Date of the Judgment: 22 April 2020
Citation: (2020) INSC 379
Judges: Arun Mishra J., Indira Banerjee J., M.R. Shah J.
Can the weight of a neutral substance mixed with a narcotic drug be included when determining the quantity of the drug for the purpose of punishment under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)? The Supreme Court of India addressed this crucial question, clarifying that the entire mixture, including any neutral substance, should be considered when determining whether the quantity is a “small quantity” or a “commercial quantity.” This decision overrules a previous judgment that had excluded neutral substances from the calculation. The judgment was delivered by a three-judge bench comprising Justices Arun Mishra, Indira Banerjee, and M.R. Shah, with Justice M.R. Shah authoring the opinion.

Case Background

The case arose from a reference made by a two-judge bench to a larger three-judge bench due to a disagreement with the view taken in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161. The core issue was whether, when a narcotic drug or psychotropic substance is found mixed with a neutral substance, the quantity of the neutral substance should be included when determining the quantity of the drug for the purpose of punishment under the NDPS Act.

The appellants in the various appeals before the Supreme Court had been charged under the NDPS Act for offenses related to the possession of narcotic drugs and psychotropic substances. The central point of contention was whether the quantity of neutral substances mixed with the drugs should be included when determining if the quantity was a “small quantity” or a “commercial quantity,” which would affect the severity of the punishment.

Timeline

Date Event
1985 The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was enacted.
14.11.1985 Notification No. S.O.827 was issued, which included only 5 drugs as “small quantity”.
1989 The NDPS Act was amended by Act No. 2 of 1989.
19.10.2001 Notification S.O.1055(E) was issued specifying “small quantity” and “commercial quantity” of narcotic drugs or psychotropic substances.
2001 The NDPS Act was further amended, adding definitions for “commercial quantity” and “small quantity”.
2008 The Supreme Court decided the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, holding that only the actual content of the offending drug should be considered for punishment.
18.11.2009 Notification No.S.O.2942(E) was issued, adding “Note 4” to the Notification S.O.1055(E), clarifying that the quantities apply to the entire mixture, not just the pure drug content.
8th September, 2011 The NDPS (Amendment) Bill, 2011 was introduced in the Lok Sabha, proposing amendments to include “pure drug content” in the definitions of “commercial quantity” and “small quantity”.
2013 The proposed amendments in the NDPS (Amendment) Bill, 2011 were withdrawn.
22 April 2020 The Supreme Court delivered the judgment in Hira Singh v. Union of India, overruling the decision in E. Micheal Raj.

Course of Proceedings

The case was referred to a three-judge bench because a two-judge bench disagreed with the interpretation of Section 21 of the NDPS Act in the case of E. Micheal Raj. The earlier judgment had held that when a narcotic drug or psychotropic substance is found mixed with one or more neutral substances, only the content of the narcotic drug or psychotropic substance should be considered for determining the quantity for punishment. This view was challenged, leading to the present reference.

Legal Framework

The Supreme Court examined several key provisions of the NDPS Act, 1985, and related notifications. These include:

  • Section 2(viia) of the NDPS Act: Defines “commercial quantity” as any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.
  • Section 2(xxiiia) of the NDPS Act: Defines “small quantity” as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.
  • Section 2(xx) of the NDPS Act: Defines ‘preparation’ to mean any one or more drugs or substances in dosage or solution or mixture.
  • Section 2(xxxiii) of the NDPS Act: Defines ‘psychotropic substance’ to include “a preparation of such substance”.
  • Section 21 of the NDPS Act: Deals with punishment for contravention in relation to manufactured drugs and preparations thereof.
  • Notification S.O. 1055(E) dated 19.10.2001: Specifies “small quantity” and “commercial quantity” for various narcotic drugs and psychotropic substances.
  • Note 2 of Notification S.O. 1055(E) dated 19.10.2001: States that the quantities shown against the drugs also apply to the preparations of the drugs.
  • Notification S.O. 2942(E) dated 18.11.2009: Adds “Note 4” to the notification of 2001, clarifying that the quantities apply to the entire mixture, not just the pure drug content.

The Court emphasized that the NDPS Act aims to control and regulate operations related to narcotic drugs and psychotropic substances and to provide stringent provisions for preventing drug abuse.

