A.M.KHANWILKAR J. - (1.) The conundrum in these matters is to quash or not to quash the notification issued by the Central Government bearing No. S.O.2941(E) dated 18.11.2009, amending Notification No. S.O.1055(E) dated 19.10.2001 and thereby inserting Note 4 (four) in the table at the end of Note 3 (three). 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 effect of the notification is to undermine the decision of this Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008(2) R.C.R. (Criminal) 597 : 2008(3) Recent Apex Judgments (R.A.J.) 10 : (2008) 5 SCC 161. That cannot be countenanced. For, the effect of the decision of this Court cannot be diluted in any manner and that too by issuance of a statutory notification or an executive action. According to the appellants/petitioners, invocation of Note 4 (four) would have the inevitable effect of not only diluting the decision of this Court but 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, it would become necessary to determine the purity of the seized drug, which, only a few State Forensic Laboratories in the country are capable of doing it. It will clog them with undue amount of work. According to the respondents, a pragmatic approach was adopted by the Central Government to define the "small" and "commercial" quantity in terms of the total quantity of preparation containing the specified drug. For that reason, the threshold of "small" and "commercial" quantities as per the notification dated 19.10.2001 have been kept at a fairly high level. It is then contended that entry no. 239 specified in the notification dated 19.10.2001, is essentially in the nature of a residuary clause/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 defined in Section (2) (xi) which in turn spells out drugs which are separately defined such as - coca derivatives [Section 2 (v)], medicinal cannabis [Section 2 (xii)], opium derivatives [Section 2 (xvi)] and poppy straw concentrate [Section 2 (xix)]. Similarly, the expression "preparation" has been defined in Section 2 (xx) which in turn refers to narcotic drugs [Section 2 (xiv)] or psychotropic substance [Section 2 (xxiii)]. The expression "mixture" has not been defined in the Act. So also, 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.;