclidine (PCP) or methamphetamine, it provides for a mandatory minimum sentence based either on the weight of a mixture or substance containing a detectable amount of the drug, or on lower weights of pure PCP or methamphetamine. For example, S. 841(b)(1)(A)(iv) provides for a mandatory 10 year minimum sentence for any person who distributes "100 grams or more of ... PCP...or 1 kilogram or more of a mixture or substance containing a detectable amount of .. PCP..." Thus, with respect to these two drugs, Congress clearly distinguished between the pure drug and a "mixture or substance containing a detectable amount of" the pure drug. But with respect to drugs such as LSD, which petitioners distributed, Congress declared that sentences should be based exclusively on the weight of the "mixture or substance". Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence, and did not make that distinction with respect to LSD." ".. .A "mixture" is defined to include "a portion of matter consisting of two or more components that do not bear a fixed proportion to one another...." ".. .By measuring the quantity of the drugs according to the "street weight" of the drugs in the diluted form in which they are sold. **1928 rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme." (underline is ours) 2.10 He argued that as such the NDPS Act does not make any distinction between pure drug and a preparation containing the drug. The Act applies to the street weight of the drug in the form in which they are sold rather than the net weight of the active component. This is what the Act has consistently been provided since its inception. The appellants want this Court to read the statute in a manner the provisions do not warrant. It is submitted that for instance, a "small quantity" of heroin is 5 grams, which if taken as only the pure drug 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. That therefore if the submission on behalf of the appellants is accepted, in that case, it will be contrary to the object and purposes of enactment of the NDPS Act and in most of the cases there will be no punishment for the "commercial quantity" and the real culprits/accused will go away with the minor punishment; 2.11 It is further argued that as per the Crawford on Interpretation of Law (Statutory Construction) "the Court should strive to avoid a construction which will tend to make the statute unjust, oppressive, unreasonable, absurd, mischievous or contrary to the public interest. That construction should be accepted which will make the statute effective and productive of the most good, as it is presumed that these results were intended by the legislature. In order to carry out the legislature intent, it is therefore apparent that the statute should be given a rational, logical and sensible interpretation"; 2.12 It is further pointed out that the NDPS Act has been passed as per Statement of Object and Reasons, to "strengthen the existing controls over drug abuse, considerably enhanced the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances". The stringency of control cannot disregard the conditions in which the Act applies. The definitions clearly show that the object of the Act was to deal with the street weight of the drugs in the diluted form in which they are sold and not the net weight of the active component. The legislature know that the inactive ingredients will be combined with the pure drugs and substances and it would be the drugs or substances so prepared that would be sold to the consumers. He argued, if the arguments of the appellants are accepted, the legislative intent would be frustrated through a construction which will render the Act sterile and which in the circumstances in which the Act is to operate cannot be called either rational or sensible. 2.13 Shri Lekhi, learned Additional Solicitor General of India has also relied upon the decision of this Court in the case of Murlidhar Meghraj Loya and another v. State of Maharashtra and others (1976) 3 SCC 684, as well as, Reema Aggarwal vs. Anupam and others (2004) 3 SCC 199 in support of his submission that while interpreting and/or considering a particular statute, a judge must not alter the material of which the Act is woven, but he can and should iron out the creases. The appellants want this Court to alter the material of which the NDPS Act is woven. In the case of Rajinder Singh vs. State of Punjab (2015) 6 SCC 477, it was observed and held by this Court that a statute must be given a fair, pragmatic, and common-sense interpretation so as to fulfil the object sought to be achieved by Parliament. Therefore, the judgment in E Micheal Raj (supra) is wrong and the preparations in totality and not the actual drug content will be seen for computing the quantity. It is submitted that as such E Micheal Raj (supra) is per incuriam and even the notification of 2009 does not redefine the parameters for constituting the offence under the NDPS Act. Section 21 of the NDPS Act is not a standalone provision and must be construed along with the other provisions in the statute as it is a settled principle of law that every statute must be construed as a whole and words in the statute take their meaning from the context and have to be understood to make a consistent enactment, i.e., ex visceribus actus. It is submitted that even the insertion of Note 4 was ex abundanti cautela and even without it the same intention could be culled out from the statute as it stood. It made no change but was intended only to remove any misconception and was used merely by way of abundant caution.
