Madras High Court
Sadiq Basha vs Union Of India on 1 October, 2015
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.10.2015 CORAM THE HON'BLE MR. JUSTICE V.RAMASUBRAMANIAN and THE HON'BLE MR. JUSTICE T.MATHIVANAN W.P.No.28702 of 2015 and M.P.No.1 of 2015 Sadiq Basha ... Petitioner vs 1.Union of India, rep.by its Secretary, Ministry of Finance, Department of Revenue, New Delhi 2.Intelligence Officer, Narcotics Control Bureau Chennai Zonal Unit, Chennai-600 090 ... Respondents Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring that Ministry of Finance Department of Revenue Notification S.O.No.2941(E) dated 18.11.2009, in so far as petitioner concerned, unconstitutional and ultravires. For Petitioner .. Mr.Mr.B.Kumar,Sr.Counsel for Mr.A.K.Perumal For Respondents .. Mr.M.Su.Srinivasan, Assistant Solicitor General ORDER
(Order of the Court was delivered by V.RAMASUBRAMANIAN, J.) The petitioner, who was arrested on 21.2.2015 and remanded to custody on the ground that he and his brother were found to be in possession of a Psychotropic Substance, by name, Methamphetamine, weighing about 2.98 Kilograms and against whom a complaint was filed on 12.08.2015, in C.C.No.45 of 2015, for alleged offences under Section 8(c) r/w 21(1)(c), 28, 29 r/w 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act' in short), has come up with the above writ petition, seeking a declaration that the Notification bearing S.O.No.2941(E)/2009 dated 18.11.2009 is unconstitutional.
2. Heard Mr.B.Kumar, learned Senior counsel appearing for the petitioner and Mr.Su.Srinivasan, learned Assistant Solicitor General takes notice for the respondent.
3. Section 18 of the NDPS Act, 1985 provides for graded punishment for any contravention of the provisions of the Act, categorising the contravention into (i) small quantity, (ii) intermediary quantity and (iii) commercial quantity. The expression 'small quantity' is defined in Section 2(xxiiia) of the Act, to mean any quantity lesser than the quantity specified by the Central Government by Notification in the official Gazette. The expression commercial quantity is defined in Section 2(viia) to mean any quantity greater than the quantity specified by the Central Government by Notification in the official Gazette.
4. Under Clause (a) of Section 18, if the contravention of the provisions of the Act involves small quantity, it is punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both. Under Clause (b) of Section 18, a contravention involving commercial quantity is punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and which shall also be liable to fine to the extent of not less than rupees one lakh, but which may extend up to rupees two lakhs. Insofar as quantities not falling either under the category of 'small quantity' or under the category of 'commercial quantity' Clause (c) of Section 18, prescribes rigorous imprisonment which may extend up to ten years and fine which may extend up to rupees one lakh.
5. In exercise of the power conferred under the Act, to notify what could constitute a 'small quantity', the Central Government issues Notification from time to time. One Notification that was issued was in S.O.No.1055(E), dated 19.10.2001. The said Notification contained a table, having six columns. Column No.1 provides Serial Numbers. Column No.2 provides the names of the Narcotic drugs or a Psychotropic Substance. Column No.3 is intended to provide, the non-proprietary name for the drug, whose name is mentioned in Column No.2. Column No.4 is intended to provide the commercial name of the substance. Column Nos.5 and 6 of the table respectively prescribes 'small quantity' and 'commercial quantity' .
6. In the table contained under the Notification dated 19.10.2001, about 238 substances had been identified. At Serial No.239, Column No.2 of the table states as follows:
'Any mixture or preparation that of with or without a neutral material, of any of the above drugs.'
7. In other words, apart from providing the names of about 238 individual substances, the table under the Notification dated 19.10.2001 also included 'any mixture or preparation of a combination of one or more of those 238 substances, with or without a neutral material, as one of the substances covered by the Notification.
8. The note under the table to the Notification dated 19.10.2011 originally contained only three points. Those three points read as follows:
"Note: (1) The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, ethers and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible.
(2) The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of substances of note 1 above.
(3) "Small Quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985."
9. Therefore, in the light of the existing Notes in the table under Notification dated 19.10.2001, the Supreme Court had an occasion to consider in Ouseph Alias Thankachan vs. State of Kerala- (2004 Supreme Court Cases (Cri) 1303), what was a 'small quantity'. Though in the said case, the prosecution alleged that the appellant before the Supreme Court was found to be in possession of 110 ampoules of buprenorphine, the Supreme Court went by the Notification dated 23.07.1996, that was in existence before the Notification, in S.O.No.1055 of 2001, dated 19.10.2001, came into existence.