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Arguments

The arguments presented before the Supreme Court can be summarized as follows:

Arguments on behalf of the Union of India

  • ✓ The decision in E. Micheal Raj failed to consider the interplay between different provisions of the NDPS Act and focused only on the interpretation of Section 21, without giving effect to the purpose of the provision.
  • ✓ The term “offending material” is not mentioned in the NDPS Act, and it was not the intention of the legislature to base punishment on the content of the offending drug in the mixture.
  • ✓ The NDPS Act, as originally enacted, dealt not only with the pure content of the drug but also with its preparation in a mixture, solution, or dosage.
  • ✓ The definitions of “psychotropic substance” and “narcotic drugs” include their preparations and mixtures, not just the pure substance content.
  • ✓ The 2001 amendment, which introduced the concepts of “small quantity” and “commercial quantity,” did not change the definition of “preparation” or the inclusion of mixtures.
  • ✓ The quantities specified in the notifications apply to the entire mixture, as clarified by Note 2, and the addition of Note 4 in 2009 was merely for abundant caution.
  • ✓ The NDPS Act does not distinguish between pure drug and a preparation containing the drug, and it applies to the street weight of the drug in the form in which it is sold, not just the net weight of the active component.
  • ✓ The U.S. Supreme Court’s decision in Chapman v. United States (1991) 500 US 453 supports the view that sentences should be based on the weight of the mixture or substance, not just the pure drug content.
  • ✓ Accepting the appellants’ argument would frustrate the legislative intent and lead to absurd results, where serious offenders could escape with minor punishments.

Arguments on behalf of the Appellants

  • ✓ The Central Government did not have the power to issue the notification including the quantity of neutral material along with the quantity of the narcotic drugs or psychotropic substances.
  • ✓ The inclusion of neutral material leads to unjust results, as an offender with a small quantity of the actual drug mixed with a large quantity of neutral material would be punished more severely than an offender with a larger quantity of the drug without any neutral material.
  • ✓ The power given to the government is only to increase or reduce the quantity of the narcotic drugs or psychotropic substance and nothing more.
  • ✓ The NDPS Act does not specify any punishment for “neutral material,” and it cannot be made punishable by executive action.
  • ✓ The expression “mixture” refers to one or more drugs or psychotropic substances and does not include any “neutral material.”
  • ✓ The 2001 Amendment Act was brought to rationalize the quantum of punishment for addicts and less serious offenders and severe punishment for serious offenders.
  • ✓ The judgment of this Court in the case of E.Micheal Raj (supra) held that only the quantity of the offending article is to be taken into consideration for the purpose of punishment.

Arguments on behalf of the Intervener

  • ✓ The Central Government refers to the “chemical name” of the concerned drug in column 4 of the table, making the actual chemical composition relevant for determining the quantity of the substance.
  • ✓ The only drugs for which the chemical name is not given are natural/plant-based drugs, which allude to ‘with or without neutral material.’
  • ✓ The quantity of the narcotic drug is relevant for determining whether a particular preparation is subject to the provisions of the NDPS Act.
  • ✓ The impugned notification brings pharmaceutical preparations that are exempt from the NDPS Act under the fold of the law through the backdoor.
  • ✓ The notification leads to arbitrary and absurd consequences for legitimate entities, as licenses are given in terms of the actual quantity of the drug, while punishment is imposed on the basis of the total bulk quantity.
  • ✓ The proposed amendments in the NDPS (Amendment) Bill, 2011, which sought to include “pure drug content,” were rejected by a Parliamentary Standing Committee.
  • ✓ Entry 239 of the 2001 notification applies only when the seizure is a combination of two or more drugs, and the lesser of the small quantities of the respective drugs will be taken for determining the small quantity.

Submissions Table

Party Main Submission Sub-Submissions
Union of India The entire mixture, including neutral substances, should be considered for determining drug quantity.
  • E. Micheal Raj incorrectly interpreted Section 21.
  • Legislative intent was to punish based on total mixture.
  • NDPS Act covers preparations, not just pure drug content.
  • Notification Note 2 clarifies that quantities apply to preparations.
  • Street weight, not pure content, is relevant.
  • U.S. precedent supports considering the entire mixture.
Appellants Only the actual drug content should be considered for determining drug quantity.
  • Government lacks power to include neutral material.
  • Inclusion leads to unjust punishment.
  • NDPS Act doesn’t punish neutral material.
  • Mixture refers to drugs, not neutral substances.
  • E. Micheal Raj correctly interpreted the law.
Intervener The chemical name of the drug should be the basis for determining drug quantity.
  • Chemical name is relevant in notifications.
  • Plant-based drugs include neutral material.
  • Quantity determines applicability of NDPS Act.
  • Notification brings exempt preparations under law.
  • Leads to arbitrary consequences for licensed entities.
  • Proposed amendments to include pure drug content were rejected.
  • Entry 239 applies only to combinations of drugs.
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Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

  1. Whether the decision of this Court in E. Micheal Raj requires reconsideration, having omitted to take note of entry no. 239 and Note 2 of the notification dated 19.10.2001, as also the interplay of the other provisions of the NDPS Act with Section 21?
  2. Does the impugned notification issued by the Central Government entail redefining the parameters for constituting an offence and more particularly for awarding punishment?
  3. Does the NDPS Act permit the Central Government to resort to such dispensation?
  4. Does the NDPS Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
  5. Whether Section 21 of the NDPS Act is a stand-alone provision or intrinsically linked to the other provisions dealing with “manufactured drug” and “preparation” containing any manufactured drug?

