Madhya Pradesh High Court
Pappu Gupta vs The State Of M.P. on 23 April, 2021
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
M.Cr.C.No.45065/2020
Pappu Gupta
Vs.
State of Madhya Pradesh
--------------------------------
Shri Prakash Upadhyay, Advocate for the applicant.
Shri Ajay Tamrakar, PL for the respondent/State.
==================================
ORDER
Passed on 23/04/2021 This is the first bail application filed by applicant under Section 439 of the Cr.P.C. Applicant Pappu Gupta was arrested on 23/08/2020 in connection with Crime No.227/2020 registered at Police Station Java, Distt. Rewa (MP) for the offence punishable under Sections 8, 21, 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and Section 5/13 of the Madhya Pradesh Drugs Control Act.
2. As per the prosecution case, on 22/8/2020, on the information of the informant that the co-accused Sanju @ Sandeep Tiwari who was coming to Java from Nagma side was transporting cough syrup illegally for selling, Shri B.P Verma, Assistant Sub-Inspector Police Station Jawa, along with other members of the police force went to village Shitalha and upon reaching there, he waited for the applicant. After a while, co-accused Sanju @ Sandeep Tiwari was seen coming on a red colour motorcycle bearing registration no. MH04 M6610 hanging Signature Not Verified SAN a bag on the back. He apprehended him with the help of other members Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 2 of the police force. While searching his bag, he found 65 bottles of Welcyrex cough syrup of 100 ml each manufactured by Plenteous company containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were being transported illegally by him. On interrogation he informed the police that he had purchased that cough-syrup from the applicant so police also arrested the applicant Pappu Gupta.
3. Learned counsel for the applicant submitted that 65 bottles of Welcyrex Cough Syrup containing Narcotic Drug (Codeine Phosphate) allegedly been seized from the possession of the co-accused Sanju @ Sandeep Tiwari falls within the category of "Essential Narcotic Drugs"
as defined under Section 2 (viiia) of the NDPS Act not under the "manufactured drug" or psychotropic substance. He further submitted that Section 2 (viiia) of the NDPS Act has been inserted by the Amendment Act no.16 of 2014 which has created a new category of narcotic drug i.e. "essential narcotic drug" and Chapter "VA'' has been inserted vide notification dated 5/5/2015 regulating possession of "essential narcotic drug". Rules 52A to 52M prescribe the quantity of Methyl Morphine (Codeine) falling under exempted category can be kept by a person, thus cough syrup falls in this category and for violation of these rules, the punishment provided is under Section 32 of the NDPS Act. So, provisions of Section 37 of the Act are not attracted.
4. Learned counsel of the applicant has also drawn attention of the Court towards the definition of "Narcotic Drug", and the definition of "Psychotropic Substance" to say that Welcyrex Cough Syrup containing Narcotic Substance (Codeine) less than the prescribed quantity of 'Codeine' per dosage unit would neither come under the definition of "Narcotic Drug" nor under the definition of "Psychotropic Substance", because it is covered under the exception provided under Section 2 (xi)
(b) of the N.D.P.S.Act.
5. He further submitted that Codeine which is otherwise a Signature Not Verified SAN "Manufactured Drug" as defined under Section 2(xi) of NDPS Act r/w Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 3 notification S.O.826(E) 1985 entry no.35 and possession of same is an offence under section 21 of the NDPS Act, but it has one exception which reads as under :-
"those drugs which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 percent in undivided preparations and which have been established in Therapeutic practice."
6. Will not fall in this category and all cough syrups manufactured by drug companies, containing codeine comply with this requirement so they do not fall in the category of "manufactured drug" as they have been specifically exempted under the Notification issued by Central Government.
7. In this regard learned counsel also placed reliance upon the judgement of the Hon'ble Apex Court passed in the case of Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar, (2018) 14 SCC 199 and the judgement of the Coordinate Bench of this Court passed in Criminal Revision no.1621/2015 (Rohit Chaddha Vs. State of M.P.) vide order dated 15/10/2015. He further submitted that the applicant has no criminal past and he has been in custody since 23/08/2020. Conclusion of trial will take time, hence prayed for release of the applicant on bail.
