JUDGMENT : Shaji P. Chaly, J. This is a public interest litigation filed by a public spirited person, who is said to be concerned by the ever increasing substance abuse in the State of Kerala, and is also an Advocate practicing in the High Court of Kerala, apart from being functional as a legal reporter of a visual media, and also served as a para-legal volunteer coordinator of Taluk Legal Service Committee, Cherthala, Alappuzha District, for the period 2009-2011. The sum and substance of the contentions advanced in the writ petition are as follows:- 2. The use of narcotics and psychotropic substances, particularly Ganja, is increasing in Kerala and the recent newspaper reports are indicating the said aspect. Petitioner has also produced Exts. P1 and P3 news reports appeared in two English dailies dated 16.07.2014 and 14.08.2014. Relying upon the said news item it is submitted that there is rampant increase in the use of Ganja particularly among school children. Added to that there is ever increasing use of liquor / alcohol which has created severe economic and social problems in the State of Kerala. According to the petitioner, the use of other drugs and intoxicating drinks are deep rooted in the society, which is causing severe problems among children and the society at large. 3. The case accordingly projected by the petitioner is that the judicially unenforceable Directive Principles of State Policy contained under Articles 36 to 51 of the Constitution of India are fundamental in the governance of our country, and it is the duty of the Central / State Governments to apply them while making the laws. It is specifically pointed out that in the present public interest litigation, petitioner is concerned more with Article 47 of the Constitution of India, dealing with duty of the State to raise the level of nutrition and the standard of living, and to improve public health, and whereby, according to the petitioner, the State shall have regard in respect of the level of nutrition and the standard of living of its people, and the improvement of public health, as among its primary duties, and in particular, the State shall endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs, which are injurious to health, except for medicinal purposes. Therefore, according to the petitioner, it is the primary duty of both the Central and State Governments to take necessary steps to bring about prohibition of the consumption of intoxicating substances including drugs and liquor. 4. It is further submitted that it was in pursuance of the said duty, the Parliament enacted the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called NDPS Act, 1985), primarily for the purpose of enacting stringent laws for curbing the use of intoxicating substances including Ganja and psychotropic substances. The sum and substance of the contention raised by the petitioner relying upon NDPS Act, 1985, is that the provisions contained thereunder is intended to strictly control the transactions of the drugs and intoxicating substances mentioned thereunder, and to provide strict punishment for using / possessing / selling them, but the Act prescribed only minor punishment for use of small quantities of such drugs or substances. 5. According to the petitioner, even though the small quantity of Ganja was defined initially as 500 grams evident from Ext. P4 notification issued by the Government of India dated 14.11.1985, later in 1996 as per Ext. P5 notification dated 16.07.1996, the small quantity was reduced to 100 grams. However in 2001, Parliament amended the NDPS Act, 1985 to rationalize the punishment regime and based on this the Union of India was permitted to notify small quantity and commercial quantity. Thereupon, the Union of India has published Ext. P6 notification dated 19.10.2001 under which the commercial quantity of Ganja was fixed at 20 kilograms and the small quantity was fixed at 1000 grams. 6. Therefore according to the petitioner, the increase in the small quantity of Ganja from 100 grams to 1000 grams has resulted in large scale trafficking of the said substance, and in the background, if a trafficker is arrested with small quantity, he will easily get bail to restart his trafficking activity. It is the case of the petitioner that consequent to the same, various agencies involved in the enforcement of the NDPS Act, 1985, had called for reducing the small quantity of Ganja to 100 grams, to which fact, petitioner relies upon Ext. P1 news item dated 16.07.2014. 7. The contention advanced by the petitioner placing reliance on Ext. P6 notification is that so far as it relates to Ganja, it is illegal and arbitrary. P1 news item dated 16.07.2014. 7. The contention advanced by the petitioner placing reliance on Ext. P6 notification is that so far as it relates to Ganja, it is illegal and arbitrary. Yet another case attempted to be developed by the petitioner is that Section 81 of the NDPS Act, 1985 permits State laws that provide greater punishment to hold the field when such laws deal with cultivation of cannabis plant or consumption of, or trafficking in, any narcotic drug or psychotropic substance. 