(3.) Shri R.K. Kapoor, learned Advocate appearing on behalf of the appellant in Criminal Appeal No. 722 of 2017 has made the following submissions: 3.1 That the challenge in the present appeal is to the impugned notification dated 18.11.2009 issued by the Central Government in exercise of the powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the NDPS Act. The Central Government did not have the power to issue the impugned notification by which it has empowered the inclusion of quantity of the neutral material also along with the quantity of the narcotic drugs or psychotropic substances in columns 5 and 6 of the table, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in column nos. 2 to 4 of the said table. Such power to include the neutral material is not provided under clauses (viia) and (xxiiia) of Section 2 of the NDPS Act. Thus, the impugned notification dated 18.11.2019 is ultra vires the provisions of the NDPS Act, read with the amended 2001 Act which brought about rationalisation in awarding the punishment; 3.2 By the impugned notification, Note 4 has been added after Note 3 at the end of the table appended to the NDPS Act, included vide Notification S.O. 1055 (E) dated 19.10.2001, whereby the notification was issued specifying "small quantity" and "commercial quantity" of the narcotic drugs or psychotropic substances mentioned in column nos. 5 and 6 of the table, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in column nos. 2 to 4 of the said table; 3.3 The result of the issuance of the impugned notification is that the offender would be awarded the punishment by looking into the total quantity of the material found in possession of the offender even if on chemical analysis it is found that the actual content of the narcotic drug or psychotropic substance is covered under the "small quantity", but by adding the neutral material the punishment awarded is for "commercial quantity". For instance, there are two offenders. One "A" is having quantity of 4 grams heroin which is less than the "small quantity" which is 5 grams, mentioned in column no.5 of the table. Another "B" is in possession of 1 gram of heroin, but has mixed it with "neutral material" of 250 grams, it becomes 251 grams, more than the "commercial quantity" which is 250 grams as per column no.6 of the table. It is submitted that if these two offenders "A" and "B" are convicted, then "A" would be given a punishment for 1 year while "B" can be given up to 20 years though actual content of the offending drug is lesser in case of "B". It means one year punishment for heroin and 19 years for "neutral material" which is not otherwise punishable under the NDPS Act. Thus, the effect of Note 4 is more the dilution, less the potency of the drug, but more the punishment. Therefore, it would lead to injustice and would lead to variation in the punishment of the accused depending upon the quantity of the "neutral material" instead of the "drug material"; 3.4 The only power given to the Government is to increase or reduce the quantity of the narcotic drugs or psychotropic substance mentioned in column no.5 and 6 and nothing more. For instance, in the case of heroin, the quantity for the "small quantity" can be reduced from 5 gram to 1 gram, and for "commercial quantity", it can also be reduced from 250 grams to 100 grams or so, but no "neutral material" can be permitted to be added to award the quantum of punishment; 3.5 No "neutral material" has been specified in column no.2 or column no.4 of the table. If "neutral material" was also to be made punishable under the NDPS Act, then it should have been mentioned under column no.2 and 4 of the table and then correspondingly the quantity of the "neutral material" would also have been specified under "small quantity" and "commercial quantity" under column nos. 5 and 6 of the table. Since "neutral material" is neither a narcotic drug nor a psychotropic substance, it has not been mentioned under column nos. 2 and 4 and, therefore, cannot be made punishable under Note 4; 3.6 In the year 2001, NDPS (Amendment) Act, 2001 was brought to rationalise the quantum of punishment for addicts and less serious offenders and severe punishment for serious offenders; 3.7 This Court in the case of E. Micheal Raj (supra) held that only the quantity of the offending article is to be taken into consideration for the purpose of punishment. If it has been mixed with any other substance, which is non-offending substance, then not the whole bulk is to be taken into consideration and that the punishment must be graded in relation to the quantity of the offending article only; 3.8 A person can be convicted and punished only to the extent it has been specifically provided under the provisions of the NDPS Act. If a person has to be punished then there must be specific power and provision for punishment and only to the extent the punishment has been provided for the commission of a particular contravention and for a particular specified substance as mentioned under column nos. 2 and 4of the schedule appended to the Act and not otherwise. Under the NDPS Act, Section 21 provides for punishment for contravention in relation to manufactured drugs and preparations thereof. Section 22 deals with punishment for contravention in relation to psychotropic substances. But there is no punishment for "neutral material" under the NDPS Act; 3.9 It is settled law that what cannot be done directly can also not be done indirectly. The NDPS Act was enacted by the Parliament. When in the NDPS Act itself the "neutral substance" has not been made punishable, the "neutral substance" cannot be made punishable by the exercise of the executive power by the Central Government by issuing he impugned notification. Where ever "neutral material" was to be included it has been specified under the NDPS Act itself. It cannot be added with each drug as mentioned in the table. 3.10 The expression "mixture" as such has not been defined under the NDPS Act, but it has a reference under the definition of the word "preparation". Even in the word "preparation", the reference is again to one or more of such drugs or psychotropic substances, but there is no reference to any "neutral material". 3.11 Making the above submissions, it is submitted that thus the Central Government has no power to make any amendment in Act No. 9 of 2001 and make the whole of the quantity of the allegedly recovered material from the offender as the "small, commercial or non-commercial quantity", by directing the inclusion of the "neutral substance" in it. Therefore, the notification dated 18.11.2009 is liable to be declared ultra vires and be struck down. ;