Court On Own Motion vs State Of Tripura

Akil Kureshi, CJ

[1] This reference is made by the learned Judge, Special Court, Tripura, NDPS Act, 1985 in Agartala GRPS No.2 of 2019 (NDPS) under Section 395(2) of the Code of Criminal Procedure, 1973.

[2] Brief facts are as under :

Accused Partha Paul was produced before the learned Judge who had fixed his application for bail for hearing. He was facing allegations of having committed offences punishable under Section 8(c) and Section 21(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short). He was alleged to have been found to be carrying 630 bottles of 10 ml. each of Eskuf cough syrup packed in two cartons. As per the prosecution, each 100 ml. of Eskuf cough syrup contains 10 mg. of codeine which is a substance prohibited under the NDPS Act. The Act prescribes 10 grams as "small quantity" and 1 kg. of the said substance as "commercial quantity".

[3] While considering the bail plea of the accused the learned Judge was prima facie considering whether as per the allegations the accused was found to be in possession of small quantity, commercial quantity or quantity of banned substance which is less than of commercial quantity. In this context, the question arose whether only the quantity of narcotic drug or psychotropic substance which should be taken into consideration or whether it will be the total quantity of mixture in which the said narcotic drug or psychotropic substance is mixed which would go into deciding whether the substance seized amounted to small quantity, commercial quantity or quantity larger than small quantity but less than commercial quantity.

[4] Various decisions were sited before the learned Judge. The main thrust of the arguments on behalf of the accused would rest on the decision of Supreme Court in Case of E Michael Raj Vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008) 5 SCC 161. The learned Judge was, however, confronted with an order passed by a learned Single Judge of this Court in case of Dipu Singha Vs. State of Tripura in AB No.175/2014 in which while disposing of an anticipatory bail application of the accused the learned Judge had made certain observations distinguishing the decision of Supreme Court in case of E Michael Raj (supra).

[5] In this background, following questions are referred to the High Court :

"(1) Do the mixture of the narcotic drugs and seized materials/substance should be considered as a preparation in totality or on the basis of actual drug contained of the specified narcotic drug.

(2) Whether the judgment tilted as Rajvir Singh @ Raju Versus State of Punjab CRM-M 35080-2018 dated 21.08.2018 be followed or the judgment passed by the Hon'ble High Court of Tripura in the anticipatory bail No.175 of 2014 titled as Dipu Sinha Vs. State of Tripura and Md. Sahabuddin and others Vs. State of Assam to be followed, till decision of issue No.1 by the Apex Court."

[6] We have heard Mr. A K Bhowmik, learned Advocate General for the State and Mr. S Lodh as Amicus Curiae. Ordinarily, we would have also preferred to hear the accused concerned however, in the present case for the ultimate view that we have formed, this would not be necessary.

[6] The question whether while deciding the quantity of seized narcotic drug or psychotropic substance mixed with one or more neutral substances, should the entire quantity of substance be taken into consideration or only the content of the narcotic drug or psychotropic substance, came up for consideration before the Supreme Court in case of E Michael Raj (supra). A two-Judge Bench of the Supreme Court considered a case where the accused was found in possession of crude heroin, a narcotic drug. The quantitative test and the purity tests were carried out. According to the trial Judge, the drug carried by the accused weighed 4.07 kg. and was thus a commercial quantity. In appeal, the High Court confirmed the conviction opining that the contention of the accused that while judging the quantity, purity test should be applied is not correct. The High Court, therefore, took into account the whole quantity of the mixture while imposing punishment on the accused. Before the Supreme Court, the contention raised on behalf of the accused was that though the total quantity of the contraband seized weighed 4.07 kgs. however, since the purity of the heroin was 1.4% and 1.6% respectively in two samples, the quantity of heroin seized must be worked out on such basis and, therefore, would come to below 250 grams which is less than the commercial quantity. The Supreme Court in this context held and observed as under :

"19. On going through Amarsingh case (supra), we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance(s). In fact that was not the issue before the Court. The black-coloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as "opium derivative" which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance(s). Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance(s), for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.

In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gm. which is more than 5 gm., i.e. small quantity, but less than 250 gm., i.e. commercial quantity. The quantity of 60 gm. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin."

[7] The decision in case of E Michael Raj (supra) was followed in case of Nikku Khan alias Mohammadeen Vs. State of Harayana, reported in (2011) 14 SCC 469. Following observations were made :

"6. We have seen the notification specifying small quantity and commercial quantity under Section 2 of the Act wherein at serial No.56, the commercial quantity of heroin is prescribed as 250 grams. Therefore, it is clear that the quantity of heroin which was recovered from the appellant was less than the commercial quantity as prescribed under the Act.

In that view, the law laid in E. Micheal Raj Vs. Narcotic Control Bureau 2008 (5) SCC 161 shall apply to the present case. We, therefore, hold that the accused is liable to be convicted under Section 21(b) and not under Section 21(c) of the Act as, on the relevant date, he was found in possession of 125 gm of heroin which is less than the commercial quantity as prescribed under the Act. The maximum punishment prescribed for the offence under Section 21(b) of the Act is rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees."

