Himachal Pradesh High Court
Ramesh Kumar vs State Of Himachal Pradesh on 14 June, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1111 of 2024 .
Reserved on: 30.05.2024 Date of Decision: 14.06.2024.
Ramesh Kumar ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Sandeep Kumar Pandey, Advocate.
For the Respondent : Mr Lokender Kutlehria, Additional Advocate General, with HC Sunil Kumar, No. 1675, Police Station Nerwa, District Shimla, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested in FIR No. 57 of 2023, dated 5.11.2023, registered for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 2short 'NDPS Act'), at Police Station Nerwa, District Shimla, H.P. The petitioner was never associated in any manner with the .
commission of the offence. He was arrested by the police after about one month of the recovery. He is innocent and has not committed any offence. The investigation is complete and the police have filed a charge sheet under Section 173(2) of Cr.P.C.
The police do not require the custody of the petitioner. The petitioner will abide by the terms and conditions, which the Court may impose. Hence, the petition.
2. The petition was opposed by filing a status report asserting that the police party was checking the vehicles on 5.11.2023. A vehicle bearing registration No. HP-08A-3201 was signalled to stop. The driver revealed his name as Ramesh Chand and another person present in the vehicle revealed his name as Ganesh Chand. The police searched the vehicle in presence of the witnesses and recovered two bottles containing psychotropic substances. The police seized the vehicle and the bottles. The result of the analysis shows that the substance indicates the presence of codeine. The total weight of the codeine syrup was found to be 1.283 Kg. The occupants of the vehicle had applied for pre-arrest bail, which was dismissed as withdrawn and they ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 3 have surrendered on 8.12.2023. They revealed on inquiry that they had purchased the substance from some rickshaw puller .
but they could not identify him. The police presented the challan, which is fixed for proper orders on 17.6.2024. The petitioner can indulge in the commission of an offence if he is released on bail. Hence, it was prayed that the present petition be dismissed.
3. I have heard Mr. Sandeep Kumar Pandey, learned Counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.
4. Mr. Sandeep Kumar Pandey, learned Counsel for the petitioner submitted that codeine phosphate does not fall within the definition of the manufacturing drugs. He has relied upon the judgment of Co-ordinate Bench of this Court in Raghav Saini Vs. State of H.P., Cr.MP(M) No. 2866 of 2022, dated 26.6.2023. He prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent-State submitted that the petitioner was found in possession of the commercial quantity of ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 4 manufactured drugs and the rigours of Section 37 of the ND&PS Act apply to this case. The plea that the codeine phosphate does .
not fall within the definition of manufactured drugs is not acceptable. He has relied upon the judgment of this Court in Nasir Hussain Vs. State of H.P., Cr.MP(M) No. 319 of 2024, decided on 30.4.2024.
6. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-
"12. The grant of bail is a discretionary relief which nec-
essarily means that such discretion would have to be ex- ercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;::: Downloaded on - 17/06/2024 20:31:00 :::CIS 5
(b) reasonable apprehensions of the witnesses be-
ing tampered with or the apprehension of there be- ing a threat for the complainant should also weigh .
with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evi- dence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity of prosecution should always be con- sidered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Ya- dav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should ex-
ercise its discretion in a judicious manner and not as a matter of course. Though at the stage of grant- ing bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also nec- essary for the court granting bail to consider among other circumstances, the following factors also be- fore granting bail; they are:::: Downloaded on - 17/06/2024 20:31:00 :::CIS 6
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the com- plainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudar-
shan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;::: Downloaded on - 17/06/2024 20:31:00 :::CIS 7
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if .
released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. As per the status report, the petitioner was driving the vehicle bearing registration No. HP-08A-3201, from which the police recovered two bottles containing 1.283 Kg. of codeine syrup. The commercial quantity of codeine is specified as 1.00 Kg. and the weight of the codeine phosphate found in the vehicle was 1.283 Kg., which is more than the commercial quantity.
10. It was submitted that the pure quantity of the codeine has to be considered and the weight of neutral material cannot be considered while determining whether the quantity is commercial or not. This is not acceptable. It was held by Hon'ble Supreme Court in Hira Singh v. Union of India, (2020) 20 SCC 272, that as per the statement of Objects and Reasons and the Preamble and the relevant provisions of the NDPS Act, the ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 8 quantity of neutral substance cannot be excluded. It was observed:
.
10.2. Therefore, considering the Statement of Objects and Reasons and the Preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act, emphasis is on narcotic drugs or psychotropic substances (Sections 21, 22, 23, 24, 27 and 43). Even in the Table attached to the Notification dated 19-
10-2001, Column 2 is with respect to the name of narcotic drugs and psychotropic substances and Columns 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19-10-2001 specifically provides that the quantity shown against the respective drugs listed in the Table also apply to the preparations of the drug and the preparations of substances of Note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the Table apply to isomers ..., whenever the existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to narcotic drugs and psychotropic substances mentioned in Column 2 the quantity mentioned in Clauses 5 and 6 is required to be taken into consideration. However, in the case of a mixture of the narcotic drugs/psychotropic drugs mentioned in Column 2 and any mixture or preparation with or ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 9 without the neutral material of any of the drugs mentioned in Table, lesser of the small quantity between the quantities given against the respective .
narcotic drugs or psychotropic substances forming part of the mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. For example, a mixture of 100 gm is seized and the mixture consists of two different narcotic drugs and psychotropic substances with neutral material, one drug is heroin and the other is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective narcotic drugs and psychotropic substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in the case of Entry 239, the entire weight of the mixture/drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] is accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the legislature.
10.3. At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substances. Caffeine is mixed with heroin, it causes heroin to vaporise at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take the example of heroin. It is known as a ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 10 powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that .
drug dealers will add other drugs or non-
intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown sugar/smack is usually made available in powder form. The substance is only about 20% heroin. The heroin is mixed with other substances like chalk powder, and zinc oxide, because of these, impurities in the drug, brown sugar is cheaper but more dangerous. These are only a few examples to show and demonstrate that even a mixture of narcotic drugs or psychotropic substances is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substances and narcotic drugs or psychotropic substances. Therefore, if it is accepted that it is only the actual content by weight of the offending drug which is relevant for determining whether it would constitute a small quantity or commercial quantity, in that case, the object and purpose of enactment of the NDPS Act would be frustrated. There may be few punishments for "commercial quantity". Certainly, that would not have been the intention of the legislature.
10.4. Even considering the definition of "manufacture", "manufactured drug" and "preparation" conjointly, the total weight of such "manufactured drug" or "preparation", including the neutral material is required to be considered while determining a small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects and purpose of the NDPS Act will be achieved. Any other intention to defeat the object and purpose of enactment of the NDPS Act viz. to the Act is a deterrent.
