Himachal Pradesh High Court
Kapil Chopra vs State Of Himachal Pradesh on 6 March, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 145 of 2018 Decided on: 6th March, 2018 .
Kapil Chopra ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. Satyen Vaidya, Sr. Advocate, with Mr. Varun Chauhan, Advocate.
For the respondent/State: Mr. Ashwani Sharma, Addl. AG, with
Mr.
r Rajat Chauhan, Law Officer.
SI Sunita Verma, Police Station Sadar,
Solan, District Solan, H.P.
____________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 47 of 2018, dated 10.02.2018, under Section 21 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for the sake of brevity to be called as 'ND&PS Act').
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is proprietor of medicine shop in the name of Deepak Medical Hall on L.R. Institute Road, Oachghat, Tehsil and District 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 2Solan and doing the business of retail sale of drugs under license form 20 and 21 issued under the Drugs and Cosmetic Rules, 1945, vide licenses No. HP-SOP-14112 and HP-SOP-14113, valid from .
19.10.2016 to 18.10.2021. He has further averred that he has been duly authorized to sell all drugs, except drugs specified in Schedule X of Drugs and Cosmetic Rules, 1945. He has purchased 100 vials of Codispan cough syrup, having batch No. LPN-382, from wholesale agency, Madhu Sales Corporation, vide invoice No. MG-6374, dated 25.01.2018, and the said corporation had purchased the above drug from Distributor, Boots Lifesciences Ltd. Bengaluru, vide invoice dated 13.12.2017. The petitioner has prayed that he may be released on bail.
3. Police report stands filed. As per the prosecution story, there was prior information that near L.R. College, in Deepak Medical Hall, which is owned by the petitioner, the petitioner is selling narcotic drugs and in case the shop is raided, huge quantity of such drugs could be recovered. The information was certain and as the Court was distantly situated, there was likelihood of tampering with the drug by the petitioner, after joining two independent witnesses, i.e., Ward Member of the Panchayat and another local person, the shop of the petitioner was raided. Police personnel gave their personal search to the petitioner thereafter, in presence of independent witnesses, shop of the petitioner was ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 3 searched and 90 vials of Codispan cough syrup, each having 100 ml, were recovered. As per the label pasted on the vials, each vial of Codispan cough syrup contained 10 mg codeine phosphate.
.
Thereafter, procedural formalities were completed by the police and the petitioner was arrested. Forensic analysis report of the recovered drug is yet to be received. Lastly, the prosecution has prayed that the bail application may be dismissed.
4. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Senior counsel for the petitioner has argued that the petitioner is innocent and the drug recovered is schedule H1 drug for which the petitioner is having license to sell, therefore, he be released on bail. Conversely, the learned Additional Advocate General has argued that vide Notification dated 10th March, 2016, the drug is no more a schedule H1 drug and it is a narcotic drug.
He has further argued that the area is surrounded by colleges/ Private Universities and Government Horticulture University is situated at a distance of 5 kilo meters from the shop of the petitioner. Thousands of students are studying in L.R. College, which is nearby, and many students are studying in nearby universities and the place, where the petitioner is running his shop, is a student hub. He has further argued that 90 vials were stored ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 4 underneath the counter, which itself demonstrates that drugs were being sold by the petitioner to the students. As per the petitioner, out of 100 vials, 10 (ten) vials were sold and it has neither been .
mentioned, as required under Rule 65, nor in any records maintained by the petitioner that on whose prescription the same have been sold and to whom. He has argued that the present is a fit case of selling narcotic drugs and in case the petitioner is released on bail, he will spoil many students by selling narcotic drugs and there are chances that the petitioner may tamper with the prosecution evidence. Forensic analysis report is yet to come and the same will demonstrate what the combination of narcotics is in the recovered contraband.
6. In rebuttal, the learned Senior Counsel has argued that the drug is not a narcotic and so the petitioner be released on bail.
He has relined upon judgment of Hon'ble High Court of Gauhati, rendered in Criminal Petition No. 312 of 2017, Sri Nabin Chandra Bachubhai Doshi @ Nabin Bhai Doshi vs. The State of Assam & another, wherein the drug was not considered as narcotic drug.
7. At the very outset, it is necessary to mention that codeine is a derivative of opium and it is having one time addiction.
The first aspect of the case is that 90 vials were recovered from the petitioner and in case he managed to sell 30 vials to the first time ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 5 consumers, he could have spoiled 30 houses by making 30 new addicts, as the codeine is having one time addiction. This Court also takes into consideration the fact that area, where the petitioner .
is running his shop, is inhabited by students and there are many institutes and universities within the radius of 0 (zero) to 10 kilo meters. This Court cannot overlook the situation in the area and thus the presumption, in the facts and circumstances of the case, goes in favour of the prosecution that the drug was being sold to the students, as narcotics. Moreover, the petitioner could not produce any document, which is required to be maintained under Rule 65.
As the petitioner could not produce any record qua selling ten vials of the narcotic drug, viz. on whose prescription and to whom they were sold, therefore, the presumption that the drug was being sold, as narcotics, is there.
