Karnataka High Court
Mr. Kalam Narendra vs Union Of India on 27 May, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
R
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.P.NO. 8449/2024 (GM-RES)
BETWEEN:
MR. KALAM NARENDRA
S/O ANJANEYULU
AGED 28 YEARS
R/AT FLAT NO.308
3RD FLOOR, ROYAL HERITAGE
APARTMENT, OLD MADRAS ROAD
DOORAVANINAGAR
BANGALORE - 560 016.
...PETITIONER
(BY SRI HASMATH PASHA, SR. COUNSEL FOR
SRI N.A. KARIAPPA, ADV.,)
AND:
UNION OF INDIA
NARCOTICS CONTROL BUREAU
BANGALORE ZONAL UNIT
THROUGH ITS JUNIOR
INTELIGENCE OFFICER
BANGALORE.
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR
FOR NCB, HIGH COURT OF KARNATAKA
BANGALROE - 560 001)
...RESPONDENT
(BY SRI S. RAJASHEKHAR, ADV.)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENTIRE PROCEEDINGS REGISTERED IN NCB
2
CRIME NO. NCB/F.NO.48/1/02/2024/BZU DTD.
05.01.2024 ON THE FILE OF RESPONDENT NCB WHICH
IS FOR OFFENCES UNDER SECTIONS 8(c), 20(b)(ii)(A),
22(c), 27 AND 28 OF THE NDPS ACT AS AN ABUSE OF
PROCESS OF LAW, WHICH IS PENDING ON THE FILE OF
HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR NDPS CASES,
BANGALORE CITY WHICH IS AS PER ANNX-A, B AND F1
AND F2.
THIS PETITION HAVING BEEN HEARD AND
RESEVED ON 18.04.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER ON THIS DAY,THE COURT
MADE THE FOLLOWING:
ORDER
1. Petitioner is before this Court under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking for the following reliefs:-
"1) To issue a Writ of Certiorari or a Writ or Order or Direction of appropriate in nature and Quash the entire proceedings registered in NCB Crime No.NCB/F.No.48/1/02/2024 BZU dated 5/1/2024 on the file of Respondent NCB which is for offences under Sections 8(c), 20(b)(ii)(A), 22(c), 27 and 28 of the NDPS Act as an abuse of process of law, which is pending on the file of Hon'ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore City which is as per ANNEXURE -'A', 'B', and 'F' & 'F2'.
2) To issue a Writ of Certiorari or a Writ or Order or direction of appropriate in nature and Quash the invocation of Provisions of Sections 22(c) 3 and 28 of the NDPS Act and consequently Quash the Arrest Memo as per Annexure - 'F1 and F2' Bearing NCB F. No. 48/ 1/ 02/ 2024/ date 5/1/2024 as illegal and abuse of process of law.
3) To issue a Writ of Certiorari or a Writ or Order or direction of appropriate in nature declaring the arrest of him on 5-1-2024 as per ANNEXRUE -
'F1, and F-2 Bearing NCB F No.48/01/02/2024/BZU dated 5/1/2024 as illegal and consequently order of remand dated 6-1-2024 and 8-1-2024 and his detention in Judicial Custody as per ANNEXURE-'B' order is also illegal and abuse of process of law.
4) To issue a Writ or Order or direction of appropriate in nature granting reasonable amount of compensation for the illegal arrest and detention till now which is contrary to law, in the interest of justice.
5) To issue, a Writ or Order or direction of appropriate in nature granted such other relief or reliefs as this Hon'ble Court deems fit to grant in the facts and circumstances of the case, in the interest of justice."
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this petition briefly narrated are, on 02.01.2024 officers of Narcotics Control Bureau, Bengaluru Zonal Unit, had received credible 4 information that one postal parcel had come to Foreign Post Office, Chamarajpete, Bengaluru, which was suspected to contain narcotic drugs. The Junior Intelligence Officer of NCB prepared the Information Report under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' for short) and after obtaining necessary permission from higher officer, the officers of NCB along with panchas visited the post office and after collecting the suspected parcel from Post Master opened it. The said parcel contained 10 strips of LSD weighing 0.11 grams and 34.38 grams of ganja gummies. The contraband articles found in the parcel were seized under a panchanama.