8. Thus it is contented that if there is any law enacted by the Kerala Legislature that provides higher punishment for offences relating to Ganja and other such drugs, then the State is vested with powers to implement the law in the State enactment. Therefore in the estimation of the petitioner, the Prohibition Act, 1950 (as amended in 1960) enacted by the Kerala State Legislature, provides stricter punishment for possession / traffic / sale of small quantity of Ganja, and by virtue of Section 7 (7) of Act, 1950, intoxicating drugs includes Ganja among others, and as per Section 7 (8), liquor includes toddy, spirits of wine etc., and all liquid consisting of or containing alcohol. Section 8 thereto provides punishment for import, export, transport, possession and sale of liquor and intoxicating drugs, among other things, and it provides a maximum punishment of one year and a minimum punishment of three months for the first offence, and six months for subsequent offence. 9. Thus it is submitted that with respect to small quantities of Ganja, the Prohibition Act, 1950 provides more severe punishment than the NDPS Act, 1985, which provides only six months imprisonment for small quantities of Ganja, without any minimum punishment. Anyhow, it is the contention that the operation of the Prohibition Act, 1950, apparently enforced in the year 1960 was suspended by the State Government in 1967, by virtue of power conferred under Section 2 (1) of the Act, 1950. 10. Anyhow, it is the contention that the operation of the Prohibition Act, 1950, apparently enforced in the year 1960 was suspended by the State Government in 1967, by virtue of power conferred under Section 2 (1) of the Act, 1950. 10. Therefore the case of the petitioner is that, Section 2 of Act 1950 as it stood at the time of enforcement in the year 1960 was subject to certain riders that the draft of any such notification proposed to be issued under sub-section (1) of Section 2 or under Section 2 or Section 6 shall be laid on the table of the Legislative Assembly, and the notification shall not be issued unless the Assembly approves the draft, either with or without modification or addition, and which notification alone shall be published in the gazette, which would have effect from the date specified in the notification. 11. However in 1967, the State Government decided to suspend the operation of the Act and according to the petitioner, in order to bypass the Legislature, enacted an ordinance deleting sub-section (2) of Section 2 evident from Ext. P7, and later the Ordinance was replaced by an Act evident from Ext. P8, on and with effect from 12.07.1967. Thereafter, the State Government issued Ext. P9 notification dated 28.04.1967 under Section 2 (1) of the Prohibition Act, 1950, suspending the operation of the Act, 1950, except certain of its provisions. 12. Therefore it is argued that the State Legislature has suspended the provisions of the Prohibition Act, 1950 illegally, and several decades have elapsed, which causes serious prejudice, especially due to the fact that more severe punishment contemplated under the Act, 1950 is unable to be implemented, in view of the punishment for small quantity of Ganja at 1000 grams introduced by the Central Government in Ext. P6 notification. 13. That apart, petitioner points out the failure of different investigating agencies in conducting investigation under the NDPS Act, 1985 and further submits that the public interest is affected due to the failure on the part of the Union of India and the Department of Home, Government of Kerala in utilizing the money available under the statutory National Fund for Control of Drug Abuse. 14. In the above backdrop, the petitioner has sought to quash Ext. P6 notification issued by the Government of India increasing the small quantity of Ganja, dated 19.10.2001; to quash Ext. 14. In the above backdrop, the petitioner has sought to quash Ext. P6 notification issued by the Government of India increasing the small quantity of Ganja, dated 19.10.2001; to quash Ext. P9 notification issued by the State Government as SRO No. 104/67 dated 28.04.1967 by which the Prohibition Act, 1950 has been suspended with effect from 01.05.1967 except Section 1, 7 and 11 in all the local areas were the said provisions were in force; to issue a writ declaring that Ext. P7 Ordinance namely the Prohibition (Amendment) Ordinance, 1967 whereby sub-section (2) of Section 2 was omitted and the consequential Ext. P8 Prohibition (Amendment) Act, 1967 as unconstitutional, arbitrary and inoperative; and for a mandamus directing to properly investigate the pending and new criminal cases under the NDPS Act, 1985; and a further direction to utilize the funds available with National Fund for Control of Drug Abuse constituted under Section 7A of the NDPS Act, 1985, for the purpose of educating the public, particularly students, against drug abuse; and finally for a direction to the Kerala Legal Services Authority (KeLSA) to formulate a Scheme for undertaking preventive and strategic legal aid programmes for spreading legal education among the public, particularly students, against drug abuse. 15. The Union of India, the 1st respondent, has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner, especially in regard to relief nos. 1 and 5 sought against the Union of India, i. e. for quashing Ext. P6 notification and in regard to the utilization of the funds in contemplation of Section 7A of the NDPS Act, 1985. 