Application of NDPS Act for possessing codeine-based cough syrups and the like: Delhi High Court refers matter to larger Bench

A bail plea moved by a man arrested for possessing 110 bottles of a cough syrup has led Delhi High Court to muse on whether manufactured drugs containing a minuscule percentage of a narcotic substance (in this case, codeine) should be distinguished from illicit drugs in mixtures under the NDPS Act. [Mohd Ahsan V. Customs].Justice Subramonium Prasad observed that if no distinction is drawn between these two categories, then ganja dealer caught with less than 20 kilograms would face the same punishment as a person possessing a single bottle of codeine-based cough syrup.."Even if the person is using a codeine cough syrup for illicit reasons, of obtaining a 'high', possessing a single bottle of codeine cough syrup will ensure that such user is treated on par with a person who possesses even 19 kilograms of ganja. Hypothetically, a family where there are a number of people having chronic cough problem procures 10 bottles of cough syrup before embarking on a trip to ensure adequate supply of the cough syrup, would be deemed to be in possession of a commercial quantity of Codeine, and would face a minimum of 10 years imprisonment. This obviously was not and could not be the intention of the legislature or the true meaning of the judgment of the Supreme Court in Hira Singh's case", the Judge pointed out..Notably, the Judge has questioned the applicability of the Supreme Court's 2020 judgment in Hira Singh vs Union of India in such cases involving a drug with a minuscule quantity of narcotic drug, as is the case with codeine-based cough syrups..As opposed to such manufactured or medicinal drugs, illicit drugs like heroin are made available in mixtures either to sell it cheap or enhance its effect, the Court observed..In Hira Singh's case, the top Court had ruled while assessing the quantity of contraband from a mixture that also contains neutral substances, the quantity of the neutral substances shall also be taken into account for assessing how the the Narcotics Drugs and Psychotropic Substances Act (NDPS Act), 1985 applies..[NDPS Act] What Supreme Court said about assessing the quantity of contraband from a seized mixture containing neutral substances."... the judgment of the Supreme Court in Hira Singh v. Union of India reported as (2020) SCC OnLine SC 382 does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance", Justice Prasad highlighted. .As such, the Court has now directed the Registry to place the matter before the Chief Justice, so that a larger Bench may be constituted to decide on the broader issues raised. .The Court has queried how the Hira Singh ruling and a government notification specifying "small" and "commercial" quantities of contraband under the NDPS Act would be applicable in such cases. .The questions framed by the Court in this regard are as follows:.1. Whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?2. Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?3. Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?.Since the question was referred to a larger Bench, Justice Prasad also allowed the grant of bail to the petitioner before the Court. .Case Background.The petitioner was travelling to Saudi Arabia when, upon suspicion, his baggage was examined. 110 bottles of Phensedyl were found. This cough syrup contained codeine phosphate, which is a notified drug under the NDPS Act. In all, about 18.7 grams of concentrated codeine was estimated to be in the petitioner's possession. .A bail application was earlier moved before trial court, contending that since each bottle contained only 0.17% of Codeine, it could not be called a commercial quantity. .The trial court, however, dismissed the bail application, finding that since the petitioner was found in possession of 11,000 ml of the cough syrup, it was of commercial quantity. Aggrieved, the petitioner approached the High Court. .Before the High Court, the petitioner submitted that he was not in conscious possession of the drug as he was illiterate and does not understand Hindi or English. It was further argued that the confiscated pack may have been tampered with..The Special Public Prosecutor argued that the judgment in Hira Singh's case is applicable to the matter where the Supreme Court held that, “the total weight of the manufactured drug or preparation including the neutral material is required to be considered while determining small quantity or commercial quantity.”.Should a ganja dealer face the same penalty as a person possessing a single bottle of cough syrup?.The Court noted that a "small quantity" of codeine is defined as 10 grams, and a "commercial quantity" of codeine is 1,000 grams..Justice Subramonium Prasad went on to take note of the Delhi High Court’s July 2020 judgment in Iqbal Singh v. State, where it was held that a small quantity of substances like codeine in cough syrup cannot be treated at par with substances like heroin..Justice Prasad further observed that while no codeine based cough syrup should ideally be available without a prescription, the reality differs.."This Court can take judicial notice of the fact that any person desirous of obtaining a Codeine based cough syrup can do so without much difficulty", he observed. .He went on to opine that if the prosecution’s arguments were to be accepted, every person with a bottle of cough syrup without a valid prescription would face punishment under Section 21 (b) of the NDPS Act..“A dealer of ganja caught with a quantity less than 20 kilograms, would face the same punishment as a person possessing a single bottle of Codeine based cough syrup. A person who is in habit of dealing ganja and is caught with slightly less than 1 kg of ganja (which obviously cannot be for self use) will face significantly lesser punishment", the Court pointed out. .Justice Prasad voiced concern that there are many cases raising such issues which may come before the High Court, which may also draw different views from Single Judges of the Court. .On a plain reading, the High Court's ruling in Iqbal Singh's case also appeared to be contrary to the Supreme Court's ruling in Hiran Singh's case. .As such, the matter has now been referred to a final pronouncement by a larger Bench of the High Court. ."Since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases. It would therefore be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court", the order stated. .Advocate Amjad Khan appeared for the petitioner and SPP Vishal Chadha represented the Customs Department..[Read Order]