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 1111. The judgment in Hira Singh (supra) was followed by the Division Bench of Delhi High Court in Mohd. Ahsan v.
.
Customs, 2022 SCC OnLine Del 2910 and it was held that the weight of a neutral substance cannot be ignored while determining the nature of the quantity seized. It was observed:
"52. In view of the aforesaid decision, the ques-
tions (a) and (b) referred to us are answered as fol- lows:
Question - "(a) whether in cases specifically re- lated to manufactured drug with a minuscule per-
centage of a narcotic substance, the weight of the neutral substance ought to be ignored while deter- mining the nature of the quantity seized i.e. small, commercial or in between?"
Ans: If the contraband seized falls within the pro- visions of the NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between.
Question - "(b) whether Note 4 of the S.O. 1055(E) dated 19th October 2001 published in the Gazette of India, Extra., Pt.II, Sec.3(ii) dated 19 th Oc- tober 2001, as amended on 18.11.2009, should be held inapplicable to the manufactured drug which contains a minuscule percentage of a narcotic drug?"
Ans: If the alleged contraband seized falls within the definition of 'manufactured drug' under Section 2(xi) of the NDPS Act, then the entire notification in- cluding the aforesaid 'Note 4' will be applicable."::: Downloaded on - 17/06/2024 20:31:00 :::CIS 12
12. This judgment was followed in H.S. Arun Kumar v.
State of Goa, 2022 SCC OnLine Bom 4696 , and it was held that the .
weight of the neutral substance has to be considered while determining the quantity under the NDPS Act. Hence, the weight of blotting paper containing LSD was to be considered for determining the quantity. It was observed: -
"64. There is an express indication in the NDPS Act about taking into account the entire quan- tity of the drug or the psychotropic substance seized in a case for determining the quantum of punishment and not just the pure drug content alone. This is evident from the following:
(i) The statement of objects and reasons to the amendment Act 16 of 2014, in terms provides that since the NDPS Act duly provides for pun-
ishment for the preparation of drugs also, this amendment seeks to clarify the legislative in-
tent to take the entire quantity of drug seized in a case for determining the quantum of punish- ment and not the pure drug content. As noted hereafter, "preparation" in relation to a nar-
cotic drug or psychotropic substance specifi- cally includes "mixture" in whatever physical state containing one or more such narcotic drugs or psychotropic substances. Thus, the legislative intent is clear that the entire quan- tity of the preparation is to be taken into ac- count and weighed for determining the quan- tum of punishment and not merely the pure drug content for such preparation or mixture;
(ii) Section 2 (xx) defines "preparation" in re- lation to a narcotic drug or psychotropic sub-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 13stance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing .
one or more such drugs or substances. Thus, it is evident that "preparation" includes a mix- ture, in whatever physical state, containing one or more such drugs or substances. So, the L.S.D. and a substance that may or may not be either a drug or a psychotropic substance, i.e., a neutral substance. The definition explicitly provides that such mixture may be "in whatever physi-
cal state", but as long as such a mixture con- tains one or more such drugs or substances, the same would constitute a "preparation" under Section (xx) of the NDPS Act.
(iii) Section 2 (xxiii) defines "psychotropic substance" to mean any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material in-
cluded in the list of psychotropic substances specified in the Schedule. The Schedule at Entry 4 includes L.S.D., L.S.D. 25. Therefore, there is no dispute about the L.S.D. being a psy-
chotropic substance. However, Section 2(xxiii) includes not only a psychotropic substance specified in the Schedule but also a "prepara- tion" of such substance or material included in the list of psychotropic substances specified in the Schedule. As noted earlier, the definition of "preparation" explicitly includes a mixture, in whatever physical state, containing one or more psychotropic substances. Thus, it is clear that a mixture of L.S.D. and blotter would con- stitute a psychotropic substance as defined un- der Section 2(xxviii) of the NDPS Act.
(iv) Section 2(xxiii) refers to a list of psy- chotropic substances specified in the Schedule.
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 14As noted earlier, the L.S.D. finds a mention in Entry 4. Entry 111 of this Schedule refers to "salts and preparations of the above". This .
means Entry 111 refers to salts and preparations of the psychotropic substances listed in Entries 1 to 110. A preparation, as noted earlier, would include a mixture containing L.S.D. Thus, even the preparation of L.S.D. will amount to a psy- chotropic substance in terms of Section 2(xxiii) of the NDPS Act.
(v) Even the definition of "manufacture" in Section 2(x) includes making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances.
The expression makes it clear that even making a preparation (which includes a mixture) with L.S.D. or containing L.S.D. would constitute "manufacture" as defined under Section 2(x) of the NDPS Act.
(vi) Sections 2(xxiiia) and 2(viia) define "small quantity" and "commercial quantity" in rela- tion to narcotic drugs and psychotropic sub-
stances. In terms of these definition clauses, the Central Government has issued a notifica-
tion dated 19.10.2001, as amended from time to time. Entry 133 of this Notification specifically refers to L.S.D., L.S.D. 25. However, what is more, relevant is Entry 239, which refers to any mixture or preparation with or without a neu- tral material or any of the above drugs. From the context, it is apparent that the expression "drugs" would include both the narcotic drugs and psychotropic substances listed in Entries 1 to 238. Therefore, no contrary contention on this aspect was even raised before us. Thus, it is clear that the Notification contemplates not only the narcotic drugs and psychotropic sub-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 15stances but also any mixture or preparation of with or without neutral material of any of the narcotic drugs and psychotropic substances .
listed in entries 1 to 238 of the Notification.
(vii) The Notification dated 19.10.2001, in the context of Entry 239, provides the mode of de- termining the small or commercial quantity of the mixture or preparation. It provides that lesser of the small quantity between the quan- tities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture will have to be considered. The same also applies to the de- termination of commercial quantities. Note 4 below this Notification is most important be-
cause it states that the quantities shown in col- umn 5 and column 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 psychotropic sub- stances of that particular drug in dosage form or isomer, esters, ethers and salts of these drugs, including salts of esters, ethers and iso- mers, wherever existence of such substance is possible and not just its pure drug content.
65. The statutory provisions and the scheme of the NDPS Act referred to above clearly provide, in more places than one, that the weight of the entire mixture and not just its pure drug con- tent must be taken into account for determin- ing whether the quantity is small, intermediate quantity or a commercial quantity. Moreover, the statement of object and reasons for intro- ducing the amendment to the NDPS Act in 2014 explicitly clarifies the legislative intent to take the entire quantity of drug seized in a case for ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 16 determining the quantum of punishment and not just the pure drug content.
