Punjab-Haryana High Court
Lakhbir Singh @Lakhvir Singh vs State Of Punjab on 6 November, 2012
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRM No.M-18819 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M- 18819 of 2012(O&M)
Date of Decision: November 6, 2012.
Lakhbir Singh @Lakhvir Singh.
...... PETITIONER(s)
Versus
State of Punjab.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Anant Kataria,
Advocate, for the petitioner.
Mr. P.S.Paul, DAG, Punjab.
*****
RAM CHAND GUPTA, J.(Oral)
The present petition has been filed for regular bail under Section 439 of Code of Criminal Procedure in FIR no. 102 dated 19.05.2012, under Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act'), registered at police station Samrala, District Ludhiana.
I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned Judge, Special Court, Ludhiana dismissing bail application filed by the petitioner.
Brief allegations against petitioner-accused are that, on CRM No.M-18819 of 2012 2 19.05.2012 in the area of village Salaudi, police station Samrala, District Ludhiana at about 6.00 PM, petitioner-accused was apprehended by the police for keeping in possession 12 bottles of liquor make Royal Stag, 40 packets containing 100 intoxicating tablets each i.e. total 4000 tablets. After separating the requisite sample, the remaining tablets were sealed in a separate packet. Petitioner could not show any permit or license for keeping the said huge quantity of tablets in his possession. Report FSL was received according to which, the sample was found containing 'Dyphenoxylate Hydrochloride' 2.2 mg per tablet.
It has been contended by learned counsel for petitioner-accused that as per entry 58 of notification no. S.O. 826(E) dated 14.11.1985 issued by the Central Government, Ministry of Finance, Department of Revenue in exercise of power conferred by clause (xi) of Section 2 of the NDPS Act, recovery does not come within the definition of manufactured drug.
It is pertinent to reproduce Section 2(xi) of the NDPS Act, which defines manufactured drugs as under:-
"(a) all coco 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 CRM No.M-18819 of 2012 3 Official Gazette, declare not to be a manufactured drug;"
The drug recovered from the possession of petitioner-accused has been mentioned as manufactured narcotic drug at entry no.58 of notification no. S.O. 826(E) dated 14.11.1985 issued by the Central Government, which reads as under:-
"(58) Ethyl 1-(3-Cyano-3, 3-diphenylpropyl) -4-
Phenylpiperidine-4-carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate) and its salts and preparations, admixture, extracts or other substances containing any of these drugs except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate."
It is further contended by learned counsel for petitioner-accused that case of present petitioner is covered under the exceptions provided under the said entry. It is further contended by learned counsel for the petitioner that the report is not correct as the chemical examiner has failed to mention about presence of Atropine Sulphate. He has further contended that petitioner is a licensed Chemist and that he has purchased the said medicines vide Bill, Annexure P4.
However, perusal of report FSL shows that the same contains 'Diphenoxylate Hydrochloride' and the same does not contain Atropine Sulphate. At this stage this plea of counsel for the petitioner cannot be accepted that the report is not correct. The report is per se admissible in evidence. Further as already discussed above, the recovery is not from the CRM No.M-18819 of 2012 4 alleged shop of the petitioner. The recovery is from the petitioner-accused while he was coming alongwith a bag in his hand from Khamano side and the recovery is of heavy quantity of 4000 tablets which is manufactured drug as per the notification aforementioned.
The recovery is commercial one as per entry at serial no. 44 of the notification no. S.O.1055 (E) dated 19.10.2001 issued by Ministry of Finance, Department of Revenue in exercise of powers conferred by clauses (viia) and (xxiiia) of Section 2 of the NDPS Act and as per notification no. S.O. 2941 (E) dated 18.11.2009 the entire mixture is to be taken into consideration for determining as to whether recovery is commercial or non- commercial. Hence, in view of bar created under Section 37 of the NDPS Act petitioner is not entitled for bail.
Without expressing anything on the merit of the case, the instant application for bail filed by Lakhbir Singh @Lakhvir Singh is, hereby, dismissed being devoid of merit.
( RAM CHAND GUPTA ) November 6, 2012. JUDGE 'om'