Himachal Pradesh High Court
Unknown vs State Of H.P on 31 January, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
Cr.MP(M) No. 77 of 2018 29.01.2018 Present: Mr. Harish Sharma, Advocate, for the petitioner.
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Mr. Rajat Chauhan, Law Officer, for the respondent.
Issue notice. Mr. Rajat Chauhan, Law Officer, appears and waives service of notice on behalf of the respondent. Let records of FIR No. 247 of 2016, dated 02.08.2016, registered at police station Paonta Sahib, District Sirmaur, H.P., under Sections 15 and 21 of Narcotics Drugs and Psychotropic Substance Act (for short "the NDPS Act), be produced on the next date of hearing.
2. The petitioner has sought regular bail in FIR No. 247 of 2016, registered against him in Police Station Paonta Sahib, on 02.08.2016, under Sections 15 and 21 of the NDPS Act.
3. The petitioner ever since of his arrest on 02.08.2016 is in custody on the allegations that he was driving a car owned by Naveen Kumar, the occupants whereof were Atul and Geeta, from which 100 vials of Corex, 10 kgs. Poppy Husk and 10.5 grams of Smack were recovered.
4. Learned counsel for the petitioner vehemently contends that even if the prosecution story is believed in its entirety, even then the drugs alleged to have been recovered can at best be said to be a small quantity, therefore, the petitioner is entitled to the grant of bail as rigours of Section 37 of the Act are not applicable to the present case.
5. In support of his submission, learned counsel for the petitioner has relied upon the judgments rendered by the Coordinate Benches of this Court in cases (i) Cr.MP(M) No. 817 ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -2- of 2016, titled as Prashant Chauhan vs. State of H.P., .
decided on 15.07.2016 (ii) Cr.MP(M) No. 432 of 2017, titled as Ankush Chauhan vs. State of H.P., decided on 25.04.2017,
(iii) Cr.MP(M) No. 751 of 2017, titled as Rikky vs. State of H.P., decided on 24.07.2017, (iv) Cr.MP(M) No. 1013 of 2017, titled as Rinku vs. State of H.P., decided on 08.08.2017 and
(v) Cr.MP(M) No. 1091 of 2017, titled as Kapil Garg vs. State of H.P., decided on 28.05.2017.
6. I need not refer to all the cases in detail as reference to the latest judgment in Cr.MP(M) No. 1091 of 2017, titled as Kapil Singh vs. State of H.P. would suffice wherein the legal position on the subject has been culled out in the following manners:-
"8.In the instant case, as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 1.981 mg/ml in 100 ml bottle and drugs namely Nitrazepam tablets has been found 9.83 mg per tablet, meaning thereby, quantity of prohibited drug, if taken into consideration qua 175 bottles, 487 tablets of Nitrazepam and 4320 capsules of Spasmo Proxyvon plus allegedly recovered from the petitioner, comes out to be less than 'small quantity'. SFSL, while concluding that 1.981 mg/ml Codeine Phosphate has been found in 100 ml bottle and 9.83 mg Nitrazepam is found in per tablet, has nowhere rendered any opinion with regard to remaining contents/mixture contained in the bottle of Corex Cough Syrup and tablet namely Nitravet-10, hence, inference can be drawn that 'small quantity' of codeine Phosphate is present in recovered bottles. Though, aforesaid aspect of the matter is to be considered and examined in detail by trial Court during the course of trial, but after having carefully perused opinion rendered by SFSL, as well as judgments rendered by the Hon'ble Full Bench in Mehboob Khan's case (supra), which has been further followed by a coordinate Bench of this Court in Ankush Chauhan's case and Prashant Chauhan's case ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -3- (supra), this court is of the view that rigors of Section 37 of the Act are not attracted in the case at hand.
