Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has held that Medical Oxygen IP and Nitrous Oxide IP falls within the ambit of ‘drugs’ under Section 3(b)(i) of the the Drugs and Cosmetics Act 1940 and are consequently covered in Entry 88 of the Andhra Pradesh Value Added Tax Act 2005. It said,

“Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act.”

The Court noticed that the comprehensive nature of the definition of ‘drugs’ under Section 3(b)(i) includes both medicines and something other than medicines, but which are used for treatment. A substance may be a product, which though not specifically used as a medicine is used for diagnosis, treatment, mitigation or prevention of diseases. Where a product other than a medicine is intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder, the same would be a „substance? falling within the ambit of Section 3(b)(i).

Explaining the law on interpretation, the Court said that the words of a statute should be first understood in their natural, ordinary or popular sense and phrases and sentences should be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. It, hence, noticed,

“The ordinary or popular understanding of the term medicine is characterized by its curative properties in general and specifically, its use for or in diagnosis, treatment, mitigation or prevention of any disease or disorder.”

Medical Oxygen is used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. In order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects.

[State of Andhra Pradesh v. Linde India Ltd.,  2020 SCC OnLine SC 362, decided on 13.04.2020]

Case BriefsForeign Courts

Supreme Court of Singapore: The Bench comprising of CJ Sundaresh Menon and Judith Prakash JA and Tay Yong Kwang, JJ., allowed an appeal filed against the order of the lower court whereby the trial court had convicted the respondent for attempting to import into Singapore a Class C controlled drug and sentenced the respondent for 15 years’ imprisonment.

The main issue that arose before the Court was whether the respondent had rebutted the presumption of knowledge of the nature of the drug under Section 18(2) of the Misuse of Drugs Act.

The Court observed that as per Section 18(2) of the Misuse of Drugs Act, the person who is found in possession of a certain class of drugs is presumed to have knowledge of the nature of drugs in his/her possession and in order to rebut this presumption, the respondent must give an account of what he thought it was. The Court observed that the respondent was in possession of illegal drugs and a mere statement that he did not know about the nature of drugs in his possession or that he had never heard of diamorphine or heroin, does not automatically rebut the presumption under Section 18(2). The respondent claimed that the drugs he was carrying were not diamorphine, however, if he did not know what diamorphine was then a statement about the drugs not being diamorphine is not sufficient. It was incumbent upon the respondent to find out the nature of drugs he was carrying before importing them into the territory of Singapore.

The Court held that the respondent failed to rebut the presumption under Section 18(2) of the Act. For this simple reason, the Court allowed the appeal and convicted the respondent on the original charge of importation of diamorphine under the Misuse of Drugs Act. [Public Prosecutor v. Gobi A/L Avedian, [2018] SGCA 72, order dated 25-10-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajeev Sharma and Lok Pal Singh, JJ., was deciding a public interest litigation-writ petition that highlighted the opening of a liquor vend in the heart of Almora town near the District Hospital and Girls Inter College. The bench directed the State to curb the menace of free availability of narcotics including liquor to the youth.

The petition was filed alleging that the abovesaid liquor vend contravene the provisions of Uttar Pradesh Number and Location of Excise Shops Rules 1968, and also the instructions issued by the State Government in that matter as the said shop was established in the proximity of educational institution, which is prohibited. The High Court was of the view that such establishment should not have been permitted by the Government. Further, narcotics including liquor should not be readily available; liquor vends should be far away from educational institutions, busy hubs, commercial centers, hospitals, factories, etc.

The High Court observed that Article 47 of the Constitution, cast a duty upon the State to strive for the prohibition of consumption of liquor. It was observed that ‘drug abuse’ has broken the social fabric and destroyed many families. The Court noted that the smuggling of drugs into the State from border areas was on a rise; the police was not able to get hold of drug peddlers and especially their ‘kingpins’. The Court held that the menace of drug abuse has to be dealt with sternly. The kingpins apprehended in such cases are to be booked not only under NDPS Act but also under the Money Laundering Act which provides for prevention of money laundering and confiscation of property derived from, or involved in, money laundering and for matters connected therewith. The State was further directed inter alia to appoint more Drug Inspectors, constitute Special Operation Groups, set up check posts at Indo-Nepal Border, undertake special drives to uproot cannabis, establish Rehabilitation Center in each district, ensure that no minor is served any drug or alcoholic beverage, etc. The petition was disposed of in above terms. [Manoj Singh Pawar v. State of Uttarakhand,2018 SCC OnLine Utt 552, dated 18-6-2018]

Case BriefsHigh Courts

Patna High Court: An appeal challenging the conviction and sentence of the appellant under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985, was allowed by a Single Judge Bench comprising of Aditya Kumar Trivedi, J.