16. According to the Union of India, the NDPS Act, 1985, provides for a rational basis for sentences, the magnitude of which varies in respect of drugs of small quantity, quantities in excess of 'small' and less than commercial quantity and commercial quantity. Therefore the contention advanced is that when the Act was amended in 2001 to rationalize the sentence structure, the Union Government was given the power to notify the small and commercial quantities and psychotropic substances, and therefore according to the 1st respondent, it was by virtue of the powers conferred under law, Ext. Therefore the contention advanced is that when the Act was amended in 2001 to rationalize the sentence structure, the Union Government was given the power to notify the small and commercial quantities and psychotropic substances, and therefore according to the 1st respondent, it was by virtue of the powers conferred under law, Ext. P6 notification was issued, and viewed in that manner, the contention of the petitioner that the notification of small quantity and commercial quantity can be done, only after compliance with the provisions of Sections 3 and 6 of the NDPS Act, 1985, is not correct. 17. It is the further argument advanced by the 1st respondent that Section 3 of the Act empowers the Union Government to add to or omit from the list any psychotropic substances specified in the schedule. That apart, Section 6 of the Act provides for the constitution of an advisory committee to be called the Narcotic Drugs and Psychotropic Substances Consultative Committee to advise the Union Government in regard to the administration of the Act as referred to by the Government. But at the same time, the constitution of such a committee, nor consultation with the committee for notifying small quantities is mandatory. Therefore, it is argued that Section 3 and 6 of the NDPS Act, 1985 have no relation with the notification of small quantity and commercial quantity of the narcotic drugs and psychotropic substances. Accordingly the Union of India was at liberty to notify small quantity and commercial quantity of the drugs and substances under Section 2 (viia) and 2 (xxiiia) of the Act, 1985. 18. So far as concerning the utilization of funds under Section 7A of the NDPS Act, 1985, it is contended that the Central Government, as per notification dated 29.05.1989, has constituted the National Fund for Control of Drug Abuse, and later the Narcotic Drugs and Psychotropic Substances (National Fund for Control of Drug Abuse) Rules, 2006 were notified on 24.03.2006 evident from Ext. R1(a), which contain the broad parameters of funding, scope, procedure, evaluation and monitoring mechanism for managing the fund. That apart, in order to carry out the activities of the fund, Ext. R1(b) guidelines are also issued, and according to the 1st respondent, applications are received from eligible organizations, and funds are released on the basis of merit of the applicants. R1(a), which contain the broad parameters of funding, scope, procedure, evaluation and monitoring mechanism for managing the fund. That apart, in order to carry out the activities of the fund, Ext. R1(b) guidelines are also issued, and according to the 1st respondent, applications are received from eligible organizations, and funds are released on the basis of merit of the applicants. An additional statement is also filed by the Union of India along with certain additional documents so as to justify the contentions advanced. 19. The State Government has also filed a detailed counter affidavit basically contending that by virtue of the introduction of NDPS Act, 1985, Article 47 of the Constitution of India is truly translated in its letter and spirit, and which takes care of the required prohibitions of all the drugs and substances, which are injurious to the health of the public. It is also pointed out that there is clear rationale behind the introduction of Ext. P6 notification and the courts have criticized the harsh and disproportionate sentencing structure. It is also pointed out that the State Government was vested with ample powers by the State Legislature to delete sub-section (2) of Section 2 of the Prohibition Act, 1950 as amended by Act 1967, and it was by virtue of the conferment of the power by the Legislature, the Government has issued Ext. P9 notification suspending the provisions of the Act, 1950, and therefore, the contentions advanced contrary to the powers enjoyed by the State Government in the writ petition cannot be sustained under law. 20. Furthermore, it was argued that so far as the State of Kerala is concerned, the Abkari Act 1 of 1077 takes care of regulating and controlling the liquor and other intoxicating drugs specified therein, which is a pre-constitutional law, and by virtue of Section 81 of the NDPS Act, 1985, the exercise of the power under the Abkari Act is recognized. It is also contended that the State Excise Department is always in the forefront in implementing the provisions of any scheme launched by the Central and the State Governments, as per the provisions of the respective Acts, and basically implemented the awareness programmes right from the grass root level of the society, using Kudumbasree, National Service Scheme, Student Police Cadets and resident associations. Further, Excise Department had also taken initiative to include topics depicting the harmful effect of liquor and drugs in school curriculum. 