AMARJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present is a petition for grant of bail under Section 439 Cr.P.C. in case arising out of FIR No. 229 dated 14.10.2010, for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). As per the allegations in the FIR, the petitioner is alleged to be in possession of 1 Kg. 250 grams of mandrax diphenoxylate. Such narcotic drug is mentioned at Sr. No. 44 of the Table appended to the Act inserted as a consequence of Central Act No. 9 of 2001. The commercial quantity is 50 grams or above whereas the small quantity is 2 gms. The petitioner seeks bail in view of the judgments of the Hon'ble Supreme Court in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 2 RCR(Cri) 597, Ouseph v. State of Kerala, 2006 2 RCR(Cri) 127 and Samiullaha v. Superintendent, Narcotic Central Bureau, 2009 1 RCR(Cri) 40. It is contend that as per the Chemical Examiner report, the percentage of diphenoxylate was 1.493% in the said recovery and thus, the contraband-recovered from the petitioner is noncommercial quantity. Therefore, the petitioner be admitted to bail. Such application for grant of bail was declined by the learned Special Judge, Patiala, vide order dated 23.11.2010.

(2.) The petitioner amended the present petition after filing the same. In the present amended petition, the petitioner has challenged the notification dated 18.11.2009 issued by the Ministry of Finance (Department of Revenue), amending the notification dated 19.10.2001 inserting table specifying small and commercial quantity. The following note was inserted vide the notification under challenge, which reads as under:-

(3.) Learned counsel for the petitioner has vehemently argued that the said notification has the effect of nullifying the judgments of the Hon'ble Supreme Court rendered in E. Micheal Raj's case and other cases referred above. The amendment is carried out by way of a notification issued by the Central Government while exercising the powers of delegated legislation. It is contended that though the legislature has power to remove defects or to change the basis of the judgment while enacting Statute but to undo a judgment of the Hon'ble Supreme Court in exercise of delegated legislation is not tenable. The effect of the judgment of the Court can be negated only by amendment in the statute by the competent Legislature and not by way of notification published in exercise of delegated legislation. In support of the said argument, reliance is placed upon a judgment in case State of Maharashtra and others v. Kumari Tanuja, 1999 1 SCT 776