Uttarakhand High Court
BA3/17/2021 on 3 September, 2021
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
THIRD BAIL APPLICATION NO. 17 of 2021
3rd SEPTEMBER, 2021
Between:
Mohd. Waseem, S/o Mohd. Yameen
.......Applicant
and
State of Uttarakhand ...Respondent
Counsel for the Applicant : Mr. D.N. Sharma, learned
Counsel holding brief of Mr.
Pankaj Singh Chauhan,
learned counsel.
Counsel for the Respondent : Mr. Ranjan Ghildiyal,
learned A.G.A. for the
State.
Hon'ble Alok Kumar Verma,J.
The third bail application has been filed for grant of regular bail in connection with FIR No.654 of 2019, registered with Police Station-Rudrapur, District Udham Singh Nagar for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as, "the Act, 1985").
2. The First Bail Application No.213 of 2020 was rejected by this Court vide order dated 27.04.2020 and the Second Bail Application No.42 of 2020 was dismissed as withdrawn on 07.09.2020.
23. An F.I.R. was lodged on 18.12.2019 by the informant Sub-Inspector Rajesh Pandey, In-charge Anti Drugs Task Force with the allegations that on 18.12.2019, when the informant was going from Indira Chowk to Kiccha Road along with his task force, he saw the applicant with a white colored Alto car No.UK06-AR-7562 near mortuary of old hospital. On seeing the police party, the applicant sat in the car and tried to start it. On suspicion, the police party intercepted the applicant. The person and the car of the applicant were searched. In search, total 995 illegal injections including 285 injections of Buprenorphine, 360 illegal injections of Diazepam and 350 illegal injections of Avil were recovered from the dikki of the car of the applicant. The applicant failed to show any license and receipt of doctor regarding the said injections. The applicant was arrested at 11:45 hrs. In spite of an endeavour, no independent witness could be secured.
4. Heard Mr. D.N. Sharma, learned counsel holding brief of Mr. Pankaj Singh Chauhan, learned counsel for the applicant and Mr. Ranjan Ghildiyal, learned A.G.A. for the State.
5. Mr. D.N. Sharma, the learned counsel appearing for the applicant, submitted that the applicant has been implicated in this matter; the provisions of Section 50 of the Act, 1985 were not complied; there was no independent public witness and the applicant is in custody since 18.12.2019.
6. Mr. Ranjan Ghildiyal, learned A.G.A. for the State opposed the third bail application and submitted that the present third bail application is not maintainable.
37. On 27.04.2020, the learned counsel for the applicant had submitted that the applicant deals with the drugs and cosmetics at Rudrapur having the license for sell, stock and distribution of drugs; on the day of incident, the applicant was carrying aforesaid drugs legally; he had the license to sell and distribution of drugs; the police booked the applicant by showing false recovery of some prohibited injections from the applicant; the provisions of Section 50 of the Act, 1985 had not complied; there was no independent public witness of alleged recovery; the applicant has no criminal history; he is in custody since 18.12.2019.
8. On 27.04.2020, this Court had made the following order:-
"9. Buprenorphine and Diazepam are psychotropic drugs in the Schedule of psychotropic substances. These are also a Schedule H1 drugs in the Drugs and Cosmetics Rules, 1945 (in short as "the Rules, 1945"), framed under the Drugs and Cosmetics Act, 1940 (hereinafter referred as "the Act, 1940").
10. The learned counsel for the applicant submits that the applicant had valid license for sell, stock and distribution of drugs on the date of incident. In support of the submissions, copies of drug license No.BR-02/USN/May, 2017 in Forms 20 and 21 of the Rules, 1945, valid from 02.05.2017 to 01.05.2022, have been filed by the applicant. According to these Drug Licenses, the applicant is proprietor of the firm M/S Samar Medical Store. Form 20 was issued to sell, stock or exhibit or offer for sale or distribute drugs by retail other than those specified in Schedules C, C(1) and X and Form No.21 was issued to sell, stock or exhibit or offer for sale, or distribute by retail drugs 4 specified in Schedules C and C(1) excluding those specified in Schedule X. One of the condition of these licenses is "No Drug shall be sold unless such drug is purchased under a cash or credit memo from a duly licensed dealer or a duly licensed manufacturer". The learned counsel for the applicant fairly states that he could not verify the fact whether the applicant had any such purchase bills or not. The learned counsel for the applicant also failed to explain as to how these drugs came in the possession of the applicant.
11. The learned counsel for the applicant submits that violation of any condition of the license can be held to be violative of the provisions of the Act, 1940 and the applicant cannot be prosecuted under the provisions of the Act, 1985.
12. Section 80 of the Act, 1985 provides that 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 (23 of 1940) or the rules made thereunder. Therefore, even if a person is holding license under the Act, 1940 and the Rules, 1945 then placing it parallel to Section 80 of the Act, 1985 would indicate that the Act and Rules made therein are in addition to and not in derogation of the Act, 1940 or the Rules made therein.
13. The licenses, granted to the applicant, are mandated to purchase drugs under cash or credit memo from a duly licensed dealer or a duly licensed manufacturer. Whereas, the applicant has failed to produce the record of purchase of drugs, which is mandatory requirement while dealing with narcotic drugs and psychotropic substances. Merely holding a license under the Act, 1940 and the Rules framed thereunder does not provide an immunity from the 5 rigors of the applicability of the Act, 1985 and the Rules framed thereunder. Therefore, even if an immunity is claimed by the applicant projecting himself as a licensee under the Act, 1940 and Rules, 1945, then it is mandatory to comply the conditions of the licenses granted to the applicant. But, there is no prima facie material to show that the applicant had complied the conditions enumerated in the licenses.