66. This amendment was introduced after the .
decision of the Division Bench of the Supreme Court in E. Michael Raj v. Narcotics Control Bu- reau 2008 (5) SCC 161 which held that a pure drug content and not the entire weight of the mixture being relevant is also a significant fac- tor. Ultimately, E. Michael Raj (supra) was over- ruled by Hira Singh (supra). Hira Singh (supra) held that the legal position before E. Michael Raj (supra) that the entire quantity of the drug seized would be relevant to determine the quantum of punishment and not just the pure drug content. Thus, considering the legislative intervention after E. Michael Raj (supra) and the judicial overruling of E. Michael Raj (supra) by Hira Singh (supra), any argument that only the weight of pure L.S.D. is relevant to deter-
mining the quantum of punishment, would not sustain.
13. Hence, in view of the judgment passed in Hira Singh (supra) the submission that the only quantity of Codeine Phos-
phate is to be considered is not acceptable.
14. It was submitted that no offence punishable under the NDPS Act is made out because it is permissible to possess cough syrup containing Codeine Phosphate under the Drugs and Cosmetics Act. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Mohd. Sahabuddin v. State of Assam, (2012) 13 SCC 491: (2012) 4 SCC (Cri) 311: 2012 SCC On-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 17Line SC 835 that where the huge quantity of cough syrup was being stealthily transported without any documents, it cannot .
be said that the same will not fall within the purview of the NDPS Act. It was observed:
"7. The contentions of the appellants were fourfold. In the first place, it was contended that the cough syrups Phensedyl and Recodex are pharmaceutical products cov-
ered under the provisions of the Drugs and Cosmetics Act, that the Rules prescribe the measure of dosage as 5 ml and that under Rules 65 and 97 of the Drugs and Cosmet- ics 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. Ac- cording 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 the permissible extent of narcotic substance could be sold in retail on the prescription of a registered medical practitioner. The learned counsel, therefore, contended that each of the 100 ml bottles, seized from the appellants, satisfied 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 NDPS Act.
8. By referring to Rules 61(1) and 61(2) of the Drugs and Cosmetics Rules, it was contended that the prescribed li- cence which is required for sale, stock, exhibit, offer for sale or distribution is a mandatory requirement under Section 27 of the Drugs and Cosmetics Act providing for the imposition of the penalty would be applicable only to manufacturers or those who sell, stock, exhibit or offer for sale or distribution of drugs and that a transporter, in particular, the driver and a khalasi was under no obliga- tion to hold a licence under the Drugs and Cosmetics Act.::: Downloaded on - 17/06/2024 20:31:00 :::CIS 18
9. 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 a 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 trans-
portation cannot be heard to state that he was not ex- pected to fulfil any of the statutory requirements either under the provisions 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 each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the ap-
pellants were not in a position to explain as to whom the supply was meant either for distribution or for any li- censed 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 appel- lants 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 permis- sible 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 condi- tions, 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 undi- vided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per the dictionary meaning ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 19 means "contributing to cure of disease". In other words, the assessment of codeine content on a dosage basis can only be made only when the cough syrup is kept or trans-
.
ported 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 for what purpose such a huge quantity of Schedule H drug con- taining narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as men-
tioned in the Notifications dated 14-11-1985 and 29-1- 1993. Therefore, if the said requirement meant for thera- peutic practice is not satisfied then in the event of the en- tire 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 NDPS Act calling for appropri- ate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the abovere- ferred 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."
15. It was laid down by the Division Bench of Punjab & Haryana High Court in Inderjeet Singh v. State of Punjab, 2014 SCC OnLine P&H 24990 that merely because there is a violation of the Drugs and Cosmetics Act, 1940, does not mean that a person would not be liable under the provisions of the NDPS Act. It was observed:
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 2039. Therefore, it follows that merely because the prosecution for a violation of the provisions of the D & C Act and the 1945 Rules framed thereunder entails some kind of penalty would .
not be a bar to the trial of cases in respect of which there has been a contravention of Section 21 of the NDPS Act a refer- ence to which has been made above. A detailed procedure has been provided for the trial of cases under the NDPS Act. Sec-
tion 36A of the NDPS Act relates to offences triable by the Special Court. Section 36B relates to appeal and revision. Section 36C relates to the application of the Code of Criminal Procedure to proceedings before a Special Court and Section 36D relates to transitional provision. In terms of Section 36C, the provisions of the Code of Criminal Procedure (in- cluding the provisions as to bail and bail bonds), are to apply to proceedings before a Special Court and for the purposes of the said provision, the Special Court is deemed to be a Court of Session and the person conducting a prosecution before a Special Court is deemed to be a Public Prosecutor. Section 4 of the Criminal Procedure Code relates to the trial of offences under the Penal Code, 1860 and other laws. Sub Section (2) thereof envisages that all offences under any other law that is law other than the Penal Code, 1860 which would include cases under the NDPS Act, shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, that is, the provisions contained after Section 4 but subject to any enactment for the time being in force reg- ulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. For the trial of offences under the NDPS Act proper procedure and guide- lines have been provided. Therefore, the procedure provided for the trial and prosecution of offences under the NDPS Act would not in any manner be hit by Article 14 of the Constitu- tion; besides, even if it covers only a class of cases which are mentioned in the NDPS it would not be bad and the fact that in such cases the prosecution chooses as to which cases are to be tried under the special procedure would not affect the validity of the NDPS Act and the mere availability of two pro- cedure does not vitiate one of them that is the special proce-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 21dure under the NDPS Act. Besides, it is for the State to decide as to which of the two enactments that is, the NDPS Act or the D & C Act is the prosecution to be launched. It may also .
appropriately be noticed that the provisions of Section 80 of the NDPS Act envisage that the application of the D & C Act is not barred. Section 80 NDPS Act reads as under: --
"Application of the Drugs and Cosmetics Act, 1940 not barred. -- The provisions of this Act or the rules made thereunder shall be in addition to and not in derogation of, the Drugs and Cos- metics Act, 1940 (23 of 1940) or the rules made thereunder."
40. This Court in the case of Vinod Kumar v. State of Pun- jab, (2013) 1 RCR (Cri) 428 considered the question as to whether a wholesale drug dealer, a retailer and their em-
ployees possessing proper and valid licence for dealing in drugs specified in Schedule C and Schedule C1 as well as drugs not specified in those Schedules of the D & C Act and the 1945 Rules can be held liable for an offence punishable under the NDPS Act. After making a reference to Section 80 NDPS Act, it was held that a person can very well be prose- cuted both under the NDPS Act as well as under the D & C Act simultaneously for violation of the provisions of the said Acts. It was held that merely because a person is prosecuted for violation of the D & C Act that would not operate as a bar to prosecute him under the provisions of the NDPS Act.