21. So also it is significantly submitted that the Prohibition Act, 1950 did not achieve the intended goal, and it was accordingly that the State Government suspended its operations, and thereby reviving the provisions of the then prevailing Abkari Acts, namely the Travancore Abkari Act IV of 1073 for the State of Travancore, the Cochin Abkari Act 1 of 1077 for the State of Cochin and the Madras Abkari Act 1 of 1886 for the Malabar Area. It was unifying the aforesaid acts the Abkari Act was renamed as Act 1 of 1077. Therefore, according to the State Government, the provisions of the Abkari Act are more severe than the NDPS Act, 1985 and the Prohibition Act, 1950. It was also submitted that a similar relief was sought for in O. P. No. 27767 of 2007 in regard to Ext. P9 notification under the Prohibition Act, 1950 which was dismissed by a Division Bench of this Court on 01.04.2008, and therefore, it was submitted that the issue now raised is hit by the principles of res judicata. 22. We have heard Sri. P. B. Ajoy for the petitioner, Sri. Jagadeesh Laxman, learned Central Government Counsel for the Union of India and Sri. Surin George Ipe, learned Senior Government Pleader for the State Government and perused the pleadings and material on record. 23. The counsel have addressed their arguments based on their respective pleadings deliberated above. The basic question comes up for consideration in regard to Ext. P6 notification issued by the Government of India, is by virtue of the powers conferred under Section 2 (viia) and (xxiiia) of the NDPS Act, 1985, by which on and with effect from 09.10.2001, the small quantity of Ganja is enhanced to 1000 grams from 100 grams, and the commercial quantity is increased to 20 kilograms. In order to identify the situation it is better to consider the objects and reasons of the Act, 1985. In fact the statutory control over narcotic drugs is exercised in India through a number of Central and State enactments such as the Opium Act, 1857, the Opium Act, 1878 and the Dangerous and Drugs Act, 1930. In order to identify the situation it is better to consider the objects and reasons of the Act, 1985. In fact the statutory control over narcotic drugs is exercised in India through a number of Central and State enactments such as the Opium Act, 1857, the Opium Act, 1878 and the Dangerous and Drugs Act, 1930. However, with the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have to come to notice which are as follows:- “(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well organized gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of 3 years with or without fine and 4 years imprisonment with or without fine for repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighboring countries and destined mainly to Western countries. (ii) The existing Central laws do not provide for investing the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc., with the power of investigation of offences under the said laws. (iii) Since the enactment of the aforesaid three Central Acts a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by the present Acts. (iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded. (viia) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. (viia) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. (xxiii) “Psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. (xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.” 24. Accordingly the Union of India felt that there is an urgent need for the enactment of a comprehensive Legislation on narcotic drugs and psychotropic substances, which inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drug abuse, considerably enhance the penalties, particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances, and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party. 25. Therefore, on a deeper analysis of the objects and reasons of introduction of the NDPS Act, 1985, it is clear that the Government felt that unless and until a comprehensive legislation was brought into force, it could have national and international ramifications in regard to trafficking and abuse of drugs. Therefore, it was on the basis of a public policy, the Government has introduced the Act, 1985. Ext. P6 notification as is pointed out above was issued by the Union Government by virtue of the powers conferred under section 2 (viia), defining the commercial quantity in relation to the narcotic drugs and psychotropic substances, to mean the quantity specified by the Central Government by notification in the official gazette. Likewise, 2 (xxiiia) defines a small quantity in relation to narcotic drugs and psychotropic substances, to mean the quantity specified by the Central Government by notification in the gazette. 26. Some of the relevant provisions of Act 1985, for effective discussion are as follows:- 7. Officers of State Government.—(1) The State Government may appoint such officers with such designations as it thinks fit for the purposes of this Act. 26. Some of the relevant provisions of Act 1985, for effective discussion are as follows:- 7. Officers of State Government.—(1) The State Government may appoint such officers with such designations as it thinks fit for the purposes of this Act. (2) The officers appointed under sub-section (1) shall be subject to the general control and direction of the State Government, or, if so directed by that Government also of any other authority or officer. 8. Prohibition of certain operations.—No person shall— (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes. 20. 20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,— (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),— (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 22. 