The Supreme Court bench of Jutices Dipak Misra and A.M.Khanwilkar, on Monday, July 3, referred a challenge to the Central Government’s 2009 notification varying the parameters of the quantification of the drugs under the NDPS Act, to a three-Judge bench
According to the notification, the presence of any of the specified drug in whatever quantity in the preparation or mixture form would be enough to constitute the specified crime of possession, sale, consumption etc.
The notification was contrary to what the Supreme Court had held in E.Michael Raj v Intelligence Officer, Narcotics Control Bureau (2008) that the rate of purity of the drug is decisive for determining the quantum of sentence – for small, intermediatory and or commercial quantity. The punishment, the judgment had held, must be based on the volume or content of the offending drug in the mixture and not on the aggregate weight of the mixture as such.
Therefore, the Dipak Misra-Khanwilkar bench decided to refer this case to a three-Judge bench, to consider whether the judgment in Michael Raj requires reconsideration and the Government could redefine the parameters for constituting an offence an offence.
The questions referred to the consideration of three Judge Bench-
(a) Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry no.239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of act with sec21?
(b) Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act permit the Central Government to resort to such dispensation?
(d) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(e) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with “manufactured drug” and “preparation” containing any manufactured drug?