4. Parcel was addressed in the name of one Pandu, Flat No.308, O Royal Heritage Apartments, Old Madras Road, Doorvani Nagar, Bengaluru - 560 016. The NCB Officers thereafter arranged for a dummy parcel and the same was arranged to be delivered through a postman to the address found on the parcel. Petitioner who opened the door acknowledged that he was Pandu and collected 5 the dummy drug parcel which was delivered under Controlled Delivery Mechanism. Immediately thereafter, the NCB officers went inside flat No.308 and took custody of the dummy parcel and the person who received the dummy parcel. On enquiry, they found his name was Kalam Narendra @ Pandu. The dummy parcel was also seized under a Mahazar and the NCB officers brought the dummy parcel and the petitioner to their office and thereafter, the Information Report, panchanama and the accused were produced before the jurisdictional Court and the accused was remanded to custody of the Investigation Officer. After interrogation, accused was produced before the Court and thereafter, he was remanded to judicial custody. Challenging the First Information Report, penal provisions invoked and the arrest of the petitioner, this writ petition is filed.
5. Learned Senior Counsel for the petitioner submits that the contraband article seized in the apartment of the petitioner was secured by the petitioner only for his self consumption, and therefore, only offence under Section 27 of the NDPS Act gets attracted against the petitioner. 6 He submits that NCB has deliberately invoked the offences punishable under Sections 8(c) read with Sections 20(b)(ii)(B) and 22(c) of the NDPS Act as against the petitioner. He submits that the 10 LSD strips seized would totally amount to small quantity because each strip contains maximum of 30 to 50 microgrammes of psychotropic substance. Upto 0.002 grams i.e., 2000 microgrammes is small quantity which is punishable under Section 22(a) of the NDPS Act. He submits that undisputedly ganja gummies seized is of small quantity. He also submits that though the petitioner was arrested on 05.01.2024 till date, qualitative and quantitative analysis report of the seized contraband articles is not obtained from the FSL which has deprived petitioner his life and liberty guaranteed under Article 21 of the Constitution of India. He also submits that petitioner has only attempted to commit the offence and the contraband articles were secured for self consumption and therefore, offence was not actually committed. He submits that Sections 27 and 28 of the NDPS Act are required to be read together and in support of this contention of his, he has placed reliance on the orders 7 passed by the Co-ordinate Bench of this Court in Crl.P.No.1104/2021 in the case of Keerthan Shetty vs. State of Karnataka and in W.P.No.11193/2021 in the case of Mr. Vaibhav Gupta vs. Union of India.
6. Learned Counsel for the respondent submits that the seized contraband article LSD is of commercial quantity. Sample drugs were forwarded to FSL for chemical examination and the report received reflects that the drugs have tested positive for LSD and Ganja. He submits that petitioner has not disputed about securing the drugs. He also submits that the contraband article seized has been forwarded for qualitative and quantitative examination and the FSL report is awaited. He submits that only the expert body can give a qualitative and quantitative analysis report and the same could differ in each case. He submits that since commercial quantity of contraband article is involved, officers have rightly invoked Section 22(c) of the NDPS Act. Investigation in the case is under progress. Accordingly, he prays to dismiss the petition. 8
7. The contraband article seized in the present case are 10 blotter papers of LSD (Lysergic Acid Diethylamide) totally weighing 0.11 grams and ganja gummies weighing 34.38 grams. It is not in dispute that ganja gummies seized in the present case are not of commercial quantity. Dispute is mainly with regard to the quantity of LSD seized in the presnt case.
8. Section 2(viia) of the NDPS Act defines the term 'Commercial Quantity' and Section 2(xxiia) of the NDPS Act defines the term 'Small Quantity', which read as under:
"(viia) 'commercial quantity', in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.
(xxiiia) 'small quantity', in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
9. LSD is a psychotropic substance which is included in the list of psychotropic substances in the schedule to 9 the NDPS Act. The word 'psychotropic substance' is defined under Section 2(xxiii) of the NDPS Act. As per the Notification issued specifying small quantity and commercial quantity under the provisions of the NDPS Act, entry in Sl.No.133 of the Notification relates to LSD. LSD weighing lesser than 0.002 gram is considered as a small quantity, whereas LSD weighing greater than 0.1 gram is considered as commercial quantity.