8. Learned counsel for the State opposed the prayer and submitted that syrup containing narcotic drug was within the permissible limit even then Section 8 of the Act of 1985 provides that no person can possess narcotic drug or psychotropic substance except for medical or scientific purpose or in the manner and to the extent provided by the provisions of the Act or Rules or order made thereunder. Nothing is shown before this Court to prove the fact that the seized contraband was possessed or transported for any therapeutic purposes. No documents whatsoever are produced by the applicant and co-accused Sanju @ Sandeep Tiwari. So, it is apparent that the co-accused Sanju @ Signature Not Verified SAN Sandeep Tiwari took 65 bottles of cough syrup 100 ml each, total 6500 Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 4 ml cough syrup containing Codeine (a narcotic drug) for illegal sale and the applicant was also involved in the crime. So looking to the provisions of Section 37 of the Act, he should not be released on bail. In this regard, learned counsel placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Mohd. Sahabuddin & Anr. Vs. State of Assam reported in (2012) 13 SCC 491.
9. This Court has gone through the record and arguments put forth by the learned counsels of the parties.
10. Narcotic Drugs and Psychotropic Substances have several medical and scientific uses. However, they can be and are also abused and trafficked. The Narcotic Drugs and Psychotropic Substances Act, 1985 was framed to consolidate laws regarding manufacturing/growing, possession, trafficking, sale, and consumption of drugs through stringent provisions for the control and regulation of operations as per the international and national obligations. Various changes have been brought in the NDPS Act through The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (hereinafter referred to as Amendment of 2014) to ease the process for licensing, stocking, and dispensing, to ensure availability of narcotic drugs and psychotropic substances for medical and scientific use, while preventing and controlling their illicit use. The proposed amendment also transfer the power to permit and regulate the possession, transport, import interstate, export interstate, sale, purchase, consumption or use of manufactured drugs (other than prepared opium), and any preparation containing any manufactured drug from the State to the Central Government so as to have uniform rules across the country. That amendment has not been incorporated to protect a drug paddler.
11. Even the Government of India has issued a notification No. S.O. 2941(E) dated 18/11/2009 in this regard. As per note 4 appended at the end of this notification, it is made clear that for the purpose of Signature Not Verified SAN determining the quantity, the gross weight of the drug recovered and Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 5 not the pure content of the psychotropic substance shall be taken into consideration. The said notification was further upheld by Apex Court in the case of Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441 and Heera Singh Vs. Union of India, 2020 SCC Online SC 382 and held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances.
12. Section 2 of The Act 1985 essentially provides for three kinds of offending substances viz; "Manufactured Drug", "Narcotic Drug" and "Psychotropic Substance".
13. "Manufactured Drug" is defined under Section 2(xi) and reads as under :
"(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
14. "Narcotic Drug" is defined under Section 2(xiv) of the Act, which reads as under :
"Narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs"
15. "Psychotropic Substance" is defined under Section 2(xxiii) and reads as under :
"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."Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 6
16. Reference also needs to be made to Section 2(xvi)(c), which defines 'Opium Derivative', which reads as under :-
Section 2. Definitions. - In this Act, unless the context otherwise requires,--
x x x x x x (xvi) "Opium derivative" means--
xxxxxx
(c)"Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts" (emphasis supplied)
17. From the above mentioned provisions of the NDPS Act it transpires that the seized drug 'Welcyrex Cough Syrup containing 'Codeine' which is an opium derivative is a Manufactured drug/ Narcotic Drug.
18. Clause (xi)(b) of Section 2 of the NDPS Act empowers the Central Government to notify a narcotic substance or preparation either to be a manufactured drug or not to be a manufactured drug. Notifications Dated 14.11.1985 and published in Gazette of India have been issued by the Central government under Section 2(xi)(b) of N.D.P.S.Act wherein "Manufactured Drugs" have been mentioned. Relevant portion of notification, issued under N.D.P.S.Act reads as under:
"S.O.826(E), dated 14th November, 1985.-- In exercise of the powers conferred by sub-clause (b) of clause (xi) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declare the following narcotic substance and preparation to the (be) manufactured drugs, namely:xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x x x x x x x x x x x x x x x (35) Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration not more than 2.5 percent in undivided preparations and which have been established in therapeutic practice."
(emphasis supplied)
19. The above-noted provision made in the notification indicates that if a compound contains not more than 100 milligrams of Codeine per Signature Not Verified dosage unit and with a concentration of not more than 2.5 per cent in SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 7 undivided preparations of the compound, it would not be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act. If it is kept for therapeutic practice.