8. Now, coming to the second aspect, whether the drug is under the narcotic drugs or not. The Notification, of the Central Government, dated 10.03.2016, is extracted in toto hereunder:
"S.O. 983(E).-Whereas, the Central Government is satisfied that the use of the drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup is likely to involve risk to human beings whereas safer alternatives to the said drug are available;
And Whereas, the matter has been examined by an Expert Committee ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 6 appointed by the Central Government and the said Expert Committee recommended to the Central Government that the said drug is found to have no therapeutic justification;
.
And Whereas on the basis of the recommendations of the said Expert Committee, the Central Government is satisfied that it is necessary and expedient in public interest to regulate by way of prohibition of manufacture for sale, sale and distribution for human use of the said drug in the country;
Now, therefore, on the basis of the recommendations of the said Expert committee and in exercise of powers conferred by section 26A of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central Government hereby prohibits the manufacture for sale, sale and distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect."
From the plain reading of above Notification, it is clear that fixed dose combination of Chlorpheniramine + Codeine Phsophate + Menthol Syrup is no more to be sold as a medicine. Now, it is yet to be ascertained that what is the combination of the drug, which was recovered from the shop of the petitioner. As per the label pasted on the vials, codeine is one of the content in the recovered drug, so each and every content will be clear only after receipt of forensic analysis report, which is yet to come.::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 7
9. Now, coming to the judgment of the Hon'ble Gauhati High Court. With due respect to the judgment, this Court finds that as one of the main content is codeine, as per the label pasted on the .
vials, which is a derivative of opium, and report of forensic analysis is yet to come, so the judgment rendered in Sri Nabin Chandra Bachubhai Doshi's case (supra) is not applicable to the present case, as the Hon'ble High Court of Gauhati has taken into consideration Notification No. 909(E) being quashed by the Hon'ble High Court of Delhi by its order dated 01.12.2016. On a plain reading of judgment (supra) it is found that the Hon'ble High Court of Gauhati has based its judgment upon the judgment of Hon'ble Delhi High Court, wherein the Notifications issued under Section 26 of the Drugs Act have been quashed, as the same were found to be issued without following due procedure statutorily prescribed to be followed prior to issuance of notifications. The point whether codeine is a narcotic or not was neither under consideration before Hon'ble High Court of Delhi, nor there are any findings to this effect that codeine is not a narcotic drug, so the judgment (supra) is based upon the judgment of Hon'ble Delhi High Court cannot be said to have given findings to the effect that codeine is not a narcotic substance. As far as the Notifications are concerned, the judgment of the Hon'ble Delhi High Court has persuasive value. However, this Court after going through the Notifications, including the ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 8 Notification 983(E), dated 10.03.2016, finds that these were issued by the Central Government, after taking into consideration the fact that codeine is a narcotic and being derivative of opium it has one .
time addiction for the person who consumes it. At this stage, taking into consideration the fact that the petitioner was found in possession of Tripolidine Hydrochloride and Codeine Phosphate Syrup (Codispan), which, as per the label pasted on the vials, contained 10 mg codeine (in each vial), and the petitioner could not explain why he has stored 90 vials of codeine, which is a derivative of opium, and he also could not produce any document with regard to complying with Rule 65 of the Drugs Act.
10. Prima facie it seems that the petitioner was not selling codeine as a drug, but as a narcotic, so the judgment of the Hon'ble High Court of Gauhati is not applicable to the facts of the present case, as the same is based upon the judgment of Hon'ble High Court of Delhi, wherein this fact was not under consideration whether codeine is a drug or not and the ratio of the judgment of the Hon'ble High Court of Delhi that the Notification issued by the Central Government is without following the proper procedure, that is, without giving hearing to the parties and without following the expert committee and the committee which was formed was not an expert committee before banning the drug. This Court with due respect to the judgments of the Hon'ble High Court of Delhi and ::: Downloaded on - 08/03/2018 23:00:55 :::HCHP 9 Hon'ble High Court of Gauhati comes to the conclusion that as the ratio of those judgments nowhere lays down the law to the extent that codeine is not a narcotic, the judgments cannot be applied to .
the facts of the present case holding that codeine is not a narcotic.
11. This Court finds that codeine is a derivative of opium and it has one time addiction. The petitioner who was selling this drug to the students, as the only consumers were of nearby colleges/universities, if released on bail will definitely repeat the same offence and the interest of society will be jeopardized by making more and more addicts for which the Narcotric Drugs and Psychotropic Substances Act has been legislated by the Parliament with the sole legislative intent to protect the masses from becoming addicts. At this stage, the equity is not in favour of the petitioner and furthermore the witnesses are from the same locality, the petitioner is in a position to tamper with the prosecution evidence and the report of forensic science laboratory is yet to be received and the challan is yet to be presented in the Court, so this Court finds that there is nothing to exercise judicial discretion in favour of the petitioner. The petition, being devoid of merit, deserves dismissal and is accordingly dismissed.
(Chander Bhusan Barowalia)
6th March, 2018 Judge
(virender)
::: Downloaded on - 08/03/2018 23:00:55 :::HCHP