CRM-M-35080-2018 1 Sr. No.269 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH CRM-M-35080-2018 Date
of decision: 21.08.2018 Rajvir Singh @ Raju …… Petitioner versus State of Punjab ……. Respondent Coram : HON’BLE MR. JUSTICE RAJBIR SEHRAWAT Present: Mr. B.S.Khehar, Advocate for the petitioner. Mr. Hitten Nehra, Addl. AG, Punjab. RAJBIR SEHRAWAT, J. The question which this court is called upon to consider and decide in this application for bail pending trial is; whether it is the quantity of narcotic drugs and psychotropic substance only or whether it is the total quantity of mixture of narcotic drug and psychotropic substance mixed with any non-psychotropic substance, neutral or otherwise, which is to be taken into consideration for seeing the commercial quantity of the recovered material, as required under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short – the NDPS Act ) This is an application for grant of bail during trial in case 1 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 2 FIR No.38 dated 25.05.2017 registered under Section 22 of the NDPS Act registered at Police Station Sadar Banga District SBS Nagar. The above said FIR was registered against the petitioner with the allegations that ASI Satnam Singh, of Police Station Sadar Banga, sent an information to the police station for registration of the FIR mentioning the name of the petitioner; alleging therein that the above said ASI along with police party were going towards village Karnana from Banga; on a private vehicle for the purpose of patrolling. When the said ASI along with police officials reached just ahead of T-point; village Bharo Majra; then from the front side, the petitioner was seen coming by the police party. On seeing the police party in uniform, the petitioner, who was holding a bag in his left hand, suddenly turned back and started moving quickly. He went down in the fields. With the help of the accompanying police personnel, the said ASI apprehended the petitioner and inquired about his name and address, which was told by the petitioner as given in the FIR. As per further allegation, the said ASI introduced himself to the petitioner and told that he had a suspicion that there was some intoxicant material in the stringed carry bag held by the petitioner in his hand; and that the petitioner had got a right to get the said stringed bag held by him in his hand searched in the presence of some Magistrate or the Gazetted Officer; for which the said ASI could make the arrangement. However, the petitioner disclosed 2 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 3 that there were psychotropic injection in the bag and that he had full faith in the said ASI, and further that he could continue with the search of the petitioner and the gunny bag held by the petitioner in his hand. Thereupon the consent statement of the petitioner was prepared and was signed by the petitioner in English. The said ASI tried to join some public witnesses with the police party. However, every one expressed his inability. Hence, the said ASI, in the presence of accompanying police personnel, got released down the bag from the hands of the petitioner and conducted search of the bag, as per the procedure. During the search, the bag was found containing 60 injections, each measuring 10ml, of make Avil, and 60 injections measuring 2ml each, of Buprenorphine. Accordingly the injections were recovered. Thereafter separate parcels of intoxicant injections of Avil total 60 bottles and another parcel containing 60 injections of Bupronorphine were prepared. The recovered intoxicant injections of Avil and Bupronorphine, along with stringed gunny bag, were taken into possession through separate memos. These memos were signed by the witnesses, who were the accompanying in the police party and, allegedly, by the petitioner. Petitioner failed to produce any licence or permit for keeping the intoxicant injections. Therefore, the ASI came to the conclusion that the petitioner had committed offence punishable under Section 22 of the NDPS Act. Hence, the information was sent to the police station for registration of the 3 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 4 case. The said ASI continued with the investigation on the spot, and the State counsel has informed the Court that he was the person who conducted the entire investigation of this Case. The petitioner filed application for bail pending trial before the trial Court, pleading that he was arrested on 25.5.2017 and he has been in custody since then. It was contended that the allegations against the petitioners are false and concocted. However, his application for bail pending trial was dismissed by the said Special Court vide order dated 11.05.2018. Aggrieved against that order, the petitioner has filed the present application for bail pending trial. It has been pleaded in the application and argued by the counsel for the petitioner that out of the two types of injection, allegedly recovered from the petitioner, Avil is not found containing any material prohibited under NDPS Act. As per FSL report, the injections of Avil have been found containing 22.61mg/ml of pheniramine maleate. This chemical is not a narcotic drugs or psychotropic