Any NDPS practitioner or their client cannot emphasise enough on the question as to whether it is the total quantity of material seized or the actual drug content by weight in the seized material which decides if the quantity involved in an offence is a small, intermediate or commercial quantity. The answer to this question is pivotal mainly because of two reasons - it decides whether or not the rigour of Section 37 which applies for offences involving commercial quantity will be at play while trying to argue for bail during trial and it also determines the quantum of punishment that can be administered at the conclusion of trial.
This issue was recently decided in a three-judge bench decision of the Supreme Court in the case of Hira Singh & Anr.vs. Union of India & Anr. (hereinafter, 'Hira Singh') in which judgment was delivered on 22.04.2020. The issue was decided in a reference from a 2-judge bench vide order dated 03.07.2017 involving multiple questions and reconsideration of an earlier two-judge bench decision of the Supreme Court in the case of E. Micheal Raj vs Intelligence Officer, Narcotic Control Bureau (hereinafter, 'E Micheal'). Under challenge was a 2009 notification issued under the NDPS Act which amended an earlier 2001 notification by adding a note (Note 4) in it. It was submitted by the petitioners that the 2009 notification was ultra vires the NDPS Act since it sought to penalize the entire weight of seized material including neutral material. They contended that since the NDPS Act only prescribed punishment on the basis of actual drug content, the notification was ultra vires the Act and hence liable to be set aside.
Some background may be of assistance here. The NDPS Act was enacted in 1985 and was subsequently amended on four occasions - in 1989, in 2001, in 2014 and in 2016. Various notifications have been issued under the Act and the ones relevant for the present discussion include Notification No. S.O. 1055 (E) dated 19.10.2001 (hereinafter, '2001 Notification') and Notification No. S.O. 2941 (E) dated 18.11.2009 (hereinafter, '2009 Notification'). While the NDPS Act as originally enacted provided for uniform punishment for most of the offences (10-20 years) irrespective of the amount of material seized, through the 2001 Amendment, a graded structure of punishment was introduced for these offences depending on the amount of material involved in its commission. Soon after the 2001 Amendment, the 2001 Notification was issued which listed 239 items along with their small and commercial quantities. It also contained 3 notes, one of which, Note 2 has been heavily relied on by Hira Singh.
There are two views on what constitutes amount of material involved in commission of an offence under the Act – the total amount of material seized (hereinafter, 'the total amount view') or the proportion of actual drug content by weight in the seized material (hereinafter, 'the actual drug content view'). The court in E. Micheal which was decided on 11.03.2008, took the latter view. To undo the effect of E. Micheal, a notification was passed in 2009 which added Note 4 to the 2001 Amendment. Subsequently, a Bill was introduced in 2011 which was referred to a Parliamentary Standing Committee and was eventually passed as the 2014 Amendment.
The Hira Singh bench first considered the E Micheal judgment and held that E Micheal had wrongly interpreted the Statement of Objects and Reasons of the 2001 Amendment and had also failed to take note of Note 2 in the 2001 Notification while taking the actual drug content view. As per Hira Singh, a reading of the scheme and object of the NDPS Act showed that it has always provided for the total amount view since its enactment and the 2001 Amendment also didn't change that fundamental fabric of the Act. Further, looking at the object of the NDPS Act, the Act always provided for dealing with the drugs in the manner that they are sold or consumed and hence the offence had to be seen in terms of the total amount view. Since the Act provided for the total amount view itself, even if Note 4 was not added, it would have made no difference. Since Note 4 was only clarifying what had already been provided for by the Act and subsequent amendments, it was not ultra vires and was passed as a measure of abundant caution to clarify the confusion created by the wrongly decided E Micheal case. The Court therefore unequivocally ruled in favour of the total amount view.
In this post, I argue that Hira Singh does not engage properly with E Micheal and even reads it wrongly on certain vital points. The Court fails to justify its conclusion with cogent reasoning and does little to explain its reading of the Act, its Amendments and Notifications issued under the Act. The Court wrongly interprets the legislative intent despite strong evidence to show that the legislature advocated the actual drug content view. In conclusion, I submit that the decision in Hira Singh proceeds on an assumption that the 2001 Amendment provides for a two-tier punishment system which is in direct contravention of the object and text of the Amendment, and the decision is hence liable to be reviewed.
