High Court of KeralaSingle Judge2007-07-30Writ petition disposed; declarations on millili...

Salam S/o Abdul Kader v. Union of India and State of Kerala

Case / Petition Number:WP(C) 3934/2005(R)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
Judgment Date: 2007-07-30
Court Decision / Holding: Writ petition disposed of. The court declared that for Buprenorphine tidegisic in liquid form, 1 gram is equivalent to 3333.33 milliliters for small quantity and 20 grams is equivalent to 66666.60 milliliters for commercial quantity, in line with Indian Pharmacopoeia 1996. This conversion is to be applied for the purposes of NDPS Act threshold determinations.
Final Disposition: Writ petition disposed; declarations on milliliter equivalents for small and commercial quantities of buprenorphine in liquid form under NDPS Act; IP 1996 standards to apply for quantification.

Parties to the Case

Appellants / Petitioners

Salam S/o Abdul Kader

Respondents

Union of India
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathai Varkey Muthire NFT
• Sri. Icans C. Chamakkala
• Sri. Dhanesh Mathew Manjooran
• Smt. Ajita Paul

Counsels for Respondents

• Sri. P. Parameswaran Nair, Asst. Solicitor

Case Synopsis & Summary

Salam S/o Abdul Kader, the petitioner, filed WP(C) 3934/2005 challenging the fixation of small quantity and commercial quantity thresholds for buprenorphine tidegesic under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). He argued that conflicting judgments – Shaji v. Kerala State (2004) 3 KLT 270 and Supreme Court decisions Sajan Abraham v. State of Kerala (2004) 2 KLT SC) and Ouseph alias Thankachan v. State of Kerala (2004) 4 SCC 446 – created confusion over what constitutes a “commercial quantity” and the corresponding punishment, urging the court to fix the thresholds by milliliters since the contraband is in liquid form. The first respondent contends, via counter-affidavit, that Indian Pharmacopoeia (IP) 1996 fixes the equivalents in liquid form: 1 gram of buprenorphine equals 3333.33 milliliters for small quantity, and 20 grams equals 66666.60 milliliters for commercial quantity. The court observes the controversy and acknowledges the necessity to fix quantities in milliliters due to the liquid form, invoking Clause 7(a) and 23(a) of Section 2 of the NDPS Act, 1987. It disposes of the petition by declaring the milliliter equivalents: 1 gram = 3333.33 ml for small quantity and 20 grams = 66666.60 ml for commercial quantity. The court’s decision relies on IP 1996 standards and directs their application for NDPS purposes, closing the petition with this declaratory relief.

Provisions of Law Cited

Narcotic Drugs and Psychotropic Substances Act, 1985/1987Section 2(c) (2©) of the NDPS ActExplanation to Section 2 of the NDPS ActProviso to Explanation in Section 2Clause 7(a) and 23(a) of Section 2 of the NDPS ActArticles 226 and 227 of the Constitution

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued there is judicial turmoil due to conflicting views on what constitutes small vs commercial quantity of Buprenorphine tidegisic under the NDPS Act. He urged that the thresholds be fixed in milliliters since the substance is in liquid form, following the approach suggested by Indian Pharmacopoeia 1996, and that the Union Government has a duty to fix small and commercial quantities by milliliters rather than weight. He relied on Kerala High Court and Supreme Court decisions (Shaji v. Kerala State; Sajan Abraham v. State of Kerala; Ouseph alias Thankachan v. State of Kerala) to press for a uniform standard.

