Madhya Pradesh High Court
Ankit Bung@ Maheshwari vs The State Of Madhya Pradesh on 19 December, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
M.Cr.C No.40558/2024
Ankit Bung alias Maheshwari
Vs.
State of Madhya Pradesh
Appearance:
(SHRI NARENDRA KUMAR SHARMA - ADVOCATE FOR THE
APPLICANT)
(SHRI ABHIJEET AWASTHY - DEPUTY ADVOCATE GENERAL FOR
THE RESPONDENT/STATE)
..............................................................................
Reserved on : 09.12.2024
Pronounced on : 19.12.2024
..............................................................................
ORDER
This is first bail application filed by the applicant under Section 483 of BNSS, 2023 for grant of regular bail in relation to FIR No.109/2024, dated 01.02.2024 registered at Police Station - Maiher, Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 2 District Maihar (M.P.) for commission of offence punishable under Sections 8(B), 21 and 22 of NDPS Narcotic Drugs and Psychotropic Substances Act, 1985 Act and Section 5/13 of M.P. Drug Control Act. Applicant is in detention since 06.03.2024.
2. As per the prosecution story, on 01.02.2024 at around 12:45 A.M. Sub Inspector Santosh Singh Uladi received a secrete information that four persons traveling in a grey colour Brezza car bearing registration number M.P.-17-CC-2955 are transporting onerex cough syrup having codeine phosphate from Amdara side to Maihar side. Said information was recorded in general diary and informer panchanam was recorded. After following due procedure contemplated under the provision of the Act, Sub Inspector Uladi along with independent witnesses reached near Amla Nala, Katni road, Maihar and intercepted grey colour Brezza car bearing registration number M.P.-17-CC-2955. The persons traveling in the vehicle introduced themselves as Santosh Shukla, Manish Saket, Sampat Kumar Mishra and Santosh Kushwaha. They were informed about the information received and were made to understand with their right to get their vehicle searched from Magistrate or Gazetted Officer, but they agreed to give search to Sub Inspector Santosh Singh Uladi. In search of the vehicle in the dicky of vehicle 15 carton having 120 bottles in every carton of onerex cough syrup having codeine phosphate, in total 1800 bottles of Batch No. OCRS - 1013, worth Rs.3,06,000/- were seized and seizure memo was prepared. Every bottle of 180 ml syrup was having codeine phosphate.
Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 3Seizure memo was prepared in the presence of the witnesses.
3. In the course of the investigation Santosh Shukla and other co- accused informed that they had purchased aforesaid onerex cough syrup having codeine phosphate from Ankit Maheshwari alias Ankit Bung of Bhopal (M.P.) and they are in constant touch with Ankit Maheshwari, R/o Shahjanabad, Bhopal (M.P.). It was also informed that after purchasing of the aforesaid cough syrup from Ankit they were taking the same to Satna, but Police has recovered the same from them. On the basis of disclosure by the accused persons Ankit Maheshwari's memorandum was also recorded. In his memo Ankit disclosed that he runs a medical shop in the name and style of "R.S. Enterprises", Shop No.F-70, 1st Floor, Vardhman Plaza, Hamidia Road, Tashil Huzur, District Bhopal (M.P.) wherein he sale in wholesale and retail the onerex cough syrup. He had sold the aforesaid cough syrup to Santosh Shukla and others. It was also informed by him that the Crime Branch, Bhopal, Police has also seized 127 carton of cough syrup from him. Along with case diary of the present case State has produced photo copy of the charge sheet of FIR No.27/2024 of Crime Branch Bhopal for commission of offence under Section 8/21, 22, 25 and 25-A and Section 29 of NDPS Act and Section 5/13 of M.P Drug Control Act, filed before Bhopal Court, showing that on 01.02.2024 at around 05:00 A.M 127 carton of onerex cough syrup having codeine phosphate in total 15,240 bottles of onerex cough syrup. Every 5 ml having 10 ml codeine worth Rs.25,90,800/- were seized from the rented house of Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 4 House No.11, Sunder Balwani's house near Water Tanki, Shahjanabad, Bhopal (M.P.).