Rather if the offences made out under the D & C Act also come within the scope of the provisions of the NDPS Act such person shall be prosecuted for possession of the con- trabands violating the provisions of the NDPS Act. Both the Acts, it was held are independent and violation of one Act does not mean no violation of the other. Therefore, merely, because prosecution is launched and trial is conducted under the NDPS Act, which is considered a harsher and an onerous provision, the initiation of the proceedings cannot be said to be improper or bad. In case it is done for any extraneous rea- sons or circumstances or with a mala fide intention, the ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 22 same would of course be subject to judicial scrutiny and re- view. In the circumstances, when there has been a contra- vention of a certain manufactured drug or a psychotropic .
substance and which falls within the purview of the NDPS Act and the NDPS Rules, the possession, sale and trans- portation of which is prohibited, or is being done without proper licence or with no proper authorization, the prosecu-
tion under the provisions of the NDPS Act would not be pro- hibited and it cannot be said to be in any manner illegal."
16. It was held in State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466 : (2019) 1 SCC (Cri) 739: 2018 SCC OnLine SC 2651 that the direction issued by the High Court that the accused possessing the manufactured drugs should be prosecuted under the Drugs and Cosmetics Act and not under the NDPS Act is not sustainable. It was observed:
12. The counsel for the respondent-accused have strongly supported the judgment [Rakesh Kumar v. State of Punjab, 2018 SCC OnLine P&H 1960] of the High Court wherein it was held that, since the present matters deal with "man-
ufactured drugs" the present respondents should be tried for the violation of the provisions of the Drugs and Cos- metics Act, 1940.
13. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the NDPS Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of the NDPS Act can be appli- cable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the NDPS Act are not in derogation of the Drugs and Cosmetics Act, 1940. This Court in Union of In-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 23dia v. Sanjeev V. Deshpande [Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri) 496], has held that : (SCC p. 16, para 35) .
"35. ... essentially the Drugs and Cosmetics Act, 1940 deals with various operations of manufacture, sale, pur- chase, etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further, the provisions of the Act operate in addition to the provisions of the 1940 Act."
(emphasis supplied)
14. The aforesaid decision in the Sanjeev V. Deshpande case [Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1: (2014) 5 SCC (Cri) 496] further clarifies that the NDPS Act, should not be read in exclusion to the Drugs and Cos-
metics Act, 1940. Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the respondent-ac- cused amounted to a prima facie violation of Section 8 of the NDPS Act, they were charged under Section 22 of the NDPS Act.
15. In light of the above observations, we find that the de-
cision rendered by the High Court holding that the re-
spondent-accused must be tried under the Drugs and Cosmetics Act, 1940 instead of the NDPS Act, as they were found in possession of the "manufactured drugs", does not hold good in law. Further, in the present case, the re- spondent-accused had approached the High Court seek- ing suspension of sentence. However, in granting the aforesaid relief, the High Court erroneously made obser- vations on the merits of the case while the appeals were still pending before it.
17. Learned counsel for the petitioner has relied upon the judgment of the Coordinate Bench in Raghav Saini's case (supra) to submit that the codeine phosphate does not fall within ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 24 the definition of manufactured drugs. This submission cannot be accepted. In Raghav Saini (supra) the Court considered .
whether a substance containing less than 2.5% per 100 mg. falls within the definition of codeine phosphate or not. In the present case, there is nothing on record to indicate the percentage of codeine phosphate in 100 ml. of the syrup. Hence, this judgment does not apply to the present case.
18. Another Coordinate Bench of this Court held in Sahil Chauhan Vs. State of H.P. MANU/HP/0587-2024 that where the quantity of codeine was not specified, the judgment of Raghav Saini (supra) will not apply. It was observed: -
6. Learned counsel for the petitioner contended that contraband allegedly recovered from the possession of the petitioner does not fall in the definition of manufactured drug as encompassed in Section 2(xi) of the NDPS Act, which specifically defines the manufactured drug as all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate and any other narcotic substance or preparation which the Central government may, having regard to the available information as to its nature or a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug.
While referring to Section 2 (xi)(b) of the NDPS Act, learned counsel for the petitioner argued that though Central Government has the power to declare any other narcotic substance or preparation to be a "Manufactured Drug", but that would not include any narcotic substance ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 25 or preparation, which it may having regard to the available information as to its nature or a decision, if any, under any International Convention, by notification in .
the Official Gazette, declare not to be a "Manufactured Drug". While inviting attention of this Court to the notification dated 14.11.1985 issued by the Central Government, learned counsel for the petitioner contended that as per Entry 35, there is an exception made that 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 milligrams of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice, shall not be deemed to be "Manufactured Drug". To buttress his contention, he has also placed reliance upon the case law titled as Raghav Saini Versus State of Himachal Pradesh and connected matters, MANU/HP/2085/2023: Latest HLJ 2023 (HP)(2) 905, wherein it has been held as under:-
"16. In all the cases as detailed herein above, cough syrup containing Codeine Phosphate came to be recovered, but the report given by the FSL in all the cases clearly reveals that the concentration of Codeine is not more than 2.5% in undivided preparation, meaning thereby, that would not fall in the definition of the "manufactured drug" as defined under Section 2(xi)(b). The prohibition contained under Section 8 of the NDPS Act is applicable to "Narcotic Drugs", but since quantity in all the cases of Codeine Phosphate is less than 2.5% in undivided preparation, the same would not fall in the definition of "Manufactured Drug" and if it is so, transportation, if any, of the same, would not be prohibited in terms of Section 8 (c) of the NDPS Act."::: Downloaded on - 17/06/2024 20:31:00 :::CIS 26
7. However, the aforesaid case law is not applicable to the facts and circumstances of the present case as in the instant case, the concentration of Codeine .
has not been mentioned in the FSL report and the report is silent qua concentration of Codeine in the alleged recovered substance, whereas, in Raghav Saini's case (supra), the concentration of Codeine was not more than 2.5 % in undivided preparation as per the report given by the FSL.
