NDPS | Quantity of Neutral Substances Also Counts Towards Commercial Quantity: Chhattisgarh High Court

High Court of Chhattisgarh delivered a significant judgment addressing the determination of "commercial quantity" under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The court upheld the appellants' conviction under Section 21(c) of the NDPS Act for possession of commercial quantities of codeine-based cough syrup but reduced their sentence from 12 years rigorous imprisonment to 10 years, citing the lack of "special reasons" for imposing a higher-than-minimum sentence.

The appellants, Ambika Vishwakarma and Narayan Das, were arrested on September 20, 2018, for possessing 236 bottles of codeine-based cough syrup, amounting to a commercial quantity under the NDPS Act. The police acted on credible information and recovered the contraband after conducting a search. The Trial Court convicted the appellants under Section 21(c) of the NDPS Act and sentenced them to 12 years rigorous imprisonment with a fine of ₹1,10,000 each, along with a default sentence of three years rigorous imprisonment.

Challenging the conviction and sentence, the appellants filed separate appeals. They contended that the quantity of "offending drug" should have been calculated without considering the weight of neutral substances in the mixture and that their sentence was excessive, as no special reasons were recorded for a punishment higher than the prescribed minimum.

The appellants argued that only the actual weight of the codeine phosphate in the cough syrup, not the entire 100ml bottle, should be considered when determining whether the contraband constituted a "commercial quantity." Relying on the Supreme Court’s decision in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, the appellants claimed that the contraband fell within the "intermediate quantity" category.

The High Court rejected this argument, relying on the authoritative ruling in Hira Singh v. Union of India (2020), where the Supreme Court held that "the total weight of the narcotic drug or psychotropic substance, including neutral materials, must be considered" to determine whether it constitutes a "small quantity" or "commercial quantity." The court emphasized that excluding neutral substances would "defeat the object and purpose" of the NDPS Act, which aims to combat the menace of drug abuse and trafficking with stringent provisions.

The court observed: "What is harmful or injurious is the entire mixture with neutral substances and narcotic drugs. Therefore, the object of the NDPS Act would be frustrated if only the weight of the active drug were considered."

The appellants further argued that procedural safeguards under the NDPS Act were violated. Specifically, they contended that the Investigating Officer failed to comply with Section 50 by not informing them of their right to be searched before a Gazetted Officer or Magistrate.

The court dismissed this contention, noting that the Investigating Officer (PW-7) testified that notice under Section 50 had been duly served and the appellants consented to be searched by the police officer. It cited precedents, including State of Punjab v. Balbir Singh (1994), affirming that compliance with Section 50 is satisfied if the accused are informed of their rights. The court found no procedural irregularities in the search, seizure, or investigation.

The appellants also challenged the Trial Court's imposition of a 12-year sentence, which exceeded the 10-year minimum prescribed under Section 21(c) of the NDPS Act. They argued that the Trial Court failed to provide any "special reasons" for imposing a sentence above the minimum, as required under Section 32B of the Act.

The High Court concurred with this argument, observing that "the Trial Court failed to assign specific or special reasons for awarding a sentence higher than the statutory minimum." Referring to the Supreme Court’s ruling in Union of India v. Rafiq Qureshi (2019), the court held that while higher sentences can be justified under the NDPS Act, such sentences must be supported by relevant factors enumerated in Section 32B, such as use of violence, involvement of minors, or organized criminal activity.

Consequently, the High Court reduced the appellants' sentence to 10 years rigorous imprisonment while maintaining the fine of ₹1,10,000. It also modified the default sentence for non-payment of the fine from three years to one year rigorous imprisonment.

The High Court upheld the appellants' conviction under Section 21(c) of the NDPS Act but partially allowed their appeals by reducing the sentence. This judgment reinforces the principle that courts must adhere to procedural safeguards under the NDPS Act and provide specific reasons for imposing sentences above the statutory minimum.

The court remarked: "While the NDPS Act is a stringent law aimed at deterrence, its implementation must be balanced with fairness and adherence to the rule of law, ensuring that no undue punishment is inflicted."

Date of Decision: January 16, 2025