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It is well established fact that adulteration happens in all the items we consume, so is the case with Drugs and Psychotropic Substances too. The peddlers dupe buyers by selling adulterated drugs, the mixture often gives a greater kick submit some drug addicts and so is the demand for such drugs.
It is observed when the samples are analysed the mixture often consists of Paracetamol and Alprazolam and at times certain medicines that are used to cure schizophrenia and other mental disorders.
The Best Lawyers for NDPS have defined various strategies to defend the matter. During the NDPS Trial, an important point of law the counsel for the defendant uses to argue is the Quantity of the drug, is it Small Quantity or Commercial Quantity the Punishment for Small quantity is up to 6 months extending to a year while Commercial Quantity the Punishment ranges from 10 years up to 30 years.
Let’s for example assume an accused is caught in his possession 120 Grams of Cocaine. But the Pure Cocaine content is only 1.75 Grams whereas rest content in the mixture is other off the counter medicines like Paracetamol. Such is proven by the CA Report (Chemical Analysis Report). The question that comes up for making decision on Bail to be denied or the quantum of punishment depends on the Quantity. In case of Cocaine, Small Quantity is 2 Grams and Commercial Quantity is 100 Grams.
The Act clearly defines the quantity of the drugs, you may refer to How to Get Bail in NDPS Case to understand Small and Commercial quantity associated with the type of the drug.
To answer this question, we will rely on two Cases that were dealt in this matter.
- Micheal Raj V/s Intelligence Officer, Narcotic Control Bureau
- Hira Singh & Anr V/s Union Of India & Anr
Before 2001, it was a well-established fact and the defence counsel used to rely on E. Micheal Raj V/s Intelligence Officer, Narcotic Control Bureau judgement in which it was held that the quantity of neutral material should not be taken into consideration while determining whether the mixture fell under small or commercial quantity. It took only the actual weight of the narcotic drug or substance as relevant. In the above example, the counsel who relied on this judgement would argue that since the Cocaine that was in the possession of the accused is less than “Commercial Quantity” and was “Small quantity” so he should be granted bail or if this matter is running into a trial the sentence should be according to the pure contents which is 1.75 Grams and not 120 Grams.
But, in 2001, in Hira Singh & Anr V/s Union Of India & Anr, a three-judge bench of the Apex Court held that the weight of the neutral material also be considered along with the weight of the pure content of the offending drug, to determine whether it amounted to “Small Quantity” or “Commercial Quantity”.
There are multi fold consequences of the Supreme Court’s judgement in Hira Singh vs Union of India. This impacts the sentencing of the punishment, the jurisdiction of courts, pre-trial detention period, grant of bail and much more. This judgement is under review and the law fraternity hopes to find an outcome soon, until then the Hira Sing judgement overweighs all other precedents thus far.
Now, lets consider another example, here the Pure Content of the Drug is of Small Quantity but when mixed turns out to be more than small quantity. Let’s consider an accused is found with 1.5 Grams of Cocaine, 3.5 Grams of Heroin and 125 Grams of Charas mixed with 500 Grams of off the counter medicine tables and 1.5 Kgs of Sugar Powder. In this case all the drugs are of small quantities which together when mixed are of Commercial Quantity. Should the sentencing be as per the Precedent set in E Michele Raj case of that of Hira Singh Case.
In 2001, by the way of an amendment, the Parliament amended the punishment mechanism, by providing a graded sentencing system based on the quantity. We shall rely upon the Entry 239 of 2001 Notification.
There are 238 types of drugs identified, calling out their chemical names and the Quantity in Grams is mentioned that defines what constitutes to Small Quantity and what is Commercial Quantity. The Entry 239 in the table reads as follows :
“Any mixture or preparation that of with or without a neutral material, of any of the above drugs”
Further, It should also be observed that the NDPS Act favours punishment not only for possession but also manufacturing, sale, disturbing, preparation etc… and mixing multiple of drugs with neutral drug falls under the gamut of Preparation one should note well.
Let’s Consider for example, the accused is held with 1.75 Grams of Cocaine and 0.4 Grams of MDMA. The Entry 239 will not come into picture as 0.4 Grams is of the lesser of the small quantities. Such will be the case with or without a neutral material. Ref: Vikram vs State of Punjab.
The Notification that was further issued in 2009., which states that mixture one or more drugs and psychotropic substances, the entire mixture should be considered. Such is the case because the Act has never called out specifically the weight of pure drug or mixture., the entry 239 marks an ‘*’ and ‘**’ against small and commercial quantity and defines as follows:
Small Quantity is defined as: Lesser of the Small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.
Large Quantity is defined as: Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture
Conclusion:
A Possible Solution to Quantity as a Strategy for Defence, The Lawyers for NDPS case should prepare their argument is to rely on the 2001 amendment by the Parliament which talks about the Graded Punishment Scheme. The Concentration of the mixture of Pure Content and Neutral substance should be taken into consideration and determine through various expert opinions (case to case basis) the lethal impact of such mixture. Lesser the impact lesser the sentencing compared to higher impact.
There are few many more defence strategies we will discuss in the next blog series of NDPS. You may wish to refer previous blogs on How to Get Bail in NDPS Case and the strategy related to Conscious Possession in NDPS Case.
Feel free to write to us at mail@lawyersonia.com or call +91 9845944896 if you wish to consult or discuss your matter. “Sonia and Partners” is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the Best Lawyers in Bangalore practicing in the area of Criminal defence serving Citizens of India, Overseas Indians, NRIs and Global International Clients.
