HIRA SINGH & ANR.versusUNION OF INDIA & ANR.

                        [2017) 7 S.C.R. 271



                      HIRA SINGH & ANR.                                A
                                 v.
                    UNION OF INDIA & ANR.
                 (Criminal Appeal No. 722 of 2017)
                           JULY03,2017                                 B

       (DIPAK MISRA AND A. M. KHANWILKAR, JJ.)
        Narcotic Drugs and Psychotropic Substances Act, 1985 -
Notifications issue{ by Central Government bearing no.S.0.2941(£)
dated 18.11.2009 amending Notification no.S.0.1055(E) dated C
19.10.2001 thereby inserting Note 4 in the table at the end of Note
3 - Notification assailed on the ground that the NDPS Act does not
confer any power upon the Central Government to vary the
parameters of the quantification of the drugs; that the offence
defined in the Act is specific to narcotic drugs or the psychotropic
substances; that no punishment is provided for or can be given in D
respect of non narcotic drugs or non psychotropic substances; and
further note 4 pertains to entry no.239 dealing with the non-descript
mixture or preparation with or without a natural material ofspecified
drugs referred to in entries 1 to 238 of the notification specifying
small quantity and commercial quantity and the effect of notificatiOn E
 is to undermine the decision in case of *E. Micheal Raj - Held: The
 decision in *E. Micheal Raj nowhere makes reference to Note 2 of
 notification dated 19.10.2001 and that the same may have some
 bearing on the issue under consideration - This decision also does
 not refer to entry no. 239 and the interplay between the various
provisions alluded to earlier while noting the argument of the . F
 respondents - The judgment, however, after quoting notification
 dated 19.10.2001 took note of the purpose for which Amendment
 Act of 2001 was brought into force and then proceeded to hold that
 to achieve the said purpose of rationalisation of the sentence
 structure, the purity of the narcotic drug from the recovery or seizure G
 made from the offender would be a decisive factor - Considering
 the significance of the issues raised by the respondents and the
 grounds of challenge of the appellants/petitioners concerning the
 impugned notification, to observe judicial rectitude and in deference
 to the decisions, matter is referred to larger bench.
                                                                         H
                                   271
272         SUPREME COURT REPORTS                       [2017] 7 S.C.R.


A         Referring the matters to a larger Bench, the Court
          HELD: Considering the significance of the issues raised
   by the respondents and the grounds of challenge of the appellants/
   petitioners concerning the impugned notification, to observe
   judicial rectitude and in deference to the decisions, the direction
B is passed to place these matters before atleast a three Judges
   Bench for an authoritative pronouncement on the matters in issue.
   The three Judges Bench may have to consider, amongst others,
   the following questions: (a) Whether the decision of this Court in
   E. Micheal Raj case requires reconsideration having omitted to
   take note of entry no.239 and Note 2 (two) of the notification
C dated 19.10.2001 as also the interplay of the other provisions of
   the Act with Section 21? (b) Does the impugned notification issued
   by the Central Government entail in redefining the parameters
  •for constituting an offence and more particularly for awarding
   punishment? (c) Does the Act permit the Central Government
D to resort to such dispensation? (d) Does the 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? (e) Whether
   Section 21 of the Act is a stand alone .provision or intrinsically
    linked to the other provisions dealing with "manufactured drug"
E and "preparation" containing any manufactured drug? [Paras 11,
    12) [280-A-F)
          *E. Micheal Raj v. Intelligence Officer, Narcotic Control
          Bureau (2008) 5 SCC 161 : [20081 4 SCR 644;
          Directorate of Enforcement v. Deepak Mahajan (1994)
 F        3 SCC 440 : [1994) 1 SCR 445; Harjit Singh v. State
          of Punjab (2011) 4 SCC 441 : [20111 5 SCR 691;
          Kashmiri Lal v. State of Haryana (2013) 6 SCC 595 :
          [2013) 3 SCR 770; State Through Intelligence Officer,
          and Narcotics Control Bureau v. Mushtaq Ahmad and
 G        Others (2016) 1 SCC 315; Amarsingh Ramjibhai Barot
          v. State of Gujarat (2005) 7 SCC SSO: [2005) 3 Suppl.
           SCR 272 - referred to.
                           Case Law Reference
      [2008) 4 SCR 644              referred to            Para 1
 H
      HIRA SINGH & ANR. v. UNION OF INDIA & ANR.                             273