E Micheal, heroin, opium derivative, Entry 56 and Entry 239
E. Micheal involved 'heroin' which finds mention as the 56th Entry in the list of narcotic drugs and psychotropic substances in the schedule to the Act and is also defined as an opium derivative as per Section 2(xvi)(d) of the Act. As per Section 2(xi) of the Act, all opium derivates are manufactured drugs. Possession of manufactured drugs is an offence under Section 8 and is punishable as per Section 21 of the Act. E. Micheal held that since heroin was an opium derivate and all opium derivates were manufactured drugs, the accused who was in possession of heroin was in contravention of section 8 which inter alia, prohibits possession of manufactured drugs, and was hence liable to be punished under Section 21 of the Act. While the total amount of material seized was around 4 kg, the amount of pure heroin was 60 gm which fell between 5gm, the 'small quantity' and 250gm, the 'commercial quantity' prescribed against heroin i.e. entry no. 56. The accused was hence found liable for punishment for possessing an intermediate quantity which was punishable for upto 10 years rigorous imprisonment and was sentenced to six years.
The Court in Hira Singh holds that E. Micheal was wrong in considering heroin as an opium derivative as it was already prescribed as a separate entry at item 56. However, the Court does not explain as to why it was wrong to consider Heroin as an opium derivative when the Act clearly provides so. A reading of the Act shows that heroin is an opium derivative and a manufactured drug. Further, all manufactured drugs are narcotic drugs as per Section 2(xiv). The original schedule provided a list of psychotropic substances where heroin did not find any mention, whereas the amended schedule as can be seen in the 2001 notification, lists both psychotropic substances and narcotic drugs where heroin is mentioned at item no. 56. A reading of the Act, the original schedule and the amended schedule hence shows that heroin is an opium derivate which is a manufactured drug and a narcotic drug and possession of which is in contravention of section 8 and punishable under Section 21.
The error in E. Micheal seems to be in considering Entry 239 at all. Entry 239 which reads as 'any mixture or preparation that of with or without a neutral material, of any of the above drugs' contains single asterix in column 5 and double asterix in column 6 which are later defined to clarify that when one or more narcotic drug or pyshotropic substance are contained in a mixture, the relevant 'small' quantity and 'commercial' quantity would be that of the drug or substance having lower of such quantity. It is hence clear that Entry 239 only applies where there is more than one narcotic drug or/and psychotropic substance with or without neutral material(s) but not when there is only one narcotic drug or psychotropic substance with neutral material(s), which was the case in E Micheal. The Court in Hira Singh holds that the relevant entry i.e. Entry 56 was not considered by E. Micheal and Entry 239 was not at all applicable in that case. While the Court in Hira Singh was correct in holding the latter, it has faltered in holding the former. E. Micheal in paragraph 9 clearly laid down that the case pertained to Entry 56 or Entry 239 and also quoted both of them. Now while the consideration of Entry 239 was not required, the Court in E Micheal however does not make any error in framing the issue it decided as is clear from paragraph 13 – that whether in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of neutral material(s) is to be considered or not. The question therefore was ultimately formed in terms of Entry 56 only which involved a particular narcotic drug and not in terms of Entry 239 which involved multiple narcotic drug(s) or/and psychotropic substance(s).
Scheme of the NDPS Act
It was argued by the State that a look at the definition of terms of the NDPS Act such as 'preparation', 'mixture' or 'psychotropic substance' show that the Act as originally enacted always considered mixture of narcotic drugs and psychotropic substances and not just their pure form. The Court in Hira Singh seemingly places reliance on this argument of the State and on the object of the NDPS Act which needed to provide for stringent punishment to hold that as per the scheme and object of the NDPS Act, the weight of the neutral material could not be excluded for determining the amount of material involved in the offence. What however is relevant here to note is that it is no one's case that the original Act did not identify mixture of narcotic drugs or psychotropic substances. Till the 2001 Amendment, there was no gradation of punishment depending on the amount of material seized and hence it was irrelevant as to what amount of the material was seized or what was the pure content of a narcotic drug or a psychotropic substance in it, as long as that drug or substance was present in it.