19. It was held by the Delhi High Court in Mohd. Ahsan (supra) that cough syrup containing codeine phosphate will fall within the definition of an essential narcotic drug and will be covered under the NDPS Act. It was observed:
"Section 9(1)(a)(va) of the NDPS Act provides as under:
"9. Power of Central Government to permit, control and regulate.-
(1) Subject to the provisions of Section 8, the Central Gov-
ernment may, by rules--
(a) permit and regulate--
xxx (va) the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, con- sumption and use of essential narcotic drugs:
Provided that where, in respect of an essential nar- cotic drug, the State Government has granted a licence or permit under the provisions of Section 10 prior to the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, such licence or permit shall continue to be valid till the date of its ex- piry or for a period of twelve months from such com- mencement, whichever is earlier.
xxx"::: Downloaded on - 17/06/2024 20:31:00 :::CIS 27
43. The aforesaid sub-clause (va) was introduced by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (No. 16 of 2014), which came into effect on 01.05.2014. The .
said amendment was introduced subsequent to the judgment of the Hon'ble Supreme Court in Mohd. Sahabuddin's case (supra). A bare reading of the said amended provision shows that the same was introduced in the NDPS Act authorizing the govern-
ment to permit and regulate the manufacture, possession, transport, import interstate, export interstate, sale, purchase, consumption and use of the "essential narcotic drugs". The term 'essential narcotic drugs' has not been defined in the NDPS Act. However, exercising powers under Section 9(1)(a) (va) of the NDPS Act, the Central Government vide notification dated 05.05.2015 (w.e.f. 05.05.2015) added Chapter-VA to The Narcotic Drugs and Psychotropic Substances Rules 1985 (here-
inafter "NDPS Rules"). Rule 52A of the said Chapter provides as under:
"52A. Possession of essential narcotic drugs.--(1) No per- son 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 the es-
sential 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 Sl. No. Name of the essential narcotic drug Quantity (1) (2) (3)
1. Morphine and its salts and all preparations 500 Mil-
containing more than 0.2 per cent of Mor- ligrammes phine
2. Methyl morphine (commonly known as 2000 Mil-
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 28'Codeine') and Ethyl morphine and their ligrammes salts (including Dionine), all dilutions and preparations except those which are com-
.
pounded with one or more other ingredi-
ents and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic prac- tice
3. Dihydroxy Codeinone (commonly known 250 Mil-
as Oxycodone and Dihydroxycodeinone), its ligrammes salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol 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 (commonly known as 320 Mil-
Hydrocodone), its salts (such as Dicodide, ligrammes Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its es- ters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs
5. 1-phenethyl-4-N-propionylanilino- Two transder-
piperidine (the international non-propri- mal patches etary name of which is Fentanyl) and its one each of salts and preparations, admixture, extracts 12.5 micro- or other substances containing any of these gram per hour drugs and 25 micro-
gram per
hour:
Provided that the Controller of Drugs or any other officer authorised on this behalf by him may by special order autho- rise, in Form 3-B, any such practitioner to possess the afore- said drugs in quantity larger than as specified in the above Table:
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 29Provided 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 prac- tices.
xxx"
(emphasis supplied)
44. Since, during the course of the hearing, the aforesaid provision was not brought to the notice of the court, the matter was listed for clarification. Subsequently, learned counsel ap- pearing on behalf of the petitioner placed reliance on the judg-
ment rendered by the division bench of the Hon'ble High Court of Allahabad in Vibhor Rana (supra). He further submitted that Rule 66 of the NDPS Rules would be applicable in the facts and circumstances of the present case, and not Rule 52A. Rule 66 of the NDPS Rules provides as under:
"66. Possession, etc., of psychotropic substances.--
(1) No person shall possess any psychotropic substance for any of the purposes covered under 1945 rules unless he is lawfully authorized to possess such substance for any of the said purposes under these rules: Provided that possession of a psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VII-A. (2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by the Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so au-
thorised under the 1945 Rules, may possess a reason- able quantity of such substance as may be necessary for their genuine scientific requirements or genuine medi- cal requirements, or both for such period as is deemed ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 30 necessary by the said research institution or, as the case may be, the said hospital or dispensary or person:
Provided that where such psychotropic substance is in .
possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time:
Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time but not exceeding three hundred dosage units at a time] for his personal long-term medical use if specifi- cally prescribed by a Registered Medical Practitioner.
(3) The research institution, hospital and dispensary re-
ferred to in sub-rule (2) shall maintain proper ac- counts and records in relation to the purchase and consumption of the psychotropic substance in their possession.
45. A bare perusal of the aforesaid rule clearly shows that the reliance placed on the same by the learned counsel appearing on behalf of the petitioner is misplaced. The aforesaid Rule 66 re- lates to psychotropic substances and therefore, is not applicable to 'codeine' which is admittedly a 'narcotic drug' under the NDPS Act.
46. As mentioned earlier, the term 'essential narcotic drugs' has not been defined under the NDPS Act but the table in Rule 52A, Sub-Rule (3), at serial no. 2, under the title "Name of es- sential 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 Nar- cotics Drug" (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). A combined reading of Rule 52A of The NDPS Rules and Entry no. 35, in the aforemen- tioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its in- clusion under the category of 'essential narcotic drug' under Section 9(1)(a)(va) of the NDPS Act 1985. In our considered ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 31 opinion, Rule 52A further regulates the manner of possession and other related activities enumerated therein, with respect to substances/preparations covered under the aforesaid Entry 35.
.
47. Section 21 of the NDPS Act provides for prosecution for contravention of any of the provisions of the NDPS Act or any Rule made thereunder. Needless to say that Rule 52A clearly prohibits any person from possessing any 'essential narcotic drug' otherwise than in accordance with the provisions of the rules made thereunder. The amended provision i.e. Section 9(1)
(a)(va) of the NDPS Act and the rules made thereunder clearly and unequivocally declare that any substance covered under the description given in the Table to Rule 52A(3) would be consid- ered as an 'essential narcotic drug', even if the said substance is otherwise covered under The Drugs and Cosmetic Act includ-
ing cough syrup containing codeine phosphate.
48. The aforesaid interpretation is supported by a judgment rendered by the Hon'ble Supreme Court in Union of India v. San- jeev V. Deshpande, (2014) 13 SCC 1, wherein it was held as fol- lows:
"25. In other words, DEALING IN narcotic drugs and psy- chotropic 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 psy-
chotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereun- der. Sections 9 and 10 enable the Central and the State Gov- ernments respectively to make rules permitting and regulat- ing various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.
26. The Act does not contemplate the framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is al- ready contained in Section 8(c). It only contemplates the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances.::: Downloaded on - 17/06/2024 20:31:00 :::CIS 32
20. Calcutta High Court held in Dechay Tshering Bhutia v.
State of W.B., 2022 SCC OnLine Cal 204 that entry 35 of the .
notification issued by the Government of India on 14.11.1985 requires that in addition to the codeine content, the accused is engaged in Therapeutic practice for medical or scientific purposes by producing sufficient material and a bald statement is not sufficient to attract the entry 35. It was observed:-
28. The twin conditions as mentioned above under Entry 35 of the said Notification are independent of each other and they stand on their separate respective limbs. An ac-
cused, to avail of the exception carved out under Entry 35 of the said Notification must satisfy the twin tests to- gether as discussed above and not in isolation, to over-
come the rigour of Section 37 and other restrictive provi- sions in the NDPS Act. The accused must also satisfy in addition to the Codeine content in terms of Entry 35 of the said Notification, that he is engaged in therapeutic practice for medical or scientific purposes by producing necessary evidence, in the course of the investigation and subsequently at the trial. A mere statement or contention in the like manner would not suffice to overcome the rigour of the restrictive provisions in drug dealing under the NDPS Act.
