Gujarat High Court
Patel Rajeshkumar Jayantilal vs State Of Gujarat on 26 April, 2024
NEUTRAL CITATION
R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 6592
of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== PATEL RAJESHKUMAR JAYANTILAL Versus STATE OF GUJARAT ========================================================== Appearance:
MR GIRISH M DAS(2323) for the Applicant(s) No. 1 MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 26/04/2024 CAV ORDER
1. By way of the present successive anticipatory bail application filed under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on Page 1 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11192029240023 registered with Koth Police Station.
2. Head Constable Dilipsinh Parbatsinh Masani, Buccal No. 913, S.O.G. Police Staff, Ahmedabad Rural has lodged FIR No. 11192029240023 on 13/2 / 2024 11 / c . 8(c) 21(c) and 29 of NDPS Act. 1985 against three Persons, THE APPLICANT IS Accused No. 3 in the said FIR. It has been alleged that secret inputs were received to the effect that some Accused, in their C.N.G. Rickshaw No. GJ-6, BU- 1107, carrying intoxicative contraband, Cough Syrup Bottles and will pass through Baroda Vataman Highway. It has been alleged that based on such -
inputs, trap was arranged accordingly and Accused No. 1 and 2 were intercepted and arrested on the spot. It has been alleged that the said Accused disclosed name of present Applicant from whom, they have obtained cough syrup bottle containing contraband Codeine. It has been alleged that the Accused were carrying 590 Cough Syrup Bottles without license and without permit, Panchnama was drawn thereafter at Vataman Police Choky. It has been alleged that the said 590 Syrup Bottles were seized on the primary Certificate issued by F.S.L. Officer Shree B.C. Vania AND Officer of Foods and Drug Department, Shree G. N. Thummar INDIA stating that content in the cough syrup is Codeine which is contraband under the NDPS Act, 1985. Along with said Rickshaw, 3 Mobiles and some cash from Accused, were also seized.
3. As the petitioner is arraigned as accused in the aforesaid Page 2 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined offence, upon apprehending his arrest for the said offence, he moved present anticipatory bail application.
4. Heard learned advocate Mr. Girish Das for the petitioner and learned APP for the State.
5. Learned advocate for the petitioner would submit that the petitioner is the license holder to sell, stock and exhibit the Schedules C and C1 drug as per the Drugs and Cosmetic Rules (In short "Rules"). He would further submit that the petitioner being license holder by selling cough syrup has not done any illegal activity/offence. He would further submit that according to the prosecution case, the petitioner has sold cough syrup to VR Health Care, he is also license holder and licenses are issued by the concerned Licensing Authority - Asst. Commissioner, Food and Drug Control Administration, Vadodara. Thus, it is established that selling of cough syrup would not entail any guilt. He would further submit that since it is lawfully permissible to sell the cough syrup in the open marker in view of Rule 65 of the Rules, it cannot be said that the petitioner is selling contraband narcotics under the NDPS Act. He would further submit that the bottles of cough syrup, which are seized, contained 10 mg Triprolidine Hybrocloride IP 5 ml, which is not more than 100 mg of the drug per dosage unit in undivided preparations and the concentration of Codeine in cough syrup, which is merely 1.25 mg and is not obviously more than 0.2%. This cough syrup is prepared for Therapeutic practice and it is not manufactured drug under the NDPS Act and therefore, it is not a NDPS substance in view of section 2(xvi)(e) of the NDPS Act Page 3 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined and therefore, prohibition contained in section 8 of the NDPS Act does not apply in the present matter. He would further submit that even otherwise, in view of section 37 of the NDPS Act, in facts and circumstances of the case, the Court must satisfy that there are reasonable grounds for believing that the petitioner is not guilty of any such offence and therefore, present petitioner may be granted anticipatory bail.
6. Learned advocate Mr. GM Das would further submit that since the drug contained Codeine is as per the license, it cannot be said that the petitioner is selling NDPS contraband. He would further submit that the petitioner has also paid GST on selling of Codeine cough syrup and is accepted by the GST department. So, it means that selling of cough syrup is legally permissible and it does not fall under the NDPS Act. The contents with the cough syrup being Codeine was below permissible limit and therefore, it could not constitute any offence under the NDPS Act.
7. In view of above, learned advocate for the petitioner further submits that since the petitioner is permanent residents of Vadodara and he has deep root in the society and has no antecedent and there is no flight risk, so also the petitioner is ready and willing to cooperate with the investigation, the petitioner may be granted anticipatory bail.