[1994) 1 SCR 445                 referred to               Para6             A
(2011) 5 SCR 691                 referred to               Para 10
(2013) 3 SCR 770                 referred to               Para 10
c2016) 1 sec 315                 referred to               Para 10
[2005) 3 Suppl. SCR 272          referred to               Para 10           B

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
722of2017.
      From the Judgment and Order dated 06.11.2012 of the High Court
of Delhi at New Delhi in Writ Petition (Criminal) No. 1552of2010
                                                                             c
                                 WITH
      C. A. No. 5218 of2017
      Cr!. A. No. 721 of2017
      W. P. (Cr!.) Nos. 77 and 154 of2016                                    D
      W. P. (Cr!). No. 186 of2014.
      R. B. Singhal, Sr. Adv., R. K. Kapoor, D. S. Pheruman, Rajat
Kapoor, Ms. Rekha Giri, Ms. Shweta Kapoor, Anis Ahmed Khan,
B. Krishna Prasad, Manoj Swamp, Ajay Kumar, Vipul Jindal, Sangram
S. Saron, Rishi Sehgal, Pragati Sharma, Nikhil Jain, Ms. Upasna Nath,        E
Sunil Dutt, Amit Kumar Upadhyay, Aditya Bhushan Singhal, Hira Lal,
Syed Imtiaz Ali, Aftab Ali Khan, M. Z. Choudhary, Ms. Rashmi Singh,
Advs. for the Appellant.
     Ranjit Kumar, SG, V. Madhukar, AAG, Ms. Binu Tamta, Tara
Chandra Sharma, Ms. Ranjana Narayan, Anil Katiyar, Jagjit Singh              F
Chhabra, Ms. Anvita Cowshish, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      A. M. KHANWILKAR, J. 1. The conundrum in these matters
is to quash or not to quash the notification issued by the Central
Government bearing No. S.0.2941(E) dated 18.11.2009, amending                G
Notification No. S.0.1055(E) dated 19.10.2001 and thereby inserting
Note 4 (four) in the table at the end of Note 3 (three). The appeals
forming part of this batch of matters have arisen from the judgment and
order of the High Court of Delhi and of the High Court of Punjab and
Haryana respectively, rejecting the challenge to the impugned notification   H
274       ____JUPREME COURT REPORTS                          (2017] 7 S.C.R.


A being ultra vires. That notification is assailed on the ground that the
    Narcotic Drugs and Psychotropic Substances Act, 1985 (f<_>r short "the
  · Act") does not confer any power upon the Central Government to vary
    the parameters of the quantification of the drugs. The offence defined in
    the Act is specific to narcotic drugs or the psychotropic substances. No ·
B punishment is provided for or can be given in respect of non narcotic
    drugs or the non psychotropic substances. If that cannot be done directly,
    it cannot be achieved indirectly muchless by issuance of a notification.
    Further, Note 4 (four) at best pertains to entry no. 239 dealing with the
    non-descript mixture or preparation with or without a natural material,
    of the specified drugs referred to in entries I to 238 of the notification
C specifying "small quantity" and "commercial quantity". That entry no.
    239 by no means can be considered as the source of power to insert
    Note 4 (four). Furthermore, the effect of the notification is to undermine
    the decision of this Court in the case ofE. Micheal Raj Vs. Intelligence
    Officer, Narcotic Control Bureau'. That cannot be countenanced.
D For, the effect of the decision of this Court cannot be diluted in any
    manner and that too by issuance of a statutory notification or an executive
     action. According to the appellants/petitioners, invocation ofNote 4 (four)
    would have the inevitable effect of not only diluting the decision of this
     Court but would also defeat the legislative intent behind the amendment
     of2001 - regarding rationalisation of sentencing policy so as to ensure
E that the drug traffickers who traffic in significant quantities of drugs are
     punished with deterrent sentence but the addicts or those who commit
     less serious offences are sentenced by providing less severe punishment.
           2. The respondents, on the other hand, contend that the Central
  _ Government is fully competent and in fact, empowered under Sections
 F 76 and 77 of the Act to issue such notification for carrying out the purposes
    of the Act. The impugned notification has been issued in compliance
    with the prescribed procedure, to notify the limits of the various drugs
    not in terms of the pure drug content but the aggregate weight of the
    seized substance as a "preparation" if it contained the specified drug.
 G This is so because the drug is afmost never sold in its pure form. It is
    always used in a mixture (a 'preparation'). For instance, the street level
    purity of heroin (Diacetylmorphine) is only about 5- l 0 percent. lf"small"
    and "commercial" quantity were to be ascertained on the basis of pure
    drug content of the samples of the seized substance, it would become
    necessary to determine the purity of the seized drug, which, only a few
 H    • (20os) s sec 161
       HIRA SINGH & ANR. v. UNION OF INDIA & ANR.                           275
                 [A. M. KHANWILKAR, J.]