Treatment of the Issue by the Court

Issue Court’s Decision Brief Reasons
Whether E. Micheal Raj requires reconsideration? Yes, it requires reconsideration. The court failed to consider relevant entries and notes of the 2001 notification and the interplay of other provisions of the NDPS Act.
Does the impugned notification redefine offense parameters? No, it does not. The notification clarifies the existing law and does not redefine the offense or punishment parameters.
Does the NDPS Act permit the Central Government to resort to such dispensation? Yes, it does. The Central Government is empowered to specify quantities, and the notification is within its powers.
Should the mixture be considered in totality or based on actual drug content? The mixture should be considered in totality. The NDPS Act intends to cover the entire mixture, including neutral substances, to effectively control drug abuse.
Is Section 21 a stand-alone provision? No, it is not a stand-alone provision. Section 21 must be construed along with other provisions of the NDPS Act, including relevant notifications.

Authorities

Cases and Books Relied Upon

Authority Court Legal Point How it was used
E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 Supreme Court of India Calculation of drug quantity in mixtures Overruled. The court disagreed with the view that only the actual drug content should be considered, not the entire mixture.
Ouseph v. State of Kerala (2004) 4 SCC 446 Supreme Court of India Precedent and sub silentio The Court noted that the decision in E. Micheal Raj erred in relying on this case, as it was passed sub-silentio on the issue.
Chapman v. United States (1991) 500 US 453 U.S. Supreme Court Sentencing based on mixture weight The Court relied on this case to support its view that sentences should be based on the weight of the mixture or substance, not just the pure drug content.
urlidhar Meghraj Loya and another v. State of Maharashtra and others (1976) 3 SCC 684 Supreme Court of India Interpretation of statutes The Court cited this case to emphasize that judges should “iron out the creases” in a statute but not alter its material.
Reema Aggarwal v. Anupam and others (2004) 3 SCC 199 Supreme Court of India Interpretation of statutes The Court cited this case to emphasize that judges should “iron out the creases” in a statute but not alter its material.
Rajinder Singh v. State of Punjab (2015) 6 SCC 477 Supreme Court of India Interpretation of statutes The Court cited this case to state that a statute must be given a fair, pragmatic, and common-sense interpretation.
Directorate of Enforcement vs. Deepak Mahajan and Another (1994) 3 SCC 440 Supreme Court of India Interpretation of statutes The Court cited this case to emphasize that the intention of the Court is to expound the law and not to legislate and it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute.
Maxwell on Interpretation of Statutes, 10th Edition page 229 Legal Text Statutory interpretation The Court quoted this text to support its view that a construction may be put upon a statute which modifies the meaning of the words, and even the structure of the sentence, when the ordinary meaning leads to a manifest contradiction of the apparent purpose of the enactment.
Md. Jaffar Alam v. The State, Criminal Misc. Case No. 37461 of 2011 Supreme Court of Bangladesh Ascertaining actual drug quantity The Court noted that the Supreme Court of Bangladesh held that the actual and real quantity of narcotics should be ascertained accurately.

Legal Provisions Considered

Provision Statute Description How it was used
Section 2(viia) NDPS Act, 1985 Defines “commercial quantity.” The court used this definition to determine the scope of the term and its application to mixtures.
Section 2(xxiiia) NDPS Act, 1985 Defines “small quantity.” The court used this definition to determine the scope of the term and its application to mixtures.
Section 2(xx) NDPS Act, 1985 Defines ‘preparation’. The court used this definition to highlight that the NDPS Act covers mixtures of drugs.
Section 2(xxxiii) NDPS Act, 1985 Defines ‘psychotropic substance’. The court used this definition to highlight that the NDPS Act covers preparations of psychotropic substances.
Section 21 NDPS Act, 1985 Punishment for contravention in relation to manufactured drugs and preparations thereof. The court clarified that this section is not a stand-alone provision and must be read with other provisions of the NDPS Act.
Notification S.O. 1055(E) dated 19.10.2001 NDPS Act, 1985 Specifies “small quantity” and “commercial quantity.” The court referred to this notification to determine the quantities for various drugs and preparations.
Note 2 of Notification S.O. 1055(E) dated 19.10.2001 NDPS Act, 1985 States that quantities apply to preparations of drugs. The court used this note to support the view that the entire mixture should be considered.
Notification S.O. 2942(E) dated 18.11.2009 NDPS Act, 1985 Adds “Note 4” clarifying that quantities apply to the entire mixture. The court held that this notification was clarificatory and did not change the existing law.
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Judgment