29. It is true that bail is the rule and jail is the exception. The right and liberty guaranteed under Article 21 of the Constitution of India is of paramount consideration while adjudicating the prayer for bail. The legislature while enacting the NDPS Act was aware of the existence of Article 21 of the Constitution of India and still enacted the rigour under Section 37 of the NDPS Act and other restrictive and penal provisions thereunder. Such provisions of the NDPS Act must be construed in strict ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 33 form and manner, of course, this would depend upon the facts of each case. In the facts of the instant case, the petitioner having not produced an iota of evidence as to .
his engagement in any therapeutic purpose or medical purpose while carrying the Codeine mixtures, had failed to satisfy the twin conditions independently under Entry 35 of the said Notification, as such, the prima facie involvement of the petitioner in the illicit drug dealing at this stage of considering his bail application cannot be ruled out. Thus, the rigours under Section 37 of the NDPS Act are attracted.
21. A similar view was taken in Ramraj Choudhury v. State of W.B., 2022 SCC OnLine Cal 3910, wherein it was held: -
26. Therefore the law is very well settled now 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, to be exempted to come under the purview of the NDPS Act, 1985. The other condition provided for mandatory compliance is that the article should be only for therapeutic practice.
27. Let me deal in this case with the second condition as mentioned above at the first place. In this case, seizure and arrest have been made by police from the place of hording of the contraband. No record is available to show that the seized articles were either manufactured, being possessed or being transmitted for any therapeutic and medicinal purpose. No documents as to the same is available, whereas contrarily, the prosecution's case is allegedly against the illegal possession and transportation of the contraband without any licenses etc. to justify its hording. Accused persons were neither licensed to deal with the seized article nor could explain the purpose of their holding the same in such quantity or even as to who would be the ultimate consumers of such ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 34 product. Under such circumstances the ratio of the case of Mohd. Sahabuddin reported in (2012) 13 SCC 491 as well as that of Abul Kasem, reported in 2022 SCC OnLine Cal .
3392 would be squarely applicable in this case. The Hon'ble High Court at Calcutta in the judgment as above followed the ratio in Mohd. Sahabuddin's case and found that in the absence of any material to show that the accused person possessed or carried 'phensedyl syrup' for medicinal purposes, invocation of provisions of the NDPS Act, 1985 was warranted.
28. It shall not be out of context to mention here the observations of the Hon'ble Apex Court in Mohd. Sahabuddin's case, which shall be applicable to the instant case too. While rejecting the petitioner's bail in that case, the court was pleased to hold "In view of the conduct of the appellants in having transported a huge quantity of cough syrup without valid documents, they cannot be heard to state that they were not expected to fulfil any of the statutory requirements either under the provisions of the Drugs and Cosmetics Act or under the provisions of the NDPS Act. 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 the 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". Hence, in this case, acts and operations of the accused persons, including the petitioner, shall definitely fall within the prohibition of section 8 of the NDPS Act, 1985.
29. So far as the point as to whether the content of prohibited articles in the seized phensedyl would fall within the permissible limit or beyond the same - is concerned, firstly, it can be said that this point is not agitated in this case at all. Even then, when this court applies its cautious and analytical mind to it, the essential ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 35 follow-up would be that it is a question only to be determined in the trial, upon evidence. At this stage, it would be only premature to go into this question. Fact .
remains that in this case, there is sufficient material on record including the chemical analysis report of the contraband seized, that makes out strong prima facie of those, to be available against the petitioner. This obliviously satisfies the tests laid down by the Hon'ble Apex Court in State of Haryana v. Bhajan Lal reported in AIR 1992 SC 604 (also 1992 Supp (1) SCC 335), not to interfere into the proceedings or initiation thereof against him.
22. Gujarat High Court also took a similar view in Govindbhai Valabhai Prajapati vs. the State of Gujarat (18.08.2023
- GUJHC): MANU/GJ/1052/2023 and held: -
7.1. So far as "codeine" is concerned, it is an "opium derivative" as defined under Section 2(c), all opium derivatives are termed as manufactured drugs as defined under Section 2(xi) of 'the NDPS Act'. Therefore, it satisfies the definition of ''narcotic drug' as defined under Section 2(xiv) of 'the NDPS Act', and therefore, 'Codeine' is a narcotic drug as defined under 'the NDPS Act'.
However, in the year 2014 i.e. with effect from 30.04.2014, the definition of "essential narcotic drugs" vide Section 2(viiia) is prescribed which means a narcotic drug notified by the Central Government for medical and scientific use. Pursuant to the insertion of the said definition, a notification dated 05.05.2015 S.O. 1181(E) came to be issued notifying for medical and scientific use the 'essential narcotic drugs, which includes codeine "to be essential narcotic drugs". However, an exception is provided, if 'Codeine' is compounded with one or more other ingredients containing not more than 100 milligrammes of the drug per dosage unit and with a ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 36 concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice. While defining "essential narcotic .
drugs" an amendment in the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as 'the Rules') came to be introduced by way of the third amendment adding certain definitions and inserting Chapter VA in 'the Rules', which contains Rule 52A to 52ZA. Sub-Rule (1) of Rule 52A of 'the Rules' provides that no person shall possess any 'essential narcotic drug' otherwise than in accordance with the provisions of the Rules. Sub-Rule (3) of Rule 52A provides that a registered medical practitioner is allowed to possess an 'essential narcotic drug', for use in his practice but not for sale or distribution as also not more than the quantity beyond 2000 milligrams. The third amendment in 'the Rules' introduced by notification dated 05.05.2015 added various definitions, including "licenced chemist", "licenced dealer", "prescription", and "recognized medical institution" as also "registered medical practitioner". The said definitions also include Rule 2(he), which defines "prescription". "Prescription" means a prescription given by a registered medical practitioner for the supply of any of the essential narcotic drugs to a patient for medical use in accordance with 'the Rules'. So anyone who is dealing with 'essential narcotic drugs', which is to be provided to a patient for medical use, has to be by way of a prescription given by a registered medical practitioner only. The Central Government by way of notification dated 10.03.2016 vide S.O.881(E) exercising powers conferred under Section 26A of 'the Act, 1940' on the basis of recommendations of Expert Committee prohibited manufacture for sale, sale and distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine + Sodium Citrate + Menthol Syrup with immediate effect, and therefore, any fixed- dose combination with 'Codeine' either of Chlorpheniramine or Sodium Citrate or Menthol Syrup would be prohibited for manufacture for sale, sale or ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 37 distribution for human use. Thus, any combination of any other drug with Codeine' even in a fixed-dose combination came to be prohibited since 2016, and .