The 2001 Amendment, inter alia, amended Sections 15, 16, 17, 18, 20, 21, 22 and 23 to provide for varying punishment depending on the amount of material involved in the commission of offence. The Statement of Objects and Reasons of the 2001 Amendment Act explains the rationale behind this:
"Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years' rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences." (Emphasis supplied)
The Court in E. Micheal relies on this Statement of Objects and Reasons to hold that since the legislature now sought to bring in a tiered sentencing regime depending on the amount of material involved in the offence, the material should only mean the actual drug content and should not include the weight of neutral material. Holding to the contrary would mean that a person possessing/consuming/transacting in a lesser amount of pure drug may be subjected to a more severe punishment if that material is mixed with neutral material as compared to someone who is possessing/consuming/transacting in a higher amount of pure drug. The Court in Hira Singh disagrees with this reasoning primarily because E. Micheal fails to take into consideration Note 2 below the Schedule given in the 2001 Notification which provided that the quantities shown against the respective drugs listed in the schedule also applied to the preparations of the drug. Hira Singh is correct in identifying that E Micheal fails to consider Note 2 since there is no discussion on this Note in the E Micheal judgment. At this stage, a close look at Note 2 is important.
Let's say there is a drug X with 50gm as small quantity and 250gm as commercial quantity. The state is telling you that it has a problem with drug X and possessing/consuming/transacting in it is not allowed. Possessing 50gm of it is bad, possessing between 50gm to 250 gm of it is worse and possessing more than 250 gm is terribly bad and you'll be punished accordingly. Note 2 in this situation might be saying one of the two things:
The Court in E. Micheal seems to assume the first scenario because it has no discussion on Note 2 while it has referred to other parts of the 2001 Notification. The Court in Hira Singh holds the second scenario to be the obvious reading of the law. I submit that this reading is not borne out of the legislative intent as is clear from the circumstances surrounding the 2014 Amendment.
It was argued by the intervener that the 2011 Amendment Bill sought to introduce an amendment in the definition of 'small quantity' and 'commercial quantity' so as to introduce the total weight of the seized material within the fold of small quantity and commercial quantity and not just the pure drug content. The proposed change was rejected by the 50th Report of the Standing Committee on Finance (2011-2012) which observed as follows:
"…meanings denoted by the terms/ expressions 'preparation' and 'otherwise' in proposed amendments are vague and unspecific. Such ambiguity in the clause would lead to arbitrariness in the interpretation of the law and may weaken the rationalized penalty structure introduced by the 2001 Amendment to the NDPS Act. The Committee feel that if the proposed amendments intend to provide specific provisions for considering the pure drug content of a recovery to determine the consequential penalty/punishment for an offender, no word/term/clause with ambiguous meaning should be used in the provisions."
The Parliamentary Standing Committee was clear in its Report that if the intention was to consider only pure drug content, no ambiguous words such as 'preparation' and 'otherwise' should be used and the same were duly withdrawn. The recommendation was accepted and the 2014 Amendment Act does not include these changes. This is strong evidence for legislative intent in favour of the actual dug content view over the total amount view. The Court in Hira Singh does not engage with this argument despite the same being argued and offers no explanation or discussion on the legislative intent behind the 2011 Bill or the 2014 Amendment.
The two-tier punishment fallacy
The Court in Hira Singh places strong reliance on the argument of the State that since the NDPS Act aims to prevent trade and consumption of illicit drugs, it is the form in which drugs are sold or consumed which is relevant for determining the amount of material involved in the offence. Since most drugs are sold in an impure form, the total weight of the impure form of the drug was relevant for determining whether the quantity involved was small quantity or commercial quantity. While advancing this argument, the State gives an example that 5gm of pure heroin can be used to sell 100gm of total material or 400 doses in the impure form and since the prescribed small quantity for heroin is 5gm, the offender may only be sentenced to a maximum of six months if the pure drug content view was taken. Such a small punishment could not have been intended by the legislature when the 2001 Amendment was introduced and offences involving small quantity were made punishable upto 6 months (now punishable upto one year since the 2014 Amendment).
The Court in Hira Singh refers to the Statement of Object and Reasons of the 2001 Amendment Act and holds that the legislature has introduced a two-tiered punishment regime through it, one for small quantity and one for commercial quantity. The Court also notes that E. Micheal wrongly punished the accused for small quantity and the punishment should have been for commercial quantity. While ruling in favour of the total drug content view, the Court throughout the decision seems to be informed by the opinion that the pure content view may lead to many serious violators escaping punishment for 'commercial' quantity and be instead punished for 'small quantity', the only other alternative, thus weakening the stringent nature of the Act and defeating its deterrent purpose. Therefore, the opinion of the Court that the Act provides for a two-tier punishment has been instrumental in its final outcome.
