Punjab-Haryana High Court
Hira Singh And Another vs Union Of India And Others on 30 August, 2013
Bench: Sanjay Kishan Kaul, Augustine George Masih
CIVIL WRIT PETITION NO.18976 OF 2013 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: August 30, 2013
Hira Singh and another
...Petitioners
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. D. S. Pheruman, Advocate,
for the petitioners.
*****
AUGUSTINE GEORGE MASIH, JUDGE Challenge in this writ petition is to the notification No.S.O.-2941 (E), dated 18.11.2009, Annexure P-3, issued under Section 77 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act") read with Clause (viia) and (xxiiia) of Section 2 of the NDPS Act on the ground that the provisions and procedure prescribed under Section 77 of the NDPS Act has not been complied with and, therefore, prayer is for quashing the same. Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh
CIVIL WRIT PETITION NO.18976 OF 2013 :{ 2 }:
Briefly, the facts are that petitioner No.1 is confined in jail in case FIR No.162 dated 17.08.2012 registered under Sections 21 of the NDPS Act at Police Station Goindwal Sahib, District Tarn Taran. Recovery of 270 grams of heroin was effected from him.
It has been submitted that sample of heroin was sent to the Chemical Examiner for its report, when it was found to contained diacetylmorphine content as 1% and, therefore, the quantity of heroin recovered from the said petitioner would come to 2.6 grams of heroin, which would fall within the definition of small quantity as provided under Section 2 Clause (xxiiia) of the NDPS Act, which would entitle him to bail being bailable offence, as the sentence thereof is not more than one year. Petitioner No.1, on this basis, preferred a bail application before the Special Judge, which was declined by observing that recovered quantity of heroin falls within the definition of commercial quantity as provided under Section 2 (viia) of the NDPS Act, which creates a bar under Section 37 of the NDPS Act for grant of bail.
Counsel for the petitioners has made a submission before us that the notification No.SO-1055 (E), dated 19.10.2001 has been considered by the Hon'ble Supreme Court in E.Micheal Raj Vs. Intelligence Officer Narcotic Control Bureau, 2008 (5) SCC 161, according to which, the offending substance which contained diacetylmorphine would amount to the actual contents of the narcotic drug by weight, which is relevant for the purpose of determining Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 3 }:
whether it would contain small quantity or commercial quantity. To nullify the effect of said judgement, notification dated 18.11.2009, Annexure P-3, has been issued by the Central Government, which provides that the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or insomers, 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, shall be taken as the quantity as shown in Columns 5 and 6 of the Table relating to respective drugs shown in Column No.2 of the notification dated 19.10.2001. The said notification, in view of Section 77 of the NDPS Act, after it is made or issued, is required to be laid as soon as may be, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions.
He submits that as per the information received by him, under the Right to Information Act, the session of the Parliament, at the time of issuance of the impugned notification dated 18.11.2009, commenced on 19.11.2009, which continued even beyond 18.12.2009 but the said notification was not laid before the houses.
As a matter of fact, the notification dated 19.11.2009 was laid on the table of the Parliament on 5.3.2010 and that too when this session had commenced on 22.2.2010 and was upto 7.5.2010. The notification has also been challenged on the ground that the same is Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 4 }:
violative of the law laid down by the Supreme Court in E.Micheal Raj's case (supra).
It is the contention of counsel for the petitioners that petitioner No.1, because of the impugned notification, which is not in consonance with law and has no force, has been denied bail, treating the quantity of heroin, which has been recovered from petitioner No.1, as commercial whereas as per the notification dated 19.10.2001, the same would come to 2.6 grams and since the small quantity has been fixed by the Central Government as per the notification as upto 5 grams, the recovery from petitioner No.1 would fall within the definition of small quantity, entitling him to the grant of bail, which has been denied to him by the Special Judge, Tarn Taran vide order dated 7.11.2012 on the ground that it falls within the commercial quantity of heroin and, therefore, as per the provisions contained in Section 37 of the NDPS Act, petitioner No.1 is not entitled to the concession of bail.
We have considered the submissions made by counsel for the petitioners and have gone through the records of the case.
Since the challenge to the notification is based on Section 77 of the NDPS Act, reference to this Section would be essential at this stage, which reads as follows:-
"77.Rules and notifications to be laid before Parliament.- [Every rule made under this Act by the Central Government and every notification or order Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 5 }:
issued under clause (viia), clause (ix), clause (xxiiia) of section 2, section3, section 7A, section 9A and clause (a) of section 27 shall be laid, as soon as may be, after it is made or issued], before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or the notification shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to validity of anything previously done under that rule or notification."