10. Similarly in E.Michaeal Raj vs. Intelligence Officer, Narcotic Control Bureau-((2008) 2 Supreme Court Cases (Cri) 558), the Supreme Court was concerned with the seizure of contraband to the extent of 4.07 Kg, but the Court found on facts that the purity of heroin was 1.4% and 1.6% respectively in two samples. Therefore, the Court found that the quantity in his possession was only about 60 gms. It was taken to be below the 'commercial quantity' stipulated by the Notification.
11. Therefore, based upon the ratio of the decisions in Ouseph Alias Thankachan and in E.Michaeal Raj, it is contended by Mr.B.Kumar, learned Senior counsel for the writ petitioner that the Central Government, by way of an amendment to the Notification in S.O.No.1055(E) of 2001, dated 19.10.2001, inserted Note No.4 in the table under S.O.No.2941(E)/2009 dated 18.11.2009. The said Note No.4 inserted by way of amendment under the Notification in S.O.No.2941/09 dated 18th November, 2009 reads as follows:
"(4) The quantities shown in columns 5 and 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form 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 hits pure drug content."
12. According to the learned Senior counsel for the writ petitioner, though Note No.4 stricto sensu did not alter the position as reflected in Note No.1, it had given room for some kind of a misunderstanding in the minds of the Enforcement authorities to think that when a particular quantity of drug included in the table under the Notification is found along with something that is not included in the table, the entire weight could be taken into account for the purpose of determining whether what was in possession of the accused was small quantity or of commercial quantity. This according to the learned Senior counsel, amounts to making a non-drug, a drug under the Act. Since the notification of a drug or a substance as a Narcotic Drug or Psychotropic Substance, is purely a Legislative function, the learned Senior counsel contended that the impugned Notification, which was executive in nature, in fact, trenched upon the Legislative functions of the State.
13. In other words, the impugned Notification is assailed by the learned Senior counsel as ultravires the provisions of the Act. Alternatively it is submitted that the power conferred by the Act has been excessively delegated or excessively used by the Central Government.
14. We have carefully considered the above submissions.
15. It is fairly conceded by the learned Senior counsel for the petitioner that the esters, ethers and salts of certain drugs as well as the isomers of certain drugs within specific designation would also come within the purview of the drug itself. It is seen from the explanation to Section 3(d) of The Patents Act, 1970 that the Legislature is empowered to identify even the salt, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers as part of the same substance, unless they differ significantly in properties with regard to efficacy. Therefore, to this extent, the learned Senior counsel contended that he did not find fault with the Notification. But his primary objection is that if any one of the substances indicated in Sl.Nos.1 to 238 of the table under the Notification is possessed along with a substance that does not find a place in the list contained in the table, the weight of that substance cannot be taken together with the weight of the substance indicated in the table for the purpose of determining whether it is a ' small quantity' or a 'commercial quantity'. This according to the learned Senior counsel, would virtually make an item or substance not included in the table as an item or substance automatically included in the table.
16. But we do not agree. All that Note No.4 inserted by the impugned Notification says is that the quantities shown in columns 5 and 6 of the table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs. It includes salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. We do not find the Notification to be either Legislative in nature or to be suffering from any excessive delegation. Once the Parliament thought fit to delegate the function of identifying 'small quantities' and 'commercial quantities' under the Act, by way of Notifications in the Gazette, the exercise of such a power cannot be taken to be unconstitutional or ultravires of the Act, unless the very delegation is found to be illegal. As seen from the definitions of the expressions 'commercial quantity' and 'small quantity' appearing in Section 2(viia) and 2(xxiiia), the Central Government has been empowered to notify what would constitute such quantities. The power conferred upon the Central Government is not in question and it seems to have been exercised from time to time. When the Act prescribes the delegation of a power to notify something and that power is not under challenge, the exercise of such a power by the Central Government cannot be challenged.
17. Note No.4 inserted by the impugned Notification does not make any new substance, which is not already stipulated as a narcotic drug or psychotropic substance. The mischief sought to be avoided by the Notification is too obvious to be seen. The Law does not want persons possessing quantities of prohibited drugs in combination with other drugs to escape the graded punishments stipulated in Section 18 of the NDPS Act. The object of the Notification is to remove the mischief. Therefore, we do not think that the Notification is either unconstitutional or ultravires of the Act.
18. In the result, the writ petition is dismissed. No costs. Connected miscellaneous petition is dismissed.
(V.R.S.J.) (T.M.J.)
01.10.2015
Index:Yes/No
msk
To
1.The Secretary,
Ministry of Finance,
Department of Revenue,
New Delhi
2.Intelligence Officer,
Narcotics Control Bureau
Chennai Zonal Unit,
Chennai-600 090
V.RAMASUBRAMANIAN, J.
and
T.MATHIVANAN, J.
msk
W.P.No.28702 of 2015
01.10.2015