SALAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THE accused in SC No. 156/2004 arising from Crime No. 227/2002 of Mattancherry police station alleged to have been in possession of 1675 ampules of Buprenorphine Tidigesic and made to stand trial for an offence under S. 2 (c) of the Narcotic Drugs and Psychotropics Act has filed this writ petition under Art. 227 and Art. 226 of the Constitution on account of what is described as a judicial turmoil resulting from conflicting views as to what is more quantity and what is commercial quantity of Buprenorphine Tidigesic for the purpose of incrimination under the NDPS Act, 1985. THE petitioner refers to the judgment of this Court in Shaji v. Kerala State, 2004 KHC 1076 : ILR 2004 (2) Ker. 600 : 2004 (3) KLT 270 and submits that going by the above judgment, the quantity allegedly possessed by the petitioner (1675 ampules containing 2 millilitres of buprenorphine tidigesic) is much above the commercial quantity. THE petitioner also refers to the judgment of the Supreme Court in Sajan Abraham v. State of Kerala, 2004 KHC 553 : 2004 (4) SCC 441 : AIR 2004 SC 2796 : 2004 (2) KLT 122 (SC) and also the judgment of the Supreme Court in Ouseph alias Thankachan v. State of Kerala, 2004 KHC 966 : 2004 SCC (Cri) 1303 : AIR 2004 SC 2088 : 2004 Cri LJ 1832 : 2004 (4) SCC 446 and submits that going by those judgments of the Supreme Court, the quantity possessed by the petitioner will be below the commercial quantity. THE punishment prescribed for possessing tidigesic below the commercial quantity is the maximum of 10 years and fine upto Rs. one lakh only whereas with a quantities above the commercial quantity the punishment can go upto 20 years and unlimited amount of fine. THE petitioner contends that the judgment of the Supreme Court is binding on all Courts in India and is followed by all those Courts. However, the Sessions Judges and Judges of the Subordinate Judiciary in Kerala are following the judgment of the High Court in 2004 KHC 1076 : ILR 2004 (2) Ker. 600 : 2004 (3) KLT 270 (supra) and this situation is resulting in legal prejudice to the accused who are facing trial in the Kerala State. It is therefore necessary that the small quantity and commercial quantity of Buprenorphine tidigesic which is presently available in liquid form is fixed with reference to the proviso to Explanation in S. 2 and in exercise of the powers conferred in Clause 7 (a) and 23 (a) of S. 2 of the NDPS Act, 1985. THE petitioner contends that it is the duty of the first respondent Union Government to fix small quantity and commercial quantity not by weight but in millilitres since the contraband is in liquid form.

(2.) A detailed counter affidavit has been filed on behalf of the first respondent and in paragraph 5 thereof it is stated as follows: It is specifically submitted that "buprenorphine" injection or "buprenorphine" Hydrochloride injection is a sterile solution of Buprenorphine Hydrochloride in water for injection and the standards for the same are given in the Indian Pharmacopoeia, 1996. As per Indian Pharmacopoeia, 1996 small quantity and commercial quantity of Buprenorphine is fixed as follows: It is respectfully submitted that as per the Indian Pharmacopoeia standards one gram of Buprenorphine is 3333. 33 millilitres when it is in liquid form for the purpose of small quantity. For the purpose of commercial quantity 20 grams of Buprenorphine is 66666. 60 millilitres when it is in liquid form. Table:#1