substance under the NDPS Act. Hence the alleged recovery of injection of Avil is not relevant for the purpose of prosecution of the petitioner. So far as the second injection of Buprenorphine is concerned, the FSL Ludhiana has found that it contained 0.25mg/ml of Buprenorphine Hydrochloride. Although Buprenorphine Hydrochloride is a substance 4 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 5 prohibited under NDPS Act, however, the quantity ; even if admitted to be recovered ; for the sake of argument, is less than even the small quantity. It is contended that Buprenorphine is mentioned at entry No.169 of the table issued by the Government through the Notification dated 19.10.2001. The small prohibited quantity of this substance is 1 gram and ‘commercial quantity’ is 20grams. However, even by accepting the report of FSL, Ludhiana, the total prohibited substance found in the 60 injections, allegedly recovered from the petitioner, comes only to be 30mg (.25mg x 2ml x 60 = 30mg.). Hence, the quantity of the psychotropic substance, allegedly recovered from the petitioner, is far less than ‘small quantity’, mentioned in the notification. Therefore, Section 37 of the NDPS Act cannot stand in the way of the petitioner, so far as consideration of his application for bail is concerned. It is further contended by the counsel for the petitioner that Section 50 of the NDPS Act has not been complied with by the arresting officer, since the petitioner was never produced before any Magistrate or the Gazetted Officer nor was the search made before the Magistrate or the Gazetted Officer. This has vitiated the process of alleged recovery. Still further, it is contended that the arresting officer himself has conducted the entire investigation, therefore the investigation stands vitiated, having been conducted by the complainant himself. It is also contended that no independent witnesses were 5 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 6 associated by the Investigating Officer at the time of arrest or seizure of the alleged banned material. Hence, there is a violation of Section 100 Cr.P.C. as well, which renders that the proceedings regarding search and seizure highly doubtful. To support his contention that although 2 ml. solution was contained in one ampoule of injection of Buprenorphine, however, the actual quantity of only the prohibited substance, i.e. Buprenorphine is to be taken into consideration for determining the quantity and not the entire solution contained in the ampule, the counsel has relied upon the judgment of Hon’ble Supreme Court rendered in 2004 (4) SCC -446, Ouseph alias Thankchan vs. State of Kerala and another and the judgment of the Hon’ble Supreme Court rendered in 2008 (5) SCC 161, E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau. The counsel has also produced before the Court the judgment of the Hon’ble Supreme Court rendered in 2011 (4) SCC 441, Harjit Singh vs. State of Punjab and another and the judgment of the Hon’ble Supreme Court rendered in 2016 (1) SCC 315, State through Intelligence Officer Narcotic Control Bureau vs. Mushtaq Ahmad Etc. to show that the earlier judgment rendered by the Hon’ble Supreme Court in E. Micheal Raj’s case ( Supra), though came for consideration before Hon’ble Supreme Court in these subsequent judgments, the same has not been overruled or differed 6 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 7 with on this aspect. Hence, the petitioner is entitled to the benefit of the principle of law laid down in the case of E. Micheal Raj’s case ( Supra), While opposing the proposition convassed by the counsel for the petitioner, the learned State counsel has submitted that it is not the content of the drug only in a solution which is to be taken into consideration, rather it is the entire solution, which is to be taken into consideration for the purposes of seeing the quantity of the contraband recovered in the case. Hence, it is argued by him that since 60 ampules of injection, each measuring 2mls have been recovered, therefore, the total contraband recovered from the petitioner is 120 mls. This 120 mls of solution, when converted into grams comes to about 120 grams. For this conversion of Mls into grams, counsel for the State has applied the density of ‘water’ per ml, which was contained in the ampule of injection, to convert volume into weight of the recovered substance. It is further contended by the counsel that; the proposition that it is the entire mixture of solution, which is taken into consideration, is clarified by entry No.239 of the table attached to the Act by way of notification dated 19.10.2001. Since in this very notification Buprenorphine is mentioned as prohibited substance at entry 169, therefore, entry No.239 given in the table would apply to the solution recovered from the petitioner as well. Therefore, the entire mixture or preparation of Buprenorphine, as recovered from the 7 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 8 petitioner shall be the determining factor; to decide the quantity recovered from the petitioner. It is further contended by the counsel that to supplement this proposition the Government of India had issued another notification dated 18.11.2009, vide