There are No Right Answers: The Supreme Court and the Purity / Mixture Debate under the NDPS Act

By Abhinav Sekhri


On April 22, 2020, a Three Justices’ Bench of the Supreme Court decided a reference made to it in Hira Singh [Crl. Appeal No. 722 of 2017, decided on 22.04.2020]. The primary issue before the Court was the correctness an earlier decision by a Two Justices’ Bench of the Supreme Court, E. Micheal Raj v. Intelligence Officer [(2008) 5 SCC 161, “E. Micheal Raj“]. There, it had been held that determining whether one was carrying “small” or “commercial” quantity of a drug depended exclusively upon the quantity of the “actual” or “pure” drug content, as opposed to the total quantity of the mixture that was seized. In Hira Singh, the Three Justices’ have unanimously held that the view taken in E. Micheal Raj was incorrect and that the determination of quantities for the purposes of the Narcotic Drugs & Psychotropic Substances Act 1985 [“NDPS”] depends upon the total quantity of the item seized.

This post explains the issues present in this debate about how to judge a “mixture” of drugs under the NDPS Act. As the title suggests, I argue that the approaches taken in E. Micheal Raj and Hira Singh are both problematic for the administration of the law, for ultimately, the problem is an arbitrariness inherent in the NDPS Act itself. Even so, I conclude by critiquing the decision in Hira Singh for its surprisingly unreasoned, uncritical, and unsympathetic acceptance of an alternative which places the lives of many persons under the sceptre of harsh mandatory sentences.   

The Quantification Approach and Effects of Punishment

The NDPS Act is one of the most stringent laws present in the statute book of India today. Birthed as a result of the “War on Drugs” that captured the international imagination during the 1980s, thanks in no small part to the U.S.A, the NDPS Act sponsored a highly punitive approach towards drug crime. The law sponsored high mandatory minimum sentences, even for possession-based crimes, took away the possibility of probation for first-time offenders, made getting bail extremely hard, and explicitly reversed the burden of proof.

As the global community reckoned with the failure of punitive approaches as a sustainable solution for drug crimes, with the heavy punishments clearly not serving as effective deterrents, the world began to tone down the harshness of these laws. The 2001 amendments to the NDPS were the result of this global trend. They brought in a new scheme for administering the law by introducing a classification of “small” and “commercial” quantities, and varying punishments on the quantity of the drugs involved (An old notification detailing such quantities is here). The amendments also recognised that a one-size-fits-all approach that merely criminalised all drug-related issues was not the answer, and brought forth a new process to recognise “Addicts” and treat them differently in the law (how successful this has been is a different issue altogether).

E. Micheal Raj and the Problems of a Purity-Based Approach  

This quantification regime was the focus of the decision in E. Micheal Raj, which involved quantities of heroin seized from an accused person. Lab testing showed that the heroin content of the mixture recovered during investigation fell in the “small quantity” category, while the weight of the entire mixture fell in the “commercial quantity” bracket. This mixture was not of two different drugs but of a drug and a neutral substance. The Supreme Court reversed the finding of the High Court, and held that the accused was only liable to be punished for holding a “small quantity” of the drug in question. This emphasis on the purity of drug content was, according to the Court, a direct consequence of the 2001 amendments and the “rationalising” of the punishment system that they sought to achieve.

The problems of such an approach which focuses on the “actual” drug content in a mixture are that it can defeat the oppressive purposes that the NDPS Act was enacted for in the first place, and which the legislature has not explicitly disavowed as yet. As the Court in Hira Singh has emphasised (more on that in the next section), an approach solely committed to identifying the actual drug content will end up being too lenient on suppliers, especially if the street practices entail that certain narcotics are only ever going to be sold as mixtures with small drug content.

Hira Singh’s return to a Total Weight Approach and its Problems

The opinion in Hira Singh suggests that there were several reasons to disagree with E. Micheal Raj — the Court disagreed with how the legislative intent was inferred and also suggested that this aspect of the opinion in E. Micheal Raj was entirely obiter and based on a misapplication of the law and facts. Having done so, the Court in Hira Singh unanimously and unequivocally rejected the actual drug content approach of E. Micheal Raj and approved of an approach that looked at the total weight of the seized items. This approach, the Court held, was in consonance with the legislative intent behind the NDPS Act.

The reason was simple: An approach focused entirely upon actual drug content did not sufficiently address local practices of how the drug trade worked. Thus, we are told not only about how some kinds of drugs are more popularly sold as mixtures, but also about how some mixtures are in fact much more harmful and addictive than the pure drug itself. The court uses the example of “smack”, a popular drug made by combining heroin with other substances such as chalk powder and zinc. An approach concerned with the actual drug content would allow for misplaced leniency in the system as the dealers of smack and other such deadly substances would not get a sufficiently stiff jail term for their conduct.