4. Learned counsel for the applicant has submitted that applicant has not committed any offence. He is innocent. He has been falsely implicated. He has been made accused on the basis of the memorandum of the co-accused, which is neither legal nor admissible in evidence. It is further contended that the applicant is valid licence holder of "R.S. Enterprises" and as per license and form 21-B {(See Rule 61(1)} has license to sell, stock or exhibit or offer for sale, or distribute by wholesale drugs specified in Schedules C and C(1) (excluding those specified in Schedule X).
5. Learned counsel for the applicant placing reliance on Tofan Singh Vs. The State of Tamil Nadu, AIR 2020 SC 5592 has submitted that on the basis of the memorandum of the co-accused no one can be convicted and no reliance can be placed on the memorandum of the co- accused till some recovery is made or some evidence is collected on that point.
6. Learned counsel for the applicant has also placed reliance on the Single Bench order dated 09.12.2024 Vibhore Shukla Vs. The State of M.P., passed in M.Cr.C.No.52653/2024 whereby bail was granted on the ground that the accused has been enroped as accused on the basis of the memorandum and no recovery has been made from him and no other evidence has been collected.
Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 57. Learned counsel for the applicant has also placed reliance on the bail order dated 23.04.2023 Pappu Gupta Vs. State of M.P. passed in M.Cr.C.No.45065/2020 whereby 65 bottles of cough syrup was seized and the applicant was made accused on the basis of the memorandum. On the aforesaid pretext it is prayed that the applicant may be released on bail.
8. On the other hand, learned counsel for the State has opposed the prayer for grant of bail to the applicant and has submitted that it is a case where 15 carton of onerex cough syrup sold by the accused has been seized from the possession of Santosh Shukla and other co- accused person and on the basis of their memorandum that they had purchased the aforesaid onerex cough syrup from the present applicant, who is already detained in jail was interrogated and stated that he had sold the aforesaid onerex cough syrup to the co-accused persons. It is submitted that after seizure of 15 carton of the onerex cough syrup having 1800 bottles from the co-accused persons Crime Branch, Bhopal raided the premises in possession of the present applicant at Shahjanabad, Bhopal and the Crime Branch, Bhopal seized a huge quantity of onerex cough syrup having codeine phosphate from his possession in total 127 cartons have been seized from his possession and same is worth Rs.25,90,800/-, therefore, it cannot be said that no recovery has been made from the possession of the present applicant. It is further submitted that though the applicant/accused is having license, but he has not obtained any license under NDPS Rules. As in Rule Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 6 52A, sub Rule (3) at serial No.2, "name of essential narcotic drug"
gives a description of Methyl Morphine (commonly known as 'Codeine'), which is an exact verbatim copy of entry No.35 in notification titled "Manufactured Narcotic Drugs" (as contained in Government of India notification No.S.O. 826 (E) dated 14.11.1985 and S.O. 40 (E) dated 21.09.1993 and S.O. No.1431 (E) dated 21.06.2011 and Rule 52A regulates the manner of possession and other related activities enumerated therein with respect to substances/preparations covered under the aforesaid entry No.35.
9. It is further submitted by the learned Deputy Advocate General that Section 21 of NDPS Act provides of prosecution for contravention of any of the provision of the NDPS Act or any Rule made thereunder. Rule 52A clearly prohibits any person from possessing any "essential narcotic drug" otherwise than in accordance with the provisions of the rules made thereunder. It is further submitted that the applicant admittedly sold 15 cartons of the onerex cough syrup having Codeine Phosphate without issuing any valid bill to Santosh Shukla and other co-accused. As such he has violated the rules made under the Act. A recovery of huge number of onerex cough syrup has been made as same was kept without having requisite license as required under the provision of Rule 52A and the various notifications issued by the Central Government. Therefore, the accused is not entitled for bail as the case relates to the commercial quantity. It is further contended that the case law of Toofan Singh (supra) is not applicable in the present Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 7 case as on day of recovery of contraband from co-accused persons the Crime Branch, Bhopal had recovered a huge quantity of onerex cough syrup from the possession of the present applicant. Therefore, at this stage it cannot be said that the memorandum given by the co-accused is neither legal nor admissible as recovery of huge cache has already been made by the Crime Branch.
