Hira Singh: Weight of Neutral Substance Counts for NDPS Small and Commercial Quantity; E. Micheal Raj Overruled

In E. Micheal Raj (2008), the Supreme Court held that only the actual content by weight of the drug in a mixture decides small or commercial quantity (opening paragraph). The Centre then added Note 4 to the 2001 quantity notification by a notification of 18.11.2009, applying the quantities to the entire mixture and not just its pure drug content (para 6). A two-Judge Bench, doubting E. Micheal Raj, referred five questions on 3.7.2017, including whether a mixture is to be weighed in totality (opening paragraph). The Union argued for whole-mixture weight; the accused and an intervening drug manufacturers' association defended E. Micheal Raj and challenged Note 4 (paras 2-5).

Before E. Micheal Raj, the consistent view was that the entire weight of a mixture, including neutral substances, counted (para 6.1). E. Micheal Raj concerned heroin under Entry 56 of the 2001 notification, not a mixture under Entry 239, and did not consider Note 2, which applies the listed quantities to preparations of the drug; on Note 2 the heroin seized there would have been a commercial quantity (paras 6.3-6.4). It also read more into the Statement of Objects and Reasons of the 2001 Amendment than it said (paras 7-7.1). Construing the Act purposively, as Directorate of Enforcement v. Deepak Mahajan permits, the legislature never intended to exclude the neutral substance (paras 8-8.2). Where a mixture contains two drugs, the lesser of their small or commercial quantities applies (para 8.2). Drugs are seldom sold pure, adulterated mixtures can be more dangerous, and counting only pure content would frustrate the Act's deterrent purpose (para 8.3). Note 4 is clarificatory, added by abundant caution, and within the Act (paras 9-9.1).