20. Further, Section 8 of the NDPS Act, articulates that no person shall produce, possess, sell, purchase, transport and consume any narcotic drug or psychotropic substance, except for medical or scientific purposes. For the purpose of the medical and scientific use the Act/rules, imposes requirements, standards, terms and conditions by way of license, permit, or authorization.
21. Sections 17, 18, 21 and 22 of the NDPS Act prescribed the punishment for the violation of provisions of Section 8 of the Act. Section 17 prescribes the punishment inter alia for possession of "prepared opium"; Section 18 prescribes the punishment inter alia for possession of "opium", Section 21 deals with the punishment inter alia for possession of "manufactured drugs" and Section 22 prescribes the punishment inter alia for possession of Psychotropic substance. So if the drug 'Welcyrex Cough Syrup containing Manufactured Drugs (Codeine Phosphate) is kept or transported other than medical or scientific purpose, in violation of the provisions of any rule, the provisions of section 8 of the Act of 1885 would be attracted.
22. However by way of amendment of 2014 a definition for 'essential narcotic drug' has been inserted under S.2 (viiia), i.e. a narcotic drug notified by the Central Government for medical and scientific use. Drugs identified as 'essential narcotic drugs' have been made subject to Central Government rules under S.9(1)(a), which would permit and regulate their manufacture, possession, transport, purchase, consumption etc.
23. In exercise of the powers conferred by clause (viiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government by notification dated 5th May 2015 Signature Not Verified SAN besides other drugs also notifies Methyl morphine (commonly known Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 8 as "Codeine") and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice; as Essential narcotic drugs.
24. For controlling the Possession, Transport, Import Inter-State, Export Inter-State, Sale, Purchase, Consumption and use of "Essential Narcotic Drugs'' the rules are also amended and notified by the Government of India vide notification No. G.S.R.359(E) dated 05.05.2015. A new Chapter "CHAPTER VA" containaning "Rule 52A to 5ZA '' is added in the Narcotic Drugs and Psychotropic Substances Rule, 1985 by this amendment. The relevant Rules 52A reads as thus-
52A. Possession of essential narcotic drug. -
(1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules. (2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules.
(3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely:-
Table Sl. Name of the essential narcotic drug Quantity No. (1) (2) (3)
1. Morphine and its salts and all preparations 500 containing more than 0.2 per cent. of Morphine Milligramme s
2. Methyl morphine (commonly known as 2000 'Codeine') and Ethyl morphine and their salts Milligramme (including Dionine), all dilutions and s preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 9 3. Dihydroxy Codeinone (commonly known as 250 Oxy-codone and Dihydroxycodeinone), its salts Milligramme (such as Eucodal Boncodal Dinarcon s Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs 4. Dihydrocodeinone (commonly known as 320 Hydrocodone), its salts (such as Dicodide, Milligramme Codinovo, Diconone, Hycodan, Multacodin, s Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs
5. 1-phenethyl-4-N-propionylanilino-piperidine Two (the international-non-proprietary name of transdermal which is Fentanyl) and its salts and preparations, patches one admixture, extracts or other substances each of 12.5 containing any of these drugs microgram per hour and 25 microgram per hour:
Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special order authorise, in Form 3B, any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above Table:
Provided further that such authorisation may be granted or renewed, for a period not exceeding three years at a time. Explanation. - The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices.
(4) For renewal of the authorisation referred to in the second proviso to sub-rule (3), application shall be made to the Controller of Drugs at least thirty days before the expiry of the previous authorisation.
(5) (a) The Controller of Drugs may, by order, prohibit any registered medical practitioner from possessing for use in his practice under sub-rule (3) any essential narcotic drug, where such practitioner -
(i) has violated any provision of these rules; or
(ii) has been convicted of any offence under the Act; or
(iii) has, in the opinion of the Controller of Drugs, abused such possession or otherwise been rendered unfit to Signature Not Verified SAN possess such drug.Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 10
(b) When any order is passed under clause (a) of this sub-rule, the registered medical practitioner concerned shall forthwith deliver to the Controller of Drugs the essential narcotic drug then in his possession and the Controller of Drugs shall issue orders for the disposal of such drugs.