22. Punishment for contravention in relation to psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 27. Punishment for consumption of any narcotic drug or psychotropic substance.—Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,— (a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and (b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. 77. Rules and notifications to be laid before Parliament. 77. Rules and notifications to be laid before Parliament. —Every rule made under this Act by the Central Government and every notification or order issued under clause (viia), clause (xi), clause (xxiiia) of section 2, section 3, section 7A, section 9A and clause (a) of section 27 shall be laid, as soon as may be, after it is made or issued, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification. 78. Power of State Government to make rules.— (1) Subject to the other provisions of this Act, the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the conditions and the manner in which narcotic drugs and psychotropic substances shall be supplied for medical necessity to the addicts registered with the State Government and others under sub-section (1) of section 71; (b) the establishment, appointment, maintenance, management, superintendence of centres established under sub-section (1) of section 71 and appointment, training, powers and duties of persons employed in such centres; (c) any other matter which is to be, or may be, prescribed. (3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State. 80. Application of the Drugs and Cosmetics Act, 1940 not barred.—The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.” 27. 80. Application of the Drugs and Cosmetics Act, 1940 not barred.—The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.” 27. Therefore it was by virtue of the absolute powers conferred on the Central Government by the Parliament the notification was issued enhancing the small quantity of Ganja to 1000 grams and the commercial quantity to 20 kilograms. The provisions of law so empowering the Central Government to issue successive notifications is not under challenge. 28. The sole contention advanced is that the Government of India was duty bound to consult the committee constituted under Section 6 of the NDPS Act, 1985, before issuing Ext. P6 notification. However, on a reading of Section 6 of Act, 1985, it is clear that the constitution of a committee is the absolute discretion of the Central Government since the phraseology employed is 'may', which is a clear indicator to show that it is not at a mandatory requirement, and apart from the same, the constitution of the committee is for the purpose of advising the Central Government on such matters relating to the administration of the Act, 1985, as are referred by the Central Government from time to time and the petitioner has no case that the subject matter in question is referred by the Central Government. 29. Looking from that angle, it is quite clear and evident that the contention advanced by the petitioner that no consultative process was undertaken before issuance of Ext. P6 notification, has no force of law, and the contentions advanced are contrary to law made by the Parliament in that regard. 30. 29. Looking from that angle, it is quite clear and evident that the contention advanced by the petitioner that no consultative process was undertaken before issuance of Ext. P6 notification, has no force of law, and the contentions advanced are contrary to law made by the Parliament in that regard. 30. Yet another contention advanced is relying upon Section 3 of Act, 1985, which deals with power to add to or omit from the list of psychotropic substances, which delineates that if the Central Government is satisfied that it is necessary or expedient to add or omit any of the psychotropic substances to / from the list on any 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 the modifications or provisions (if any), which have been made to, or in any international convention, with respect to such substance etc., it may by notification in the official gazette add to, or as the case may be, omit from the list of psychotropic substances specified in the schedule such substance etc. 31. On a bare reading of the said provision, we have no doubt in our mind that the provisions of Section 3 is intended for a different purpose and it is detached from the power conferred on the Central Government under Section 2 (viia) and (xxiiia) of Act, 1985. We have also made a conjoint reading of the provisions of Section 2 and Section 3 and we are of the view that there are no indicators under the said provisions to think that both are mutually or interdependent thus persuading the Government of India to resort to Section 3, before any notification is issued, increasing the commercial quantity and small quantity of Ganja. 32. Viewed in that background, the challenge made by the petitioner to Ext. P6 notification issued by the Central Government, has no legal basis, and the grounds raised by the petitioner attacking the notification are against the clear provisions of law. 32. Viewed in that background, the challenge made by the petitioner to Ext. P6 notification issued by the Central Government, has no legal basis, and the grounds raised by the petitioner attacking the notification are against the clear provisions of law. Above all, as we have pointed out above, the notification issued by the Government is a policy decision on the basis of material facts and circumstances that would have been available before it, in respect of the prosecution, conviction and sentence, and therefore, this court is not expected to sit over the wisdom enjoyed by the Government, by virtue of the powers conferred on it by the Parliament, to overturn the decision so taken and arrive at a different conclusion. 