which Note 4 was added to the above said notification dated 19.10.2001. It is, therefore, contended that if at all earlier any doubt was left ; whether the entire mixture or solution is to be taken into consideration or not, the same was removed by Note 4 inserted vide above said notification dated 18.11.2009. To support his contentions, learned counsel for the respondent-State has relied upon the Division Bench of this Court rendered in 2014 (3) RCR (Criminal) 953 Inderjit Singh @ Laddi and others vs. State of Punjab. Counsel has further relied upon the judgment of Single Bench of this Court rendered in CRM-M-40371 of 2017 decided on 25.07.2018 Sarbjit Singh alias Sabbi vs. State of Punjab to contend that the above said judgment of Division Bench was followed by the Single Bench and to further contend that Section 37 of the NDPS Act exclude the grant of bail to the accused unless the conditions mentioned in Section 37(i)(b)(ii) of the NDPS Act are fulfilled. The counsel has further relied upon this judgment to contend that the judgment of the Hon’ble Supreme Court rendered in 2004(4) SCC 441 Sajan Abraham vs. State of Kerala has been distinguished by the Single Bench; on the ground that after the addition of the Note 4, vide notification dated 8 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 9 18.11.2009, the ratio of the above said judgment of the Supreme court pales into insignificance. The counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court in Harjit Singh’s case (supra) to contend that the judgment of the Hon’ble Supreme Court rendered in E. Micheal Raj’s case ( Supra), had not found favour with the subsequent Benches of the Supreme Court itself. Therefore, the petitioner cannot take the advantage of that judgment; to contend that only the actual quantity of the contraband is to be taken into consideration. To support his argument, learned counsel for the State has also relied upon the judgment of Mushtaq Ahmad and others’ case (supra ). On the applicability of section 37 of NDPS Act, while considering the question of bail, in case of recovery of commercial quantity, the counsel for the State has also relied upon the judgment of the Supreme Court rendered in 2018 AIR SC-2011, Sat Pal Singh vs. State of Punjab. To counter the plea of the petitioner qua the non-compliance of Section 50 of the Act due to not calling of a Magistrate or Gazetted Officer at the time of alleged recovery, the counsel for the respondent has relied upon the judgment reported as 1999(8) SCC page 257 Kalema Tumba vs. State of Maharashtra to contend that when contraband was found in baggage then the ingredients of section 50 of the NDPS Act are 9 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 10 not applicable. To buttress the same argument, the counsel for the respondent has also relied upon another judgment of the Supreme Court rendered in 2002 (8) SCC page 327 Bharatbhai Bhagwanjibhaiu vs. State of Gujarat to contend that if the person is running away on seeing the police, the provisions of Section 50 of the NDPS Act are not required to be fulfilled. It is further contended by the counsel that it has been recorded in the FIR itself that on seeing the police, the petitioner tried to run away. Moreover, the petitioner himself had reposed faith in the arresting officer and had given his consent, therefore, Section 50 of the NDPS Act stands complied with. However, the counsel for the State has not brought to the notice of this Court that there is any other case against the petitioner nor has brought any material on record qua that. In reply to the arguments of the counsel for the State, the counsel for the petitioner has submitted that the judgment of E. Micheal Raj’s case (Supra), hold the field till today. Despite the entire proposition, being argued by the learned State counsel in the present proceedings having been brought to the notice of the Hon’ble Supreme Court, the coordinate Bench of the Supreme Court has held that said judgment in E. Micheal Raj’s case ( Supra), holds the field and has observed that although this point is required to be reconsidered by the larger Bench, yet it is binding 10 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 11 upon even the Supreme Court till today. Therefore, in case of CRIMINAL APPEAL No.722 OF 2017 -Hira Singh and Anr. vs. Union of India & Anr. , the Hon’ble Supreme Court has referred the matter to the larger Bench. However, despite the matter having been referred to the larger Bench, the principle of law as laid down in E. Micheal Raj’s case ( Supra), having been held to be binding, has to be applied by the High Court even now. The counsel has further contended that merely because a reference is pending before the larger Bench of the Supreme Court cannot be made a basis for not deciding the case in accordance with the existing law as laid down in case of E. Micheal Raj’s case ( Supra). To support his this contention, the counsel has relied upon another judgment of this Court rendered in FAO No. 7902 of 2016(O&M) – Bharti AXA General Insurance Company Ltd. Versus Jugni Devi and others decided on Decided on: 17.08.2017. Counsel for the petitioner has further contended that, firstly, the Central Government