(6) The Controller of Drugs may, by a general or special order, authorise any person to possess essential narcotic drug as may be specified in that order.
(7) A recognised medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these rules.
(8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 36, rule 36A, or rule 37 of these rules or the licence issued for manufacturing the preparations of essential narcotic drugs under the rules made by the State Government under section 10 of the Act:
Provided that there shall be no limit to the possession of essential narcotic drug by the Government Opium Factories.] (9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules.
25. From the bare perusal of above mentioned provisions of the NDPS Act, Notifications Dated 14.11.1985 and 5th May 2015 and the provisions of rule 53A, it is clear that a compound contains not more than 100 milligrams of Codeine per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations of the compound, it would neither be a Manufactured Drug under Section 2(xi)(b) of the N.D.P.S.Act nor Essential Narcotic Drugs under clause (viiia) of Section 2 of the N.D.P.S.Act. Subject to If it is kept for therapeutic practice.
26. However, the Government of India has issued a notification No. S.O.2941(E) dated 18/11/2009 in this regard. As per note 4 appended at the end of this notification, it is made clear that for the purpose of determining the quantity, the gross weight of the drug recovered and not the pure content of the psychotropic substance shall be taken into consideration. By making the percentage content of the drug irrelevant, the impugned notification has the effect of bringing pharmaceutical Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 11 preparations that are exempt from the NDPS Act, under the fold of the law.
27. Co-accused Sanju @ Sandeep Tiwari was found in possession of 65 bottles of Welcyrex cough syrup of 100ml each total 6500 ml cough syrup containing 10mg (Codeine) in each 5 ml dose, there is no document on record to show that such quantity was kept for therapeutic practice. Therefore, if the said requirement is not satisfied then the entire 100 ml content of the cough syrup containing the permitted quantity of codeine will be treated as 100 mg codeine and in such a situation, the same would certainly fall within the purview of Manufactured Drug and penal provisions of the section 8 red with 17 to 22 of N.D.P.S. Act are attracted. Even the "Essential Narcotic Drugs"
would also fall within the purview of Manufactured Drug if they are kept or transported for other than medical or scientific purpose, in violation of the provisions of any Narcotic Drugs and Psychotropic Substances Rule, 1985 and in that case the provisions of section 8 of the Act of 1885 would be attracted.
28. So the argument of learned counsel of the applicant that the seized cough syrup is a Essential Narcotic Drugs and Section 8 of NDPS Act only prohibits the possession, sale, purchase, transport and use of any narcotic drug or psychotropic substance and not of the Essential Narcotic Drugs and the provisions of the section 8 read with 17 to 22 of N.D.P.S. Act are not attracted in the instant case has no force. According to Notifications Dated 14.11.1985, every drug containing codeine would come under manufactured drugs if it is kept against the provisions of the NDPS Act or Rules. Even those drugs which are compounded with one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufactured drugs unless it is kept Signature Not Verified SAN for therapeutic practice.Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 12
29. The Hon'ble Supreme Court in the case of Mohd. Sahabuddin Vs. State of Assam, reported in (2012) 13 SCC 491 considered an identical controversy involving recovery of cough syrup containing codeine phosphate in a bail matter observed :-
"10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.
11. The submission of the learned counsel for the appellants was that the content of the codeine phosphate in each 100 ml bottle if related to the permissible dosage, namely, 5 ml would only result in less than 10 mg of codeine phosphate thereby would fall within the permissible limit as stipulated in the Notifications dated 14-11-1985 and 29-1-1993. As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should only be for therapeutic practice. Therapeutic practice as per dictionary meaning means "contributing to cure of disease". In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent.
12. As pointed out by us earlier, since the appellants had no documents in their possession to disclose as to for what purpose such a huge quantity of Schedule H drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as mentioned in the Notifications dated 14-11-1985 and 29-1-1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 100 ml content of the cough syrup containing the prohibited quantity of codeine phosphate is meant for human consumption, the same would certainly fall within the penal provisions of the NDPS Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the above referred to notifications, the application of the Signature Not Verified exemption provided under the said notifications in order to SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 13 consider the appellants' application for bail by the courts below does not arise."
30. Hon'ble Apex Court in the case of Union of India Vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the Act, rules or orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).