State Forensic Laboratories in the country are capable of doing it. It will A
clog them with undue amount of work. According to the respondents, a
pragmatic approach was adopted by the Central Government to define
the "small" and "commercial" quantity in terms of the total quantity of
preparation containing the specified drug. For that reason, the threshold
of "small" and "commercial" quantities as per the notification dated B
19.10.2001 have been kept at a fairly high level. It is then contended that
entry no. 239 specified in the notification dated I 9.10.2001, is essentially
in the nature of a residuary clause/entry which refers to any mixture or
preparation that of with/without a naiural material, of any of the drugs
noted in entries I to 238. The natural meaning of such an entry is that
even if any of the specified drugs are mixed with any other drug or with C
any other material, the aggregate quantity thereof ought to be reckoned·
by applying the following parameters:
a) Lesser of the small quantities given against the respective narcotic
drugs or psychotropic substances mentioned above (entry nos. I to 238)
forming part of the mixture.                                                D
b) Lesser of the commercial quantity between the quantities given agaiqst
the respective narcotic drugs or psychotropic substances mentioned above
(entry nos. I to 238) forming part of the mixture.
        3. The real grievance of the resQondents, however, is that the
 decision in E. Micheal Raj (supra) has omitted to consider the interplay E
 between different provisions of the Act. It has focused only on the
 interpretation of Section 2 I of the Act, without giving effect to the purport
'of the said provision. In that, Section 21 refers to any "manufactured
 drug" or any "preparation" containing any manufactured drug. The
 expression "manufactured drug" has been defined in Section (2) (xi) p
 which in turn spells out drugs which are separately defined such as -
 coca derivatives [Section 2 (v)], medicinal cannabis [Section 2 (xii)],
 opium derivatives [Section 2 (xvi)] and poppy straw concentrate [Section
 2 (xix)]. Similarly, the expression "preparation" has been defined in Section
 2 (xx) which in tum refers to narcotic drugs [Section 2 (xiv)] or
 psychotropic substance [Section 2 (xxiii)]. The expression "mixture" G
 has not been defined in the Act. So also, the expressions "heroin" and
 "natural material" or for that matter "neutral material" does not find
 place in the definition provision of the Act. The expression "neutral
 substance" has been, for the first time, used in the case of E. Micheal
 Raj (supra) by this Court. According to the respondents, the expression H
276              SUPREME COURT REPORTS                         [2017] 7 S.C.R.



A     "preparation" as also "psychotropic substance" has been articulated on
      the lines of the provisions of the UN Conventions on drug matters, namely,
      the UN Single Convention on Narcotic Drugs, 1961 and the UN
      Convention on Psychotropic Substances, 1971, to which India is a
      signatory. The notification issued by the Central Government is to fulfill
 B    the obligations cast on the signatory countries to the said conventions.
      The comity of countries thereto are wedded to eradicate the menace of
      drugs across the globe.
            4. It is further submitted that the intention of framers of the
      impugned notification is that even if the specified drugs are sold in a
      form of mixture, i.e., it is mixed with any other drug/materials, the
 C    determination for the purposes of punishment would be the aggregate
      quantity of the mixture. In other words, the presence of any of the
      specified drug in whatever quantity or so to say percentage in the
      preparation or mixture form would be enough to constitute the specified
      crime (of possession, sale, consumption etc.).
 D             S. According to the respondents, the decision of this Court in E.
      Micheal Raj (supra) is per incuriam - because it has failed to notice
      entry no. 239 in the notification and also Note 2 (two) which intend to
      achieve the same purpose as in the impugned notification. It is submitted
      that Note 4 (four) inserted by the impugned notification is essentially a
 E    clarificatory one. It does not alter the paradigm of the provisions
      constituting an offence or the sentencing policy as such.
             6. Alternatively, it is submitted that the efficacy of Note 4 (four)
      inserted by the impugned notification must be gauged and determined on
      its own merit keeping in mind the purpose and object for which the same
 F    has been inserted and without reference to the decision of this Court in
      E. Micheal Raj (supra). Reliance is then placed on the decision of this
      Court in the case of Directorate of Enforcement Vs. Deepak
      Mahajan 2 to contend that the Court should not adopt a pedantic
      approach. In that, a bare mechanical interpretation of the words and
      application of the legislative intent devoid of concept of purpose and
 G    object will render the legislation inane. Further, it is permissible for the
      courts to have functional approach and look into the legislative intention
      and sometimes it may even be necessary to go behind the words and
      enactment and take other factors into consideration to give effect to the
      legislative intention and the purpose and spirit of the enactment so that
 H     2
           (1994)3 sec 440
       HIRA SINGH & ANR. v. UNION OF INDIA & ANR.                               277
                 [A. M. KHANWILKAR, J.]

