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The Delhi High Court has issued notice to the Central government on a petition challenging its two notifications issued in the years 2001 and 2009 expanding the definition of drugs to the extent of including preparation, under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Union has been directed to file its response by February 28.

The Bench of Chief Justice DN Patel and Justice Jyoti Singh was dealing with a petition wherein it has been alleged that as per a joint reading of these notifications, a mixture of narcotic drug and seized material is to be considered as a preparation 'in totality', as opposed to the actual quantity of drug. It has been averred that the notifications have the effect of penalizing the preparation of a drug at par with the drug itself. 

Importantly, the petitioner, Rajeev TM who is an accused under the NDPS Act, has argued that the impugned notifications have been passed in an unreasonable manner as by virtue of these notifications the ambit of the Act has been widened without being tabled in the Parliament.

The petition states that the Centre had issued these notifications under Sections 2 (viia) and 2 (xxiiia) of the NDPS Act. It has been reasoned that though these provisions allow the Government to notify the quantity of any drug which would qualify as a commercial quantity or small quantity under the NDPS Act it does not confer any power to expand the definition of drug to include preparation through notification.

In the plea, it has been further contended that these notifications enhance the criminalization of possession of a drug if the said drug is mixed with enough neutral material, however, the NDPS Act provides that only the pure narcotic drug / psychotropic substance are to be considered for determining quantities and any neutral material should not be counted.

Highlighting that only the pure drug content should have been the correct indicator of whether a quantity is a commercial quantity or a small quantity intended for personal consumption, Rajeev's petition reads, "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."

It has been reasoned by the petitioner that "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."

Therefore, the petitioner has argued that two notifications violate Article 14 and 21 of the Constitution and are arbitrary in nature. "There is no rational nexus between the classification created by these notifications and the object of the NDPS Act, and therefore, there is a violation of Article 14…The notifications violate Article 21 of the Indian Constitution also because it enhances the criminalization of possession of a drug if the said drug is mixed with enough neutral material," the plea reads.

In conclusion, contending that the NDPS Act requires only the pure narcotic drugs/psychotropic substances to be considered for determining quantities, the petitioner has asserted the notifications wrong. 

Rajeev's petition has been filed through advocates Anzu K Varkey, Avinash K Sharma, Pranav Krishna, Ashutosh Nagar, and was today argued by Advocate J. Sai Deepak.

Cause Title: Rajeev TM vs Union of India