The Court has erred in holding that the NDPS Act as amended by the 2001 Amendment provides for a two-tiered punishment system. A simple reading of the 2001 Amendment shows that while two terms, 'small quantity' and 'commercial quantity' have been introduced, there is a trifurcation of the sentencing regime: one for 'small quantity'; one for amounts greater than 'small quantity' but lesser than 'commercial quantity' (often referred to as 'intermediate quantity'); and one for 'commercial quantity'. The Court in E Micheal was cognizant of this trifurcation and sentenced the accused for an intermediate quantity for a period of six years. The Court in Hira Singh has wrongly noted that E Micheal held the quantity to be small quantity and punished accordingly.
The Court gives example of heroin and how it is sold in adulterated form as smack which is even more dangerous than pure heroin. The court relying on this example makes a sweeping generalisation that mixtures of drugs are more harmful than the pure drug and hence the weight calculated should include the weight of the entire mixture. While no scientific data is offered to support this, even the flip side of this example is not considered. The question whether a more pure form of drug which is more potent and hence probably more harmful as a single dose is not engaged with. A closer look at the example given by the State would show that if instead of 5gm of pure heroin, even if one milligram extra of heroin was used in commission, the accused would be liable for upto ten years imprisonment as per the actual drug content view. Further, if the total amount view is taken, a person selling 4.99 gm of pure heroin in pure form may be liable for punishment for only upto one year whereas a person who sells 0.1gm of pure heroin in mixture form along with 250gm of neutral material may be liable for punishment for upto 20 years. This also possibly could not have been the legislative intent behind introducing a graded system of punishment.
Borderline examples may not be ideal for evaluation of a sentencing scheme. Any offence involving intermediate quantity can be punished for upto ten years imprisonment which though not as severe a punishment as provided for commercial quantity, is far more severe that the maximum punishment of one year for small quantity in relative terms and is also a strong penalty in absolute terms. Since the magnitude of punishment determines the deterrent effect of the Act, as has been espoused by the Court in the instant matter, the decision may need to be reconsidered since a vital element of the sentencing regime has been left out from the Court's consideration. Further, while the Court or the State do not explicitly refer to the question of bail, the rigour of Section 37 on undertrials facing trial for commission of offence involving commercial quantities also needs to be taken note of. The incorrect bifurcation of punishment regime into one for commercial quantity and one for small quantity while ignoring punishment for intermediate quantity may have been an attempt to ensure that as many undertrials as possible be subjected to the most stringent of bail provisions.
The submissions of the State seem to proceed on a good understanding of the ground realities of the drug trade and how and in what quantities drugs are transacted/consumed in and the Court has relied on such submissions. The State has been given wide powers to deem whatever quantities it thinks fit as small or commercial quantity through notifications. One of the reasons behind giving the power to issue notifications to provide small and commercial quantities of particular narcotic drugs and psychotropic substances to the Executive was to ensure that such notifications can be issued promptly as per changing realities of the drug trade and to keep it out of the Legislative fold which can be more time consuming. This reason for choosing Notification route over the Amendment route is sufficiently elaborated in the Standing Committee Report referred to earlier. If the State believes that 5gm for heroin is too large a 'small quantity' for catching drug traffickers, it can reduce it through a notification. This shows that while the State does have the power to deal more effectively with the drug trade problem even in the pure drug content paradigm which seems to be the paradigm purported by the legislature, the discomfort in doing that arises because of the repercussions on the cases already decided or pending trial.
The Court in Hira Singh decides an issue where the need to deal with the drug problem in the strictest way possible is used a justification for the decision. A closer look at the decision reveals that while taking note of this justification, the Court does not sufficiently engage with all aspects of the sentencing structure under the NDPS Act and the legislative intent behind it. It also does not give cogent reasoning on certain vital points of its disagreement with the case of E. Micheal which it declares as per incuriam. Since the judgment ignores the trifurcation of the sentencing regime and relies on a two-tier punishment system to base its conclusion, there might be strong grounds for reviewing the judgment as it seems to be an error apparent on the face of record. The actual content/total content debate under the NDPS Act may be far from settled as the judgment in Hira Singh may need reconsideration.
(The author is a lawyer practising in New Delhi and can be reached at firstname.lastname@example.org. Views are personal)