The appellant was alleged to have been caught with 30 kg of ganja. It was alleged that on receiving information as to the same, the police officials raided appellant’s shop. Though the appellant managed to escape, but 30 kg of ganja was recovered and sealed from his shop in presence of two witnesses. The appellant was charged under Section 20(c), NDPS Act. The Special Judge convicted and sentenced the appellant under the said section. Appellant challenged the decision of Special Judge.

The High Court perused the record and found that while the alleged recovery and seizure of the said contraband material, proper procedure as prescribed by the Act was not followed. Prosecution witnesses did not support the prosecution story. The delay of over six months in getting the FSL report was unexplained. The Court relied on Vijay Jain v. State of M.P., (2013) 14 SCC 527, and held that in the instant case, the prosecution was not able to connect the evidence available to the guilt of the accused. It was observed, “it is the quality and not the quantity which matters while appreciating the evidence in order to search out whether the facts in issue have been proved or not”. Further, mandatory procedures as required by the Act are to be strictly followed because the offence under Section 20(c) is technical offence prescribing stringent punishment. Having find that the investigation in the instant matter was not conducted in strict accordance with provisions of the Act, the High Court set aside the order of the Special Judge convicting and sentencing the appellant under the said section. The appeal was thus allowed. [Naresh Keshari v. State of Bihar,  2018 SCC OnLine Pat 939, dated 28-05-2018]

Case BriefsForeign Courts

Court of Appeal of Malaysia: The Bench comprising of Tengku Maimun Tuan Mat, JCA, Yaacob Haji Md Sam, JCA, Zabariah Mohd Yusof, JCA, affirmed the conviction and sentence to death in a case of possession of harmful and dangerous drugs.

In the present case, two appeals were combined on the same issue that was carrying of harmful and dangerous drugs named “Methamphetamine”. Both the convicts were convicted and sentenced to death for the offence of trafficking in dangerous drugs under Sections 39B(1)(a) and 39B(2) of the Dangerous Drugs Act 1952.

High Court’s analysis of the prosecution’s case was that the appellants were well aware of the fact of having drugs in their luggage and the reliance by the prosecution on Section 37(d) of the Act was proper. Consideration of the element of trafficking was invoked by Section 2 of the said Act. After the defence was put forward by the appellants it was found by the learned Judge that the defence was highly improbable and failed to raise any kind of reasonable doubt on the prosecution’s case, which resulted into their conviction and death sentence.

Court of Appeal did not find any appealable error on the part of the learned judge which the prosecution could establish. The important elements of the charge preferred against the appellants were:

* That the substance found were dangerous drugs as listed in the Act,

* Appellants were in possession of the said drugs,

* Appellants were trafficking in the said drugs.

Therefore, on finding no merits in the appeal filed, it was dismissed by confirming the conviction and sentence of the High Court. [Kong Rin (L) v. Public Prosecutor,2018 SCC OnLine MYCA 1, dated 08-05-2018]

Case BriefsHigh Courts

Madras High Court: While deciding upon the petition filed in public interest, praying before the Court to direct the concerned authorities to put an indelible identification mark upon the bodies of blood donors in order to curb the menace of drugs, the Division Bench of S. Nagamuthu and M.V. Muralidharan, JJ., observed that marking individuals who are donating blood, with an indelible identification mark especially in the absence of a legislation mandating the same, amounts to violation of right to privacy under Article 21 of the Constitution.

The petitioner appearing in person contended before the Court that in present times, the students are going astray. They are more into drugs and other intoxicating vices due to being misguided by unscrupulous elements of the society. The petitioner further stated that such misguided students end up becoming drug addicts and one of the sources for these students to spend money for the drugs is by way of donation of blood for which they receive money as consideration and out of the same, they purchase drugs for their consumption. The petitioner argued that putting an identification mark which would sustain for upto 3 months, upon the bodies of the donors will prevent such donors to donate blood for at least 3 months. The petitioner further prayed before the Court to direct the concerned authorities to constitute a special squad whose task will be to spread awareness amongst the youth about the harmful effects of narcotics.

Considering the plea, the Court stated that it would be a violation of fundamental right to privacy if the Court concedes to the arguments of the petitioner and directs the authorities to mark the blood donors. Therefore the Court refused to entertain this particular plea stated in the petition. However agreeing with the concerns raised by the petitioner, the Court observed that the Government sponsored sensitization events regarding the harmful effects of drugs are not enough to address the issue, and the same should be conducted with more intensity in the Colleges by involving psychologists, psychiatrists and the leading personalities of the Society. [M.Krishnaveni v. The Chief Secretary, W.P.(MD).No.1945 of 2016, decided on 02.11.2016]