The Delhi high court Wednesday sought response of the Centre on a plea challenging the expansion of the definition of a drug under the Narcotic drugs and psychotropic substances (NDPS) Act.

A bench of chief justice D N Patel and Justice Jyoti Singh issued notice to the Centre and asked it to respond to the petition which will be taken up for hearing next on February 28. The petitioner, a resident of Kerala, has challenged two notifications of 2001 and 2009 issued by the Ministry of Finance under the NDPS Act, saying the notifications were issued in excess of conferred authority and are ultra vires to the law.Petitioner Rajeev T M. in the plea, submitted that the two notifications under Section 2 (viia) and 2 (xxiiia) of the NDPS Act, have the effect of creating a new category of offence by penalising the preparation of a drug at par with the drug itself. 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 (equality before law) of the Constitution. The notifications seek to create a classification of drug users and quantities based on the total weight of the drug (including the weight of neutral material) and not on the weight of the pure drug content, which is the correct indicator of whether a quantity is a commercial quantity or a small quantity intended for personal consumption, advocate J Sai Deepak, representing the petitioner, submitted.


The plea said 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 rationalising 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, it said while seeking to quash the two notifications.

The plea said the act of adding the weight of a neutral substance to the weight of pure drug content for determining the weight of small quantity/ or commercial quantity’ is unreasonable and arbitrary and thus is violative of Article 14 of the Constitution.It further said the notifications violate Article 21 (protection of life and personal liberty) also because it enhances the criminalisation of possession of a drug if it is mixed with enough neutral material.

Whereas as per the NDPS Act a person would be criminalised at the level of small quantity for possession of. say, 4 grams of heroin, the notifications enhance this criminalisation 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 neutral material. Therefore, this is violative of Article 21 as it severely affects the personal liberty and right to life of the petitioner, it said.It contended that the NDPS Act requires only the pure narcotic drugs or psychotropic substances to be considered for determining quantities and therefore, the notifications are wrong. The plea said the petitioner is facing prosecution in a case under the NDPS Act and is presently out on bail.