14. Section 8(c) of the Act, 1985 provides that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of such license, permit or authorization. Whereas, Rule 65-A of the Narcotic Drugs and Psychotropic Substances Rules, 1985 mandates that no person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Rules, 1945.
15. In this matter, it prima facie appears that the applicant has violated the conditions of licenses, granted to him, under the Act, 1940 and Rules, 1945, therefore, the provisions contained under the Act, 1985 would apply and the applicant is liable to be prosecuted under the provisions of the Act, 1985.
16. The learned counsel for the State submits that 285 illegal injections of Buprenorphine, each contains 6 2 ml, and 360 illegal injections of Diazepam, each contains 2 ml, were recovered from the possession of the applicant and the entire quantity of these contraband is to be seen and thus it falls within the commercial quantity.
17. The learned counsel for the applicant submits that although the entire recovered contraband falls under the commercial quantity but the percentage of the recovered contraband is to be seen which falls under the noncommercial quantity. The learned counsel for the applicant further submits that the injections of Avil would not fall under the category of the Act, 1985 and the same is not covered under the Schedule.
18. The learned counsel for the State concedes that Avil is not a narcotic drug or psychotropic substance under the Act, 1985. Hence, the alleged recovery of injections of Avil is not relevant for the purpose of prosecution of the applicant under the provisions of the Act, 1985.
19. As per the Table prepared in terms of Section 2(viia) and Section 2(xxiii-a) of the Act, 1985, 1 gram of Buprenorphine is small quantity and greater than 20 grams is commercial quantity (Entry No.169) and according to Entry No.194, 20 grams of Diazepam is small quantity and greater than 500 grams is commercial quantity.
20. In para 10 of Criminal Appeal No.722 of 2017, Hira Singh and another Vs. Union of India, the Hon'ble Apex Court has held on 22.04.2020, "Para 10
- In view of the above and for the reasons stated above, reference is answered as under :-
(i) The decision of this Court in the case of E.Micheal Raj (Supra) taking the view that in 7 the mixture of narcotic drugs and psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
(ii) 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;
(iii) Section 21 of the N.D.P.S. Act is not stand-
alone provision and must be construed along with other provisions in the statute including provisions in the N.D.P.S. Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O.1055(E) dated 19.10.2001;
(iv) Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra virus to the Scheme and the relevant provisions of the N.D.P.S. Act. Consequently, writ petitions and Civil Appeal 8 No.5218/2017 challenging the aforesaid notification stand dismissed."
21. The preamble of the Act, 1985 shows that the object of this Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc.
22. At this stage, it seems appropriate to notice the provisions of Section 50 and Section 37 of the Act, 1985. The provisions of Section 50 and Section 37 of the Act, 1985 are to the following effects:-
"Section 50:- Conditions under which search of persons shall be conducted-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.9
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-
section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior."
"Section 37:- Offences to be cognizable and nonbailable--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not 10 guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail".
23. In this matter, the FIR's disclose that in spite of an endeavour, no independent witness could be secured. In the case of Makhan Singh vs. State of Haryana, 2015(4) CCSC 1790, the Hon'ble Apex Court has held that compliance with Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc, which the accused may be carrying ought to be searched. In that matter, since the vehicle was searched and the contraband was seized from the vehicle, the Hon'ble Apex has held that the compliance with Section 50 of the Act, 1985 was not required.
24. Section 37 of the Act, 1985 contains specific provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are- (i) In the case of a person accused of an offence punishable under Section 19, (ii) under Section 24, (iii) under Section 27-A, and (iv) for offences involving commercial quantity.
25. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the 11 provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In Criminal Appeal No(s) 154-157 of 2020, State of Kerala Vs. Rajesh and others, the Hon'ble Supreme Court has held on 24.01.2020 that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that person is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied.
26. In State of M.P. Vs. Kajad, (2001) 7 SCC 673, the Hon'ble Supreme Court has held that negation of bail is the rule and its grants an exception under (ii) of clause (b) of Section 37(1) of the Act, 1985.
27. In Criminal Appeal No(s) 154-157 of 2020 (Supra) the Hon'ble Supreme Court has held that liberal approach in the matter of bail under the N.D.P.S. Act is uncalled for.
28. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of 12 Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.
29. In the light of the facts and circumstances of the present case, it cannot be said that mandatory conditions, as mentioned above, have been satisfied. From the perusal of the evidences, collected during investigation so far, it prima facie appears that the applicant was involved in this offence. No reason is found to falsely implicate the applicant. Therefore, there is no good ground to release the applicant on bail at this stage. The bail application is liable to be rejected. The bail application is rejected accordingly.
30. It is clarified that the observations made regarding the bail application is limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case."
9. In State of Madhya Pradesh Vs. Kajad, (2001)7 SCC 673, the Hon'ble Supreme Court has held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law.
10. In State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, the Hon'ble Supreme Court has observed, ".....Once that application was rejected there was no question of granting 13 a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ......"
11. The applicant had opportunity to raise all his contentions on the previous occasion. The contention of the learned counsel for the applicant that the applicant is in custody since 18.12.2019 would not amount to change in the circumstances.
12. Therefore, it is not open to the applicant to make successive bail applications even on the grounds already rejected by this Court earlier.
13. On overall consideration of the application and also in the fact that any change in circumstances is not established, after rejection of the first bail application on merit, I do not find any change in circumstances to entertain present third bail application. The third bail application does not deserve to be entertained. Consequently, the present third bail application is rejected.
__________________ ALOK KUMAR VERMA, J.
Dt: 03rd September, 2021 Neha