This article refers to the recent Supreme Court decision in Hira Singh v. UOI. This judgement strictly interpreted the provisions of the Narcotic Drugs and Psychotropic Substance (Amendment) Act 2001. This expanded the meaning of "small quantity" possession which in turn affected the punishment levied on the accused. This article seeks to understand why the Supreme Court's decision should be revised in the light of legislative intent and principles of statutory interpretation.
In 1985, the Narcotic Drugs and Psychotropic Substances Act was passed to control the threat of drugs and psychotropic substances in India. It provides for severe punishment for the crime and sets strict bail requirements. In 2001, the law was amended by the 2001 Narcotic Drugs and Psychotropic Substances (Amendment) Act, to rationalize the sentence structure. Under the new structure, the punishment is based on the quantity of offending material, which is "small", "commercial" or something in between. This results in harsh punishment for "commercial quantity" and milder punishment for "small quantity". On October 19, 2001, the central government issued notice which specified the ‘small quantity’ and ‘commercial quantity’ of the recognised narcotic drugs and substances.
SUPREME COURT'S DECISION:
Three judge Bench of the Supreme Court in Hira Singh & Anr V/s Union Of India & Anr, recently held that in case of seizure of a mixture of narcotic drugs or psychotropic substances with one or more neutral materials, the weight of the neutral material should be taken into consideration along with the weight of the offending drug, while determining whether it amounted to “small quantity” or “commercial quantity”. The court did not uphold the decision of a two-judge Bench in E. Micheal Raj V/S Intelligence Officer, Narcotic Control Bureau. The detail of the judgement is that the amount of neutral substances should not be taken into account when deciding whether the mixture falls under small or commercial quantity. It held that only the actual weight of the Narcotic drug or substance is relevant.
The Hira Singh judgement Bench ruled that E. Michael Raj's Bench misunderstood the subject matter and reason set out in the 2001 Amendment Act. It did not consider the entry 239 and note 2 of the notification in 2001, which listed drugs and psychotropic substances along with their “small” and “ commercial ” quantities. In addition the court ruled that on November 18, 2009 a subsequent notification was issued by which “Note 4” was added to the 2001 notification and that the notice was not ultra vires the scheme of the Act and it has been added after the E. Micheal Raj decision by way of “ abundant caution ” only.
If the viewpoint mentioned in E. Michael Raj’s case is adopted in India, India would not be alone in doing so. The need to justify punishments for drug-related crimes has also been felt by many States in the United States also. In New York, possession offense can be caused by having 500 milligrams or more of cocaine based on a “pure weight” standard under section 220.06 of the New York Penal Code. Likewise, according to Georgian Official Code 16-13-31 (a), a cocaine-trafficking offense exists for “any mixture with a purity of 10 percent or more of cocaine.”
DUAL INTERPRETATIONS OF ENTRY 239 OF 2001 NOTIFICATION:
“239 Any mixture or preparation that of with or without a neutral material, of any of the above drugs. ”
The court interpreted Entry 239 as calculating the weight of the entire mixture (including neutral substances) in order to determine whether the mixture falls under “small quantity” or “neutral quantity” in a mixture of one or more narcotic drug or psychotropic substances with neutral material.
Assuming that the quantitative limit also includes the weight of a neutral substance in the mixture, Entry 239 could also refer to a situation where a mixture of a neutral substance and two or more narcotic drugs or psychotropic substances is present. This interpretation is supported by an asterisk (*, **) for entry 239 in the column, which indicates "small" and "commercial" quantities.
“ * Lesser of the Small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture
** Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. ”
For example, if “Small quantity” prescribed for narcotic drug A is 10 grams and “Small quantity” prescribed for drug B is 20 grams, then Small quantity (with or without neutral substance) for mixture of A and B would be 10 grams, which is lesser of the small quantities.
It is clear that Entry 239 does not play any role if the mixture consists only of one narcotic drug or substance and a neutral mixture. This view has sparked fervour in various High Courts, including Delhi High Court in Ansar Ahmed & Ors V/s State ( Govt. of NCT of Delhi )and Punjab & Haryana High Court in Vikram V/s State of Punjab.
One of the settled principles of interpretation of the law is that if there are two possible interpretations of the penal provision, only that which is less onerous to the accused should be preferred.
For heroin, “small quantity” is 5 grams, and “commercial quantity” is 250 grams. If the accused is found with 3 grams of heroin, he is in possession of "small quantity" and could be sentenced to 6 months in prison. However, if detected with 3 grams of heroin and 250 grams of powdered sugar (neutral substance), the same 3 grams becomes a "commercial quantity" (3 + 250 = 253 grams) and he could be sentenced for upto 20 years. These differences violate the axiomatic principle of interpreting the law.
PREPARATION AND INTENT OF LEGISLATURE
“(Note 2). The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of Substances of Note 1 above.”
For the purposes of the “preparation” used in Note 2, the court accepted a mixture of a narcotic drug or substance along with a neutral substance. In addition, it has subjected the total weight of the mixture to limit prescribed with respect to "small" and "commercial" quantities.
The first part of the judgment is undoubtedly correct. The word "preparation" includes a mixture of narcotic substance or drug having a neutral component. The second part of the court's interpretation, which sets quantitative limits on the total weight of the mixture (including neutral ones), is not in line with the objectives of the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act, 2001 envisages a rational sentencing structure and states,
“ …Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment…”
Drugs like heroin are often mixed with other neutral ingredients like sugar, starch, and milk powder. While it is clear that the legislature wants to include the preparation of such drugs within the scope of the law, this does not necessarily mean that the weight of neutrals should be considered when deciding whether these preparations fall within the “small” or “commercial” quantity. Incorporating these intentions into the legislature would be a classic example of adding more than intended to the provisions of legislative action.
DISSONANCE BETWEEN NOTE 4 AND PRINCIPLES OF CRIMINAL CULPABILITY:
The 2009 notification, Note 4, provides that when mixing one or more narcotic drugs and / or psychoactive substances, the entire mixture should be considered to determine whether the violation is related to a “small quantity” or “commercial quantity”, and “not just it's pure drug contents.” The court ruled that Note 4 is only a clarification, and its absence would not matter. This is because the law never distinguishes between the weight of a pure drug and a preparation that contains the drug.
The reason for the Court's decision may be correct prior to the passing of the 2001 Amendment Act. As mentioned earlier, the purpose of the amendment is to determine the appropriate punishment based on the quantity of material seized. The legislature knowing the strict Provision of the Act wanted to ensure that an accused is convicted only to the extent of their sin.
The ruling of the Apex Court is aimed at complying with the rudimentary principles of criminal behavior and may lead to anomalous results. For example, if a person “ X ” is found with 4 grams of Heroin (small quantity = 5 grams and commercial quantity = 250 grams ) and “ Y ” is found with 2 grams of the same, albeit mixed with a neutral material weighing 250 grams ( 2 grams + 250 grams = 252 grams ), “ Y ” will be subjected to a heavier punishment, despite of being found with half as much Heroin as “ X ”.
The Supreme Court decision of Hira Singh has many consequences. In addition to imprisonment, this ruling specifically affects the jurisdiction of the court, pre-trial detention period and grant of bail. Laws were passed with aim to strike at the base level of narcotic drugs and psychotropic substances, but the legislature never intended to punish an offender for any more of an offense than he has committed. The Apex Court might not have quite understood the legislator's intentions, and we hope that this decision will soon be reviewed.
- The Narcotic Drugs and Psychotropic Substances Act, 1985
- The Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001
- Vikram V/s State of Punjab.