A perusal of the above Section would indicate the requirement of the laying down of the notification issued by the Central Government under the specified provisions therein before each House of the Parliament as soon as, may be on issuance. The purpose of this Section is for laying of the said notification before the Parliament for a total period of 30 days with an intention that if there is any objection to the said notification, which would require modification, the same can be carried out but for that, both Houses Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 6 }:
should agree even for annulment of the said notification. It may be added here that any such modification or annulment would be without prejudice to the validity of anything previously done under the notification.
It is by now well known that when an Act provides for framing of the rules, notification or order issued under the specified provisions of the Act, providing further that the same would not come into effect till they have been laid or lain before the legislature for such period as stated for under the said provision, then there can be no doubt about such laying before the legislature to be mandatory for such a notification, rule or order to be effective or applicable. However, if the provision states that the rule/notification shall have to be laid before the legislature and/or for the specified period but would come into effect with immediate effect from the date of such issuance (which is the case in hand), the position would be different, especially when it is open for legislature to disapprove, amend, modify or annul the said rule or notification, which shall be then effective accordingly thereafter in the said form. Further as per this Section, the said modification or annulment shall have no effect or prejudice to the validity of anything previously done under the Act, rule or notification. Under these circumstances, the requirement under the said provisions of the Act cannot be said to be mandatory but would be directory in nature.
Thus, it can be said that in case, where the Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 7 }:
rules/notifications do not come into effect till the specified period under the provisions of the Act after the placement before the legislature, has not expired, the position is clear that it would be a condition precedent for the said rules/notifications to have come into effect and, thus, only in that situation would it be mandatory to be placed before the Parliament. However, in a situation as in Section 77 of the NDPS Act, where on the date of issuance of the rule/notification/order, the same becomes effective with a requirement to be laid before the Parliament. The said mandate would not be of such a nature where the rule/notification/order itself would be rendered invalid and void. It would, at the most, be an irregularity, which can be cured by placing the said notification before the Parliament for the period specified under the provisions of the Act at a later date/session. It, however, need to be emphasized here that if during the period of placement of the statutory rules/notifications/ orders before the Parliament any motion is received and carried with relation to the modification of the rule or notification, such rule or notification shall be made or issued and thereafter have effect only in such modified form or be of no effect as the case may be. In a situation where such a modification or annulment comes into effect, the same shall not have any effect to the validity of anything previously done under that rule or notification, which was prevalent from the date of initial issuance of the said rule/notification. Thus, failure to lay before the Parliament in or the session on the first Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 8 }:
occasion on issuance of rule(s)/notification(s) for a period of 30 days is directory in nature and cannot be construed to be of mandatory in character as the rule/notification comes into effect on the date of such issuance and, therefore, the effectiveness of said rule/notification is not dependent upon nor is it a condition precedent to the validity of the rule/notification.
In any case, it is an admitted case of the petitioners that the said notification was laid before each House of the Parliament on 5.3.2010 and no notice for modification/annulment of the said notification was tabled by any Member of the Parliament within the period as specified under Section 77 of the NDPS Act. The challenge, therefore, to the notification dated 18.11.2009, Annexure P-3 does not sustain as even irregularity, if any, stands cured.
As regard the contention of the petitioners, raising an issue with regard to the notification being contrary to the judgement of the Supreme Court in E.Micheal Raj's case (supra), the said issue has been considered by the Division Bench of Delhi High Court in Abdul Mateen Vs. UOI and Anr., 2012 (194) DLT 425, where the challenge to this notification on the said ground stands rejected. Paras 9 to 12 of the said judgement read as follow:-
"9. We have to first of all examine whether the legislature had empowered the Central Government to bring out a notification of the kind which is impugned before us. As indicated by us earlier in this judgment, the law prior to Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 9 }:
the issuance of the notification dated 18.11.2009 had been settled by the Supreme Court by holding that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is only the content of the narcotic drug or psychotropic substance which has to be taken into consideration. That position is sought to be altered by virtue of the impugned notification dated 18.11.2009 inasmuch as the entire mixture and not just the pure drug content has to be considered by virtue of the said notification. The question which arises is whether the Central Government had the power to bring out such a notification. While the case of a mixture of two drugs and combination of more than one drug and psychotropic substance was specifically dealt with under Sl. No. 239 of the notification dated 19.10.2001, there was no provision for dealing with the situation where the mixture was of just one narcotic drug or psychotropic substance with neutral material. It is in the context of the notification dated 19.10.2001 prior to its amendment in 2009 that the decision in Ansar Ahmed and E. Micheal Raj (supra) had been rendered. Now a specific note (that is note 4) has been added by virtue of the notification dated 18.11.2009 so as to include the case of a narcotic drug or psychotropic substance mixed with a neutral material. Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh
CIVIL WRIT PETITION NO.18976 OF 2013 :{ 10 }:
The distinction between S.L. No. 239 and note 4 is that while S.L. No.239 required that the mixture was of one narcotic drug with another narcotic drug or psychotropic substance which may or may not also include neutral material, Note 4 widens the scope by introducing a mixture of one drug or psychotropic substance with a neutral substance. It is not at all necessary that the mixture must contain more than one drug or psychotropic substance along with neutral material for the said Note 4 to apply.