33. Moreover, the petitioner has not made any efforts to produce sufficient materials in the public interest litigation, enabling this Court to accentuate its thought perceptions to find out as to whether the Central Government has issued Ext. P6 notification without any reasons. Therefore, the Government having exercised the power conferred on it under law, we can only visualize and presume the official Act was exercised in accordance with law. 34. Now coming to the sentencing part under the NDPS Act, 1985, it may be true that the punishment may be lesser than the provisions of the prohibition Act, 1950, since it prescribes a minimum punishment of one year, whereas under the NDPS Act, 1985, it prescribes only a punishment of maximum six months, without any minimum limit. But fact remains the State Government found that the continuance of the implementation of the Prohibition Act, 1950 was not feasible, and it was accordingly that in the year 1967, it has issued Ext. P9 notification suspending the provisions of the Act, 1950. 35. According to us, the decisions taken by the State Government in the year 1967 was also a policy decision, may be taking into account various attendant facts and circumstances persuading the State Government to do so, and unless and until the petitioner made efforts to disprove the materials before the Government thus enabled it to do so, the court is not expected to sit over the power exercised by the State Government by virtue of the provisions of the Act enacted by the State Legislature. 36. 36. It may be true that the Act as it originally stood intended that the power of the Government to issue any notification was with a rider to place the draft before State Legislature, secures its approval, and then publish the notification, however, at a later point of time, the State Legislature itself thought fit to confer power on the Government to issue any notification, without placing the draft before the State Legislature. 37. But the prohibition was being continued for the past more than 53 years and we do not think the petitioner has challenged the authority exercised by the State Legislature, empowering the State Government to issue the notification, without a draft notification placed before the State Legislature. Which thus means the State Government has issued Ext. P9 notification, by virtue of the clear powers conferred on it under the Act, 1950, as amended from time to time. 38. Apart from the same, it is clear from the provisions of the NDPS Act, 1985 that a clear power is vested with the Central Government alone to issue the notifications, in regard to the small quantity and commercial quantity of the drugs and substances, and the punishment to impose thereupon, by virtue of the powers conferred under Act, 1985. It is true Section 81 of NDPS Act, 1985 deals with saving of State and special laws, and it specifies that nothing in the Act, 1985, or in the Rules made thereunder, shall affect the validity of any provisional Act or an Act of any State Legislature, for the time being in force, or of any Rule made thereunder, which imposes any restriction or provides for a punishment, not imposed by or provided for under the Act, 1985, or imposes a restriction, or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under the Act, 1985, for the cultivation of cannabis plant, or consumption of or traffic in, any narcotic drug or psychotropic substance within India. 39. In order to understand the true import of the Prohibition Act, 1950, we have gone through the said Act extensively. Section 8 of the said Act deals with prohibition of the manufacture or traffic in, and consumption of liquours, and intoxicating drugs which reads thus: “8. 39. In order to understand the true import of the Prohibition Act, 1950, we have gone through the said Act extensively. Section 8 of the said Act deals with prohibition of the manufacture or traffic in, and consumption of liquours, and intoxicating drugs which reads thus: “8. Prohibition of the manufacture or traffic in, and consumption of, liquors, and intoxicating drugs-(1) Whoever- (a) imports, exports, transports or possesses liquor or any intoxicating drug: or (b) manufactures liquor or any intoxicating drug, or (c) except in accordance with the rules made by State Government in that behalf, cultivates the hemp plant (Cannabis Sativa); or collects any portion of such plant from which an intoxicating drug can be manufactured; or (d) taps any toddy producing tree or permits or suffers to be tapped any toddy-producing tree belonging to him or in his possession; or (e) draws toddy from any tree or permits or suffers toddy to be drawn from any tree belonging to him or in his possession; or (f) constructs or works any distillery or brewery; or (g) uses keeps or has in his possession any materials, still utensil, implement or apparatus whatsoever for the tapping of toddy in the manufacture of liquor or any intoxicating drug; or (h) bottles any liquor for purposes of sale; or (i) sells liquor or any intoxicating drug; or (j) consumes or buys liquor or any intoxicating drug; or (k) allows any of the acts aforesaid upon premises in his immediate possession, shall be punished- (i) in the case of an offence falling under clause (f) or an offence falling under clause (k) in so far as it relates to an act specified in the clause aforesaid with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court- (A) such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees for a first offence; (B) such imprisonment shall be rigorous and shall not be less than one year and such fine shall not be less than two thousand rupees for a second and subsequent offences; (ii) in the case of an offence falling under clause (b), clause (h) or clause (i) or an offence falling under clause (k) in so far as it relates to an act specified in any of the clauses aforesaid, with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court- (A) such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for a first offence; (B) such imprisonment shall be rigorous and shall not be less than one year and such line shall not be less than two thousand rupees for a second and subsequent offences; (iii) in any other case, with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court- (A) such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for a first offence (B) such imprisonment shall be rigorous and shall not be less than six months and such fine shall not be less than one thousand rupees for a second and subsequent offences; Provided that nothing contained in this sub-section shall apply- (i) to any act done under and in accordance with, this provisions of the Act or the terms of any rules, notification, order, licence or permit issued thereunder, or (ii) to the possession, sale, purchase, use or consumption of duty-paid medicinal or toilet preparations for bonafide medicinal or toilet purposes. (2) it shall be presumed until the contrary is shown (a) that a person accused of any offence under clauses (a) to (j) of sub section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug for the possession of which he is unable to account satisfactorily; and (b) that a person accused of any offence under clause (k) of sub-section (1) has committed such offence if an offence is proved to have been committed in premises in his immediate possession in respect of any, liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug: Provided that mere possession of an implement that may be used for tapping will not give rise to the presumption under this sub-section in respect of an area where tapping of sweet toddy may by notification be permitted.” 40. Relying upon Section 8 (1) (i) and (ii), learned counsel has submitted that a minimum sentence of six months, one year and three months and one year respectively are prescribed, depending upon the gravity of the offence, whereas under the NDPS Act, 1985, there is no minimum sentence prescribed, and therefore, in absentia of Ext. P9 notification, punishment would have been imposed under the Act, 1950 by the State Government, so as to curb the menace of the drug abuse within the State of Kerala. 41. But fact remains in our considered opinion Section 81 of NDPS Act, 1985 cannot be relied upon at all for the reason that under the Prohibition Act, 1950, the small quantity, commercial quantity etc. are not prescribed, so as to enable the State Government to impose the punishment by virtue of Section 81 of the NDPS Act, 1985. Which thus means the Prohibition Act, 1950 can never be said as a comprehensive legislation to replace the provisions of the NDPS Act, 1985. are not prescribed, so as to enable the State Government to impose the punishment by virtue of Section 81 of the NDPS Act, 1985. Which thus means the Prohibition Act, 1950 can never be said as a comprehensive legislation to replace the provisions of the NDPS Act, 1985. Moreover, the power is conferred under the NDPS Act, 1985, only with the Central Government to issue notification in regard to the small quantity and commercial quantity, enabling the sentencing courts to impose punishment accordingly. 42. That apart, Section 78 of NDPS Act, 1985 provides power to State Government to make rules by issuing notification in the official gazette for carrying out the purpose of the Act, however, the said power is subject to the other provisions of the Act, 1985. Therefore at no stretch of imagination, it can be presumed that the State Government is vested with powers to issue notifications overlooking the powers conferred on the State Government. 43. Apart from the same, Article 254 of the Constitution of India mandates a procedure to deal with inconsistency between laws made by Parliament and laws made by Legislature of States, which clearly specifies that if any provision of a law made by the legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of clause 2 thereunder, the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy be void. 44. 44. However, clause (2) thereto makes it clear that where a law made by a Legislature of a State, with respect to one of the matters enumerated in the concurrent list, contains any provision repugnant to the provisions of an earlier law made by Parliament, or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State; but at the same time, nothing in clause (2) shall prevent the Parliament from enacting at any time, any law with respect to the same matter, including a law adding to, amending, varying, or repelling the law so made by the Legislature of the State by virtue of the proviso to clause (2) of Article 254. 