ABDUL MATEEN Vs. UOI

JUDGEMENT

(1.) This writ petition seeks the quashing of notification S.O. No. 2941 (E) dated 18.11.2009 issued by the Ministry of Finance, Department of Revenue, Government of India on the ground that it is ultra vires the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act').

(2.) The petitioner is a citizen of Afganistan and is facing trial in the case entitled State v. Niyamatulah & Ors. which arises out of FIR No. 212/2009 of Police Station Crime Branch registered under section 21(c) of the NDPS Act. An alleged recovery of 500 grams of heroin was made from, inter alia, the petitioner. The Forensic Science Laboratory Report with regard to the said alleged heroin indicated that the substance allegedly recovered comprised of 44.5% diacetylmorphine (heroin). If this percentage is taken into account, then, according to the learned counsel for the petitioner the actual weight of heroin in the alleged recovery would be 222.5 grams. According to the learned counsel for the petitioner this would be less than the commercial quantity of 250 grams specified under notification S.O. 1055 (E) dated 19.10.2001. If the petitioner is right, then, the recovery would be of less than the commercial quantity prescribed for heroin and therefore the punishment could be for a term which could extend to 10 years with fine which could extend to Rs. 1 lakh. However, if the petitioner's submission is not accepted then the alleged recovery would be of a commercial quantity inasmuch as the commercial quantity specified for heroin under the said notification S.O 1055 (E) dated 19.10.2001 is 250 grams and above. If that were to be the case, then, the punishment involved has to be not less than 10 years and may extend to 20 years with fine which cannot be less than Rs. 1 lakh and may extend to Rs. 2 lakh.

(3.) Prior to the issuance of the impugned notification S.O. 2941 (E) dated 18.11.2009, there was a controversy that had been set at rest by a decision of the Supreme Court in the case of E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau, 2008 5 SCC 161. The Supreme Court, after analyzing the provisions of the NDPS Act as also entries 56 and 239 of the notification dated 19.10.2001, observed that the offending substance in that case, which contained diacetylmorphine, was an opium derivative and hence a manufactured drug. The Supreme Court then observed as under:-