The petition by one Rajeev TM argued that the Centre issued two notifications, in 2001 and 2009, under Sections 2 (viia) and 2 (xxiiia) of the NDPS Act, effectively creating a new category of offence by penalising the preparation of a drug at par with the drug itself.
It was contended that these notifications seek to create a classification of drug users and quantities based on the total weight of the drug (including weight of neutral material) and not on the weight of the pure drug content which should have been the correct indicator of whether a quantity is a commercial quantity or a small quantity intended for personal consumption.
“If the notifications are applied, 4 grams of heroin would be a small quantity, but if an addict mixes them with 50 kgs of powdered sugar then the same would be a commercial quantity that has ramifications as grave as incarceration up to 20 years. The application of the notifications creates a situation where there would be no rational nexus between this aforesaid objective of rationalizing sentencing by taking a reformative approach towards treating addicts and the proposed classification which places both addicts and drug traffickers on even footing as long as the addict dilutes their drug more than the trafficker,” the petition reads.
The petitioner stated that the notifications enhance the criminalisation of possession of a drug if the said drug is mixed with enough neutral material.
“Whereas as per the NDPS Act a person would be criminalized at the level of small quantity for possession of, say, 4 grams of heroin, the notifications enhance this criminalization to the level of commercial quantity (which increases the incarceration to as much as 20 years) if the said 4 grams of heroin is diluted by the addition of a neutral material,” the plea said.
It contended that the NDPS Act requires only the pure narcotic drugs/psychotropic substances to be considered for determining quantities, and therefore the notifications are wrong.
The notifications violate Article 14 and 21 of the Constitution, and have been issued by the government in excess of the conferred authority while being ultra vires of the NDPS Act, and should thus be quashed, it was prayed.