Quantity not purity of drugs to decide punihsment under NDPS Act: SC

In an important verdict, the Supreme Court has provided more teeth to the anti-narcotics law and held that it is the quantity of the entire banned drug mixture and not its purity which will determine the punishment for an offender under the legislation.

The top court said that the amount of neutral substance in a mixture has to be included along with the actual weight of the banned substances for determining whether it is a 'small or commercial quantity' under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

It said the use of drugs by young people in India has increased over a period of time, which is a crime against the society and has to be dealt with iron hands.

A three-judge bench of Justices Arun Mishra, Indira Banerjee and M R Shah said that the two bench verdict of 2008 in the case of E Micheal Raj was 'not a good law' for holding that in a mixture of narcotic drugs, only the weight of the banned substance is relevant for the purpose of determining whether it would constitute 'small quantity or commercial quantity'.

Under the provision of NDPS Act, the punishment for possessing commercial quantity of the banned substance is higher than the smaller quantity.

"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 bench held.

It said that illicit street drugs are seldom sold in a pure form and they are almost always adulterated or mixed with other substance -- like caffeine is mixed with heroin so that it causes the heroin to vaporize at a lower rate.

That could allow users to take the drug faster and get a big punch sooner.

'Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be 'cut' with a variety of different substances,' the bench observed in its 40-page order.

'This means that drug dealer will add other drugs or non-intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown-sugar/smack is usually made available in powder form.

'The substance is only about 20 per cent heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous,' it added.

The order said this Court, in the case of E Micheal Raj, is taking the view 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, is not a good law'.

The top court said the NDPS Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health.

'The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed,' it said.

The top court said that the problem of drug addicts is international and the mafia is working throughout the world.

'It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation,' the bench said, adding, that with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice.

It rejected the challenge made by several petitioners to November 18, 2009, notification of Central government by which it had said that while determining the small or commercial quantity of narcotic drugs in a mixture with one or more neutral substance(s), the weight of neutral substance (s) are also to be included with the actual content of the offending drug.

The bench said the 2009 notification is not ultra vires to the Scheme and the relevant provisions of the NDPS Act and dismissed a batch of petitions which challenged the notification terming it as arbitrary and void.