Contentions of Respondents

The respondents contended that the Indian Pharmacopoeia 1996 provides the authorities’ conversion: 1 gram equals 3333.33 milliliters for small quantity and 20 grams equals 66666.60 milliliters for commercial quantity, when Buprenorphine is in liquid form. They argued these ip-based standards should govern the fixation of quantities, and relied on the NDPS Act provisions and the government’s power under Section 2 to fix thresholds; they stressed the need for consistent enforcement and to avoid prejudicing accused persons.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shaji v. Kerala State	2004 (3) KLT 270	Mentioned Only	Cited by petitioner as part of the discussed judgments; court notes the conflict but does not explicitly adopt or distinguish it.
Sajan Abraham v. State of Kerala	2004 (2) KLT 122 (SC)	Mentioned Only	Cited as SC decision referenced by petitioner; court does not overrule or rely on it to set the result, instead resolves via IP 1996 standards.
Ouseph alias Thankachan v. State of Kerala	2004 (4) SCC 446	Mentioned Only	Cited as a guiding Supreme Court decision; court does not explicitly overrule or distinguish it, uses IP standards to fix quantities.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 30TH JULY 2007 / 8TH SRAVANA 1929 WP(C).No. 3934 of 2005(R) ------------------------- PETITIONER: ------------ SALAM S/O. ABDUL KADER, RESIDING AT CC V/586, NEAR OUT AGENCY, MATTANCHERRY VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY SRI.ICANS C.CHAMAKKALA SRI.DHANESH MATHEW MANJOORAN SMT.AJITA PAUL RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE)NEW DELHI. 2. STATE OF KERALA REPRESENTED BY THE HOME SECRETARY, THIRUVANANTHAPURAM. (CRIME NO.227/02 OF MATTANCHERRY POLICE STATION) BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C. 3934 OF 2005 ## APPENDIX: PETIITONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER IN BAIL APPLN..NO. 6823/04 DT. 20-=12-04. EXT.P2: TRUE COPY OF THE ORDER IN CRL.M.C.1498/04 DT. 5-10-2004. TRUE COPY P.S.TO JUDGE ks. ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No. 3934 OF 2005 ----------------------------------------------DATED THIS THE 30[th] July, 2007 ## **J U D G M E N T** The accused in S.C.No.156/2004 arising from Crime No. 227/2002 of Mattancherry police station alleged to have been in possession of 1675 ampules of Buprenorphine Tidigesic and made to stand trial for an offence under Section 2© of the Narcotic Drugs & Psychotropics Act has filed this writ petition under Articles 227 and 226 of the Constitution on account of what is described as a judicial turmoil resulting from conflicting views as to what is more quantity and what is commercial quantity of Buprenorphine Tidigesic for the purpose of incrimination under the N.D.P.S.Act, 1985. The petitioner refers to the judgment of this Court in **Shaji v. Kerala State 2004 (3)K.L.T. 270** and submits that going by the above judgment, the quantity allegedly possessed by the petitioner (1675 ampules containing 2 millilitres of buprenorphine tidigesic) is much above the commercial quantity. The petitioner also refers to the judgment of the Supreme Court in **Sajan Abraham v. State of Kerala 2004(2) K.LT.122(SC)** and also the judgment of the Supreme Court in **Ouseph alias Thankachan v. State of Kerala 2004(4)SCC 446** W.P.(C)no.3934/2005 -2- and submits that going by those judgments of the Supreme Court, the quantity possessed by the petitioner will be below the commercial quantity. The punishment prescribed for possessing tidigesic below the commercial quantity is the maximum of 10 years and fine upto Rs.one lakh only whereas with a quantities above the commercial quantity the punishment can go upto 20 years and unlimited amount of fine. The petitioner contends that the judgment of the Supreme Court is binding on all courts in India and is followed by all those courts. However, the Sessions Judges and Judges of the Subordinate Judiciary in Kerala are following the judgment of the Supreme Court in 2004(3)K.L.T.270 (supra) and this situation is resulting in legal prejudice to the accused who are facing trial in the Kerala State. It is therefore necessary that the small quantity and commercial quantity of Buprenorphine tidigesic which is presently available in liquid form is fixed with reference to the proviso to Explanation in section 2 and in exercise of the powers conferred in Clause 7(a) and 23(a) of Section 2 of the N.D.P.S.Act, 1987. The petitioner contends that it is the duty of the first respondent Union Government to fix small quantity and commercial quantity not by weight but in millilitres since the contraband is in liquid form. W.P.(C)no.3934/2005 -3- 2. A detailed counter affidavit has been filed on behalf of the first respondent and in paragraph 5 thereof it is stated as follows: It is specifically submitted that “Buprenorphine” injection or “Buprenorphine” Hydrochloride injection is a sterile solution of Buprenorphine Hydrochloride in water for injection and the standards for the same are given in the Indian Pharmacopoeia, 1996. As per Indian Pharmacopoeia, 1996 small quantity and commercial quantity of Buprenorphine is fixed as follows: It is respectfully submitted that as per the Indian Pharmacopoeia standards one gram of Buprenorphine is 3333.33 millilitres when it is in liquid form for the purpose of small quantity. For the purpose of commercial quantity 20 grams of Buprenorphine is 66666.60 millilitres when it is in liquid form. |is in liquid form.|is in liquid form.||| |---|---|---|---| |Small Quantity of Buprenorphine||Commercial Buprenorphine|Quantity of| |As per Notification S.O.527(E) dated 16.7.1996 of M/O.finance, D/O.revenue|Equivalent quantity in Milliliters in its present available liquid form as per IP, 1996 standards.|As per Notification S.O.527(E) dated 16.7.1996 of M/O finance, D/O.Revenue|Equivalent quantity in Milliliters in its present available liquid form as per IP, 1996 standards.| 3. Even though Sri. M.V.Mathai Muthirenthy, learned counsel for the petitioner addressed me at length with reference to the averments W.P.(C)no.3934/2005 -4- in the writ petition and the grounds raised therein and the learned counsel drew my attention to the apparent conflict between the judgment of the Supreme Court and that of the Division Bench of this Court in view of the stand taken by the first respondent through the counter affidavit before this Court and the submissions of the learned Assistant Solicitor General Sri. Parameswaran Nair at the bar, it is not necessary that the issue is discussed and gone into by this Court elaborately. It is not in dispute that it is necessary that small quantity and commercial quantity of buprenorphine tidegisic is fixed in milliliters considering the liquid form of the substance. The Government have relied on Indian Pharmacopoeia 1996 and taken the stand that 1 gram of buprenorphine corresponds to 3333.33 milliliters and 20 grams corresponds to 66666.60 milliliters. Ultimately Mr.Mathai Muthirenthi also submitted that it will suffice, if the above stand of the first respondent taken on the basis of Indian Pharmacopoeia 1996 be given the fiat of the court . Under the above circumstances, the writ petition will stand disposed of declaring that 1 gram of buprenorphine is equivalent to 3333.33 milli liters when it is a liquid form for the purpose of small W.P.(C)no.3934/2005 -5- quantity and declaring further that for the purpose of commercial quantity of 20 grams of buprenorphine is equivalent to 66666.60. ks. **(PIUS C.KURIAKOSE, JUDGE)** W.P.(C)no.3934/2005 -6-