had no authority to prescribe the quantity of ‘mixture’ or ‘solution’ as the small or commercial quantity under Section 2 (viia) and Section 2(xxiiia) of the NDPS Act. It is contended by the counsel that these two sections empowered the Central Government to specify the ‘small’ and ‘commercial quantity’ only of the ‘narcotic drugs’ and ‘psychotropic substances’, and not the substances which have never been 11 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 12 declared as psychotropic substance as per the procedure laid down in the Act. It is further contended that a substance which is not designated as narcotic and psychotropic substance cannot be declared as such arbitrarily. The Act has given ample guidance in this regard, as to how any substance is to be declared as a narcotic or psychotropic substance. In this regard the counsel has relied upon the provisions contained in Section 3 of the NDPS Act, which provides for criteria for including any substance in the list of psychotropic substances. The counsel contended that as required by Section 3 NDPS of the Act, no international convention or any research or study has so far shown that even a neutral material like water is harmful to human body, when taken in as small quantity as 2ml. So, the Government cannot declare the 2ml of water, which is used as solvent with Buprenorphine hydrochloride, to be a psychotropic substance, and thus add it to the quantity of Buprenorphine for calculation of ‘commercial quantity’. The counsel for the petitioner has further submitted that, secondly, even if the Government is to take into consideration the ‘preparation’ as defined under the Act, then that preparation also has to be restricted to a preparation of one or more than one prohibited drugs or psychotropic substance and cannot include any neutral material. The counsel has contended that the question whether the neutral substance can also be included in preparation of psychotropic 12 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 13 substances, for the purpose of seeing the quantity of the recovered contraband, has to be considered keeping in view the provisions contained in Section 2(xv), 2(xvi) and Section 2(xvii) of the NDPS Act. It is contended that a bare perusal of these provisions would show that wherever the legislature has intended the neutral substance in a mixture or preparation of narcotic and psychotropic substance to be taken for calculation of the quantity, it has been specifically provided by the Legislature, as is in Section 2(xv) and (xvi) of the NDPS Act. Whereas it is not so provided for the purposes of the very next provision in Section 2(xvii) of the NDPS Act. Hence, it is clear that Legislature discretely applied its mind; to the question of making a mixture, containing even the neutral material, liable to be taken into consideration for determination of the quantity of the material recovered. Since except in case of opium and opium derivatives, the legislature has not made the mixture of neutral substance to be punishable, therefore, for other psychotropic substances mixtures of neutral substance cannot be taken as a criteria for punishing a person. It is contended by the counsel that it is settled law that when a Legislature has considered a particular point, and has legislated on that point qua some substances but has omitted to legislature qua other substances, then such an omission on the part of the legislature, has always to be deemed to be intentional. Therefore, it has to be taken that intention 13 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 14 of the Legislature has been not to include the mixture, including any neutral and non-psychotropic substance, for determining the commercial quantity of the psychotropic. By providing for commercial quantity, including the mixture of even neutral solution, the Executive has tried to make the possession of a neutral substance to be a punishable offence. This is beyond the scope of power of executive, since the prescription of the offence is the sole domain of the legislature. The counsel for the petitioner has further argued that even if the entry as contained in entry No.239 of the Notification dated 19.01.2011 and the alleged Note 4, added to this notification vide the subsequent notification dated 18.11.2009, are read as it is, still these do not provide for counting the weigh of neutral material of a mixture for determination of the commercial quantity of psychotropic substances. Regarding Note 4, the counsel has argued that this Note prescribes, at the best, that in a solution if the narcotic drug or psychotropic substance is present along with its isomers, esters, ethers and salts of such substances, then such psychotropic substance shall be added with these isomers, esters, ethers and its salts; for seeing the total quantity of that particular psychotropic substance and if the ‘salts’ of these esters, ethers and isomers of such psychotropic substance, can possibly exist independently, then the quantity of these ‘salts’ of ester, ethers or isomers 14 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 15 of that particular psychotropic substance shall also be taken to be a form of such psychotropic substance and would