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9. Indisputably, investigation in the present case is complete and challan stands filed before the competent Court of law on 15.03.2016. This Court cannot lose sight of the fact that petitioner is in custody since 27.12.2015 and more than 18 months have passed and as such he is entitled to be released on bail. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
7. Undoubtedly, the observations made in the aforesaid decision and other decisions relied upon by the learned counsel for the petitioner support the contentions raised by the petitioner to the effect that in case the 'pure content test' is applied, then exact drug contained is far below the commercial quantity, but then the question arises as to whether the 'pure content test' is applicable to the cases registered on or after 18.11.2009 in view of the notification No. S.O. No. 294 (E), dated 18.11.2009.
8. Another question which arises for consideration is whether the aforesaid observations are, in fact, contrary to the judgments rendered by a Co-ordinate Bench of this Court (Justice Rajiv Sharma) in Jaswinder Singh vs. State of H.P. 2013 (2) Shim.L.C. 942 and also judgments delivered by this Court in Om Pal vs. State of H.P. 2014 Cr.L.J 4147, Praduman Justa vs. State of H.P. 2016 Cr.L.J. 3639 and in a batch of bail applications leading number whereof was ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -4- Cr.MP(M) No. 1145 of 2014, titled as Nirmal Singh vs. .
State of H.P., decided by a learned Division Bench of this Court on 07.10.2014.
9. In Jaswinder Singh's case (supra), it was held that in order to determine whether the quantity is small or commercial, the weight of the entire bulk has to be taken into consideration as would be clear from the following observations:
r "3. Mr. Karan Singh Kanwar has vehemently argued that the petitioner is innocent and has been falsely implicated. He has also argued that Proxyvon is not mentioned in the list of psychotropic substance in the Schedule prepared as per clause (xxiii) of Section 2 of the Act.
4. Mr. Pramod Thakur has strenuously argued that the substance recovered from the petitioner is narcotic drug. He has relied upon notifications issued by the Government of India No. S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 29.01.1993 of manufactured narcotic drugs. Dextropropoxyphene has been defined at Sr. No. 87 of the notification.
5. It is true that Dextropropoxyphene (Proxyvon) does not find mention in the list of Psychotropic substance as per Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985.
6. "Manufactured drug" has been defined in clause (xi) of section 2 of the Act as under:
"Manufactured drug" means-
(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 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."
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7. "Narcotic drug" has been defined in clause (xiv) of section 2 of the Act as under:
"Narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods."
8. The expression "psychotropic substance" has been defined in clause (xxiii) of section 2 of the Act 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'
9. The Central Government has already issued notification, as noticed hereinabove and Dextropropoxyphene (Proxyvon) has been defined as manufactured narcotic drug. Section 21 provides that whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder, manufacturers, possesses, sells purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug shall be punishable, where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both and where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees and where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
10. The Central Government has issued notification specifying small quantity and commercial quantity. Dextropropoxyphene (Proxyvon) finds mention at Sr. No. 33 of the notification dated 19.10.2001. The small quantity is 20 grams and the commercial quantity is 500 grams. It is made clear that to determine whether the quantity is small or commercial, the weight of the entire bulk has to be taken into consideration. The Proxyvon (Dextropropoxyphene) falls within the ambit of manufactured narcotic drugs. It has been so notified vide notification Nos. 826(E) dated 14.11.1985 and S.O. 40(E) dated 29.1.1993. Small ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -6- Quantity and commercial quantity has been defined in Sr. No. 33 of the notification dated 19.10.2001."
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10. This Court in Om Pal's case (supra) was dealing with a case wherein the petitioner had sought his release on bail as the investigating agency had failed to file charge-sheet within the statutory period as defined under Section 167 (2) of the Code of Criminal Procedure. The Court after analyzing the notification No. SO 1055(E) dated 19.10.2001 whereby and wherein the small quantity and commercial quantity of each of the substance had been stipulated and after taking into consideration the notification No. S.O. 294(E) dated 18.11.2009 held as under:
"16. Notification No. S.O. 1055 (E) dated 19.10.2001 was issued in terms of clause (vii-a) of Section 2 of the Act, whereby and wherein the small quantity and commercial quantity of each of the substance had been stipulated as follows:
"Small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
"Commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
The said notification did not introduce a new psychotropic substance other than those mentioned in the schedule of the Act. Since intention of the notification appears to be only to prescribe small and commercial quantity of psychotropic substance by maintaining its statutory definition. However, by notification No. S.O. 294 (E) dated 18.11.2009, the amendment was brought in the notification dated 19.10.2001 and in the table at the end after Note 3, the following Note was added:
"(4). The quantities shown in column 5 and 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 ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -7- psychotropic substances of that particular drug in dosages 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."