10. I have heard learned counsel for the parties at length and perused the record.
11. On perusal of the prosecution story it is apparent that on 01.02.2024, Maihar Police, intercepted Brezza vehicle bearing registration number M.P.-17-CC-2955 and from the conscious possession of four person, who were traveling in the vehicle 15 carton onerex cough syrup in total 1800 bottles of the cough syrup having codeine phosphate worth Rs.3,06,000/- has been seized and on the basis of their information in the memorandum that they purchased the aforesaid cough syrup having Codeine Phosphate from Ankit Bung, Crime Branch, Bhopal raided the premises in possession of the present applicant and seized 127 carton of onerex cough syrup in total 15,240 bottles worth Rs.25,90,800/- from the possession of the present applicant. He was arrested and charge sheet has been filed.
12. Undoubtedly, applicant runs a medical shop in the name and style of "R.S. Enterprises" and has a license to sale, stock or exhibit or offer for sale or distribute by wholesale on the premises situated at Shop Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 8 No.F-70, 1st Floor Vardhman Plaza, Hamidia Road, Tahsil Huzur, District Bhopal (M.P.) license is valid from 24.05.2022 to 23.05.2027. Annexure A/3 GST invoive credit memo issued by Ujjwal Enterprises, Gwalior show that on 25.01.2024 applicant had purchased 120 cartons of onerex cough syrup from it. It reveals that he had purchased the aforesaid cough syrup from Ujjwal Enterprises, but it cannot be overlooked that he has not produced any other bill showing that he had purchased some other quantity as well from Ujjwal Enterprises. As per the invoice he had purchased only 120 cartons of cough syrup worth Rs.10,80,000/- but on the contrary 127 cartons have been seized from the house in his possession and not from the shop of "R.S. Enterprises". 15 cartons had already been sold by him to the co-accused persons. Thus, it is not clear as to how he came into the possession of the excess cartons beyond the quantity of purchased drug shown in the Annexure A/3 bill of Ujjwal Enterprises. It is also not clear that about sale of the aforesaid 15 carton of onerex cough syrup having codeine phosphate to Santosh Shukla and others, he has issued any bill or invoice in their favour or not there is nothing on record, on the basis of which, it can be inferred that he had sold the aforesaid huge quantity of the codeine cough syrup for any therapeutically purposes to the co-accused persons as they are neither valid license holder nor registered medical practitioner. The Rule 52A of Narcotic Drugs and Psychotropic Substances Rules, 1985 mandates that possession of any essential narcotic drug such as Codeine is prohibited, and a person may possess Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 9 the same only as has been at one time sold or dispensed for his use as per the prevailing law. Thus, possession of large quantities of codeine for no rhyme or reason is strictly prohibited under the scheme of these rules. Even a registered medical practitioner is not allowed to possess over a certain quantity for practice and cannot use the same for sale or distribution.
13. Rule 52B or Narcotic Drugs and Psychotropic Substances Rules, 1985. - Makes it clear that the license dealer must have the specific license under the NDPS Act or Rules to possess, sell, exhibit or distribute such essential narcotic drugs. The Rule or the Act nowhere provides that a license under the Drugs and Cosmetics Act would be sufficient to qualify as a license under the NDPS Act. Applicant has not produced any license to qualify as a license under the NDPS Act as required under Rule 52B of the Narcotic Drugs and Psychotropic Substances Rules.
