BINU Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this Writ Petition filed under Article 226 of the Constitution of INdia, the petitioner who is the first accused in Crime No. 140 of 2011 of Panangad Police Station for an offence punishable under Sec. 22 ( c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act for short) read with Sec. 34 I.P.C. challenges Ext.P3 notification dated 18-11-2009 as per which a "note" has been added with effect from 18-11-2009 as "Note - 4" to the notification published as S.O. 1055 (E) dated 19-10-2001. The said Note 4 reads as follows:-

(2.) THE case of the prosecution as revealed by the final report in the above crime is as follows:- On 24-01-2011 at about 7.20 p.m. the petitioner (A1) was found in possession of 842 ampulesof buprenorphine injunction, 140 ampules of diazepam and 107 ampules of promethezine in an air bag kept beneath the cot in one of the bedrooms of a rented house belonging to one Sherif at Kaithavalappil in Nettoor where the petitioner is residing. THE petitioner was arrested then and there. THE case was detected by the 3rd respondent Sub Inspector of Police, Panangad on getting credible information before the detection. One Harshan (A2) and one Sibil (A3) who were allegedly found in the vicinity of the said house each carrying 25 ampules of diazepam for sale were also arrested. Each of the three accused persons were carryingmobile phones. A2 and A3 had cash worth Rs. 4000/- and Rs. 400/- respectively on their person. THE contraband psychotropic substances, mobile phones and cash were seized under a search list.

(3.) A statement has been filed on behalf of the first respondent Union of India to the following effect:- Under the N.D.P.S. Act, any mixture of one or more drugs in whatever physical state qualifies to be called a "preparation" as defined under Sec. 2 (xx) of the Act. The penalties under the N.D.P.S. Act appl not only to the pure drugs but also to their preparations. Hence, if a drug, say, heroin is mixed with, say, Bournvita or Milk Powder, such a mixture is a preparation under the N.D.P.S. Act and the person who possesses, sells etc. such preparation is also liable for punishment like a person possessing pure heroin. Subsequently, it was felt that a distinction need to be made between major traffickers on the one hand and petty offenders and drug addicts on the other and, therefore, a system of graded punishment was introduced through an amendment of the N.D.P.S. Act in the year 2001. The terms "small quantity" and "commercial quantity" have been defined under Sec. 2 (xxiii a ) and Sec. 2 (vii a) . The rigor of Sec. 37 has been extended only to offences involving commercial quantity. The Central Government has been given the full power to decide what quantity should be fixed as small quantityand commercial quantity for each of the drugs. The limits fixed by the Central Government can also be changed through notification without any formal amendment of the Act. The small and commercial quantities will vary with the nature of the drug since all drugs are not equipotent . While fixing the limits of various drugs the Central Government had the option to decide the quantity in terms of the pure drug content or in terms of the weight of the seized substance which contains the specified drug as a preparation. After taking into account all aspects of the matter the Government decided to notify the limits of various drugs not in terms of the pure drug content but in terms of the weight of the seized substance containing the specified drug as a preparation . There were two reasons for this. The first reason was that the drugs are never sold in their pure form . They are always used in mixture (preparation). For instance, the street level purity of heroin is only about 5 to 10 percent. Secondly, most of the Forensic Laboratories have only the facility to test the presence or otherwise (qualitative test) of the drug in the form of preparation and do not have the equipments and the capability to test the purity i.e. the quality (qualitative test) of the drug in such form. If small and commercial quantities were to be notified in the form of pure drug content , then it would have become absolutely necessary to determine the purity of the seized drug which only a few laboratories in the country could do . If all the samples of drugs seized from the length and breadth of the country were to be sent to these laboratories, then it would clog them rendering their task difficult and time consuming. A practical way was to define small quantity and commercial quantity in terms of the total quantity of the preparations containing the specified drug. The threshold levels of small and commercial quantities under the notification dated 19-10-2001 have been kept fairly high . For instance, small quantity of heroin is 5 gms. which if taken as only the pure drug content, will translate into 100 gms. of street level heroin . At the rate of 0.25 grams of street level heroin mixture the said 100gms of street level heroin can yield about 400 dozes of heroin . It is not the intention of the Government to send a person who possesses or sells heroin equivalent to 400 dozes to a mere six months imprisonment. Anyone selling 400 dozes of street level heroin deserves not just a minor punishment of six months but at least 10 years. It was since the weight of the small and commercial quantities of the drugs had been linked to the preparations and not the pure drug content that in the notification dated 19-10-2001 Note - 2 was appended. The said note reads as follows: