Monu @ Muneed vs The State Of Madhya Pradesh on 28 November, 2019

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Madhya Pradesh High Court

Monu @ Muneed vs The State Of Madhya Pradesh on 28 November, 2019

This repeat (sixth) application under Section 439 of Criminal Procedure Code, 1973 has been filed by applicant- Monu @ Muneed who is implicated in connection with Crime No.274/2018, registered at Police Station-Chandan Nagar District-Indore, concerning offence under Sections 8/22, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'The Act, 1985').

2. First application was dismissed on merits vide order dated 09/07/2018 passed in M.Cr.C. No.24811/2018. Consequent four applications filed by the applicant were dismissed as withdrawn vide orders dated 13/11/2018, 01/12/2018, 14/01/2019 and 26/03/2019 passed in M.Cr.C. Nos.24811/2018, 41804/2018, 47876/2018, 1277/2019 and 10174/2019.

3. As per prosecution case on 06/04/2018, on receipt of source information police party intercepted the present applicant & co-accused Hemant Maheshwari and recovered 2,92,500 (0.5 mg) of alprazolam tablets from their joint possession, for which they were not having any valid license.

4. Learned counsel for the applicant has submitted that the applicant is a young man and he has no direct nexus with the Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 2 alleged commission of the said offence. The applicant is permanent resident of Gwalior and not from Indore, he has been wrongly alleged by the prosecution. The applicant is the sole earning member of the family. It is further submitted that the call record of the Police Officials who have been named in the FIR, were summoned by the trial Court, wherein it has been categorically brought on record that on the relevant date the Police Officials were at Gwalior, in vicinity of the house of the applicant from where he was arrested and later on the incident was shown to have occurred in Indore.

5. Learned counsel further submitted that 'The Act, 1985' constitute a statutory regime which undertakes to control and regulate the movement of Narcotic Drugs and Psychotropic Substances (for brevity 'ND & PS') and further the drugs that found their origin in 'ND & PS'. Bare perusal of Section 8 would clearly indicate that through Clause a, b, c various operations have been prohibited. However, Clause 8 does not put a blanket ban over the transaction and operations in relation to 'ND & PS'. Section 8 in itself carves out exception which relates to medicinal and scientific use of the 'ND & PS'. It also allows various activities through permissions and the licenses granted under the 'The Act,1985'. In the present case the applicant being a licensed drug dealer is not covered under the provisions of 'The Act, 1985', as the possession and selling of the drugs fall under the exception of Section 8 of 'The Act, 1985'.

6. It is also submitted that the perusal of Section 2 (xiv) along with Section 2 (xi) clearly indicate that Diazepam does not found mentioned in the category of Narcotic Drug as a product of Coca, Cannabis or Opium. Neither it finds mentioned in the notification issued by Govt. of India dated 21/06/2011 and Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 3 29/01/1993 or 14/11/1985. Thus, by the principle of exclusion and keeping in mind the basic principle of criminal law, the provisions of criminal law are to be given strict interpretation. It can be safely said that 'The Act, 1985' does not deal with Diazepam in the nature of being a drug. Diazepam is to be dealt by the 'The Act, 1985' only as a Psychotropic Substance, which finds its mention at entry No.43 of the Schedule at page No.60. Schedule H-1 was created by the notification, which came into effect from 27/02/2014, earlier to which Diazepam was in the category of Schedule-H drug. The relevance of this categorization is to be seen in Rule 97 of D &C Rules i.e. Rule 97(b), (c) and (e).

7. Learned counsel has drawn the attention of this Court to sub-clause "c" and it is here where the drugs which retain their character and fall within the purview of 'The Act, 1985' have been taken into consideration and directed to be labeled as NRx Drugs and as can be seen Diazepam has been taken out of Schedule-H to be taken into Schedule H-1, meaning thereby that the legislature does not intend the Diazepam as drug to fall under the purview of 'The Act, 1985'. In other words, Diazepam does not fall in Chapter III, IV, V, V-A of the NDPS Rules. It is further submitted that in the amendment that has come in force on 25/03/2015 under the NDPS Rules, the entire scheme of Chapter VII has been remodeled in such a manner that the role of NPDS Authorities is restricted only to a consultative and registration organ such as manufacture, selling, purchase consumption or use of Psychotropic Substance is to be dealt by the Drug and Cosmetic Act. Therefore, Chapter VII would also not apply because the applicant is not dealing with Diazepam as a Psychotropic Substance. On the contrary to the applicant being Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 4 the wholesale dealer in drugs is only concerned with sale and purchase of Diazepam as Schedule H-1 Drug and not with Diazepam as Psychotropic Substance.

