In IOIN-CWP-7490-2014-PUNJ HC- P&H HC upholds constitutional validity of Entry 239 in 2001 notification issued by Central Government in exercise of powers contained in sub-clause (viia) and (xxiiia) of Sec.2 of NDPS Act Justices Ravi Shanker Jha & Arun Palli [12-05-2022]

Read Order: Sakattar Singh and Another v. Union of India and Others

Monika Rahar

Chandigarh, June 6, 2022:   The Punjab and Haryana High Court has upheld the constitutional validity of Entry 239 as well as Note 4 appended thereto, in the table of S.O. No. 1055(E), dated October 19, 2001, issued by the Central Government in exercise of powers contained in sub-clause (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 

The Bench of Chief Justice Ravi Shanker Jha and Justice Arun Palli held, “We are of the considered opinion that in view of the law laid down by the Supreme Court, Entry 239 of notification dated 19.10.2001 is within the power of the Central Government to notify and cannot be said to be ultra vires or unconstitutional.”

The Court was dealing with petitions praying for quashing Entry 239 in the table of S.O. No. 1055(E), dated October 19, 2001, issued by the Union of India as well as Note 4 appended thereto on the ground that the aforesaid entry and note in the notification issued in exercise of powers contained in sub-clause (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the Act’) is beyond the powers conferred on the Central Government. 

Note 4 in the aforesaid notification was held to be constitutionally validity by the Supreme Court in the case of Hira Singh and another v. Union of India and another, 2020 (20) SCC 272. 

The counsel for the petitioner(s) submitted that in view of the decision rendered by the Supreme Court in the aforesaid case, though the challenge to Note 4 of notification did not survive, but challenge to the constitutional validity of Entry 239 in the said notification remained alive.

He submitted that under sub-clause (viia) and (xxiiia) of Section 2 of the Act, the only power that has been conferred upon the Central Government is to notify “commercial quantity” and “small quantity” in relation to narcotic drugs or psychotropic substances, whereas the Central Government in exercise of this power has notified Entry 239 in the said notification, which results in taking into consideration mixture of preparations of narcotic drugs or psychotropic substances with or without neutral material. 

It was also submitted that Entry 239, which also takes into consideration neutral material while determining the commercial quantity or small quantity of narcotic drugs or psychotropic substances, is beyond the power conferred upon the Central Government by Section 2(viia) and 2(xxiiia) and is, therefore, ultra vires. 

At the outset, the Court considered the decision of the Supreme Court and the reasoning given by it while upholding Note 4. From the perusal of the above, the Court observed that the Top Court categorically held that intention of the legislature, keeping in view the very object and reasons and the preamble of the NDPS Act as well as its provisions, is to include the quantity of neutral substance(s), while considering and determining “small quantity” and “commercial quantity” defined under Section 2(viia) & (xxiiia). 

Thus, against this background, the Court held that when the Supreme Court has already interpreted Section 2 (viia) and (xxiiia) of the NDPS Act, relating to notification of commercial quantity and small quantity to include the quantity of neutral substance(s), it cannot under any circumstances be said that Entry 239 travels beyond the power conferred upon the Central Government by the aforesaid clauses. 

Thus, the Court held that in view of the law laid down by the Supreme Court, Entry 239 of notification is within the power of the Central Government to notify and cannot be said to be ultra vires or unconstitutional.