31. The Act does not contemplate framing of rules for prohibiting the various activities of dealing in narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates the framing of Rules for permitting and regulating any activity of dealing in narcotic drugs or psychotropic substances." Hon'ble Apex Court in the case of State of Punjab Vs Rakesh Kumar (2019) SCC 466 also reiterates the same view.
32. The facts of the case Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar, (2018) 14 SCC 199 (supra) Corex cough syrup was seized by the police from the godown of Azad Transport Company Pvt. Ltd and the appellant was the employee (Manager) of Azad Transport Company Pvt. Ltd. The said company was engaged in the business of transportation of goods. The consignee was of Alsafa Surgical, Araria. The appellant was assigned with the duty of godown management. and the prosecution alleges that it was recovered from the appellant. So the apex court granted bail to the appellant. While in the instant case Signature Not Verified SAN Police seized 66 bottles (100 ml. each) of Welcyrex cough syrup total Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 14 6500 ml cough syrup (containing 10 mg. codeine phosphate in each bottle) from the possession of the co-accused Sandeep Tiwari. Which was illegally being carried by him in a bag. So that judgements do not help the applicant.
33. In the case of Rohit Chaddha vs. State of M.P. (supra) learned Coordinate Bench of this Court did not consider the judgments of the apex court passed in the case of Mohd. Sahabuddin v. State of Assam (supra) and Union of India Vs. Sanjeev V. Deshpande, (supra). So that judgement has no persuasive value.
34. Henceforth, if anyone is found in possession of cough syrup or any other medicine containing Codeine against the provisions of the NDPS Act or Rules then the case will come under the stringent provisions of the NDPS Act. According to Notifications dated 14.11.1985 every drug containing codeine would come under manufactured drugs if it is kept or transported other than medical or scientific purpose, in violation of the provisions of any Narcotic Drugs and Psychotropic Substances Rule, 1985 Even those drugs which are compounded with one or more other ingredients containing not more than 100 milligrams of the codeine per dosage unit and with a concentration not more than 2.5 percent in undivided preparations will also come under the purview of manufactured drugs unless it is kept for therapeutic practice. In the absence of any documents in possession of co-accused Sandeep Tiwari to disclose as to for what purpose 65 bottles of Cough Syrup, which is Schedule 'H' drug containing narcotic substance was being transported, this court is of the considered view that the applicant has failed to satisfy the said 2nd condition that the said syrup containing codeine was kept for therapeutic practice. So the case will come under the stringent provisions of the NDPS Act.
35. However, as far as the applicant is concerned police allegedly seized 65 bottles of Welcyrex cough syrup of 100ml each From the Signature Not Verified SAN possession of co-accused Sandeep Tiwari. At the time of the incident Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 15 the applicant was not traveling with him. Although in the memorandum of co-accused it is mentioned that applicant was also involved in the crime, but said memorandum of co-accused recorded by the police is not admissible in evidence against applicant without other incriminating evidence. Police also collected call details of the mobile allegedly belongs to the applicant but only on that basis also it can not be said that applicant was involved in the crime. Nothing has been recovered from the possession of the applicant.
36. So, looking to the facts and circumstances of the case and the strength of the evidence collected by the Police against the present applicant during investigation of the crime, prima facie it cannot be said that there is a reasonable ground to hold that the applicants have committed any offence punishable under the N.D.P.S. Act and also there is no material to infer that if he is released on bail then he will indulge in the crime punishable under the N.D.P.S. Act. The applicant is in custody since 23/08/2020, charge-sheet has been filed and conclusion of trial will take time, so without commenting on the merits of the case the application is allowed and the applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one surety in the like amount to the satisfaction of the concerned C.J.M/trial Court for his appearance before the trial Court on all such dates as may be fixed in this behalf by the trial Court during the pendency of trial.
37. This order will remain operative subject to compliance of the following conditions by the applicant:-
1. The applicant will comply with all the terms and conditions of the bond executed by him ;
2. The applicant will cooperate in the trial;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade Signature Not Verified SAN him from disclosing such facts to the Court or to the Police Officer, as the case may be;Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST 16
4. The applicant shall not commit an offence similar to the offence of which he is accused;
5. The applicant will not seek unnecessary adjournments during the trial; and
6. The applicant will not leave India without the prior permission of the trial Court.
C.c. on payment of usual charges.
(Rajeev Kumar Dubey) JUDGE monika-as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.04.24 13:31:40 IST