be counted towards commercial quantity of such substance. It is contended that even this Note nowhere says that even the neutral substance can be taken into consideration for the purposes of calculation of total quantity of contraband. It is further contended that the same is the situation qua entry No.239 of notification dated 19.10.2011. Although the ‘Neutral’ substance, though used in the Act has not been defined under the Act, but so also, the esters, ethers, isomers and salt, used in the notification issued by the Government, are not defined by the Act. But all these terms are well defined in Chemistry. Since the Court is called upon to adjudicate qua the synthetic chemicals of intricate chemical details in this case, therefore, it would be appreciated to look into some of the basic chemical aspects of the terms used in the provisions relied upon by the respective counsels. (a) Substance/Material : – A substance or a material is combination of ‘Molecules’ of one or more basic ‘Elements’ available in nature. A molecules is further made up of combination of ‘Atoms’ of an element. An atom is, further, made up of a ‘Nucleus’ and the electrically charged ‘Electrons’ orbiting around it, like the planets orbit around the Sun. It is this electric charge of the electrons which determines the ‘combining capacity’ and the ‘nature’ of the substance or the 15 of 57 ::: Downloaded on – 30-08-2018 12:46:20 ::: CRM-M-35080-2018 16 material; depending upon the net ‘electric charge’ of that substance. After combination of atoms in its molecules, the nature of a substance is determined, chemically and physically. On the basis of this net electrical charge the substance are characterized as ‘Acidic’, ‘Alkaline’ or ‘Neutral’ substances. Acidity or Alkalinity is determined with reference to a scale of measurement called pH. This scales contains the range from 1 to 14, stating from ‘Acidity’ and ending at ‘Alkalinity’ (b) Neutral Substances :- These are the substances which are neither acidic nor alkaline. In chemical terms their pH value is categorized at midpoint of range of pH values. Their pH. Value is 7. In physical terms their ‘net electrical charge’ is Zero. Therefore, these substance, per se, do not have reactive tendency, unless instigated by some other process. So, these substances are used as solvent in various chemical preparation Water is one of such substances which is freely available and commonly used as solvent in these chemical preparations. ( c) Mixtures and Solutions:– A mixture is a broader term used for putting two substances together, where the molecules of two substances maintain their absolute and independent integrity. A solution is a more advance type of a mixture. In a solution there is a basic substances which is called ‘solvent’ and the other substance, which is to be dissolved in this solvent, that is called ‘solute’. In an advanced solution the molecules of ‘solute’ combine with the molecules of the solvent by atom ‘bonding’ but without directly ‘reacting’ to each other. So in a solution the two substances may change some of their chemical 16 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 17 and physical properties like boiling temperature etc., however, the two substances still retain the individual identity. They do not form a new substance as such. They can still be separated through appropriate means of separation, like evaporation, distillation, filtration or chromatographic techniques, involving no chemical reactions. However, if the molecules of the ‘solute’ and ‘solvent’ undergo or made to undergo a chemical reaction, they form a new ‘substance’ to be known by a separate and specific chemical name, and no more it remains a ‘solution’. A different kind of material is born which may be variant of either of the two substances which were added to make the solution in the first instance. So the ‘mixture’ or ‘solution’ and the ‘substance’ are altogether two different things. These cannot be confused to be taken as the same thing. (d) Isomers, Esters, Ethers or Salts of substances:– In their natural form the substances occur only with their pre-defined combination and Architecture of Atoms and Molecules. However, the science has been able to create synthetic substances by fiddling with either the combination or the Architecture of the Atoms and Molecules of Substances. This has resulted in creation of the above said variants of different substances, which can be understood as under: – (i) Isomers: In this forms of a substance, ,the number and combination of atoms and molecules remains the same, but their Architecture is altered by changing the position of and manner of attachment of atoms or molecules. (like, A-B-C-D to D-A-C-B) 17 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 18 (ii) Esters is a form of a substance where a group, of atoms of carbon attached with two atoms of oxygen and having bonding with two atoms of hydrogen in a specified manner (HCOO-H) is got created in the molecules of that substance. (iii) Ethers is a form of a substance where a group of one oxygen and two hydrogen atoms having bonding in a specified manner (H-O-H) is got created in the molecules of that substance. (iv) Salts Salt of a substance is a