[8] In case of Hira Singh and Anr. Vs. Union of India and Anr. reported in (2017) 8 SCC 162, the decision in case of E Michael Raj(supra) has been doubted. While doing so, the request of the Union of India that the decision in Case of E Michael Raj(supra) should be held per incuriam was turned down observing that in the said decision the Court has interpreted Section 21 of the NDPS Act and that such interpretation would bind the subsequent Division Bench. It was noticed that the decision in case of E Michael Raj(supra) has been noticed/followed in subsequent decisions in case of Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441; Kashmiri Lal Vs. State of Haryana, (2013) 6 SCC 595 and State Vs. Mustaq Ahmed and Ors, (2016) 1 SCC 315. The Court was, therefore, prompted to refer certain questions for decision by the larger Bench. The observations of the Court and the questions referred read as under :

"10. It was possible to examine the wider issues raised by the respondents upon accepting their argument that the decision in E. Micheal Raj (supra) is per incuriam. However, in our view, that decision has interpreted Section 21 of the Act. That interpretation would bind us. Moreover, that decision has been subsequently noted in other decisions of this Court in Harjit Singh Vs. State of Punjab, Kashmiri Lal Vs. State of Haryana, State Vs. Mushtaq Ahmad - followed or distinguished. In Amarsingh Ramjibhai Barot vs. State of Gujarat quantity of entire mixture was reckoned and not limited to the pure drug content therein. Significantly, in none of these decisions, was the Court called upon to examine the issues now raised by the respondents. Further, all these decisions are of two-Judge Bench.

Thus, considering the significance of the issues raised by the respondents and the grounds of challenge of the appellant-petitioners concerning the impugned notification, to observe judicial rectitude and in deference to the aforementioned decisions we direct that these matters be placed before at least a three-Judge Bench for an authoritative pronouncement on the matters in issue, which we think are of seminal public importance.

The three-Judge Bench may have to consider, amongst others, the following questions:

12.1 Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of Entry 239 and Note 2(two) of the notification dated 19-10-2001 as also the interplay of the other provisions of the Act with Section 21?

12.2 Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?

12.3 Does the Act permit the Central Government to resort to such dispensation?

12.4 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?

12.5 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?"

[9] Thus, in our opinion, the view expressed by the Supreme Court in case of E Michael Raj(supra) continues to hold the field. Even in the later decision in case of Hira Singh(supra) while doubting the correctness of the said decision and making a reference to the larger Bench on specific questions framed, the Court refused to hold that the decision in case of E Michael Raj(supra) was rendered per incuriam. As per the settled law, the decision of the Supreme Court even if referred to larger Bench, would continue to hold the field till a contrary decision by the larger Bench is rendered.

[10] Before closing, however, we may refer to two decisions for better clarity. The learned single in the case Dipu Singha(supra) while dealing with an application for anticipatory bail filed by the accused, did distinguish the decision of Supreme Court in case of E Michael Raj(supra) observing that the said decision was rendered before the issuance of notification dated 18th November, 2009 by which a clarificatory note has been inserted for deciding the quantity of the said drug. However, the Supreme Court in case of Hira Singh(supra) has taken note of one such clarification made under notification dated 19th October, 2001 and the contention on behalf of the accused that the Act does not empower the Central Government to vary the performance for quantification of the drugs and it is in this context, questions No.12.2 and 12.3 have been referred to the larger Bench. Till the opinion of the larger Bench on such reference is available, in our opinion, the decision in the case of E Michael Raj(supra) would prevail. Our attention was also drawn to a decision of Supreme Court in case of Harjit Singh(supra) in which while distinguishing the decision in case of E Michael Raj(supra) a two-Judge Bench of the Supreme Court made the following observations :

"21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry 92 becomes totally redundant.

Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry 93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry 92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity.

The judgment in E. Micheal Raj(supra) has dealt with heroin i.e., Diacetylmorphine which is an "Opium Derivative" within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a "manufactured drug" within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case.

Thus, the aforesaid judgment in E. Micheal Raj (supra) has no application in the instant case as it does not relate to a mixture of narcotic drugs or psychotropic substances with one or more substances. The material so recovered from the appellant is opium in terms of Section 2(xv) of the NDPS Act. In such a fact-situation, determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92. Undoubtedly, the FSL Report provided for potency of the opium giving particulars of morphine contents. It goes without saying that opium would contain some morphine which should not be less than the prescribed quantity, however, the percentage of morphine is not a decisive factor for determination of quantum of punishment, as the opium is to be dealt with under a distinct and separate entry from that of morphine."

[11] In our opinion, the decision in case of Harjit Singh(supra) does not lay down ratio contrary to the decision in case of E Michael Raj(supra). Observations and findings in the said decision are not in conflict with the decision in case of E Michael Raj(supra). In the result, the questions No.(1) and (2) referred are answered in following manner :

"Consideration of the seized quantity would be as per the ratio laid down in case of E Michael Raj(supra)."

Reference is disposed of accordingly.