Gujarat High Court
Samirpuri Prakashpuri Goswami vs State Of Gujarat on 26 March, 2024
NEUTRAL CITATION
R/CR.MA/4778/2024 ORDER DATED: 26/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
4778 of 2024
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SAMIRPURI PRAKASHPURI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
MR HK PATEL, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/03/2024
ORAL ORDER
1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11208003230258 of 2023 registered with Gandhigram-2 (University) Police Station, Rajkot City.
2. The short facts leading to filing of the present application are as under.
2.1 The petitioner is engaged in the business of selling scheduled drugs through valid licence from 16.12.2021 to 15.12.2026 in the name of Alpha Matrix, which is in the name of wife of the petitioner. It is the case of the petitioner that acting on secret information, the complainant along with other police officials and panchas went to Sheri No.7, Nr.Krishna Bungalow, Rajkot and it was found that accused No.1 was having 13,338 Page 1 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined bottles of cough syrup 100 ml and the said bottles were supplied by accused No.2 and therefore, the FIR came to be filed. The name of the petitioner has been arraigned on the basis of statement of co-accused. Hence, the present bail application.
3. Heard learned advocate Mr.R.J.Goswami appearing for the petitioner and learned APP appearing for the respondent State.
4. Learned advocate Mr.R.J.Goswami would submit that petitioner's wife namley Apekshaben Ashwingiri Goswami is proprietor of Alpha Matrix and she has licence to sell, stock and exhibit or offer for sale or distribute by selling drug other than those specified in Schedule C, C1 and X on the premises of Shop No.116, Koppe Arcade, Mavdi Main Road, Rajkot. He would further submit that in such way wife of the petitioner is authorized to stock cough syrup including cough syrup containing the Codeine Phosphate Syrup. He would further submit that the petitioner is falsely involved in the offence. He would further submit that the premises of the petitioner is also falsely raided to find the quantity of Codeine syrup. Learned advocate Mr.Goswami submits that keeping a Codeine syrup or selling the same since is not offence under NDPS Act. He would further submit that the petitioner is falsely involved in the offence. He has placed reliance upon the judgment of the Allahabad High Court in case of Vibhor Rana vs. Union of India
- 2021 SCC Online Allahabad 908 to contend that the Hon'ble Allahabad High Court has thoroughly examined the issue that whether codeine phosphate contained article could be said to be contraband drug within meaning of NDPS Act while quashing the offence against the accused. He referred to paragraph 21 to Page 2 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined contend that since the Methyl Morphine (commonly known as "Codeine"), Ethyl morphine and their salts are not falling within the definition of manufactured drug as stated in the NDPS Act in view of the notification issued by the Government of India dated 14.11.1985 having No.826 (E) and S.O. 40(E) dated 29.01.1993.
5. Learned advocate Mr.R.J.Goswami would further submit that in March, 2009 the Drug Controller General (India) has issued a letter to Associated Chambers of Commerce and Industry of India in response to request for clarification of drug substance Cough Linctus containing Codeine phosphate stating that:-
""In this connection this Directorate had already issued a circular letter vide our letter number X-11029/27/05-D dated 26/10/2005 to all State Drugs Controllers with a copy to various associations and a copy Narcotic Control Bureau New Delhi (copy enclosed). The above circular inter alia stated that these preparations (Cough Linctus containing Codeine Phosphate) contains among other drugs Codeine Phosphate 10 mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and its salts they do not fall under the provisions of NDPS Act and the Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetic Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985, however these formulations are prescriptions drugs and are to be dispensed on the prescriptions of a registered Medical Practioner only.
Further you may be aware that under notification number S.O.826 (E) dated 14the November, 1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no. 35 it is stated that Codeine and Ethyl Morphine and their salts including Dionine all Page 3 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 miligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice. "
6. Therefore, in view of the above, he submits that the Codeine Phosphate syrup found from the place belongs to wife of the petitioner would not count as offence under the provisions of the NDPS Act and in that result since no offence under NDPS ACT is made out, which means that offence under other Act alleged to have remained against the accused, therefore, accused should be enlarged on anticipatory bail. In addition thereto, it is submitted that petitioner/accused has no criminal history. He is permanent resident of Rajkot city as such has no flight risk. Petitioner is ready to cooperate in investigation of the offence.
6.1 Upon above submissions, he would submit to allow this petition and enlarge the petitioner on anticipatory bail.
7. On the other hand, learned APP vehemently objected to grant of the anticipatory bail on the ground that the accused is absconding. The investigation against other accused is completed and charge-sheet is filed against them before the concerned Court. In the charge-sheet, the accused is shown in column No.2 as absconding accused. Therefore, he submits that the person who is absconding should not be given the anticipatory bail. Secondly, referring to FSL report, it is submitted that the Codeine substance in tune of 9.57 ml in 5ml has been found and in view of that finding FSL has declared that the substance which was found from the cough syrup fell within Page 4 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined the NDPS Act and therefore, at this juncture, the Court should not examine any other aspect. The report of the FSL is admissible under Section 293 of the Cr.P.C. Therefore, prima facie case is made out against the accused involved in activity of keeping and selling the NDPS drugs and therefore, he should not be given anticipatory bail.