This criticism of the actual drug content approach is a fair one. But, at the same time, focusing on the total weight of a mixture brings its own problems which the Court all too conveniently ignores. This is the problem of manifest arbitrariness that, if anything, is now amplified in how the NDPS structure will operate. One side of this arbitrariness problem was aptly highlighted in Hira Singh, which I will call the problem of misplaced severity. Thus, the law now allows for the person who carries 4 grams of pure heroin to be punished for carrying a “small quantity” of narcotics, for a person carrying 249 grams of heroin to be punished in the “intermediate” category, while a person carrying a mixture weighing 251 grams, with 249 grams of neutral substance and 2 grams of heroin, will be punished for carrying a “commercial quantity” of heroin.

This problem of misplaced severity has a twin — the problem of misplaced leniency — which can be understood in the context of the American experience of punishing the trading of the drug LSD. The U.S. Supreme Court in Chapman v. United States had such an issue, where appellants were convicted and sentenced to a mandatory ten-year term for distributing LSD weighing around 1 gram. The appellants argued that they had sold blotter paper which, while weighing around 1 gram as a whole, had a much lower LSD content and would avoid the mandatory prison term. The Court held in favour of a total weight approach and upheld the mandatory sentences.

Chapman was cited approvingly by the counsel for Union of India in Hira Singh. Sadly though, what was not mentioned before the Court was the problems that Chapman created for the law (succinctly explained in this piece). The problem was simple: As a normal dose of pure LSD only weighed about 0.05 milligrams, the total weight approach of Chapman allowed a person to escape the mandatory sentence even if she engaged in thousands of trades for pure LSD. But at the same time, it gave the mandatory ten-year sentence to those who made even one trade for LSD through the medium of blotter paper. Focusing on the total weight of a mixture, then, also brought with it misplaced leniency for drug offenders.

Hira Singh — A Critique

These are serious problems and potentially invite a constitutional challenge to the sentencing regime under the NDPS Act — the kinds of issues, you would think, are what a Three Justices’ Bench of the Supreme Court ought to be addressing. It is excruciating, then, to see the Court in Hira Singh totally avoid any discussion about the arbitrariness issue and offer its uncritical affirmation to the merits of adopting a total weight approach in the NDPS Act context.

And here, perhaps a word must also be said about the unreasoned manner in which the Court reached its final destination of upholding the total weight approach. Thus, as mentioned above, the Court notes the potential deadliness of mixtures such as smack and uses this to justify a rejection of the actual drug content approach [Paragraph 8.3]. But what is the basis for these observations? No reports of any government department or any international body are cited. Surely, details of the drug trade cannot be assumed as matters of which judicial notice can be taken and thus do not require any material in support. Keen googling skills suggest that rather than government sources, the opinion has possibly relied upon a rather unaccredited source for these observations which, if true, would only serve to delegitimise the strength of these observations.

And then there is Paragraph 8.5, which justifies adopting a total weight approach by (i) referring to the problem of “drug addicts” and in the same sentence refers to the devious workings of the “mafia” internationally, and; (ii) claiming that the “use of drugs by the young people in India has increased” and that “drugs are being used for the weakening of the nation”, to finally conclude that “the guilty must be in and the innocent must be out”. It is nothing short of remarkable that while Hira Singh held the judgment in E. Micheal Raj as having wrongly read the legislative intent of the NDPS Act, it suggests drug addiction is a problem, which is a direct negation of the intent behind the 2001 amendments. If this was not enough, then a series of stereotypes and bald assertions about immorality and national strength is offered to serve as legal justifications. Thus, what are, at best, pleas by prosecutors to deny bail and, at worst, coffee-table rants by senior citizens, have been given the exalted status of legal reasons justifying why a harshly penal regime must be read in a broad, expansive, and potentially arbitrary manner.


Hira Singh has taken the law on how to assess the quantities of drugs seized in an NDPS case to the position before the intervention made in E. Micheal Raj. In no uncertain terms, the Supreme Court has held that the total value of the seized items will be considered to decide whether or not the case was one of the “small” or “commercial” quantities. But while the legal position has merely reverted to what it was a decade ago, the manner in which the Court has arrived at this conclusion is nothing short of extraordinary. The Court failed to address the one serious issue it was presented with — if the total weight approach rendered the NDPS sentencing regime arbitrary — and instead offered a litany of unreasoned assertions to justify its conclusions. After reading Hira Singh, I was left thinking that the Court appeared to have forgotten that underneath all this rhetoric of action and bluster in the context of drug laws, there are actual lives which are seriously affected by the interpretive choices that are being made. It is this lack of compassion that marked Hira Singh as a truly odious opinion.

[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]


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