no absurdity or practical inconvenience may result and the legislative          A
exercise and its scope and object may not become futile.
       7. It is submitted that the Act nowhere uses the term "pure content"
of the drug or substance. That has been evolved by this Court in E.
Micheal Raj (supra). Further, the notification dated 19.10.2001 does
not make any distinction between "pure drug content" and the preparation        B
or mixture. Because, what is commercially sold is a dosage, solution or
mixture. Instances have been given by the respondents as to how the
exposition of this Court in E. Micheal Raj (supra) has resulted in giving
undue benefit to the diug traffickers. For instance, a "small quantity" of
heroin is 5 gram, which if taken as only the pure drug content will translate
into 100 grams of street level heroin. At the rate of0.25 gram heroin the       C
mixture of 100 grams of heroin can yield about 400 doses of heroin. It
can never nor could have been the intention of the legislature or for that
matter of the Government to send the person who possesses or sells
heroin equivalent to 400 doses to a mere six months imprisonment. It is
contended that the test applied in the case of E. Micheal Raj (supra) of        D
percentage or actual content of weight of the narcotic drug has the
facet ofrelativity theory- by comparison with the entire quantity of the
offending drugs seized and recovered from the offender. The offenders
will get double benefit because, the notification dated 19.10.2001 has
already provided for a higher level of bench mark to constitute "small",
"intermediary" or "commercial" quantity.                                        E

       8. We have heard Shri Manoj Swarup, Shri R.K. Kapoor, Shri
Sangram S. Saron and Shri R.B. Singhal for the appellants/petitioners
and Shri Ranjit Kumar Solicitor General assisted by Ms. Binu Tamta for
the respondents - Union of India. Before we embark upon the course to
be adopted, we deem it apposite to advert to the relevant portion of the F
exposition of this Court in E. Micheal Raj (supra). This is a decision of
two Judges Bench. In paragraph 15 of the reported judgment, the Court
observed thus:
        "15. It appears from the Statement of Objects and Reasons
        of the amending Act of 2001 that the intention of the G
        legislature was to rationalize the sentence structure so as to
        ensure that while drug trajjickers who trajjic in significant
        quantities of drugs are punished with deterrent sentence,
        the addicts and those who commit less serious offences are
        sentenced to less severe punishment. Under the rationalised H
278            SUPREME COURT REPORTS                           [2017] 7 S.C.R.



A            sentence structure, the punishment would vary depending
             upon the quantity of offending material. Thus. we find it
             difficult to accept the argument advanced on behalf of the
             respondent that the rate o(purity is irrelevant since any
             preparation which is more than the commercial quantity of
             250 gm and contains 0.2% of heroin or more would be
B
             punishable under Section 21 (c) of the NDPS Act, because
             the intention of the legislature as it appears to us is to levv
             punishment based on the content of the offending drug in
             the mixture and not on the weight of the mixture as such.
             This may be tested on the following rationale. Supposing 4
c            gm of heroin is recovered from an accused, it would amount
             to a small quantity, but when the same 4 gm is mixed with 50
             kg ofpowdered sugar, it would be quantified as a commercial
             quantity. Jn the mixture of a narcotic drug or a psychotropic
             substance with one or more neutral substance(s). the quantity
             of the neutral substance(s) is not to be taken into
 D
             consideration while determining the small quantity or
             commercial quantity of a narcotic drug or psychotropic
             substance. It is only the actual content by weight of the
             narcotic drug which is relevant (or the purposes of
             determining whether it would constitute small quantity or
 E           commercial quantity. The intention of the legislature for
              introduction of the amendment as it appears to us is to punish
             the people who commit less serious offences with less severe
             punishment and those who commit grave crimes, such as
              traJficking in significant quantities, with more severe
             punishment. "
 F
                                                            (emphasis supplied)
      The principle stated in this decision is that the rate of purity of the drug
      is decisive for determining the quantum of sentence - for "small'',
      "intermediary" or "commercial" quantity. The punishment must be based
 G    on the volume or content of the offending drug in the mixture and not on
      the aggregate weight of the mixture as such. In other words, the quantity
      of the neutral substance is not to be taken into consideration while
      determining the small quantity or commercial quantity of a narcotic drug
      or psychotropic substance. It is only the actual content by weight of the
      narcotic drug, which is relevant for the purpose of determining the quantity
 H    with reference to the quantum of punishment.
       HIRA SINGH & ANR. v. UNION OF INDIA & ANR.                           279
                 [A. M. K.HANWILKAR, J.]

