Introduction One of the most contentious issues in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) has been the determination of “Small” versus “Commercial” quantity. This distinction is a matter of life and liberty, as “Commercial Quantity” triggers the strict bail conditions of Section 37, often resulting in years of incarceration before trial.
For decades, defense counsels argued that only the pure drug content should be weighed. For example, if 1 kg of powder was seized but contained only 10 grams of Heroin, the defense argued this should be treated as “Small Quantity” (10g).
However, the legal landscape changed drastically with the Supreme Court’s ruling in Hira Singh v. Union of India (2020).
The “Mixture” Rule (Notification S.O. 2941(E)) The Central Government issued Notification S.O. 2941(E) dated 18.11.2009, which stated that the entire weight of the mixture (drug + neutral substance) is to be considered, not just the pure drug content.
The Hira Singh Verdict (2020) A three-judge bench of the Supreme Court in Hira Singh v. Union of India upheld the 2009 notification. The Court held:
- Total Weight Matters: If a seizure consists of a mixture of narcotic drugs and a neutral substance (like chalk powder or paracetamol), the entire weight of the mixture is relevant for determining whether it is a small or commercial quantity.
- Legislative Intent: The Court reasoned that drugs are often sold in adulterated forms (“street level” purity), and the law intends to punish the entire volume of illicit trade.
Practical Implication for Defense This ruling has made bail significantly harder.
- Scenario: A client is caught with 5 kg of white powder.
- Lab Report: The FSL report shows it contains only 0.2% Heroin (10 grams).
- Old Law: Bail would be likely, as 10g is “Small Quantity”.
- Current Law: The Court will treat this as 5 kg of Heroin (Commercial Quantity). The rigors of Section 37 apply, and bail is unlikely until the trial concludes or unless grounds under Article 21 (delay) are established.
Conclusion For legal practitioners, challenging the recovery itself (procedural lapses under Section 42, 50, or 57) has become far more critical than challenging the quantity in cases of mixtures. The weight of the mixture is now the gold standard for prosecution.