17. Thus, what is established from the perusal of notification of 2009 is that the pure content test to ascertain the exact quantity of narcotic drugs and psychotropic substance or manufactured drugs is not required nor can it be used for any advantage especially by the accused. Because now the wholecontraband seized is required to be considered and not the quantity of drug or contraband reflected in the report of the Chemical Analyst."
11. Thereafter, this Court in Praduman Justa's case (supra) had a fresh re-look on the various provisions of the NDPS Act and Rules and vide a detailed judgment found no reason to take a different view to the one taken in Om Pal's case (supra).
12. Not only this, this Court while adjudicating upon Cr.MP(M) No. 1145 of 2017 alongwith connected matters noticed the conflict of decisions between the various judgments of this Court and thereafter referred the matter to Hon'ble the Chief Justice for considering the desirability to constitute a Larger Bench for determining the following question:-
"Whether the exact quantity (total mass) of the contraband recovered from offenders or percentage of Narcotic Drug/Psychotropic Substance seized is to be taken into consideration in relation to manufactured drugs and preparations? If so, what is its effect?::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -8-
13. A learned Division Bench of this Court vide its order .
dated 19.11.2014, answered the reference by observing as under:-
"Reference was made by the learned Single Judge after noticing the judgments made by the Co-ordinate Benches of this Court. This matter stands already decided by the Apex Court in a case titled as Harjit Singh versus State of Punjab, reported in (2011) 4 Supreme Court Cases 441. Accordingly, the reference is answered and the learned Single Judge is at liberty to pass appropriate orders."
14. However, when the matter finally came up before me for consideration on 21.11.2014, the petitioner requested for permission to withdraw the petition and accordingly the petition was dismissed as withdrawn.
15. Evidently, all these facts and decisions have not been brought to the notice of various Benches of this Court which apparently are in conflict, as a result whereof contrary judgments/orders continue to be passed, even after the specific question having already been answered by a learned Division Bench of this Court in Cr.MP(M) No. 1145 of 2014, titled Nirmal Singh vs. State of H.P. and connected matters and thus have to be held as 'per incuriam'.
16. In Harjit Singh's case (supra), the Hon'ble Supreme Court had the occasion to consider the amendment brought in the notification w.e.f. 18.11.2009, and it was observed thus:
"It is evident that under the aforesaid notification the whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of punishment."::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -9-
17. At this stage, it shall be apposite to refer to a .
subsequent decision of the Hon'ble Supreme Court in Mohd.
Sahabuddin and another vs. State of Assam (2012) 13 SCC 491, wherein after taking into consideration the notification dated 18.11.2009, the isolation theory/pure content theory was discarded and it was observed as under:-
"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 the 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 be only 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 ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP -10- 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 N.D.P.S. 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 exemption provided under the said notifications in order to consider the appellants' application for bail by the Courts below does not arise.
18. It is, thus, clear from the aforesaid discussion that the decisions relied upon by learned counsel for the petitioner are per incuriam as these decisions do not lay down the correct law, even despite the authoritative pronouncement by the Hon'ble Supreme Court in Harjit Singh and Mohd.
Sahabuddin's cases (supra) and above all the learned Division Bench decision of this Court in Nirmal Singh's case (supra).
List on 09.02.2018.
(Tarlok Singh Chauhan) Vacation Judge January 29, 2018 (sanjeev) ::: Downloaded on - 31/01/2018 22:52:22 :::HCHP