       9. The respondents have rightly pointed out that the expression A
"neutral" substance has not been defined in the Act. That obviously has
been coined by the Court to describe the other component of the mixture
or preparation (other than the specified narcotic drug or psychotropic
substance). We are also in agreement with the respondents that, the
said decision nowhere makes reference to Note 2 (two) of the notification B
dated 19 .10 .200 l and that the same may have some bearing on the issue
under consideration. This decision also does not refer to entry no. 239
and the interplay between the various provisions alluded to earlier while
noting the argument of the respondents. That may have some bearing
on the issue that has been finally answered. The judgment, however,
after quoting the notification dated 19.l 0.200 l took not~ of the purpose C
for which Amendment Act of 2001 was brought into force and then
proceeded to hold that to achieve the said purpose ofrationalisation of
the sentence structure, the purity of the narcotic drug from the recovery
or seizure made from the offender would be a decisive factor. In other
words, the actual content or weight of the narcotic drug or psychotropic D
substance alone should be reckoned. For taking that view support was
drawn from the observations made in another two Judges Bench decision
in the case of Ouseph @ Thankachan Vs. State of Kerala 3 which,
however, has also not elaborately dealt with the issue finally answered
in E. Micheal Raj (supra).
       10. It was possible to examine the wider issues raised by the E
respondents upon accepting their argument that the decision in E.
Micheal Raj (supra) is per incuriam. However, in our view, that decision
has interpreted Section 21 of the Act. That interpretation would bind us.
Moreover, that decision has been subsequently noted in other decisions
of this Court in the case of Harjit Singh Vs. State ofPunjab4, Kashmiri     F
Lal Vs. State of Haryana 5, State Through Intelligence Officer, and
Narcotics Control Bureau Vs. Mushtaq Ahmad and Others• - followed
or distinguished. InAmarsingh Ramjibhai Barot vs. State ofGujarat7,
quantity of entire mixture was reckoned and not limited to the pure drug
content therein. Significantly, in none of these decisions, was the Court
called upon to examine the issues now raised by the respondents. Further,   G
all these decisions are of two Judges Bench.
 ' (2004) 4 sec 446
 • (2011) 4 sec 441
 '(2013) 6 sec 595
 • c2016) 1 sec 315
  1
    c2005) 1 sec 550                                                        H
280             SUPREME COURT REPORTS                            [2017] 7 S.C.R.


A            11. Thus, considering the significance of the issues raised by the
      respondents and the grounds of challenge of the appellants/petitioners
      concerning the impugned notification, to observe judicial rectitude and in
      deference to the aforementioned decisions we direct that these matters
      be placed before atleast a three Judges Bench for an authoritative
B     pronouncement on the matters in issue, which we think are of seminal
      public importance.
              12. The three Judges Bench may have to consider, amongst others,
      the following questions:
      (a) Whether the decision of this Court in E. Micheal Raj (supra) requires
c     reconsideration having omitted to take note of entry no.239 and Note 2
      (two) of the notification dated 19.10.2001 as also the interplay of the
      other provisions of the Act with Section 21?
      (b) Does the impugned notification issued by the Central Government
      entail in redefining the parameters for constituting an offence and more
D     particularly for awarding punishment?
      (c) Does the Act permit the Central Government to resort to such
      dispensation?
      (d) Does the Act envisage that the mixture of narcotic drug and seized
      material/substance should be considered as a preparation in totality or
 E    on the basis of the actual drug content of the specified narcotic drug?
      (e) Whether Section 21 of the Act is a stand alone provision or intrinsically
      linked to the other provisions dealing with "manufactured drug" and .
      "preparation" containing any manufactured drug?
             13. It will be open to the parties to persuade the larger Bench to
 F
      reformulate the aforementioned questions or frame additional question(s),
      if they so desire.
             14. In view of the above, we direct the registry to place the matters
      before the Hon'ble Chief Justice of India for seeking appropriate
      directions to place the matters before a larger bench.
 G

      Devika Gujral                                     Matters referred to larger bench.