therefore, any of the applicants could not have kept it in their possession such cough syrup containing 'Codeine' with any other drug combination thereof in the year 2022, and therefore, it is an offence under 'the NDPS Act' and in no case, it can be said that it is exempted from rigours of 'the NDPS Act' and the offence, if any, would fall under 'the Act, 1940'. Not only that, in light of the direction given by the Supreme Court in the case of Union of India Vs. Pfizer Limited reported in Civil Appeal No. 22972 of 2017 de novo inquiry was carried out as to whether fixed dose combinations licenced prior to 1988 should be the subject matter of notification under Section 26A of 'the Act, 1940'. The matter came to be examined by the Expert Committee and Drugs Technical Advisory Board Central Government was satisfied that it is necessary and expedient in the public interest to regulate by way of prohibiting the manufacturer for sale, sale or distribution for human use of fixed doses combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect in the country, and therefore, in supersession of 10.03.2016 notification, on the basis of recommendations of the Expert Committee and Drugs Technical Advisory Board, Central Government in exercise of powers conferred under Section 26A of 'the Act, 1940', again prohibited the manufacturer for sale, sale or distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect. Thus, "essential narcotic drug", which contains 'Codeine' as one of the ingredients in any fixed-dose combination with any other drug came to be prohibited since 2016 either manufacture for sale, sale or distribution for human use, and therefore, the applicants could not have in their possession even such fixed-dose combination, the manufacture for sale, sale or distribution for human use, which is prohibited by the Central Government. While introducing the definition ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 38 of "essential narcotic drugs" it is regulated under 'the Act, 1940', 'the Rules as also under 'the NDPS Act', Sub Rule (3) of Rule 65 of the Drugs and Cosmetic Rules, 1945 .
(hereinafter referred to as 'the Rules, 1945') provides maintaining of prescription register specially maintained for the purpose and serial number of entry in the Register shall be entered on the prescription. The particulars as mentioned in the said Rule, by the licence holder in Form 20, 20A, 20B, 20F, 20G, 21, 21B should be observed by them. The supply of any drug other than those specified in Schedule X is regulated in that manner. If Schedule H1 of 'the Rules 1945' is seen, 'Codeine' is included therein at Entry No. 20. The supply of any drug falling under Schedule H1 is regulated under Rule 65 of 'the Rules, 1945' directing the supply of any drug other than those specified in the Schedule X would be on a prescription of a registered medical practitioner and the licence holder is supposed to record at the time of supply in a prescription register specially maintained for the purpose, the serial number entry in the Register shall also be entered in the prescription of the medical registered practitioner. Thus, without any prescription from a registered medical practitioner, the licence holder is not supposed to supply Schedule H1 drugs. At the same time, maintaining the prescription register him and even writing on the prescription, the serial number of his register is to be mentioned in the prescription also. Even the licence holder in Form 20B as claimed by the applicant-Govind Valabhai Prajapati is also supposed to follow 'the Act, 1940' as also 'the Rules, 1945' along with 'the NDPS Act' and 'the Rules' framed thereunder. As per the terms of his condition of licence, the licence holder is supposed to sell to a person not holding a requisite licence to sell, stock exhibit for sale or distribute the drug. Even if he himself, who has produced the licence in Form 20B is valid up to 17.11.2022 and it is place specific licence to store the said drug at the shop mentioned in the licence itself whereas the offence in the present case has come to be committed on 29.12.2022, the date on which he did not possess any ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 39 such licence nor he has produced any such licence having been renewed thereafter.
7.2. Sub-Rule (1) of Rule 52A of 'the Rules' provides that .
no person can possess any "essential narcotic drug"
otherwise than in accordance with the provisions of 'the Rules'. Rule 52B provides provision regarding licenced dealers and licenced chemists obtaining a licence to possess, sell, exhibit or offer for sale or distribution by retail or wholesale, "essential narcotic drug" from the competent authority. Even Transport, Transmission by post, courier, rail or road, and sale is regulated as provided under Rules 52C to 52 G of 'the Rules'. Even registered medical practitioners are also conditioned by writing prescription for a supply of "essential narcotic drugs" as provided under 'the Rules'. Since manufacture for sale, sale or distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup is prohibited by the Central Government there is no medical or scientific use thereof for the treatment of cough and cold remains. Therefore, it cannot be said that it has been established in therapeutic practice. Therefore, dealing in any drug which contained 'Codeine' as an ingredient, being an "essential narcotic drug" is regulated under 'the NDPS Act', 'the Rules', 'the Act, 1940', 'the Rules, 1945' and any breach thereof is punishable under 'the NDPS Act'.
7.3. The judgment in the case of Mohd. Ahsan Vs. Customs (Supra) relied on by the learned advocates for the applicants is in no way helpful to the applicants as the fixed-dose combination of the drug with codeine is prohibited to be manufactured for sale, sale or distribution for human use so there is no question of it being used for therapeutic practice.
7.4. At the same time, the day on which the said case was determined, it escaped the notice of the Court that the term "essential narcotic drug" came to be defined by way of insertion with effect from 30.04.2014 as Section 2 of 'the NDPS Act' to be a 'narcotic drug' notified by the ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 40 Central Government for medical and scientific use. Pursuant to the insertion of the definition of "essential narcotic drug", a notification also came to be issued .
notifying certain narcotic drugs to be "essential narcotic drug" vide notification dated 05.05.2015 vide S.O 1181(E)). At the same time, dealing with all "essential narcotic drugs" is regulated through the insertion of 'the Rules' with the corresponding insertion of Chapter VA of definitions of "licenced chemist", "licence dealer", "medical institution", "prescription", "recognised medical institution" and "registered medical practitioner". In view of Sub-Rule (1) of Rule 52A of 'the Rules, possession of an "essential narcotic drug"
otherwise than as prescribed and regulated under the provisions of 'the Rules' would be an offence under Sections 8 and 21 of 'the NDPS Act'. The threshold limit for use in accordance with 'the Rules' is also determined under 'the Rules'. Even possession of a registered medical practitioner of "essential narcotic drug" for use in his practice beyond a particular limit is also prohibited.
