Punjab-Haryana High Court
Mangal Singh vs State Of Punjab on 28 August, 2007
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. The petitioner seeks regular bail pending trial in a case registered against him for the offences under Section 420 IPC, Section 22 of the NDPS Act and Section 15 of the Indian Medical Council Act, 1956 ('Act' - for short).
2. The FIR in the case has been registered on the statement of Major Singh Inspector CIA staff, Mansa. On 8.5.2007, he along with other Police officials was present at the Bus Stand Fatha Madhoka in a government vehicle. The Police officials were on duty to check suspected persons. At that time, ASI Sukhdev Singh who was also present received information that the petitioner who is running a Clinic at village Adar-Ke was proclaiming himself to be a qualified doctor. He has been representing that he can treat every disease satisfactorily. In fact he is misguiding innocent persons by giving medicines to sick patients. He injects injections on unsuspecting patients and charges substantial fee. In fact, he is not qualified to be a doctor and nor does he have any degree. He is charging double the amount by administering drugs to boys and girls in a veiled manner. He pierces the narcotic tablets and mixes Amb-churan powder with them and thereafter prepares small packets (Purrian). He sells these packets to the persons who are poppy and narcotic addicts. The information was found reliable and the petitioner was found to have committed an offence under Section 15 of the Act and Section 22 of the NDPS Act, 1985. Accordingly, a memo (Ruqa) was sent through Constable Pal Singh for registration of a FIR.
3. Learned Counsel for the petitioner submits that an inventory (Annexure P-1) regarding the case property was prepared in the presence of the Judicial Magistrate on 9.5.2007. As per the inventory report (Annexure P-1), the following items are stated to have been recovered from the petitioner on 8.5.2007:
1. Mixture of various medicines = 16 Kgs
2. Amchur powder = 72 kg
3. Analgine = 10 veils
4. Lomophin = 770 tablets
5. Emiclocx = 10 capsules
6. Calcium few more medicines
4. From the perusal of these alleged narcotics, it is submitted that only one sample from 16 kg of mixture of various medicines was taken and samples of the other recovered articles were not taken. In fact none of the recovered articles, it is submitted, are covered under the 'Schedule' as notified by the Central Govt. under the NDPS Act. Thus none of the articles fall within the purview of the NDPS Act and neither any offence can be said to have been committed by the petitioner under Section 22 of the NDPS Act. It is also submitted that the offence under Section 420 IPC is also not made out as there is no evidence in this regard. No statement of any person is there to the effect that the petitioner was proclaiming himself to be a qualified doctor. Therefore, offence under Section 15 of the Act is also not made out. The petitioner, it is submitted, is duly registered under the State Council of Ayurvedic and Unani Medicines, Bihar and certificate dated 26.3.2001 (Annexure P-2) in this regard has been issued by the Registrar of State Council of Ayurvedic and Unani Medicines, Patna. A reference has been made to another certificate (Annexure P-3) issued by the State Council of Ayurvedic and Unani Medicines, Bihar to contend that the petitioner is a qualified Vaid. Therefore, it is submitted that the petitioner is entitled to the concession of bail.
5. In response learned Counsel for the State has submitted that the contentions as raised by the learned Counsel for the petitioner would more appropriately be considered and gone into by the trial Court after evidence has been led. It is submitted that the petitioner cannot claim the concession of bail at this stage as he is involved in serious case of misrepresenting the public that he is a qualified doctor and under the NDPS Act.
6. After giving my thoughtful consideration to the contentions of the learned Counsel for the parties and perusing the record, it may be noticed that the learned Counsel for the petitioner on the basis of the recoveries effected which are mentioned above has submitted that only sample was taken only from Item No.1 of the recovered articles i.e. mixture of the various medicines which was 16 Kg of weight was taken. In terms of the Chemical Examiners Report, it is submitted that Diclofenac Sodium was detected. This, it is submitted, is not covered under the 'Schedule' and therefore from the recovered articles, an offence under Section 22 of the NDPS Act is not shown to be made out. This aspect, though, is to be considered and gone into by the trial Court after evidence has been led. However, it prima facie appears that the recovered contraband does not fall within the table specifying 'small quantity' and 'commercial quantity' of the notification issued by the Central Government in this regard. Insofar as the offence under Section 15 of the Act is concerned it may be noticed that the petitioner has placed on record certificate dated 26.3.2001 (Annexure P-2) issued by the State Council of Ayurvedic and Unani Medicines, Bihar, Patna-3, whereby the petitioner has been registered under the Bihar Development of Ayurvedic and Unani Systems of Medicine Act 1951. Another certificate (Annexure P-3) has been submitted wherein it has been certified by the State Ayurvedic and Unani Medical Council, Bihar that the petitioner under the Bihar Development of Ayurvedic and Uanani Systems of Medicine Act, 1951 has been designated as Vaid on 17.3.1994 at Patna.
7. In State of Uttaranchal v. Rajesh Kumar Gupta the accused was an Ayurvedacharya operating from two clinics. Advertisements were, allegedly, being issued by him in various newspapers claiming that medicines used by him were prepared from herbal plants collected from the banks of Ganges and by application thereof patients suffering from epilepsy can be cured. However, on the allegation that in his medicines he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, the State raided his premises and recovered the drugs. The respondent therein was arrested and charge was framed against him under Section 8 read with Section 22 of the NDPS Act besides, under the Drugs and Magic Remidies (Objectionable Advertisements) Act, 1954. An application for bail filed by him before the Special Judge was dismissed which was however allowed by the High Court. By way of SLP in the Supreme Court, the application for bail was revived and the High Court was requested to dispose of the same expeditiously. The High Court allowed the bail. It was opined that the drugs in question not being listed in Schedule-I appended to the NDPS Rules 1985, the respondent therein cannot be said to have committed any offence under Section 8 read with Section 22 of the NDPS Act. The Hon'ble Supreme Court dismissing the appeal of the State against the order of the High Court observed that it was not in dispute that the medicines seized from the clinic of the accused therein came within the purview of Schedules G and H of the Drugs and Medicines Rules. None of them finds place in Schedule-I of the NDPS Rules 1985. Therefore, the provisions of Section 8 of the NDPS Act would have no application whatsoever. It was observed that once the drugs are said to be used for medicinal purposes it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes".
8. In the present case it has not been shown that the drugs come within the purview of the provisions of the NDPS Act or the Rules framed thereunder. The salt Diclofenac Sodium that was detected in terms of the Chemical Examiners report is not shown to come within the purview of the NDPS Act or the Rules framed thereunder. Besides, the offence under Section 15 of the Act is punishable with imprisonment which may extend to one year or fine which may extend to Rs. 1000/-or with both. The petitioner was arrested on 8.5.2007 and has been in custody for three and a half months. The trial in the case is likely to take time. Therefore, no useful purpose would be served in keeping the petitioner under further imprisonment.
9. Consequently, the petitioner on his furnishing personal bond and surety to the satisfaction of learned Chief Judicial Magistrate, Mansa shall be admitted to bail.