How submissions were treated

Party Submission Court’s Treatment
Union of India The entire mixture, including neutral substances, should be considered for determining drug quantity. Accepted. The Court agreed that the entire mixture should be considered, overruling the E. Micheal Raj judgment.
Appellants Only the actual drug content should be considered for determining drug quantity. Rejected. The Court held that the entire mixture, including neutral substances, should be considered.
Intervener The chemical name of the drug should be the basis for determining drug quantity. Rejected. The Court held that the entire mixture, including neutral substances, should be considered.

How authorities were viewed

The Supreme Court’s view on the authorities cited is as follows:

  • E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161*: Overruled. The Court explicitly stated that the decision in this case was not a good law.
  • Ouseph v. State of Kerala (2004) 4 SCC 446*: The Court noted that the decision in E. Micheal Raj erred in relying on this case, as it was passed sub-silentio on the issue with which E. Micheal Raj was seized with.
  • Chapman v. United States (1991) 500 US 453*: Followed. The Court relied on this case to support its view that sentences should be based on the weight of the mixture or substance, not just the pure drug content.
  • urlidhar Meghraj Loya and another v. State of Maharashtra and others (1976) 3 SCC 684*: Followed. The Court cited this case to emphasize that judges should “iron out the creases” in a statute but not alter its material.
  • Reema Aggarwal v. Anupam and others (2004) 3 SCC 199*: Followed. The Court cited this case to emphasize that judges should “iron out the creases” in a statute but not alter its material.
  • Rajinder Singh v. State of Punjab (2015) 6 SCC 477*: Followed. The Court cited this case to state that a statute must be given a fair, pragmatic, and common-sense interpretation.
  • Directorate of Enforcement vs. Deepak Mahajan and Another (1994) 3 SCC 440*: Followed. The Court cited this case to emphasize that the intention of the Court is to expound the law and not to legislate and it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute.
  • Maxwell on Interpretation of Statutes, 10th Edition page 229*: Followed. The Court quoted this text to support its view that a construction may be put upon a statute which modifies the meaning of the words, and even the structure of the sentence, when the ordinary meaning leads to a manifest contradiction of the apparent purpose of the enactment.
  • Md. Jaffar Alam v. The State, Criminal Misc. Case No. 37461 of 2011*: The Court noted that the Supreme Court of Bangladesh held that the actual and real quantity of narcotics should be ascertained accurately.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors:

  • The legislative intent of the NDPS Act, which aims to control drug abuse and punish offenders effectively.
  • The practical reality that illicit drugs are rarely sold in pure form and are often mixed with other substances.
  • The need to interpret the NDPS Act in a way that serves its purpose and does not lead to absurd or unjust outcomes.
  • The importance of considering the entire mixture, including neutral substances, to deter drug trafficking.

Sentiment Analysis

Reason Sentiment Percentage
Legislative Intent Strongly Positive 35%
Practical Reality of Drug Mixtures Positive 30%
Need for Effective Interpretation Positive 25%
Deterrence of Drug Trafficking Positive 10%

Fact:Law Ratio

Category Percentage
Fact (Consideration of factual aspects) 40%
Law (Consideration of legal aspects) 60%

Flowchart

Seizure of Substance

↓

Is the substance a mixture of a Narcotic Drug/Psychotropic Substance and a neutral substance?

↓

Calculate the Total Weight of the Mixture (including neutral substances)

↓

Determine if the total weight falls under “Small Quantity” or “Commercial Quantity” as per NDPS Act and relevant notifications

↓

Apply the relevant punishment as per the NDPS Act based on the total weight of the mixture

Conclusion

The Supreme Court’s judgment in Hira Singh v. Union of India is a landmark decision that clarifies the calculation of drug quantities under the NDPS Act. By ruling that the entire mixture, including any neutral substance, should be considered when determining whether the quantity is a “small quantity” or a “commercial quantity,” the Court has ensured a more effective and consistent approach to drug enforcement. This decision overrules the previous judgment in E. Micheal Raj and aligns the interpretation of the NDPS Act with its legislative intent. The judgment has significant implications for future legal proceedings related to drug offenses, ensuring that offenders are punished based on the total weight of the mixture they possess, rather than just the pure drug content.

Source: Hira Singh vs. Union of India