Madhya Pradesh High Court
Gopal Gupta vs The State Of Madhya Pradesh Thr on 11 May, 2017
1
M.Cr.C.No.4310/2017
(Gopal Gupta Vs. The State of M.P. & Another)
11.05.2017
Shri Sankalp Sharma, learned counsel for the
applicant.
Shri Kuldeep Singh, learned Public Prosecutor for
the respondent No.1/State.
Shri Vivek Khedkar, learned Assistant Solicitor General for the respondent No.2.
Case diary is available.
Learned counsel for the rival parties are heard. This is second repeat bail application under 439 of Cr.P.C. moved by the applicant for grant of bail in connection with Crime No.02/2017 for commission of offences punishable under Section 08/21 of N.D.P.S.Act registered at Police Station Central Narcotics Bureau, Morar, District Gwalior. The earlier bail application was dismissed as withdrawn on 27.03.2017 in M.Cr.C.No. 2065/2017 According to the learned counsel for the applicant, the change in circumstances which has prompted filing of the present application is in addition in the custody period since dismissal of last bail application.
The prosecution has alleged that the present applicant is the father of the Stock License Holder under the Drug and Cosmetics Act, 1940 and was found in possession of 76,200/- Bottles of Phensedyl Cough Syrup which contains a Narcotic Substance, namely "Codeine Phosphate", which is a Scheduled Substances under the NDPS Act, 1985. It is further alleged that stipulations in license issued have not been adhered to and supply-chain of Phensedyl Cough Syrup to retailers 2 M.Cr.C.No.4310/2017 is suspicious, which is evident from the fact that the information supplied with respect to destination of some of these bottles has been found to be false. The applicant is unable to give any justification for possessing such large quantities of bottles of Phensedyl Cough Syrup. Further, the applicant is not the License Holder and therefore, he cannot claim any shelter by relying on the provisions of Drugs and Cosmetics Act, 1940.
In the background of these allegations, the learned counsel for the applicant contended that the bottles have not been recovered from the sole custody of the applicant as the Stock License Holder is his son Ritik Gupta who resides with him. Therefore, it is natural that the material procured by his son will be stored in the property of the applicant and this will not give rise to any adverse inference against the applicant. With respect to the quantity of bottle the learned counsel for the applicant strenuously argued that there is no limit prescribed under any law to control the quantity of medicinal drugs. Thus, as long as the Court is able to trace the source of procurement of these bottles to the Stock License Holder, the quantity of bottle will be insignificant. It has been further submitted that the medicinal in question is below the minimum quantity prescribed under the NDPS Act and therefore, the provision of Drugs and Cosmetics Act can only be pressed into service as the NDPS Act does not apply to the material which is for medicinal use. He submits that the present applicant is languishing in jail approximate for last four months and the conclusion of the 3 M.Cr.C.No.4310/2017 proceedings will consume substantial time and therefore, he cannot be kept in custody for unlimited period. In support of his contentions, the learned counsel for the applicant placed reliance on the cases Criminal Revision No.3126/2015 (Vidyacharan Shukla Vs. State of M.P.) Order dated 08.03.2016, M.Cr.C.No.19922/2015 (Arvind Chandwani Vs. State of M.P.) Order dated 28.04.2016, (Baljeet Singh Vs. Union of India (N.C.B.) reported in 2015(3) ACR 3214 decided on 15.04.2015 and M.Cr.C.18363/2016 (Dhirendra Kumar Dwivedi Vs. The State of M.P.) order dated 30.11.2016.
Learned counsel for the respondent who was offered complete opportunity to object to the prayer for the grant of bail as mandated under Section 37 of NDPS Act, who placed reliance on the judgment of Hon'ble Supreme Court in the case of Mohd. Sahabuddin & Another Vs. State of Assam, (2012) 13 SCC 491 and Union of India & Another Vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 to submit that the quantity of drug recovered is large in number. Further the quantity of Drug is to be calculated by adding the quantity of Codeine in each bottle which will clearly indicate that the commercial quantity prescribed under the schedule of the NDPS Act has been violated which is punishable. The learned counsel for the respondent also invited attention of this court to the fact that the bottles were recovered from gunny bags and if the same were meant to be supplied to retailers, then the same would have been stored in cartons in an organized manner with proper documentation.
4 M.Cr.C.No.4310/2017The first contention of the applicant which arises for consideration is that the recovered material in this case is only exposed to liabilities under Drugs and Cosmetics Act and the NDPS Act has no applicability. This contention sans merit as the Hon'ble Supreme Court in the case of Mohd. Sahabuddin & Another Vs. State of Assam, (2012) 13 SCC 491 has already dealt with this contention in similar circumstances in the following manner :-
9. At the very out set, the abovesaid submission of the learned counsel is liable to be rejected, in such much 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 fulfil any of the statutory requirements either under the provision of the Drugs and Cosmetics Act or under the provisions of the NDPS Act.
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 has 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 proscribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.5 M.Cr.C.No.4310/2017
The observation by the Hon'ble Supreme Court reproduced herein above leaves no scope for this Court to entertain the contention canvassed by the learned counsel for the applicant more particularly, on account of the fact that the quantity in the present case is 76,200/- bottles with no valid documentation to justify the retention of such huge quantities of bottles. If this contention is accepted, then it will create a grey area which could be exploited for legitimizing the circulation of medicinal drugs used for intoxication and to evade the stringent punishment under the NDPS Act.
The next contention of the learned counsel for the applicant that each bottles contains less than small quantity under the NDPS Act and therefore, the prosecution has wrongly saddled that the applicant with provisions which penalize possession of more than the commercial quantity of Narcotics. This contention also pales into insignificance in the light of the observations reproduced hereinabove and made by the Hon'ble Supreme Court in the case of Mohd. Sahabuddin & Another Vs. State of Assam, (2012) 13 SCC 491 in para 15 in the following manner.
15. When we refer to the decisions relied upon by the learned counsel for the appellants, we find that none of the facts relating to those decisions are parallel to the facts of the present case. Those are all cases which were related to the persons who had valid licences and in the course of their regular business transaction when they were dealing with the pharmaceutical products which contained the prescribed permitted content of narcotic substance and 6 M.Cr.C.No.4310/2017 when they were proceeded against for violations, the relief came to be granted in their case. We do not, therefore, find any scope to apply any of the ratios of those decisions to the facts of this case.
The reproduced portion also takes care of the reliance placed by the learned counsel for the applicant on the order passed by this Court in similar circumstances as in those cases, the quantities were different and the material seized was being transported under usual business transaction.
On cumulative consideration of the facts, law laid down by the Hon'ble Supreme Court and upon finding much force in the contentions canvassed by the learned counsel for the respondent, I am of the considered view that this is not a fit case to grant bail, therefore application under Section 439 of Cr.P.C. filed by the applicant is hereby rejected.
(S.K.Awasthi) Judge AK/-