7.1 Upon above submissions, learned APP for the State submitted to dismiss this bail application.
8. Having heard learned advocates for both the sides, at the outset, it is to be noted that the allegations of offence under Section 8(c), 21(c) and 29 of the NDPS Act is made against the accused. It is the case of the accused that Codeine Syrup and salts therein does not contain any narcotic drug or manufactured drug or could not be treated as opium derivative. Reference has been made to various notifications made by the Government referred to by the Allahabad High Court in Vibhor Rana (supra) to contend that no offence under NDPS Act is made out. It is to be recollect that this is a bail stage. In view of the notification dated 14.11.1985 being No.826(E) Methyl Morphine (commonly known as Codeine) and Ethyl Morphine and their salts including Dionine, all dilution and preparation except those which are compounded with one or more other ingredients and containing not more than 100 mg of the drug per dosage unit and with the concentration of not more than 2.5% in undivided preparation and which have been established in therapeutic practice, are narcotic substance. Simplifying the aforesaid notification, the Allahabad High Court in paragraph 23 Page 5 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined of the Vibhor Rana (supra) observed following :
"23. Thus, as per the aforesaid Notification, if any drug contains not more than 100 milligrams of Methyl Morphine, which is commonly known as Codeine, per dosage unit, and in that drug Codeine is compounded with one or more other ingredients and if in the drug the concentration of Codeine is not more than 2.5% in undivided preparations and the drug has been established in Therapeutic practice, will not be a "Manufactured Drug" and, therefore, it will not be a "Narcotic Drug".
9. Corresponding to that aspect if we go through the FSL report forming part of the charge-sheet paper, it has given the following opinion :-
"1. On the basis of chemical and mechanical analysis, in the liquid samples at Mark-A-2 to Mark-D-2, presence of Codeine is found, which is included in the NDPS Act.
2. In the sample at Mark-A-2, the proportion of Codeine is found as 9.57 ml / 5ml.
3. In the sample at Mark-B-2, the proportion of Codeine is found as 9.57 ml / 5ml.
4. In the sample at Mark-C-2, the proportion of Codeine is found as 9.72 ml / 5ml.
5. In the sample at Mark-D-2, the proportion of Codeine is found as 9.58 ml / 5ml."
10. The FSL has given the specific finding of existence of NDPS drug contained in the Codeine cough syrup.
11. Undeniably the accused is involved in purchasing and selling etc. of the narcotic drug. The licence to keep the drug is in the name of the Apeksha Ashwingiri Goswami. The petitioner is Samirpuri Prakashpuri Goswami. The investigation indicates that the present petitioner is involved in commission of the offence. The rigors of the Section 37 of NDPS Act attracts in the Page 6 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined case. The burden is lying with the accused to show that he is innocent. The contours of Section 37 of NDPS Act has been examined by Hon'ble Apex Court in context of scope and object of the NDPS Act in case of Union of India vs. Ram Samujh - (1999) 9 SCC 429. It is observed therein that :
"6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."(emphasis supplied)
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. ***"
12. I may also refer to observations made by Hon'ble Supreme Court in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under:
Page 7 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Page 10 of 16 Downloaded on : Thu Mar 28 11:09:19 IST 2024 R/CR.MA/20310/2023 CAV JUDGMENT DATED: 01/03/2024 Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."
13. It is to be noted that in view of the judgment of the Supreme Court in Hira Singh vs. Union of India - AIR 2020 SC 3255, the purity of the narcotic drugs and psychotropic substance should not be considered at this juncture. At the time of deciding the bail application, the Court should not venture into deciding the merits and demerits of the case by appreciating the evidence on record but prima facie perusing the FSL report indicates that Codeine syrup which was seized from the possession of the petitioner contains narcotic drugs and substance. as no case is made out to grant anticipatory bail.
14. Keeping in mind the law laid down by the Hon'ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 (iii) P. Page 8 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail Page 9 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
15. One more aspect to be noted that in the present case charge-sheet is filed against other accused. The present petitioner is shown as absconding accused in column No.2 of the said charge-sheet. Meaning thereby the petitioner is not cooperating the investigation and accused is running from the clutches of the law. Recently, the Supreme Court in the case of Srikant Upadhyay vs. State of Bihar - 2024 (0) AIJEL-SC 73397 has held as under :
"24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be Page 10 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/4778/2024 ORDER DATED: 26/03/2024 undefined very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant."
16. In view of the above, no case is made out to exercise extraordinary jurisdiction to grant anticipatory bail. Having considered the graving of offence and nature of accusation, petitioner failed to establish case for exercising discretion in his favour, hence, present petition seeking for anticipatory bail stands dismissed.
(J. C. DOSHI, J) GAURAV J THAKER Page 11 of 11 Downloaded on : Thu Mar 28 20:40:03 IST 2024