- (1.) Learned Single Judge of this Court has referred the present petition to the Larger Bench to examine the following question vide order dated 18.05.2011:- "Whether the quantity of whole of contraband should be taken into account while determining commercial quantity under the NDPS Act or the content of salt should be taken into account for the said purpose?"
(2.) The said question has been raised in view of the judgment of Hon'ble Supreme Court reported in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 5 SCC 161, wherein it was observed that percentage of salt for contraband has been taken in consideration and not the whole of the contraband. The said question arises in view of the notification dated 18.11. issued by the Ministry of Finance ( Department of Revenue) amending notification dated 19.10.2001 which inserted table specifying small and commercial quantity of the contrabands. By such amendment, the whole of the contents of contraband is required to be taken into consideration for determining the commercial quantity and not the content of salt contained therein. The reference order makes reference to the notification dated 13.7.2010, which is an inadvertent mistake. The notification dated 18.11.2009 reads as under: "MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 18th November, 2009 S.O.2941 (E) - In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O.1055 (E), dated 19th October, 2001, namely:- In the Table at the end after Note 3, the following Note shall be inserted, namely : - (4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage from or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."
(3.) The question raised has already been decided by a Division Bench of this Court in Criminal Misc. No. 35827 of decided on 26.05.2011 titled Amarjit Singh Vs. State of Punjab, wherein it was held that the entire mixture is to be taken into consideration from the date of publication of the notification dated 18.11.2009 and that the said notification is not retrospective. It has been held as under:- "In view of the aforesaid judgments, the power exercised by the Central Government in terms of authority on it by Central Act No.9 of 2001 for all practical purposes is part of the Statute. Therefore, the insertion of note is in exercise of statutory powers and is deemed to be part of the Statute i.e. Narcotic Drugs and Psychotropic Substances Act, 1985. Such note has been inserted to clarify the commercial quantity, so as to make it clear that the entire mixture or any solution or any one or more narcotic drugs and psychotropic substances has to be taken into consideration and not just its pure content. By virtue of said clarification, the judgments rendered by the Court are not ignored, but the defect which came to the notice of the Central Government, has been sought to be clarified. xxx xxx Since in the present case, the contraband is alleged to have been recovered from the petitioner on 14.10.2010 i.e. after the publication of notification dated 18.11.2009, therefore the position in law as it existed on the date of recovery of the contraband has to be examined. Since on that day the as per the clarification, the entire mixture is to be taken into consideration, therefore, the quantity alleged to be recovered from the petitioner is a commercial quantity";