14. Section 9 (1)(va) of NDPS Act, which was introduced by the Narcotic Drugs and Psychotropic Substances (amended) Act, 2014, which came into effect on 01.05.2014 authorized Government to permit and regulate the manufacture, possession, transport, import inter-state export, inter-state sale, purchase, consumption and use of the essential Narcotic Drugs. The term essential Narcotic Drug has not been defined in the NDPS Act. NDPS Rule 52A of the said chapter provides as under:-
Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 10"52A. Possession of essential narcotic drug. - (1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules. (2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules. (3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely-
TABLE Sr. No. Name of the essential Quantity narcotic drug
1. Morphine and its salts 500 Milligrammes and all preparations containing more than 0.2 per cent of Morphine
2. Methyl morphine 2000 Milligrammes (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 milligrammes of the drug per dosage unit and with a Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 11 concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice.
3. Dihydroxy Codeinone 250 Milligrammes (commonly known as Oxycodone and Dihydroxycodeinone) its salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodal and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs.
4. Dihydrocodeinone 320 Milligrammes (commonly known as Hydrocodone), its salts (such as Dicodide, Codinova, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs
5. 1- phenethyl - 4- n- Two transdermal propionylanilino - patches one each of 12.5 piperdine (the microgram per hour and Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 12 international non- 25 microgram per hour;
proprietary name of
which is Fentanyl) and
its salts and
preparations, admixture,
extracts or other
substances containing
any of these drugs
Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special order authorise, in Form 3-B, any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above Table:
Provided further that such authorisation may be granted or renewed, for a period not exceeding three years at a time.
Explanation. - The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices."
15. Hon'ble Apex Court in Union of India Vs. Sanjeev V. Deshpande(2014) 13 SCC 1 has held as under:-
"25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 13 Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.
26. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances."
16. On the basis of the aforesaid analysis, it is apparent that, if a case is covered by Rule 52A of NDPS Act made under Section 9 (1)(a)(va) of the NDPS Act then violation of the said rule would be punishable under the same rule.
17. Hon'ble Apex Court in the case of Hira Singh and Others Vs. Union of India and another (2020) 20 SCC 272 has held as under:-
"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."
18. After taking into consideration the submissions putforth by the learned Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 14 counsel for the parties, I am of the view that it is a case where a huge commercial quantity has been seized from the co-accused and from the present applicant also by Police of two different Police Stations i.e. Maihar and Bhopal. Co-accused have been apprehended with the huge quantity by Maihar Police while Bhopal Crime Branch has seized 127 cartons worth Rs.25,90,800/- from the possession of the present applicant. The present applicant has not issued any bill in favour of the co-accused persons, therefore, at this stage, it cannot be said that he had sold the cough syrup having Codeine Phosphate to registered medical practitioner or same was sold for any therapeutic purposes.
19. In such situation the bail cannot be granted without complying with the requirements of Section 37 of the NDPS Act, as his involvement in the commission of offence prima facie appears and same is punishable under Section 21 read with Section 29 of NDPS Act. The rigour of Section 37 of NDPS Act would apply to the present case. Since the applicant and co-accused have been found in possession of the commercial quantity of Codeine Phosphate and there is no material on record to show that the applicant has not committed the offence or he is not likely to commit the offence, in the case of release on bail. Hence, it can be said that he has not satisfied the condition laid down under Section 37 of the NDPS Act. As a huge quantity has been seized from the possession of the present applicant also by the Crime Branch, Bhopal, therefore, he gets no benefit from the law laid down by the Hon'ble Apex Court in the case of Toofan Singh (supra) and Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 15 bail orders passed by the co-ordinate Benches of this Court as in those cases, no recovery was made from the applicant.
20. In view of above, the first bail application filed on behalf of the applicant is hereby dismissed.
(DINESH KUMAR PALIWAL) JUDGE Vin** Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 16 Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM 17 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL M.Cr.C No.40558/2024 Ankit Bung alias Maheshwari Vs. State of Madhya Pradesh Dated 09.12.2024.
Shri Narendra Kumar Sharma - Advocate for the applicant. Shri Abhijeet Awasthy - Deputy Advocate General for the respondent/State. Arguments heard.
Reserved for orders.
(DINESH KUMAR PALIWAL) JUDGE Vin** Signature Not Verified Signed by: VINOD SHARMA Signing time: 20-12-2024 1:17:32 PM