10. Chapter III of the NDPS Act provides for Prohibition, Control and Regulation of Narcotic Drugs and Psychotropic Substances. Section 8 in the said Chapter provides for Prohibition of certain operations and the same reads as follows:-
"8. Prohibition of certain operations.--No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-
State, export inter-State, import into India, export 10 from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"
11. Section 22 of the NDPS Act provides for punishment for contravention in relation to psychotropic substances and the same reads as follows:- 11
"22. Punishment for contravention in relation to psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."12
12. It is not in serious dispute that ganja gummies seized in the present case is not of commercial quantity. The only dispute is with regard to the quantity of contraband article LSD. According to learned Senior counsel for the petitioner, contraband articles were secured by the petitioner for the purpose of personal use. Therefore, irrespective of the quantity, the petitioner can be held liable only for the offence punishable under Section 27 of the NDPS Act. He has also submitted that Section 27 of the NDPS Act should be read with Section 28 of the NDPS Act, in the present case, since the petitioner has only attempted to commit the offence. Section 27 and 28 of the NDPS Act, reads as follows:-
"27. Punishment for consumption of any narcotic drug or psychotropic substances.--Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,--
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one 13 year, or with fine which may extend to twenty thousand rupees; or with both; and
(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.
xxx
28. Punishment for attempts to commit offences.-- Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence."
13. A reading of Section 27 of the NDPS Act would go to show that the same would be applicable only to a person, who has consumed any narcotic drugs or psychotropic substance. It is not the case of the prosecution in the case on hand that the petitioner has consumed any narcotic drug or psychotropic substance. Section 28 of the Act provides for punishment to whoever attempts to commit any offence punishable under Chapter III or to cause such offence to be committed and 14 in such an attempt, does any act towards the commission of the offence, he shall be punished with punishment provided for the offence.
14. In the case of Abhayanand Mishra vs. State of Bihar reported in AIR 1961 SC 1698, the Hon'ble Supreme Court has held that there is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes a preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence and if it fails, he is said to have attempted to commit the offence.
15. In the case on hand, petitioner has secured contraband articles in violation of Section 8(c) of the NDPS Act. Section 20 of the NDPS Act provides for punishment for contravention in relation to cannabis plant and cannabis and Section 22 of the NDPS Act provides for punishment for contravention in relation to psychotropic substances. Since ganja gummies and LSD have been recovered from the petitioner in the present 15 case, Section 20 and Section 22 of the NDPS Act has been invoked as against the petitioner in the FIR.
16. In the case of Mr. Vaibhav Gupta, charge sheet was filed against the accused for the offences punishable under Section 8(c), 21, 27 and 27A of the NDPS Act. In the said case, accused had consumed the drug and he was an addict who had undergone de-addition treatment. In the said case, an argument was put forward by the prosecution that since the accused had consumed large quantity of drug, he cannot claim immunity. The Co- ordinate Bench of this Court referring to Section 64A of the NDPS Act has observed that immunity can be claimed not only by an addict who has consumed small quantity but also by an addict who is charged with an offence punishable under Section 27 of the NDPS Act but the only rider is that the addict should voluntarily seek to undergo medical treatment for deaddiction from the hospital or an institution maintained or recognized by the Government or local authority and undergo treatment process. But the same is not the position in the present case and therefore, the order passed by the Co-ordinate Bench of 16 this Court in the case of Mr. Vaibhav Gupta (supra) has no relevance to the case on hand.
17. Learned Senior Counsel for the petitioner has strenuously submitted that 10 LSD strips seized are of small quantity because each strip contains maximum of 30 to 50 microgrammes of narcotic drugs. According to him 0.002 grams i.e., 2000 microgrammes is small quantity and therefore, contraband article LSD seized in the present case is of small quantity.
18. Undisputedly, the contraband articles seized in the present case have tested positive in the chemical examination that was held by the FSL. The quantitative and qualitative test report of the seized contraband articles is yet to be received from the FSL. Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage and Disposal) Rules, 2022, specifically provides for forwarding the sample drug to the chemical laboratory for the purpose of quantitative and qualitative test of the sample drug. The quantity of psychotropic substance contained in each blotter paper of LSD can be verified and examined only in a Forensic Science 17 Laboratory which is an expert body and the Courts cannot give a finding about the quantity and quality of any narcotic drugs or psychotropic substance. The contention of the learned Counsel for the petitioner that delay in obtaining quantitative and qualitative test report from the FSL has deprived the petitioner his life and liberty guaranteed under Article 21 of the Constitution of India, at best can be urged in a petition seeking regular bail and the same cannot be a ground for quashing the criminal proceedings, more so when the material on record prima facie shows that commercial quantity of contraband article is seized.
