NDPS Act | No 'Commercial Quantity' In Poppy Cultivation: P&H High Court Calls 20-Year NDPS Sentence 'Patently Illegal'

The Punjab & Haryana High Court has held that a trial court committed a “patent illegality” by sentencing an accused to 20 years' rigorous imprisonment under Section 18(b) of the NDPS Act in a case involving cultivation of opium poppy plants, observing that cultivation of poppy plants cannot be treated as involving “commercial quantity”.For context, Section 18 (b) prescribes punishment for contravention in relation to opium poppy and opium, where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees."Small Quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, states notification by the Department of Revenue, Ministry of Finance, Government of India.Justice Anoop Chitkara and Justice Sukhvinder Kaur referring to the notification noted that, "when the contravention involves any plant of the species Papaver somniferum L and the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted, and when these species, other than Papaver somniferum L, have been notified by the Central Government in the Official Gazette, declaring these species to be opium poppy for the purposes of this Act, these are punishable offenses under Section 18(c) of the NDPS Act."As per the prosecution, on March 13, 2019, the police received secret information that the appellant was illegally cultivating opium poppy plants on land belonging to his sister in Panipat. Upon reaching the spot, the police found the accused present and discovered 152 poppy plants growing on the land. The plants were seized and later weighed 11.560 kg.The trial court treated the quantity as “commercial” and convicted the accused under Section 18(b) of the NDPS Act.Counsel for the appellant argued that the conviction and sentence were legally unsustainable as the trial court wrongly applied Section 18(b), which pertains to commercial quantity of opium. It was submitted that in cases involving opium poppy plants, no “small” or “commercial” quantity is prescribed, and such offences fall under Section 18(c), which carries a maximum punishment of 10 years.It was further contended that the imposition of a 20-year sentence was contrary to law and violated statutory limits.The State opposed the plea, arguing that even if the matter were remanded, the findings of guilt should remain undisturbed and only the sentencing aspect be reconsidered.The Court examined the statutory framework and relevant notifications, noting that the NDPS Act distinguishes between “opium” and “opium poppy.”While “commercial quantity” thresholds are specified for opium, no such classification exists for cultivation of opium poppy plants.As per the Government notification dated October 19, 2001, offences relating to cultivation of opium poppy are covered under Section 18(c), not Section 18(b).The Bench held that the trial court failed to provide any reasoning as to how the case fell under Section 18(b), terming it a clear legal error.It further emphasized that under Article 20(1) of the Constitution, a person cannot be subjected to a penalty greater than that prescribed by law, observing that courts cannot impose even “a day more” than the statutory maximum."Whenever the statute prescribes an upper limit on the sentence, no one can award a sentence even for one extra day. The judicial discretion is to prescribe a sentence less than the maximum if there is no mandatory minimum, but not even a day more than the maximum," added the Court.It further held that, "once we are prima facie of the opinion that, in light of the notification referred above, Section 18(b) would not attract and Section 18(c) of the NDPS Act would apply, which clearly provides that the maximum sentence of imprisonment the Court could impose is 10 years. In this case, by wrongly applying Section 18(b) and treating the plants as a commercial quantity—when the trial Judge not only imposed the minimum mandatory of 10 years but also extended it to the maximum of 20 years—we find it appropriate, before remanding, to suspend the sentence."The Court further held that it could have also taken the sentence for 10 years in the present appeal, but that would have been partly interfering with or tinkering with the judgment of conviction, which can only be done at the stage of final appeal. "Thus, we are under compelling circumstances to remit the matter back to the trial Court only for the limited purpose of sentencing," it added.The bench clarified that the present appeal is allowed to the extent that the reasoning for conviction will continue, but the trial Court shall rehear the parties and return the ...

NDPS Act | No 'Commercial Quantity' In Poppy Cultivation: P&H High Court Calls 20-Year NDPS Sentence 'Patently Illegal'

Aiman J. Chishti

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NDPS Act | No 'Commercial Quantity' In Poppy Cultivation: P&H High Court Calls 20-Year NDPS Sentence 'Patently Illegal'

Aiman J. Chishti

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