7.5. However, bottles of cough syrup, which is prohibited to be manufactured containing 'Codeine' and 'Chlorpheniramine' as a fixed-dose combination with any other drug, the applicants could not have possessed the same even under the licence if at all it is there. The applicants failed to show that the possession of aforesaid cough syrup bottles are in accordance with the provisions of 'the NDPS Act' and 'the Rules'. They failed to show any licence to possess, that too, at the place from where they were found in that large quantity. The reliance placed on the decision in the case of Mohd Ahsan (Supra) by the learned advocate for the applicants on both the counts goes against them when it answers the questions 'C' whether 'note 4' of the SO 1055(E) dated 19.10.2001, published in the Gazette of India Extra Pt II, Section 3(ii) dated 19.10.2001 as amended on 18.11.2009 is held applicable to the 'manufactured drug' which contain a miniscule percentage of 'essential narcotic drug' covered ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 41 under Rule 52A. The answer recorded by the Court in the said decision is "if the contraband recovered in a particular case is covered by Rule 52A of 'the Rules' then .
violation of such Rules would be punishable under 'the NDPS Act'". In that situation Note 4 of SO 1055 (E) dated 19.10.2001 would be applicable to such substances including cough syrup. As stated hereinabove, the manufacturer for sale, sale or distribution for human use of drug fixed-dose combination, which contains codeine with any other drug, more particularly, Chlorpheniramine is prohibited and the possession thereof, cannot be said to be for any other purpose except sale and it is being prohibited for human use attracting the provisions of 'the NDPS Act'. Not only the total quantity jointly by both the accused but individual quantity contained in the bottles possessed by them, applying the ratio of the judgment relied on by the learned advocate for the applicants in the case of Mohd Ahsan (Supra), which also relies on the judgment of the Supreme Court in the case of Hira Singh and Another (Supra) they can be said to possess a commercial quantity of narcotic drugs, and therefore, rigors of Section 37 of 'the NDPS Act' would be applicable in its full force.
Furthermore as recorded by Delhi High Court in the aforesaid judgment of Mohd Ahsan (Supra) in paragraph 49 therein amended provisions of 'the NDPS Act' and 'the Rules' defining "essential narcotic drug", inserting Chapter-VA to 'the Rules, providing regulated dealing with "essential narcotic drugs", were not brought to the notice of Division Bench of the Allahabad High Court in the Vibhor Rana (Supra). Therefore, reliance placed thereon by the learned advocate for the applicants is misplaced as discussed hereinabove. The decision relied on by the learned advocates for the applicants in the case of Raghav Saini (Supra) of Himachal Pradesh High Court cannot be pressed into service for the simple reason that it has not considered the decision of the Delhi High Court in the case of Mohd Ahsan (Supra) as also the definition of "essential narcotic drug" and insertion of Chapter VA in ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 42 'the Rules' and provisions made therein. Not only that, Section 54 of 'the NDPS Act' provides for presumption from possession of illicit articles unless and until the .
contrary is proved that the accused has committed an offence under 'the NDPS Act'. Furthermore, Section 35 provides for a presumption of the culpable mental state, and therefore, prima facie the applicants cannot escape liability under 'the NDPS Act'.
8. I am unable to say that, prima facie, the accused have not committed an offence under 'the NDPS Act', that too, though possessed commercial quantity attracting a minimum sentence of 10 years, which may extend to 20 years as also with a fine, which may extend to 2 lakhs of rupees. Over and above that 'Codeine' is a derivative of opium and it is having a one-time addiction. The offence under 'the NDPS Act' committed by the accused not only ruins an individual but the whole family by an individual and the youth of the country as a result. It is not the case like murder of one or two or more but it is more of the youth itself of the country, which cannot be tolerated, and therefore, I am not inclined to exercise discretion in favour of the applicants, and therefore, these applications are rejected.
23. The Jammu & Kashmir High Court also took a similar view in Azhar Javaid Rather vs. U.T. of J&K (05.04.2023 - JKHC):
MANU/JK/0274/2023 and held:-
31. In view of the above, it must be borne in mind that in order to avail the benefit of the exception carved out in Entry 35 of the afore-quoted notifications, the accused is obliged to prove that both the conditions of the said entry co-exist. In other words, the accused is not only obliged to prove that the concentration of the offending contraband was below 2.5%, a per dosage unit but also ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 43 that he was carrying the said preparation for therapeutic use.
32. Reverting to the present case, since the applicant has .
failed to justify the possession of 17 bottles of cough syrup, containing the offending drug of codeine phosphate, therefore, exception of Entry 35 of the aforesaid notification is not available to him, even if, the quantity of the offending contraband in the cough syrup is less than 2.5% per dosage unit. The contraband recovered in the present case, as such, is a 'manufactured drug' within the meaning of the NDPS Act and the rules framed thereunder. Therefore, the quantity of the neutral substance cannot be excluded and the entire mixture of the 'manufactured drug' including neutral substances is to be considered for determining whether the quantity is commercial, small or intermediate under the NDPS Act and if the entire mixture i.e.100 ml per bottle is taken into consideration, the applicant is found in possession of 1700 ml of contraband (100ml x 17), which would be categorized as a commercial quantity as per Entry 28 of the notification specifying small quantity and commercial quantity of Codeine as 10 gm and 01 kg respectively and therefore, rigours of section 37 of the NDPS Act would apply and the application is liable to be dismissed.
33. Since Hira Singh (supra) and Mohd. Sahabuddin (supra) does not make any distinction between the 'manufactured drugs' with a minuscule percentage of narcotic substances and other mixtures of narcotic drugs or psychotropic substances out of a neutral substance, therefore, any observation, contrary to Hira Singh (supra) and Sahabuddin (supra) is per incuriam.
34. Given the above, the argument of learned counsel for the applicant that Codeine being Schedule H drug, the applicant, at the most, can be prosecuted under Drugs and Cosmetics Act, 1940, has been made to be rejected. It is evident from Mohd. Sahabuddin (supra), that if Codeine Phosphate was being used without proper permission and applicant fails to justify its possession, it ::: Downloaded on - 17/06/2024 20:31:00 :::CIS 44 cannot be presumed that he was in possession of the drug for therapeutic purpose. Moreover, Section 80 of the NDPS Act, inter alia, provides that the provisions of the .
said Act shall be in addition to Drugs and Cosmetics Act, 1940 and the Rules framed thereunder. Section 80 of the NDPS Act reads thus:
"80. Application of the Drugs and Cosmetics Act, 1940 not barred.-
The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder."
35. It is evident from the above that provisions of the NDPS Act are applicable in addition to the provisions of the Drugs and Cosmetics Act, meaning thereby is that provisions of both the legislations are to be read harmoniously. It means that if Codeine or its preparations including salts, which fall within the ambit of Schedule H drug is used or possessed without valid permission or prescription, it can be presumed that it is not for therapeutic purpose and NDPS Act can be invoked.
24. In the present case, there is nothing on record to show that the petitioner possessed the drug for therapeutic purposes. The accused has denied the possession and has not claimed that he possessed the cough syrup for therapeutic purposes. Further, he had kept the syrup in two bottles and was transporting them stealthily. Hence, he cannot take advantage of entry No.35.
25. Consequently, the petitioner is not entitled to the bail. Hence, the present petition fails and same is dismissed.
::: Downloaded on - 17/06/2024 20:31:00 :::CIS 4526. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, .
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
14th June, 2024
(Chander)
r to
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