19. In the case of Keerthan Shetty (supra), placing reliance on the manual for use published by National Narcotics Laboratories United nations, the Co-ordinate Bench of this Court has come to a conclusion that each square of the paper blot approximately measuring 5 mm2 size would contain a typical dose of 30 to 50 microgrammes of LSD and it is in this back ground, the Co-ordinate Bench has observed that total quantity of the 18 LSD seized in the said case may come to 500 microgrammes.
20. The assessment made by the Co-ordinate Bench of this Court to arrive at a approximate quantity was only for the purpose of considering the bail application of the accused and the same cannot be a parameter for assessing the quantity of LSD in a blot of paper. The quantity and quality assessment of a drug has to be done only by the forensic science laboratory and not by the courts.
21. In the case of E.MICHAEL RAJ VS INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU - AIR 2008 SC 1720, it was held that when any narcotic drug or substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment, it is the content of narcotic drug or psychotropic substance which shall be taken into consideration.
22. In the case of HIRA SINGH & ANOTHER VS UNION OF INDIA & ANOTHER - (2020)20 SCC 272, the Hon'ble Apex Court taking into consideration that in E.Michael 19 Raj's case, the question of mixture of narcotic drug and psychotropic substance with a neutral material was not all in direct consideration by the Court, re-considered the view taken in E.Michael Raj's case supra, after the matter was referred to a larger bench.
23. The five questions which were referred to the Three Judge Bench of the Hon'ble Apex Court are as follows:
"12. ... 12.1. Whether the decision of this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] requires reconsideration having omitted to take note of Entry 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?
12.2. Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
12.3. Does the NDPS Act permit the Central Government to resort to such dispensation?
12.4. Does the NDPS Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a 20 preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
12.5. Whether Section 21 of the NDPS Act is a standalone provision or intrinsically linked to the other provisions dealing with "manufactured drug"
and "preparation" containing any manufactured drug?"
24. The Apex Court after considering the object and the legislative intent behind enacting the NDPS Act and the Amendment Act No.16 of 2014, in paragraphs 10.2 to 10.5, has observed as follows:
"10.2. Therefore, considering the Statement of Objects and Reasons and the Preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act, emphasis is on narcotic drug or psychotropic substance (Sections 21, 22, 23, 24, 27 and 43). Even in the Table attached to the Notification dated 19-10-2001, Column 2 is with respect to name of narcotic drug and psychotropic substance and Columns 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 21 of the Notification dated 19-10-2001 specifically provides that quantity shown against the respective drugs listed in the Table also apply to the preparations of the drug and the preparations of substances of Note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the Table apply to isomers ..., whenever existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to narcotic drugs and psychotropic substance mentioned in Column 2 the quantity mentioned in Clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture of the narcotic drugs/psychotropic drugs mentioned in Column 2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in Table, lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different narcotic drugs and psychotropic substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against the aforesaid two 22 respective narcotic drugs and psychotropic substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in case of Entry 239 the entire weight of the mixture/drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] is accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the legislature.
10.3. At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporise at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take the example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealer will add other drugs or non-intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown sugar/smack is usually made available in powder form. The substances is only 23 about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown sugar is cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and narcotic drugs or psychotropic substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of the NDPS Act would be frustrated. There may be few punishment for "commercial quantity". Certainly that would not have been the intention of the legislature.
10.4. Even considering the definition of "manufacture", "manufactured drug" and the "preparation" conjointly, the total weight of such "manufactured drug" or "preparation", including the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects and purpose of the NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of the NDPS Act viz. to the Act is deterrent.24
10.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857the Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which led to enactment of the NDPS Act. As observed hereinabove, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in the Narcotic Drugs and Psychotropic Substances Act, 1985 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the courts will have to safeguard the life and liberty of 25 the innocent persons. Therefore, the provisions of the NDPS Act are required to be interpreted keeping in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and Preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted."