8. To buttress his submission, learned advocate Mr. Das for the petitioner would referred to and relied upon following judgments:-
Page 4 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined (1) Judgment of Madhya Pradesh High Court in case of Jitendra Patel S/o Shri Ugrasen Patel Vs. State of Madhya Pradesh rendered in Misc. Criminal Case No.4292 of 2022 (2) Judgment of Allahabad High Court in case of Ashok Kumar Vs. Union of India reported in LAWS (ALL) 2014 10 42 (3) Judgment of Hon'ble Apex Court in case of Md.
Sahabuddin and another Vs. State of Assam rendered in Criminal Appeal No.1602 of 2012.
(4) Judgement of Allahabad High Court in case of Ramji Singh Vs. Directorate of Enforcement Allahabad Sub Zonal Office reported in LAWS (ALL) 2023 9 29
9. Upon such submission, learned advocate Mr. Das for the petitioner submits to allow this petition.
10. On the other hand, learned APP would submits that 590 bottles of Codeine Phosphate when they were transporting was recovered upon secret tip. Not only that, but subsequently, when raid was conducted from the other godown, it found around huge quantity of Codeine cough syrup, obviously, it was not kept for the Therapeutic use, but were kept for the purpose of selling the contraband under the guise and pretext of selling the cough syrup. Submission is also made that when raid was conducted, the godown belongs to the petitioner and was without license. He would further submit that since the cough syrup, which was found during the raid, contains the Codeine Phosphate 10 mg in 5 ml syrup and it beyond the permissible limit, it falls in the definition of contraband substance under the NDPS Act and therefore, he would submit that in view of section Page 5 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined 37 of the NDPS Act, the Court should be slow even in granting regular bail to the petitioner.
11. Upon such submission, learned APP prays to dismiss the petition.
12. Having heard learned advocates appearing for the respective parties and on perusal of the material on record, at the outset, it is to be noted that section 2(xvi) of the NDPS Act defines opium derivatives, which means phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts. Thus, Codeine is the opium derivatives. The narcotic drug is defined in section 2(xiv) of the NDPS Act, according to which, Narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs. Section 2(xi) of the Act defines the manufactured drug of coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate. The Central Notification dated 14.11.1985 and published in Government Gazette of India issued u/s 2(xi)(b) of the NDPS Act, wherein manufactured drugs have been mentioned. Relevant portion of notification issued under the NDPS 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:
XXX XXX XXX (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 Page 6 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined 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."
13. The petitioner, who is claiming that seized bottles contains the Codeine is not narcotic drug has to prove that Codeine contained in cough syrup was lass than the permissible limit. FSL report prepared on the spot indicates that Codeine contained in cough syrup bottle was beyond permissible limit, as such, FSL, by spot report, declared about containing contraband substance defined under the NDPS Act in the cough syrup bottles.
14. Yet, if we see background of the above aspect and go by the facts of the case, what appears that the Koth Police Station has received a tip that two persons are carrying cough syrup on Vadodara Vataman Highway; they have been intercepted, two persons, namely Shakilbhai and Pratik Panchal, who are accused in the offence with 590 bottles, each of 100 ml of cough syrup and it contained Codeine. It is the case of the petitioner that he has sold the cough syrup containing Codeine to the license holder, but such contention failed to be substantiated. At the time of raid, two persons found carrying the cough syrup. Upon interrogation of these two persons, it is revealed that they have purchased these 590 bottles cough syrup from the present petitioner. Upon receipt of this information, Koth Police Station had informed to the Vadodara Police Station and SOG Department, Vadodara has raided godown No.6 at Maheshwari Bhuvan, near Bajva Railway Station and found 40040 cough syrup containing Codeine. These were kept in the no-license Page 7 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined premises. The cough syrup was manufactured by Acron Pharmaceuticals, statement of owner of Acron Pharmaceuticals has been recorded by the police and in his statement, he has stated that he is manufacturing Rexux - TP, the cough syrup contains the Codeine. The petitioner herein during the period from 5.7.2023 to 9.2.2024, in total, has ordered 2,44,000/- cough syrup bottles to the manufacturer and also purchased the same. The petitioner was required to explain that where he has sold all these cough syrup contained Codeine. What further appears that the petitioner has only purchased cough syrup from the Acron Pharmaceuticals and besides that, he has not purchased any other drug from Acron Pharmaceuticals. So, prima facie, it appears that the petitioner is indulged in selling of the narcotic, namely, Codeine, which is used for to be intoxicated.
15. It is clear that the petitioner has not sold Rexux-TP cough syrup contained Codeine to any purchaser, who has license to purchase said drug, but it was found while it was under
transportation. The statement of Mr. Pratik Panchal recorded by the investigating officer also indicates that the petitioner has no license for purchasing or selling cough syrup containing Codeine and he has purchased the same for selling it for the purpose of intoxication and not for the purpose of curing ailment.