product of its chemical reaction with another substance to neutralize its net chemical charge. So if a substance is ‘Acidic’ then it is got reacted to an “Alkaline’ material and if it is an ‘Alkine’ material then it is got reacted to an ‘Acidic’ material. The above said variants of a substance may exists, independently in some cases, or can sustain only in the presence of the main substance. But the basic effectual characteristics of main substance are retained by these variants of that particular substance. So these variants of narcotic and psychotropic substances retain their intoxicating effect on human body. Therefore, despite not being the ‘pure content’ of such substance, these variants are made punishable. For example, in this case, material recovered is ‘Buprenorphine Hydrochloride’ which is not mentioned in the list of psychotropic substances; as given in the Table. Only ‘pure 18 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 19 content’ drug of this material, i.e. Buprenorphine is mentioned. But since ‘Buprenorphine Hydrochloride is a ‘Salt’ of the pure drug ‘Buprenorphine’ and it has the same effect on human body as the pure drug, so Buprenorphine Hydrochloride is also taken as a prohibited substance being a ‘Salt’ of the pure drug content. Having had the above basic appreciation of nature of substances and heard the learned counsel for the parties, the Court can proceed to appreciate the merits of the case. The controversy involved in this case revolves around certain provisions of the NDPS Act, Notification dated 19.11.2001, Notification dated 18.11.2009; as well; as certain judgments of the Hon’ble Supreme Court and the judgments of this Court. Therefore, it would be appropriate to have reference to the relevant provisions, as contained in the NDPS Act and the Notifications. The relevant parts thereof are as reproduced hereinbelow : – “2. Definitions. In this Act, unless the context otherwise requires, (viia) Commercial Quantity, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specific by the Central Government by notification in the Official Gazette ; (xv) opium means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not 19 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 20 include any preparation containing not more than 0.2 per cent. of morphine: (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 dia-morphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine; (xvii) opium poppy means (a) the plant of the species Papaver somniferum L.; poppy straw means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; (xx) preparation, in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or 20 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 21 substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances; (xxiii) psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule; 5 (xxiii a) “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 3. Power to add to or omit from the list of psychotropic substances .- The Central Government may, if satisfied that it is necessary or expedient so to do on the basis of – (a) the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material ; and (b) the modifications or provisions( if any) which have been made to, or in, any International Convention with respect to such substance, natural material or salt or preparation of such substance or material, by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the 21 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 22 Schedule such substance or natural material or salt or preparation of such substance of material.” The relevant part of the Notification involved in the case are mentioned below : – ‘ MINISTRY OF FINANCE (Department of Revenue ) NOTIFICATION New Delhi, the 18th November 2009. S.O. 2941 (E) In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055(E), dated 19th October, 2001, namely : – In the Table at the end after Note 3, the following Note shall be inserted, namely : – NOTE 4 : – The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution/or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such sub stance is possible and not just its pure drug content.” “ NOTIFICATION SPECIFYING SMALL QUANTITY AND COMMERCIAL QUANTITY S.O. 1055 (E), dated 19.10.2001 : – In exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985 ) and in supersession of Ministry of Finance, Department of Revenue 22 of 57 ::: Downloaded on – 30-08-2018 12:46:21 ::: CRM-M-35080-2018 23 Notification S.O.527 (E) dated 16th July 1996 except as respects things done or omitted to be done before such supersession, the Central a Government hereby specifies the quality mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the Purposes of the said clauses of that Section.” TABLE [See sub-clause (viia) and (xxiiia) of section 2 of the Act] Sr. No. Name of Narcotic Drug and Psychotropic Substance (International nonproprietory name (INN) Other nonpropriety name Chemical Name Small Quantity (in gm) Commer cial Quantity (in gm./ kg.) 1. 2. 3. 4. 5. 6. From item No.1 to 168 xx xx xx xx Xx 169 BUPRENORPHIN E 21-cyclopropy1-7- alpha-[(S)-1-hydroxy1.2, 2-
trimethylpropyl]- 6.14,endo-ethano6,7,8,14- tetrahydrooripavine 1 20gm 170 to 238 xx xx xx xx Xx 239 Any mixture or