25. In paragraph 12 of the judgment in Hira Singh's case, the reference was answered by the Hon'ble Apex Court as follows:
"12. In view of the above and for the reasons stated above, reference is answered as under:
12.1. The decision of this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration 26 while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law.
12.2. In case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the narcotic drugs or psychotropic substances.
12.3. Section 21 of the NDPS Act is not a standalone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No. S.O. 2942(E) dated 18-11-2009 and Notification No. S.O. 1055(E) dated 19-10-2001.
12.4. Challenge to the Notification dated 18- 11-2009 adding "Note 4" to the Notification dated 19-10-2001, fails and it is observed and held that the same is not ultra vires the scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218 of 2017 challenging the aforesaid notification stand dismissed."
27
26. Blotter paper is a carrier material for psychotropic substance LSD. These blotter papers are ingested with LSD, and therefore, it forms an integral part of the ingestion by the user of the same. It is also a medium of consumption of the drug and in the background of Hira Singh's case supra, the weight of the blotter paper which is said to be neutral substance is also required to be taken into consideration for the purpose of weighing the quantity of the offending drug. If the weight of the offending drug along with the blot of paper is considered, the same totally weighs 0.11 gram which is a commercial quantity. Therefore, the argument of learned Senior counsel that each paper blot may contain 30 to 50 microgrammes of psychotropic substance and therefore, the seized contraband article LSD is of small quantity is liable to be rejected.
27. Chapter VA of the Narcotic Drugs and Psychotropic Substances Rules, 1985, provides for possession, transport, import inter-state, export inter-state, sale, purchase, consumption and use of essential narcotic drugs. It is not the case of the petitioner that he was a 28 licensee under the statute for transporting, consumption, purchase, consumption and use of essential narcotic drugs. Therefore, there is a clear contravention of Section 8(c) of the NDPS Act in the present case. If the contraband article LSD is of commercial quantity Section 22(c) of the NDPS Act is applicable and the punishment provided for the said offences is rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than rupees one lakh which may extend to rupees two lakhs. Section 37 of the NDPS Act provides that all offences punishable under the NDPS Act are cognizable and non-bailable.
28. The Hon'ble Supreme Court in the case of Neeharika Infrastructure Vs State Of Maharashtra & Others reported in 2021 SCC ONLINE 315, at paragraph 57, has observed as under:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:29
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;30
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-
interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that 31 there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
29. In the case of SKODA AUTO VOLKSWAGEN (INDIA) PRIVATE LIMITED VS STATE OF UTTAR 32 PRADESH & OTHERS reported in (2021) 5 SCC 795, the Hon'ble Supreme Court in paragraphs 41 & 42, has observed as under:
"41. As cautioned by this Court in State of Haryana v. Bhajan Lal, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.
42. In S.M. Datta v. State of Gujarat, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta, this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."
30. Power under Section 482 of Cr.PC has to be exercised by High Courts sparingly and in exceptional 33 circumstances. The objectives as provided under Section 482 of Cr.PC for using its inherent powers are, (1) to prevent abuse of the process of any court;
(2) to give effect to an order under the Code;
(3) to secure ends of justice.
31. In the case of State of Haryana Vs Bhajanlal, the Supreme Court has laid down seven principles for the High Court to exercise its power under Section 482 Cr.PC. When the FIR, complaint or charge sheet, prima facie constitute an offence on the face of it which is evident from reading the gist of the document, the High Court in normal circumstances should be slow to exercise its power under Section 482 of Cr.PC. The High Court while exercising power under Section 482 Cr.PC needs to evaluate the material on record keeping in mind the aforesaid three objectives provided under Section 482 of Cr.PC.
32. It is not in dispute that the alleged offences are cognizable offences. The qualitative and quantitative test 34 report of the psychotropic substance LSD is yet to be received from the FSL. In the absence of the same, it may not be possible to arrive at a definite conclusion under which clause of Section 22, the petitioner can be held liable. The uncontraverted allegations found against the petitioner makes out a prima facie case for the offences punishable under the provisions of the NDPS Act which are cognizable and non-bailable offences, and therefore, investigation in the case is necessary. In view of the aforesaid analysis of the matter, I am of the opinion that the prayer made in the petition cannot be granted. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE DN