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[NDPS Act] What Supreme Court said about assessing the quantity of contraband from a seized mixture containing neutral substances

Shruti Mahajan

The Supreme Court on Wednesday held that while assessing the quantity of contraband from a mixture that is seized and also contains neutral substances, the quantity of such neutral substances shall also be taken into account. (Hira Singh vs Union of India)

In the judgment delivered by a three-Judge Bench of Justices Arun Mishra, Indira Banerjee, and MR Shah, the Court was answering a reference made questioning the dictum laid down in the2008 judgment in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau.

In E Michael Raj, it was said that from a seized mixture which contains some contraband material and some neutral substances, only the quantity of contraband has to be calculated. To assess whether the prohibitory items are of small or commercial quantity, the weight of neutral substances will be excluded, the Court had held in that case.

The validity of this ruling was referred to a three-Judge Bench. Answering the reference, the Apex Court on Wednesday ruled that the judgment in E Michael Raj is bad law. The quantity of mixed neutral substances will also be taken count of while assessing the quantity of contraband, the Court has now held.

"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."
The Court said

The Court opined that considering the two-tier, separate punishment provided under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for small and commercial quantities of contraband, the legislature would not have intended for only the actual weight of banned substance should be considered from a mixture seized. The same is evident from the Statement of Objects and Reasons of a 2001 Amendment to the NDPS Act.

"On a bare reading of the Statement of Objects and Reasons, it cannot be said that the intention of the Legislature was to consider the actual content by weight of the offending drug for the purpose of determining whether it would constitute small quantity or commercial quantity."
The Court said.

The preamble of the 1985 NDPS Act suggests that the Act is passed with the intention of consolidating laws relating to narcotic drugs and psychotropic substances and for the law to act as a deterrent. The Act also provides for forfeiture of property for use of illicit substances, the Court points out. Therefore, it is clear that the Act provides for stringent measures to control and regulate the operation of these substances and a lenient reading would go against the ethos of the law, it was held.

The top Court also delved into the functioning and operation of dealings of illicit substances to note that illicit drugs are seldom sold without any mixture. The Court explained,

"They (illicit drugs) are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs."

While drugs like heroin are powerful, they can be "cut" with several other substances which enables the seller to mix them with neutral substances and sell them at comparatively less expenses, thereby allowing larger profits from such a sale, the Court pointed out.

Street drugs like brown sugar or smack contain only 20% heroin content and are mixed with substances such as chalk powder and such, Court elaborated further to drive home the point that powerful manufactured drugs are often sold as mixtures and not in pure form. Therefore, the entire quantity of such a mixture would have to be taken account of so as to not frustrate the object of the NDPS Act, the Court has said.

"... what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated."
The Supreme Court said.

The Court therefore answered the reference made to it by holding the law in E Michael Raj as bad law and laying down that the entirety of the quantity of mixture of contraband seized has to be taken into account and that neutral substances should not be excluded from the same for ascertaining whether the material is of small or commercial quantity.

Read the Judgement:

Hira Singh vs UOI.pdf
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