10. In order to understand as to whether the Central Government had the legislative mandate to do so, it would be necessary to examine as to what the exact limits of power of the Central Government were under section 2 (viia) and 2 (xxiiia). Whether we consider 2 (viia) which defines the commercial quantity or section 2 (xxiiia) which defines small quantity the language is virtually identical. The 'small quantity' and the 'commercial quantity' are in relation to narcotic drugs and psychotropic substances. The Central Government has been given the power to specify, by a notification in the official gazette, the quantity representing the small quantity or commercial quantity in relation to each narcotic drug and psychotropic substance. In the present case we are concerned with heroin and, Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 11 }:
therefore, we shall restrict our discussion to narcotic drugs. Narcotic drugs are defined in section 2 (xiv) to include "all manufactured drugs". The latter expression has also been defined in section 2 (xi) to inter alia, mean "opium derivative". And, 'opium derivative' itself has been defined in section 2 (xvi) to, inter alia, mean diacetylmorphine and all 'preparations' containing more than 0.2% of morphine or containing 'any' diacetylmorphine. In other words a preparation containing 'any' diacetylmorphine would be regarded as an opium derivative.
11. The word 'preparation' itself has been defined in section 2 (xx) to, inter alia, mean any solution or mixture, in whatever physical state containing one or more such narcotic drug or psychotropic substance. It is obvious that if there is only one narcotic drug and we are referring to a mixture, then the other material must be a neutral material. Therefore, the word "preparation" includes reference to a mixture of one narcotic drug with a neutral material. Once we understand this, it becomes clear that the Central Government has been given the power to specify the quantity of this 'preparation' or mixture of a narcotic drug and a neutral substance. Once this is accepted then there is no escape from the conclusion that the Central Government had the power to specify the Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 12 }:
quantities shown in column 5 and 6 of the Table appended to the notification dated 19.10.2001 with reference to the entire mixture and not just its pure drug content. This is so because all preparations which contain diacetylmorphine would be opium derivatives which, in turn, would be manufactured drugs and that would lead us to the expression narcotic drugs. And, ultimately to the said expression as used in section 21 of the NDPS Act. We would tend to agree with the learned counsel for the respondent that the decision of the Supreme Court in the case of E. Micheal Raj (supra) was rendered at a point of time when this so- called "loop-hole" had not been plugged and therefore it is not as if we are taking a view contrary to the Supreme Court. The Central Government, at that point of time had catered to a situation which involved a mixture of one or more narcotic drugs and psychotropic substances with or without neutral material. It had not dealt with a situation which involved one narcotic drug or one psychotropic substance with some neutral material. Unless and until there was a specific provision for it, the courts could not supply the gap particularly because these were penal provisions. Now, that the gap has been filled by the amendment to the notification dated 19.10.2001 by introducing note 4 therein, the earlier decisions would Khurmi Rakesh 2013.09.16 11:12 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.18976 OF 2013 :{ 13 }:
really not be applicable. We make it clear that apart from the challenge to the notification as being ultra vires the provisions of the NDPS Act, there is no challenge whatsoever to the provisions of the NDPS Act.
12. In view of the foregoing discussion, we find that there is no merit in the writ petition. The same is dismissed.
There shall be no orders as to costs."
We are in agreement with the above observations. In view of the above, finding no merit in the present writ petition, the same stands dismissed.
( SANJAY KISHAN KAUL ) (AUGUSTINE GEORGE MASIH)
CHIEF JUSTICE JUDGE
August 30, 2013
khurmi
Khurmi Rakesh
2013.09.16 11:12
I attest to the accuracy and
integrity of this document
chandigarh