8. It is also submitted that even there is a violation of Section D &C of 'The Act, 1985' the same can be punished under the 'The Act, 1985' by virtue of Section 80 of 'The Act, 1985'. The applicant has neither violated any of the conditions, rules or orders nor he requires to have any license granted under 'The Act, 1985'. Section 22 of 'The Act, 1985' does not apply in this case. In these circumstances learned counsel for the applicant has submitted that reasonable grounds are available to satisfy the condition of Section 37(1)(b) of 'The Act, 1985'. The applicant is in custody since 06/04/2018. Investigation is over and charge sheet has been filed. There is no possibility of his absconsion or tampering with the evidence if the applicant is released on bail. Under these circumstances, learned counsel prays for grant of bail to the applicant.

9. Learned Public Prosecutor opposes the application by contending that huge quantity of 2,92,500 (0.5 mg) of alprazolam tablets was recovered from the joint possession of the applicant and co-accused for which they were not having any license. The gross weight of medicinal preparation has to be taken into account for determining whether it is covered under the small, non commercial or commercial quantity and the total weight of the drug recovered from the applicant's possession is more than commercial quantity. Earlier bail application has already been dismissed on merits vide order dated 09/07/2018 and thereafter there is no change of circumstances under which the present application can be considered, hence Public Prosecutor prays for rejection of the application.

Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 5

10. Having heard learned counsel for the parties and perused the case-diary.

11. From the perusal of case-diary, it reflects that total more than 1,12,500 (0.5mg) alprazolam tablets have been recovered from the possession of the applicant which is weighted about 18 kgs. As per Item No.170 A of the Schedule appended to 'The Act, 1985' upto 5 grams is defined as small quantity, whereas 100 grams is defined as commercial quantity for alprazolam tablets. Gross weight of the alprazolam tablets seized from the applicant is well above the commercial quantity.

12. Further, in the year 2015, The Government of India, Ministry of Finance (Department of Revenue), issued a notification No.S.O.1181(E) dated 05.05.2015 and made Codeine as "essential narcotic drug". Relevant paragraph no.1 of this notification reads thus:-

"S.O.1181(E). - In exercise of powers conferred by clause (viiia) of Section 2 of Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby notices for medical and scientific use,the following narcotic drugs to be essential narcotic drugs, namely:-

(1)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 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; (2)........

(3)........... (4)...........(5)............ and (6)........"

13. In this regard, 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" is added in the Narcotic Drugs and Psychotropic Substances Rule, 1985 by this amendment. For the sake of convenience, relevant Rules of this Chapter-VA are being reproduced below:-

Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 6

"CHAPTER VA"

POSSESSION, TRANSPORT, IMPORT INTER-

STATE, EXPORT INTER-STATE, SALE, PURCHASE, CONSUMPTION AND USE OF ESSENTIAL NARCOTIC DRUGS 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 sole 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:-

Sl.No. Name of the essential narcotic drug Quantity (1) (2) (3)

1. Morphine and .its salts and all preparations 500 Milligrammes containing more than 0.2 per cent. of Morphine

2. Methyl morphine (commonly known as 2000 Milligrammes „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

3. Dihydroxy Codeinone (commonly known 250 Milligrammes as Oxy-codone and Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon 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 Milligrammes Hydrocodone), its salts (such as Dicodide, Codinovo, Diconone, Hycodan, Multacodin, 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- Two transdermal piperidine (the international-non- patches one each of proprietary name of which is Fentanyl) 12.5 microgram per and its salts and preparations, admixture, hour and 25 micro-

extracts or other substances containing any gram per hour:

of these drugs Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 7 Provided that the Controller of Drugs or any other officer authorised in this behalf by him may be special order authorise, in Form 3B, any such practitioner to possess the aforesaid drugs in quantity larger then the 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 atleast thirty days before the expiry of the previous authorisation.

