Punjab-Haryana High Court
Malkiat Singh vs State Of Punjab on 4 October, 2012
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRM No.M-14949 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M- 14949 of 2012(O&M)
Date of Decision: October 4, 2012.
Malkiat Singh.
...... PETITIONER(s)
Versus
State of Punjab.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Madan Sandhu,
Advocate, for the petitioner.
Ms. Neelam, AAG, Punjab.
*****
RAM CHAND GUPTA, J.(Oral)
The present petition has been filed for regular bail under Section 439 of Code of Criminal Procedure in FIR no. 79 dated 29.04.2011, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short the 'NDPS Act') registered at police station Lehra, District Sangrur.
I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned Judge, Special Court, Sangrur dismissing bail application filed by the petitioner.
Brief allegations against petitioner-accused are that, on CRM No.M-14949 of 2012 2 29.04.2011 police party was on checking duty when petitioner-accused was seen coming on foot alongwith a plastic bag in his hand. On suspicion, he was stopped and the plastic bag being carried by him was searched and on search, the same was found containing 2300 intoxicating tablets. Sample was separated. Report FSL received. Relevant portion of the report reads as under:-
"xx xx xx xx
8. Identification & Tests:
Ingredients Present Average quantity of
ingredients in the parcel
Diphenoxylate hydrochloride 2.4mg/tablet
Atropine sulphate 0.023 mg/tablet
REPORT
The tablets contained in the parcel under reference have been analysed separately by chemical analysis. On the basis of analysis the ingredients along with their quantity found present in these have been given at serial no.8 (Identification and tests) of this report."
It has been contended by learned counsel for petitioner-accused that the present case is not covered under the NDPS Act and the same is covered under the Drugs and Cosmetics Act. It is further contended that the alleged recovery does not fall under the commercial quantity and that petitioner has been continuing in custody since 16.01.2012.
Bail application has been vehemently opposed by learned counsel for respondent-State on the plea that as per report FSL, the recovery effected from petitioner-accused comes within the definition of manufactured drugs and hence, the same is punishable under Section 22 of the NDPS Act. It is further contended that now as per latest notification issued by Central CRM No.M-14949 of 2012 3 Government, the entire recovered quantity is to be seen for the purpose as to whether recovered material is commercial or non-commercial quantity.
It is pertinent to reproduce Section 2(xi) of the NDPS Act, which defines manufactured drugs as under:-
"(a) all coco 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 its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
The drug recovered from the possession of petitioner-accused has been mentioned at entry no.58 of notification dated 14.11.1986 issued by the Central Government, which was published in the gazette of India dated 14.11.1986, which read as under:-
"(58) Ethyl 1-(3-Cyano-3, 3-diphenylpropyl) -4-
Phenylpiperidine-4-carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate) and its salts and preparations, admixture, extracts or other substances containing any of these drugs except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate."
CRM No.M-14949 of 2012 4
Hence, the aforementioned salt comes within the definition of manufactured drugs as per the said notification.
Moreover, subsequent notification issued by Central Government in exercise of powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the Act has specified the quantity mentioned in columns no.5 and 6 of the table given in the said notification in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in columns no.2 to 4 of the said table, as the small quantity and commercial quantity respectively for the purpose of the said Clauses. Diphenoxylate has been mentioned at Entry No.44, which read as under:-
Sr.No Name of Narcotic Drug and Other non- Chemical Name Small Commercial Psychotropic substance [International proprietary quantity (in quantity non-proprietary name(INN)] name gm.) (in gm./kg.) 1 2 3 4 5 6 1-(3-Cyano-3, 3- diphenylpropyl)-4- 44 Diphenoxylate 2 50 gm phenylpiperidine- 4-
carboxylic acid ephyl ester Another notification bearing No.S.O.2941(E) dated 18.11.2009 has been issued by the Central Government, which reads as under:-
"(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content."CRM No.M-14949 of 2012 5
As per the above notification, the entire quantity of recovered manufactured drugs is to be seen to determine whether the quantity is commercial or non-commercial. Total recovery in this case is more than 50gms. of Diphenoxylate. Hence, the same comes to commercial.
It is also pertinent to reproduce Section 80 of the Act, which reads as under:-
"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 or rules made thereunder."
In view of the same, provisions of this Act and the rules are not in derogation of the 1940 Act. Even if it is taken that there is some violation of 1940 Act and the rules framed thereunder, it cannot be said that accused cannot be proceeded under the Act if he is found in possession of manufactured drugs.
Hence, keeping in view bar created under Section 37 of the NDPS Act, petitioner-accused is not entitled for concession of bail.
Without expressing anything on the merit of the case, the instant application for bail filed on behalf of Malkiat Singh is, hereby, dismissed being devoid of merit.
( RAM CHAND GUPTA ) October 4, 2012. JUDGE 'om'