The whole mixture has to be taken into consideration for conviction

Ashutosh Rajput | Hidayatullah National Law University | 12th May 2020

Hira Singh v. Union of India CRIMINAL APPEAL NO. 722 OF 2017

Background

In the case of E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau the Kerala High Court considered that, it is only the prohibited quantity in mixture which has to be taken into consideration for imposing punishment under section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as NDPS). Here in this case the appellant contended that, his conviction is contrary to law as he had only 60 grams of heroin out of 4.7 kg of mixture and only that should be taken into consideration whereas the respondent contended that entire substance/mixture is to be viewed and not the actual content of contraband substance. In this case the issue was whether the said substance comes under small quantity or commercial quantity. The respondent referred to the case Amarsingh Ranjbhai Barot v. State of Gujratwherein it was contended that the entire material found in possession irrespective of the content of offending material has to be taken into consideration. The Kerela High Court passed the judgement considering the prohibited mixture which is 60 grams for imposing punishment irrespective of the pure mixture which is 4.7 kg and the petitioner got convicted.

Fact  

The petitioner Hira Singh contended for the validity of the judgment of E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau therefore, he contended for the validity of the said judgment in Supreme Court that has been heard by a bench of 3 judges.

Issue which is challenged

Whether the judgment in E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau of considering a part of the mixture which is prohibited in nature as a psychotropic substance for imposing punishment is valid with respect to NDPS?

Arguments

 By the petitioner: 

1. It would be irrational if the offender who is in possession of mixture of narcotic substance get punished by looking into the whole mixture, for example ‘A’ has 5 grams of heroin and it will be considered as small quantity whereas ‘B’ has 1 gram of heroin but when it mixes with 250 grams of neutral substance then ultimately it will result in 251 grams of heroin and will come under commercial quantity while ‘A’ will be convicted for 1 year and ‘B’ will be convicted for 20 years though actual quantity of drug is less than that of B.
2. No neutral substance has been defined in NDPS since it is neither narcotic drug nor a psychotropic substance and no punishment for neutral substance has been defined in NDPA.
3. It will be ultra vires to take neutral substance mixed with drug as psychotropic substance only the part which is drug should be considered.

By the respondent: 

1. It is wrong that only narcotic drug or psychotropic substance is being taken into consideration as it is contrary to NDPS. It is to be noted that drugs are sold as a mixture and that mixture should be taken into account.
2. As per Section 2(xx) which defines preparation as which reveals that preparation of one or more mixture with respect to NDPS. It shows that NDPS deals not only with drug but also its preparation within a mixture.
3. Reading Section 22, 2(xx), 2(xxxiii) and the schedule, it makes it prima facie that punishment covered preparation of psychotropic substance and is not based on pure content.
4. They cited the case of US Supreme Court Chapman v. United States which is exclusively based on the weight of mixture or substance and not on the pure drug. 
5. That a small quantity of pure substance could ultimately lead to inflict upon a large mixture.
6. Therefore, the judgment in E. Michael Raj case is wrong and the preparations in totality and not the actual drug content will be seen for computing the quantity.  

Judgment

Ratio Decidendi: The quantity of neutral substance is not to be taken into consideration, and it is only the actual content by weigh of the narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity is “not good in law”. Hence, it is the whole mixture which should be taken into consideration for conviction.

Obiter Dicta: To remove the misuse of NDPS there is an urgent need for the enactment of comprehensive legislation on Narcotic Drugs and Psychotropic Substances.