(5) (a) The Controller of Drugs may, be order, prohibit any registered medical practitioner from possessing four 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 possess such drug.

(b) When any order is passed under clause (a) of this subrule, 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, be a general or special order, authorise any person to possess essential narcotic drug as may be specified in that order.

(7) A recognized 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 37 of these rules.

(9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity an in such manner as may be specified in the licence issued under these rules.

Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 8

52B. Provisions regarding licenced dealer and licenced chemist-

(1) A licenced dealer or a licenced chemist shall apply for a licence to possess, sell, exhibit or offer for sale or distribution by retail or wholesale, essential narcotic drug, to the authority competent to issue licence to possess, sell, exhibit or offer for sale or distribution by retail or wholesale, manufactured drugs under the rules framed under Section 10 of the Act by State Government of the State in which he has his place of business.

(2) Every application for issue of licence referred to in subrule (1) shall be in such form and manner as may by specified by the authority referred to in the said sub-rule. (3) The licence to possess, sell, exhibit or offer for sale or distribution by retail or wholesale, essential narcotic drugs shall have the same conditions as are applicable to a licence to possess, sell exhibit or offer for sale or distribution by retail or wholesale, manufactured drugs under the rules framed under section 10 of the Act by the State Government.

(4) The licence under this rule shall be obtained within a period of one hundred and eighty days from the date of commencement of these rules."

14. Thus, after May, 2015 licence to keep the composition containing psychotropic substance is made compulsory and for the convenience of the persons/traders already dealing in such psychotropic substance, six months time was granted to obtain such licence. The incident in the present case is of the year 2018, but nothing is there to show that the petitioners have ever obtained or possessed any licence required by these Rules.

15. Learned counsel for the applicant further submitted that in the present case, Sub-Inspector Hari Singh Sannotia received the secret information, apprehended the applicant and on a search being conducted by him, he recovered 2,92,500 (0.5 mg) of alprazolam tablets and also registered FIR and prepared Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 9 all the memos as required under 'The Act, 1895'. On his complaint FIR was lodged and the case was initiated, in the light of the judgment passed by the Supreme Court in the case of Mohanlal vs. State of Punjab reported as AIR 2018 SC 3853, in which it has been held that a fair investigation, which is but the very foundation of fair trial necessarily postulates that the informant and the investigator must not be the same person, therefore, prejudice caused to the applicant by such investigation.

16. However from the perusal of the record it appears that after receiving the secret information Sub-Inspector reached the spot, arrested the applicant and recovered the contraband article, prepared all necessary panchanamas and he came to the police station and registered FIR. Thereafter he handed over the investigation to other Police Officer Harendra singh Yadav, therefore, it cannot be said that in the present case the informant and the Investigating Officer is the same person. Therefore, the aforesaid arguments of the learned counsel for the applicant is not acceptable.

17. Learned counsel further submitted that there was total non-compliance of the guidelines issued under standing instructions in respect of sampling, sealing and dispatching the sample for Forensic Science Lab for the test. It appears that no seal was sent along the sample of the seized article to the Forensic Science Lab for comparing the seal affixed on the sample sent for chemical analysis. But without recording the evidence no adverse inference can be drawn in this respect. There is nothing on record to substantiate the aforesaid arguments. This defence can be availed by the applicant at the time of the trial.

18. A detailed discussions on the merit of the case will Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31 M.Cr.C. No.38694/2019 10 prejudice the trial Court, therefore, looking to the allegation made against the applicant, this Court is of the view that no case is made out for grant of bail to the applicant.

19. Accordingly, Miscellaneous Criminal Case No.38694/2019 is hereby dismissed.

Certified copy as per rules.

(S. K. AWASTHI) JUDGE sumathi Digitally signed by Sumati Jagadeesan Date: 07/12/2019 15:20:31

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Madhya Pradesh High Court