By TIOL News Service

NEW DELHI, APRIL 12, 2017: THE petitioner challenges the inclusion of 'Ketamine' in the list of Psychotropic Substances specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 vide Notification dated 10.02.2011 of the Ministry of Finance, Government of India.

Grounds are -

+ 'Ketamine' is not a psychotropic substance under the Convention on Psychotropic Substances, 1971 whereas all other entries in the Schedule are substances included in the Convention on Psychotropic Substance, 1971. Hence, the same should not have been included in the list of psychotropic substances under the impugned Notification.

+ As per Section 3 of the NDPS Act, the Central Government is empowered to add to, by issuance of a notification in the Official Gazette, the list of psychotropic substances specified in the Schedule only on being satisfied that it is necessary or expedient so to do on the basis of –

(a) the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material; and

(b) the modifications or provisions (if any) which have been made to, or in any International Convention with respect to such substance, natural material or salt or preparation of such substance or material.

++ However, the second condition i.e. changes in the provisions of any international convention with regard to Ketamine has not been satisfied.

++ Inasmuch as the conditions set out in Clauses (a) and (b) of Section 3 of the NDPS Act are "conjunctive" and not "disjunctive"; that the impugned Notification is in the nature of a delegated legislative activity and must necessarily comply with the statutory conditions prescribed in Section 3 of the NDPS Act. In other words, Clause (a) and Clause (b) must both be satisfied before issuing a notification under Section 3.

The petition also seeks to challenge the consequential Notification dated 21.06.2011 specifying the 'small' and 'commercial' quantity of Ketamine as '10 gms' and '500 gms' respectively for the purpose of penal provisions under the Act.

By the impugned Notification dated 10.02.2011 'Ketamine' has been included in the list of psychotropic substances.

The consequential Notification dated 21.06.2011 specifies the 'small' and 'commercial' quantities of 'Ketamine' for the purpose of penal provisions under the Act.

The counsel for the Revenue inter alia submitted that the notifications are perfectly legal and emphasized that that the two clauses under Section 3 of the NDPS Act are distinctive and they merely list down the nature and source of information on the basis of which the Central Government will satisfy itself to notify a substance as 'psychotropic substance'; that the requirement under Clause (b) of Section 3 of the NDPS Act is not a mandatory conjunction to Clause (a) and the two operate in isolation and independent to each other.

The High Court extracted section 3 of the NDPS Act and the definitions of 'psychotropic substance' under Section 2(xxiii), 'commercial quantity' under Section 2(viia) and 'small quantity' under Section 2(xxiiia) and observed -

+ It is no doubt true that the phrase "and" has been employed in between Clause (a) and Clause (b) of Section 3 of the NDPS Act, however, we do not find any substance in the contention on behalf of the petitioner that both Clause (a) and Clause (b) are conjunctive. It is relevant to note that Clause (b) of Section 3 expressly provides that the modifications or provisions (if any) which have been made to any International Convention with respect to such substance, natural material or salt or preparation of such substance or material. It appears to us that the phrase "if any" employed in Section 3(b) manifests the legislative intent that the said clause is not mandatory.

+ It is the specific case of the respondent that Ketamine which is a popular anesthetic in veterinary medicine is subject to abuse and the same is gradually rising in India and that there were reports of abuse of Ketamine on a large scale in some South-East Asian countries and there had been persistent complaints from the said countries about the trafficking of Ketamine in India.

+ It is also the specific case of the respondent that prior to the issuance of the Notification dated 10.02.2011, the only control over Ketamine was through a Notification issued by the Director of Foreign Trade, as per which, prior to the export of Ketamine from India, a 'No Objection Certificate' was required from Narcotics Commissioner. Although there were several seizures of consignments of Ketamine attempted to be smuggled out of India, in order to provide more deterrent measures against trafficking of Ketamine, it was felt necessary to notify it as a psychotropic substance under the NDPS Act also.

+ In the light of the legal position noticed above read with the object sought to be achieved by the Act, … the word "and" appearing in between clause (a) and clause (b) of Section 3 of NDPS Act should be read as "or" and the two clauses need to be given a disjunctive reading so as to give effect to the intention of the legislature lest sub-section 3(a) would be rendered otiose.

+ Both Commission on Narcotic Drugs (CND) and International Narcotics Control Board (INCB) recommended to put in place appropriate control measures to address the growing problem of Ketamine abuse and diversion to illicit channel for non-medical use. We are also satisfied that there is enough material before the Respondent with regard to trafficking of Ketamine. That being the case, Section 3(a) of the NDPS Act has been satisfied and the Respondent cannot be held to have exceeded the power conferred thereunder in issuing the impugned Notification dated 10.02.2011.

+ Consequently, the challenge to the Notification dated 21.06.2011 does not survive.

The Writ Petition was held to be devoid of merits and, therefore, dismissed.

(See 2017-TIOL-703-HC-DEL-NDPS)