16. In case of Md. Sahabuddin (supra), which is relied upon by learned advocate Mr. Girish Das for the petitioner, the issue has been vividly discussed by the Hon'ble Apex Court, the observations and findings made therein by the Hon'ble Apex Page 8 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined Court are rather helping the case of the prosecution. The relevant paras reads as under:-
"7. Having heard respective counsels and having perused the order of the Sessions Court as well as the High Court, at the very outset, we feel that to appreciate the gravity of the offence alleged against the appellants, it is worthwhile to refer to the nature of materials seized, the total quantity and the extent of codeine phosphate contained therein which has been noted by the High Court in paragraph 34 of its order which can be usefully extracted hereunder:
"B.A. No.885/2012 Recodex 10200*182.73 milligrams =1863 grams =1.863 kilograms Phensedyl 34700*183.15 milligrams = 6355 grams =6.355 kilograms Total = 8.218 kilograms i.e. Total 8 kilograms 219 grams"
8. The contentions of the appellants were fourfold. In the first place, it was contended that the cough syrup Phensedyl and Recodex are pharmaceutical products covered under the provisions of the Drugs & Cosmetics Act, that the Rules prescribe the measure of dosage as 5 ml. and that under Rules 65 and 97 of the Drugs & Cosmetics Rules, it is lawfully permissible to sell such cough syrups in the open market, which can also be transported, kept in stock and sold in the pharmaceutical shops as a prescribed drug under Schedule 'H' at Serial No.132. According to the appellants, such prescribed drugs under the Rules can contain codeine to the extent permissible. While referring to Rule 97, it was contended that Schedule H Drugs containing permissible extent of narcotic substance could be sold in retail on the prescription of Registered Medical Practitioner. The learned counsel, therefore, contended that each of the 100 ml. bottle, seized from the appellants, satisfy the requirement prescribed under the above referred to two Rules 65 and 97 and in the circumstances there was no question of proceeding against the appellants under the N.D.P.S. Act.
10. At the very outset, the abovesaid submission of the learned counsel is liable to be rejected, inasmuch as, the conduct of the appellants in having transported huge quantity of 347 cartons containing 100 bottles in each carton of 100 ml. Phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml. Recodex cough syrup without valid documents for such transportation cannot be heard to state that he was not expected to fulfill any of the statutory requirements either under the provisions of Drugs & Cosmetics Act or under the provisions of Page 9 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024 NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined the N.D.P.S. Act.
11. 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.
12. 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.
13. 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 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."
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17. Thus, it prima facie appears that the present petitioner is dealing in selling of the cough syrup contained Codeine, which is beyond permissible limit. This is regular business of the petitioner. Around 40,040 bottles of cough syrup having Codeine are found from the godown owned/belonged to the petitioner having no license to store. More than prima facie selling of contraband substance at the behest of petitioner is established. In such facts, no case for extraordinary remedy is made out.
18. Even otherwise, section 37 of the NDPS Act has full vigor to apply. This Court should slow in granting anticipatory bail in case under the provisions of the NDPS Act. A person, who is claiming bail in a commercial quantity under the NDPS Act has to satisfy the twin condition stipulated in section 37 of the NDPS Act. In the present case, the petitioner has failed to make out case.
19. It could not go unnoticed that use of contraband substances and narcotic drugs is ruining youth of this country, which eventually, diminishes future of the country. Accused, who is indulged in such activity cannot be given discretion of pre-arrest bail. Societal need in present case set on higher pedestal than the personal liberty of the petitioner.
20. This Court in Aakash Makwana Vs. State of Gujarat reported in 2023 SCC Online Gujarat 4622, after referring various authority on the subject, in para 40, observed as under:-
Page 11 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024NEUTRAL CITATION R/CR.MA/6592/2024 CAV ORDER DATED: 26/04/2024 undefined "" 40. What transpires from the above dictum is that the prosecution, at this stage, is required to prove and produce prima facie evidence in support of the charge and to show that there are reasonable grounds for believing that the concerned accused is involved in the offence, alleged against him. Arrest is the part of procedure for several other purposes, including securing the presence of the accused at the time of trial. Relevant information, which the accused may provide during the custodial interrogation, is one of the core issues. At the same time, the Court deciding the pre-arrest ball is required to struck a balance between the individual right of freedom or liberty and the right of the IO to interrogate the accused. The Hon'ble Apex Court observed that refusal to grant pre-arrest bail shall not necessarily result in denial of right of individual liberty, guaranteed under the Constitution of India, as it is the extra-ordinary discretion, which is to be exercised, sparingly."
21. The judgments relied upon by Learned advocate for the petitioner are not parallel to the facts of the present case and therefore, they are not helping to the case of the petitioner.
22. Resultantly, present petition fails and stands dismissed.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 12 of 12 Downloaded on : Fri Apr 26 21:36:17 IST 2024