NDPS - Quantity Of Neutral Substance Not To Be Excluded While Determining 'Small' And 'Commercial' Quantities: Supreme Court

The Supreme Court observed that the the quantity of the neutral substance is not to be excluded and to be taken into consideration along with the actual content of the weight of the offending drug while determining small and commercial quantities.

The court was considering appeals against a judgment passed in the year 2008 by Himachal Pradesh High Court in which it had followed the view taken by the Supreme Court in E. Micheal Raj v. Narcotic Control Bureau – (2008) 5 SCC 161 that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity.

Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 prescribes punishment for contravention of the provisions of the Act based on the 'quantity' as follows:

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) 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 but which may extend to two lakh rupees.

The bench comprising Justices Sanjay Kishan Kaul and MM Sundresh noted that the view taken in E. Micheal Raj was held to be not a good law by a larger bench in Hira Singh & Anr. v. Union of India & Anr.- AIR 2020 SC 3255 : (2020) SCC Online SC 382. In the said judgment it was held thus:

"(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;"

Taking note of the fact that the High Court judgment is based on the view taken in E. Micheal Raj, the bench remitted the matter back to the High Court for consideration of the appeal on merits.

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