45. It is true intoxicating liquours, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquours, is the absolute domain of the State Government by virtue of entry 8 of list II of Schedule 7 of the Constitution of India. But entry 19 of list III – concurrent list the drugs and poisons subject to the provisions of entry 59 of list 1 with respect to opium both the Central and State Government have powers. However, since the power is exercised by the Central Government by making the NDPS Act, 1985, and if at all it is presumed that the provisions of Prohibition Act, 1950 can be made applicable, it can never be legally presumed that it has overriding effect over the Central laws i.e. the NDPS Act, 1985. 46. Above all these aspects the Abkari Act 1077 is in force which deals with intoxicating liquour and intoxicating drugs within the State of Kerala by which powers are conferred on the State Government to control and regulate the manufacture, possession, sale, licensing etc. of the intoxicating liquour and intoxicating drugs. It also enables provisions for imposing penalties and therefore even if the provisions of Prohibition Act, 1950 is suspended as per Ext. P9 notification, there is enabling power on the State Government to impose punishment in contemplation of the provisions of the Abkari Act 1077 read with Section 81 of the NDPS Act, 1985. 47. It also enables provisions for imposing penalties and therefore even if the provisions of Prohibition Act, 1950 is suspended as per Ext. P9 notification, there is enabling power on the State Government to impose punishment in contemplation of the provisions of the Abkari Act 1077 read with Section 81 of the NDPS Act, 1985. 47. Considering the fact circumstances and law as deduced above we have no hesitation to hold that petitioner has not made out any case to interfere with Ext. P6 notification dated 19.10.2001 issued by the Central Government as per the powers conferred under NDPS Act, 1985 and Ext. P9 notification dated 28.04.1967 issued by the State Government by virtue of the powers conferred under the Prohibition Act, 1950. 48. Over and above the above facts and circumstances, the issue raised by the petitioner with respect to the suspension of Prohibition Act, 1950 was considered by a Division Bench of this Court in OP No. 27767 of 2000 and rendered a judgment dated 01.04.2008, taking into account Article 47 of the Constitution of India, and held that the decision so taken to suspend the provisions of Act, 1950, is a policy decision taken by the State Government based on the fact that a major contribution of the State revenue is from taxes, duties and liquour and therefore the consideration of the issue was outside the scope and jurisdiction of a writ court. Even though the said judgment is short and crisp, we are of the view that it was based on a typical issue raised by the petitioner in the instant writ petition, relying upon Article 47 that the decision was rendered and therefore the issues raised by the petitioner in that regard is hit by the principles of constructive res judicata, which is by now trite and settled that applies to a proceedings under Article 226 of the Constitution of India. 49. Needless to say the principles of res judicata is based on public policy to provide quietus to litigation for once and all. It may be true both are public interest litigation filed by two different persons, however, the issue was ultimately settled by a Division Bench of this Court which is not expected to be reopened successively when similar writ petitions are filed at a later point of time. It may be true both are public interest litigation filed by two different persons, however, the issue was ultimately settled by a Division Bench of this Court which is not expected to be reopened successively when similar writ petitions are filed at a later point of time. It is well settled that if such a course is not adopted, the principles of res judiciata / constructive res judiciata emphasized under Section 11 of the Code of Civil Procedure would become meaningless and otiose, and resultantly there would be successive litigation which would be detrimental to the public policy of the Government of India. 50. Accordingly, the reliefs sought for in that regard are declined. It is also clear from the pleadings put forth and the documents produced by the Government of India that it has taken effective steps for the purpose of Section 7A of the NDPS Act, 1985 in regard to the National Fund for Control of Drug Abuse by virtue of the rules and the guidelines constituted for the purpose. 51. Therefore, we do not think any specific direction is required in that regard, other than emphasizing that the utilization of the fund shall made more effective to translate the provisions of the NDPS Act, 1985, in its true letter and spirit. We are also satisfied that the State Government has taken adequate steps to sensitize the students and the society with regard to the menace of the intoxicating liquour and drugs through its nodal agencies and therefore we are inclined only to observe that the State Government shall continue to take effective steps in order to ensure conduct of sufficient awareness programme in that regard. Upshot of the above discussion is that the writ petition is dismissed, however subject to the observations made above.