By Y.SRINIVASA RAO, Principal Assistant Sessions Judge, Tirupati, Andhra Pradesh
TABLE OF CONTENTS:-
- Introduction
- The Statement of Objects and Reasons of the Amending Act of 2001
- Commercial Quantity – Small Quantity
- Sentence structure underwent a drastic change
- Bail Applications in NDPS Act
- Recovery of contraaband – Certain situations
- Conclusion
Introduction:-
The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f 2.10.2001), which rationalized the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. Thus, by the Amending Act, the sentence structure changed drastically. `Small quantity and `commercial quantity were defined under Section 2 (xxiiia) and Section 2 (viia) respectively. New Section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. As per Entry 56 of the Notification dated 19.10.2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gms. and commercial quantity has been mentioned as 250 gms.
The Statement of Objects and Reasons of the Amending Act of 2001:-
The Statement of Objects and Reasons concerning the Amending Act is as follows:
Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years’ rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery.
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. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences.’
Commercial Quantity – Small Quantity:-
Section 2 (viia) (inserted by Amending Act 9 of 2001 w.e.f 2.10.2001) `Commercial quantity‘, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette; Section 2 (xxiiia) (inserted by Amedning Act 9 of 2001 w.e.f 2.10.2001) ‘Small quantity‘, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette; Section 2 (xvi) `Opium derivative’ means-
(a) Medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) Prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) Diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and
(e) All preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine; Section 2 (xi) `Manufactured drug’ means –
(a) All coca derivatives, medicinal connabis, opium derivatives and poppy straw concentrate;
(b) Any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug;
but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug.
Drugs – Small Quantity – Commercial Quantity
Heroin – 5g – 250g
Opium – 25g – 2.5kg
Morphine – 5g – 150g
Ganja (cannabis) – 1kg – 20kg
Charas (cannabis resin) – 100g – 1kg
Cocaine – 2g – 100g
Coca leaf – 100g – 2kg
LSD – 2g – 100g
Amphet-Amine – 2g – 50g
Sentence structure underwent a drastic change:-
Section 21. Punishment for contravention in relation to manufactured drugs and preparations [substituted by the Amending Act 9 of 2001, w.e.f. 2.10.2001] ‘Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable, –
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
Bail Applications in NDPS Act:- Offences under commercial quantities are non-bailable under Section 37 NDPS Act 1985.
Section 37 in The Narcotic Drugs and Psychotropic Substances Act, 1985
37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.
Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Secction 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court. See. Satpal Singh Vs. State of Punjab, (2019) 1 SCC (Cri) 424. In this case of Satpal Singh, it was further held that in any case, the protection under Section 438, is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173 (2) , Cr.P.C). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.
In E. Micheal Raj vs Intelligence Officer, Narcotic Control Bureau, (2004) 4 SCC 446, the Supreme Court held as under(Of course, this decision is later overruled in Hira Singh’s case, 2020 SCC OnLine SC 382 (infra)) :—
“On going through Amarsingh case (supra), the Apex Court in E. Micheal Raj vs Intelligence Officer, Narcotic Control Bureau, (2004) 4 SCC 446 held as under: ‘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.”
The dicta in Hira Singh and Another vs. Union of India and Another, 2020 SCC OnLine SC 382:—
Now, it is very essential to see the dicta observed in 2020 SCC OnLine SC 382,Hira Singh and Another vs. Union of India and Another, wherein it was held by the Hon’ble Supreme Court as under:
“In view of the above and for the reasons stated above, Reference is answered as under:
(I) The decision of this Court in the case of E. Micheal Raj(supra) 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;
(II) 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;
(III) Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPSAct including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
(IV) Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra viresto the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed.”
Recovery of a contraband – Certain situations :—
Section 50(1) of the NDPS Act says as follows :—
50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
The jurisprudence on applicability of Section 50 of the NDPS Act is based on its interpretation.
1. Recovery is from the body of the accused; 2. Physical contact of accused, who is in possession of a bag/box/packet containing contraband; Recovery of contraband from accused from an object ( though not in immediate physical contact or control of accused such as a bag or vehicle); Recovery of contraband from a bag/receptacle which is in possession of the accused and some cases which fall in category of a composite search — See. Vijaysinh Chandubha Jadejav. State of Gujarat , (2011) 1 SCC 609; State of Punjab v. Baldev Singh, (1999) 6 SCC 172 .
Conclusion:—
As was held in ArutlaShankaraiah v. State of A.P., (2015) 15 SCC 235, as to recovery of ganja , It is enough to establish possession of place of recovery on part of accused and it is not necessary to establish ownership thereof on part of accused, In Laxmi NagappaKoli v. Narcotic Control Bureau, (2015) 13 SCC 598, it was held that Heroin is a chemical composition, not a Nitrogen-based compound. In fact, under this NDPS Act, the punishment for several offences under Sections 15-23 of NDPS Act depends on the type and quantity of drugs involved. The The jurisprudence on applicability of Section 50 of the NDPS Act is based on its interpretation. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Secction 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. As was held in Hira SIngh’s case (supra), the dicta of the Apex Court in the case of E. Micheal Raj(supra) 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.